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AMENDING YOUR GOVERNING DOCS?
By
Jan Bergemann
Published
June 30, 2017
We always hear from
attorneys that the association documents are “outdated” and need
to be changed – and many boards agree. But is it really
necessary?
Yes, there are certain things that might be “outdated” – and
require changes. But changing the whole deal – or even a
majority of the governing docs – is in my opinion a total
overkill and should be avoided at all cost.
Targeting specific
provisions might be the right way to go – and it’s a lot easier
to convince the needed “super-majority” of the total voting
interest to agree to some very specific changes than to a whole
“rewrite.”
My suggestion to
board members: Target specifics if you feel the need to make
changes – but have a specialized attorney write the reworded
provision.
And even if you feel
the need to see your proposal to pass, always follow the
requirements of the law. It takes a “super-majority” (according
to your governing docs or – if silent – the statutes regulating
your association) to enact an amendment to your governing
documents.
I have over the
years seen wild attempts to circumvent the number of required
votes of approval. The absolute wrong one – besides using the
new number added into the amendment the board is trying to pass:
Claiming that all NON-votes are counted as YES-votes! As
ridiculous as it may seem to you, it’s an attempt we see used
pretty often.
On the other hand we
see often owners opposing the attempt to rewrite the governing
documents rallying the troops to Vote “NO” on the amendments. No
need to do so: The statutes require the VOTE OF APPROVAL,
meaning a clear YES-vote on the proposed amendments. Anything
else is just a waste of effort and paper!
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Jan Bergemann is president of Cyber Citizens For Justice,
Florida
's largest state-wide property owners' advocacy group.
CCFJ works on legislation to help owners living in
community
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associations. He moved to
Florida
in 1995 - hoping to retire. He moved into a HOA, where the
developer cheated the homeowners and used the association dues
for his own purposes. End of retirement!
CCFJ was born in the year 2000, when some owners met in
Tallahassee
- finding out that power is only in numbers. Bergemann was a
member of Governor Jeb Bush's HOA Task force in 2003/2004.
The organization has two websites to inform interested
Florida
homeowners and condo owners:
News Website: http://www.ccfj.net/.
Educational Website: http://www.ccfjfoundation.net/.
We think that only owners can really represent owners, since all
service providers surely have a different interest! We are
trying to create owner-friendly laws, but the best laws are
useless without enforcement. And enforcement is totally lacking
in
Florida
!
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