{"id":1470,"date":"2023-05-26T17:16:42","date_gmt":"2023-05-26T21:16:42","guid":{"rendered":"http:\/\/blog.tarleyrobinson.com\/?p=1470"},"modified":"2023-05-26T17:16:42","modified_gmt":"2023-05-26T21:16:42","slug":"7-reasons-amending-community-associations-governing-documents","status":"publish","type":"post","link":"https:\/\/blog.tarleyrobinson.com\/?p=1470","title":{"rendered":"7 reasons to consider amending your HOA’s governing documents"},"content":{"rendered":"

In other posts we have discussed a homeowner association’s governing documents<\/a>. Many communities were established 20-40 years ago with governing documents that worked well for the developer, and for the most part the community association. However, many of these governing documents are outdated.\u00a0 and federal<\/a> laws pertaining to community associations have changed substantially. \u00a0If your board of directors has not engaged in an audit of your communities governing documents in the past 5-7 years, it should.<\/p>\n

\"\"<\/a><\/p>\n

What is an \u201caudit\u201d of our governing documents?<\/strong><\/p>\n

An \u201caudit\u201d of your documents is an in-depth review by your HOA’s board of directors<\/a>\u00a0in conjunction with your association attorney<\/a>.\u00a0 The Board reviews each document noting any sections that lack clarity, are no longer enforced, appear to not apply to your community, protect a long-gone developer, or do not provide the association with adequate remedies.\u00a0 The Board prepares a list of concerns or issues facing the community, such as homes that are not being maintained, large amounts of delinquent assessments, or enforcement capabilities of the association.\u00a0 The Board provides this information to the association attorney.<\/p>\n

<\/p>\n

When should documents be amended?<\/strong><\/p>\n

Although there are many reasons for amending documents, these 7 reasons are the most common:<\/p>\n

1. \u00a0The documents do not comply with Virginia or federal law.<\/span><\/p>\n

The board of directors for a community association are volunteers<\/a>.\u00a0 Documents that do not comply with the law create difficulties an expense for a community association.\u00a0 Board members read the documents and determine that they should be enforcing a covenant, only to find out that the covenant has been preempted by a change in the law.\u00a0 Rather than require constant attorney involvement to interpret and advise the association on whether provisions of the documents have been changed by new legislation, amended documents that comply with the law permit a board to fulfill its duties without continued and constant attorney involvement.<\/p>\n

2. \u00a0The documents include declarant\/developer language.<\/span><\/p>\n

Once the developer\/declarant period<\/a> is over, the board should consider removal of the provisions regarding developer\/declarant rights.\u00a0 Most of the provisions containing developer\/declarant rights are likely no longer relevant and may cause confusion among owners.\u00a0 Removal of these provisions provides clarity in the document and often can result in a substantial decrease in the number of pages of your documents.<\/p>\n

3. \u00a0The documents contain high quorum percentages for meetings or difficult requirements for amending the documents.<\/span><\/p>\n

Many associations are faced with apathetic owners.\u00a0 Reducing quorum requirements permits an association more flexibility in conducting business.\u00a0 Reducing quorum requirements encourages owner participation because the owner who wants to vote \u201cno\u201d on an issue can choose not to come to a meeting, and effectively, the \u201cno\u201d vote is exercised by not participating.\u00a0 Increased quorum requirements make it necessary for the owner to participate in the meeting in order to register their \u201cno\u201d vote.\u00a0 Amending documents should not be a daunting process.\u00a0 Communities need to be prepared for change.\u00a0 Amending documents should be efficient and possible.\u00a0 <\/em>Reducing the percentage required to approve an amendment makes our communities more viable for the future.<\/p>\n

4. \u00a0The documents require approval by mortgagees.<\/span><\/p>\n

Although this requirement is still necessary for condominium communities to permit financing through government guaranteed loans, single-family communities no longer require mortgagee approval.\u00a0 In our ever-changing mortgage world, non-condominium communities who want to consider removing mortgagee requirements may also want to consider authorizing the board of directors to make changes to the documents if necessary for government guaranteed loans.<\/p>\n

5. \u00a0The documents only permit the association to enforce the covenants and rules by filing a lawsuit.<\/span><\/p>\n

Filing a lawsuit is the most expensive enforcement remedy available to an association.\u00a0 Amending the documents to permit assessing charges in accordance with Virginia’s\u00a0 or the Property Owners’ Association Act<\/a> permits less-expensive enforcement by the association.\u00a0 Associations should also consider adding provisions that permit the association to \u201cself-help\u201d in certain situations.\u00a0 Abandoned homes that are neglected and in disrepair have plagued some communities.\u00a0 Permitting the association to correct the deficiency and assess the costs against the owner is more efficient and less expensive than a lawsuit.<\/p>\n

6. \u00a0The documents include unrealistic caps on increases in assessments.<\/span><\/p>\n

All communities want to keep the assessments low.\u00a0 However, the reality for some communities is that they are unable to pay necessary operating expenses and adequately fund reserve accounts because the documents restrict how much assessments can be increased.\u00a0 Amending the documents permits the association to remove antiquated caps and replace it with a cap that permits appropriate budgeting by the association.<\/p>\n

7. \u00a0The documents include strict limitations on the types of construction materials permitted in the community.<\/span><\/p>\n

Construction materials of today have changed.\u00a0 Providing flexibility in the documents to permit the use of new materials is not only owner-friendly but also may provide a substantial cost savings to the association for its responsibilities.<\/p>\n

Amending your association’s governing documents does not have to be a daunting task.\u00a0 Communication and a well-planned, efficient process is the key to successful amending.<\/p>\n

Tarley Robinson, PLC, Attorneys and Counsellors at Law, Williamsburg, VA<\/strong><\/span><\/p>\n

\"Susan<\/a><\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

In other posts we have discussed a homeowner association’s governing documents. Many communities were established 20-40 years ago with governing documents that worked well for the developer, and for the most part the community association. However, many of these governing documents are outdated. Virginia and federal laws pertaining to community associations have changed substantially. If your board of directors has not engaged in an audit of your communities governing documents in the past 5-7 years, it should. <\/p>\n

What is an \u201caudit\u201d of our governing documents?<\/p>\n

An \u201caudit\u201d of your documents is an in-depth review by your HOA’s board of directors in conjunction with your association attorney. The Board reviews each document noting any sections that lack clarity, are no longer enforced, appear to not apply to your community, protect a long-gone developer, or do not provide the association with adequate remedies. The Board prepares a list of concerns or issues facing the community, such as, homes that are not being maintained, large amounts of delinquent assessments, or enforcement capabilities of the association. The Board provides this information to the association attorney.<\/p>\n","protected":false},"author":4,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[3,57,75,25,141],"tags":[71,9,283,300,44,284,224,76,93],"_links":{"self":[{"href":"https:\/\/blog.tarleyrobinson.com\/index.php?rest_route=\/wp\/v2\/posts\/1470"}],"collection":[{"href":"https:\/\/blog.tarleyrobinson.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blog.tarleyrobinson.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blog.tarleyrobinson.com\/index.php?rest_route=\/wp\/v2\/users\/4"}],"replies":[{"embeddable":true,"href":"https:\/\/blog.tarleyrobinson.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1470"}],"version-history":[{"count":15,"href":"https:\/\/blog.tarleyrobinson.com\/index.php?rest_route=\/wp\/v2\/posts\/1470\/revisions"}],"predecessor-version":[{"id":2629,"href":"https:\/\/blog.tarleyrobinson.com\/index.php?rest_route=\/wp\/v2\/posts\/1470\/revisions\/2629"}],"wp:attachment":[{"href":"https:\/\/blog.tarleyrobinson.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1470"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blog.tarleyrobinson.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1470"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blog.tarleyrobinson.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1470"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}