Every now and then, board members will have to amend the HOA bylaws. When the need arises, associations must know how to approach the topic and what steps to take to ensure validity. Failure to follow proper requirements and procedures when amending bylaws can render the change null and unenforceable.
Can You Amend HOA Bylaws?
Bylaws serve as the internal manual for an HOA or condo association. They explain how the board of directors is formed, what its duties are, how long its members serve, and how meetings and elections are conducted. Unlike the Declaration of Covenants, Conditions, and Restrictions (CC&Rs), which set the physical and behavioral rules of the community, the bylaws focus on administrative processes.
In an association, the bylaws provide structure to the daily operations and decision-making. Without them, the board will struggle to function efficiently and effectively. This is why it is essential to keep them accurate and up to date.
Can HOA bylaws be changed?
In a word, yes. Associations can freely propose amendments to the bylaws, but approval usually requires a vote by the membership. Both board members and homeowners can propose a change, but homeowners typically need to file a petition for a special meeting. Alternatively, homeowners can bring up the topic during the open forum portion of a regular meeting.
Why Amend HOA Bylaws?
Over time, an association may find that specific provisions no longer work for it or that new laws have rendered parts of its bylaws outdated. The reasons for amending HOA bylaws can vary, but the most common include:
- Aligning with updated state or federal laws
- Adjusting board term limits or election procedures
- Updating quorum or voting requirements
- Allowing virtual or hybrid meetings
- Clarifying vague sections or removing outdated clauses
How to Amend HOA Bylaws
State laws and the bylaws themselves may indicate the requirements and procedures for amendments. For this reason, the process may not always be the same across communities.
That said, there are some general steps on how to change homeowners association bylaws. They involve reviewing existing bylaws first, then drafting the amendment. The next step is to present the amendment to homeowners before holding a vote. Upon approval, the board must record the amendment and distribute new copies of the bylaws.
Let’s discuss each step below.
1. Review Existing Bylaws and Legal Requirements
Before proposing any change, the board must carefully review the current bylaws. Most bylaws already include a section explaining how they can be amended. This part should specify who can propose changes, how much notice members must receive, and what percentage of votes is required for approval.
It is also important to review state laws. Each state has its own statutes governing how associations can amend their governing documents, including bylaws. Learning these legal requirements can help avoid problems later on.
2. Draft the Amendment
The next step is to draft the amendment. It is essential to use clear and easy-to-understand language when writing the change. It is not necessary to use legal jargon that homeowners won’t understand. Consistency is also crucial.
Additionally, the board should only amend the sections that require revision. Unrelated provisions should be left untouched. Board members must also make sure that the changes align with the rest of the governing documents and state laws to avoid conflicts.
Drafting a legal document is not always simple. Board members are better off seeking professional assistance from a lawyer or HOA management company.
3. Present the Amendment to Homeowners
After drafting the changes, the board must present the proposed amendments to homeowners. This usually happens at a formal meeting, and notice must be sent within the timeframe required by state law and the bylaws.
The notice should include the following:
- The full text of the amendment,
- An explanation of the changes, and
- Why they are necessary.
It is best to give homeowners time to review the proposed changes and ask questions for clarification. This helps build trust within the community. The board can also opt to hold informational sessions to discuss the proposal and address any concerns before the vote.
4. Hold a Meeting and Vote
The next step in changing HOA bylaws is to vote on the amendment. This vote must occur at a properly noticed meeting. Most bylaws specify how the amendment can pass. Some require a simple majority, while others may need a two-thirds (or higher) percentage of homeowner votes.
In addition, the bylaws should indicate the exact voting method. Some permit voting only in person or by mail-in ballot, while others allow proxy voting or electronic ballots.
State laws also play a role here. For instance, in Florida, Section 720.306 of the Homeowners Association Act requires a two-thirds vote to approve an amendment to any governing document.
During the meeting, the board must verify whether a quorum is present. The vote cannot proceed if the meeting does not reach a quorum. The meeting minutes should also document the results of the vote.
5. Record the Amendment
If the amendment passes, the process doesn’t end there. The board must officially certify and record the change. The secretary or association attorney will usually prepare a certification document confirming that the amendment was approved in accordance with the bylaws and applicable law.
Depending on state requirements, the association may need to record the certified amendment with the county recorder’s office. Recording the amendment makes it an official part of the association’s governing documents and provides public notice of the change.
6. Update and Distribute New Bylaws
Finally, after certification, the association must then update all copies of its bylaws. The revised version should include the new text and a note indicating when the amendment was adopted. Every homeowner should receive a copy of the new bylaws, whether printed or electronic. The board should also update its digital records, website, or online portal (if available).
Can You Amend HOA Governing Documents Without a Vote?
Most state laws and governing documents require associations to vote on any amendments to the bylaws and CC&Rs. Board members should verify the requirements before proceeding. Keep in mind that passing an amendment without a required vote can render the changes void and unenforceable. Homeowners can challenge the validity of the new provisions.
That said, operating rules (also known as rules and regulations) typically don’t require a vote. To change the rules, the board generally only needs to pass a resolution, which the board members vote on.
Mistakes and Challenges When You Amend HOA Bylaws
Amending bylaws is not always smooth sailing. Board members should expect to encounter challenges and prepare for potential mistakes in the process. These include the following:
- Negative Response from Homeowners. Not all amendments will be readily accepted by members, so boards should prepare for possible pushback.
- Failure to Follow Requirements. Ignoring notice and voting requirements can invalidate the amendment and call the board’s ethics into question.
- Use of Vague or Conflicting Language. Amendments should use clear language that is consistent with state laws and the governing documents.
- Low Voter Turnout. If not enough homeowners show up to the vote, the meeting can’t reach a quorum, and the amendment can’t pass.
- Failure to Seek Legal Advice. Lawyers or HOA managers provide valuable assistance during the amendment process. It is best to consult them when drafting and presenting the amendment. They can also ensure the association follows proper procedures and fulfills all legal requirements.
How Often Should an HOA Amend Bylaws?
In general, an association should amend its bylaws only when necessary. That said, board members should review their current bylaws every two or three years. This ensures they remain up to date and don’t conflict with any new laws passed over the years.
Word of Advice
Every community will need to amend its HOA bylaws at some point. Following proper procedures and meeting all legal requirements are crucial to ensuring the amendments are effective and enforceable. When in doubt, it is best to seek help from an HOA management company or a lawyer.
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