Declaration (CC&Rs) & Bylaws combine to complete the first leg of your governing documents triumvirate.

Common interest community (CIC) Declarations or Covenants, Conditions and Restrictions (CC&Rs) are dedicatory instruments recorded by county governments that "run with the land" to form the foundation of every association's governing documents. Bylaws partner with the declaration / CC&Rs to establish the broadest forms of organization-specific governance and restrictions. Both documents typically incorporate statutory language from your state statutes (CIC statutes, nonprofit corporation act, etc.)

If your declaration & bylaws were a Scrabble board, every single piece that's played must follow the structure they create. Articles of incorporation are not discussed here because their critical role allowing the formation of a corporation rarely influences the outcomes thereafter for CICs (and some CICs are not incorporated). Many state and county governments provide an online technology portal that allows searching for corporations and for recorded documents, respectively.

Reference the Uniform Common Interest Ownership Act and Uniform Condominium Act.

EXAMPLES: What's in the Declaration / CC&Rs?

• Formation of the association subject to a specific state CIC statute (or not)

• Allocated interest for Units

  • for condominiums, interest is often divided into % of common elements (CE) and residential limited common elements (RCLE)

• Powers of the Board and of the association

• Dispute resolution and methods of enforcement

• Restrictions on the use of units such as smoking, rental caps, keeping pets, conducting certain kinds of business and other activities

• Exhibits that demarcate components, define responsibilities and references to the survey map and plans

• Insurance requirements and responsibility for costs to restore damage in common elements and Units

• Procedures for requesting approving alterations

• Rubric for defining and approving capital improvements

• Surplus funds

• Disclosure

• Unit Access

EXAMPLES: What's in the Bylaws?

• Basics for all meetings of the association including members / owners, the Board and committees (quorum, place & time, notice, etc.)

• Basics for your Board of Directors and Committees (who can serve, term limits, elections, removals, vacancies, officer roles, etc.)

• Ethics, oath of office and conflicts of interest clauses (highly recommended and even statutorily required in a few states)

• Communications Policy (read Bylaws Words of Wisdom)

Amending and Restating your Declaration / CC&Rs & Bylaws

Developers and their attorneys often leave room for improvement with regard to both declarations / CC&Rs and bylaws. Perfecting these critical governing documents can take years, but is often a prudent (and sometimes necessary) step for common interest communities.

Steps to AMEND your Declaration / CC&Rs

1. Write down WHY you intend to make a change and list your specific goals and/or language you want to achieve

2. Identify the section(s) that require an amendment

3. Make sure your owners are informed early in the process. Encourage owner comment and participation.

4. Some amendments are statutorily allowed to be made by the Board absent a vote of owners (example: RCW 64.90.285(11)). If that's the case, proceed to engage your attorney.

5. If the amendments are complex, form a governing documents committee.

   • Committees, especially those including 2+ non-Board member volunteers, promote owner-centric processes. Volunteer engagement often has the added benefit of lessening the need for professional assistance and can dramatically reduce the amount of time and cost required to achieve superlative results. Since most amendments require owner super-majority (e.g. 67%) approval, putting your owners at the center is the only way to succeed.

   • Ensure that one or two committee volunteers are driving the process forward. Meet regularly, keep minutes and share progress in open Board meetings. Also keep detailed notes as you work through the governing documents.

6. Once your committee work wraps up, have the entire Board review the work product and come to a consensus about moving forward.

7. Engage your attorney. Spend time elucidating goals, reviewing your volunteer work product and then exchanging revisions. Make sure you take the time to engage in web or in-person meetings in addition to email exchanges. Email conversations absent the "human touch" of meetings are likely to limit your progress and might lead to gaps in the review process.

   • No detail is unimportant. This document runs with the land!

8. After finalizing revisions with your attorney, package everything up with an executive summary document.

9. Communicate. Communicate. Communicate with your owners.

   • Establish a special meeting of members (owners) to review the material.

   • If permitted by law and your governing documents, maximize engagement by using an electronic voting / balloting system. Examples.

   • Struggling to reach 67% (or other threshold)? Ask volunteers to engage owners individually via phone and email. It works!

   • Aim for at least one to two extra votes above and beyond your threshold.

10. Have all the votes you need? Meticulously document and retain voting records. Have your amendment signed (often by two directors) and notarized and then recorded by your county government ASAP.

Steps to AMEND your Bylaws

• Similar in some ways to amending your declaration / CC&Rs, EXCEPT:

  • Amending your Bylaws may require a lower threshold of owners pursuant to your statutes and governing documents. View Article 12 - Amendments in the example Bylaws.

  • Bylaws are often not recorded by county governments. If this is true for your association there's one less step.

Steps to RESTATE your Declaration & Bylaws

• Restatements (often called amendments and restatements) are intended to create a single, fresh copy of your governing documents.

• The steps to restate are similar to the steps to amend while the volume of content you update is substantially more.

• Some law firms offer flat fees to restate governing documents. These arrangements can save you 50% or more vs. hourly billable costs.

• Restated governing documents require even more review and scrutiny than amendments. Your volunteers may need to review over 100 pages of material multiple times. Throughout the CIC world, one or more incredibly involved volunteer(s) make(s) all the difference.

  • Carefully review all template-based language used to restate your documents. Templates speed up incorporation of multiple changes, but may contain restrictions that do not make sense for your community.

  • There are items you might not catch until you review material 3 to 4 times. Use a collaborative file system like Google Docs or Sharepoint to help you mark up a single document with comments and suggestions.