Declaration
Ideas for your Declaration: Language to Live By provides practical information excerpted from actual declaration language. Please consider these concepts for your next amendment or restatement. Also view the Example Declaration below. Want help with a restatement? Click here.
Developers and their attorneys leave room for improvement with governing documents.
Declarations / CC&Rs, bylaws, rules and regulations and more will never be perfect, but they can be significantly improved in a number of ways. Amending and restating these documents is often prudent and even necessary.
Steps to RESTATE your Declaration & Bylaws
Restatements (often called amendments and restatements) are intended to create a single, fresh copy of your governing documents
While not required, your declaration and bylaws are often restated concurrently
The steps to restate are similar to the steps to amend (see below) while the volume of content you update is substantially more.
You need to retain professional assistance. Want help with your restatement? Click here.
Your association will need to engage an attorney, but that's a step best left for the end of the process. Why? See the link above.
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.
Steps to AMEND your Declaration / CC&Rs
Write down WHY you intend to make a change and list your specific goals and/or language you want to achieve
Identify the section(s) that require an amendment
Make sure your owners are informed early in the process. Encourage owner comment and participation.
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.
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.
Once your committee work wraps up, have the entire Board review the work product and come to a consensus about moving forward.
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!
After finalizing revisions with your attorney, package everything up with an executive summary document.
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.
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.
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
Rubric for defining and approving capital improvements
Unit Access
USE RESTRICTIONS
N.B. Use restrictions are recorded in dedicatory instruments (Declaration / CC&Rs). Modifying restrictions to the use of units (smoking, rental caps, keeping pets, conducting certain kinds of business, etc.) typically requires a super-majority of owners (from 67% to 90% or more) to agree to amend or restate governing documents.
Filmore v. Centre Point Unit Owner's Association (2015 - WA State Supreme Court) | Blog Article about the Filmore Opinion
YOUR state statutes dictate changes to use restrictions. RCW 64.34.264:
(4) Except to the extent expressly permitted or required by other provisions of this chapter, no amendment may create or increase special declarant rights, increase the number of units, change the boundaries of any unit, the allocated interests of a unit, or the uses to which any unit is restricted, in the absence of the vote or agreement of the owner of each unit particularly affected and the owners of units to which at least ninety percent of the votes in the association are allocated other than the declarant or such larger percentage as the declaration provides.
THE DECLARATION PREVAILS
Many state statutes directly establish the hierarchy of governance like this: If a conflict exists between the declaration and the organizational documents, the declaration prevails except to the extent the declaration is inconsistent with this chapter.
