Community association attorneys are often asked whether an association should pursue a targeted amendment to its governing documents or undertake a full amended and restated project. The answer depends.
Before weighing those options, it helps to understand which documents are typically involved.
- For condominiums, these typically include the Declaration of Condominium, the Articles of Incorporation, and the Bylaws.
- For homeowner’s associations, the governing documents are generally the Declaration of Covenants, the Articles of Incorporation, and the Bylaws.
- For cooperative associations, these documents are the Proprietary Lease or Owner’s Agreement, the Articles of Incorporation, and the Bylaws.
In most cases, amending or amending and restating these documents requires a vote of membership. The approval threshold varies and is set forth in the document being amended.
Individual Amendments
An individual amendment revises a specific provision within a recorded document and is the most common type of amendment. This option is often appropriate when an association needs to make only a few changes while keeping the remainder of the document intact.
Amended and Restated Projects
An amended and restated project revises and republishes the entire document. This approach is typically recommended when an association plans to make several changes or where broader updates are needed. Common scenarios include:
- Incorporating changes required or permitted by the newly enacted Florida Statutes
- Removing outdated developer-related provisions following turnover to member control
- Consolidating multiple prior amendments into a single, streamlined document for clarity and ease of use
How Amendments Are Prepared
Amendments and amended and restated documents are generally prepared in one of two ways:
- Redlined Format: When changes are limited or when transparency is especially important, associations may request a redlined version showing additions and deletions. Florida law requires additions to be underlined and deletions struck through. The format is most commonly used for individual amendments.
- Clean rewrite with statutory notice: When a provision, or entire document, is substantially rewritten, Florida Statutes allow for a clean version without redlining, provided it includes a notice stating: “Substantial rewording of Declaration/Articles/Bylaws. See provision ____ for present text.” This method is often best suited for amended and restated projects.
How the Process Works
Ideally, attorneys work with board members or a board-appointed committee to draft the proposed amendment or amended and restated document. Boards may then present the proposal directly to membership for a vote or hold a town hall meeting to review changes and gather feedback. Any input received can be evaluated and, if appropriate, incorporated before the final vote.
Ultimately, approval depends on meeting the voting requirements set forth in the applicable governing document.
Choosing the Right Approach
The right approach depends on several factors, including:
- The number of amendments being considered
- The age of the current governing documents
- Recent statutory changes
- Whether developer-related language needs to be removed
- The volume of prior amendments already in place
For guidance in determining which choice works best for your community association, contact your Varnum community association attorney.
