MOST COMMONLY ASKED QUESTIONS AND ANSWERS |
ABOUT THE AMENDMENT PROCESS
By Beth A. Grimm, ESQ.
he following questions are among those usually asked during the amendment process. The answers are mine and they may differ somewhat from the recommendations of your own professional. We each base our own processes on our own experiences and what has worked best for the associations we have helped through the process.
Q: How long does it take?
A: Generally, with diligence, (and without any major disruptions), the entire process after the period of homeowner communication is completed within 4-6 months. The footwork is very important, but in some circumstances one or two months might be enough where one year might be advisable in other circumstances. It really depends upon the extent of homeowner interest in your particular development.
Q: How much does it cost?
A: I can only answer for the specific process I use which is outlined above any my own estimate. It generally costs around $3,500-$5,000 (unless there are usually circumstances). If the documents are unduly complicated (such as master vs. umbrella associations, multiple tracts with varying sets of original documents, or involvement of third party entities with the voting process), the cost can be higher. If an association for any reason delays the process for more than a year, or requires more than one meeting, the costs will probably be higher.
Q: Should we take the vote at the annual meeting?
A: I personally am not in favor of voting at any meeting for several reasons. Raising issue for discussion at a meeting, once the documents are finalized, oftentimes creates a very uncomfortable and (in my view) unnecessary disruption to the process. If the association has done its "pre-process" footwork with the homeowners, then it's my opinion that allowing homeowner input after the process is essentially completed except for the voting is self-defeating. One dissenting homeowner at an annual or special meeting can discourage others present from voting for the documents just be harping one personal issue. Statements by the dissenting homeowner can be made that have no rational basis or legal grounding, but once they are said, they cannot be retracted and they might unreasonably discourage other homeowners from approving the documents the association has been working on diligently, with legal assistance, for months.
Additionally, if voted at a meeting, only those present in person or by proxy get to vote. Everyone should get the opportunity to return a ballot on such an important measure. It is my opinion that associations should do this voting by written ballot in order to have an accurate record with signed ballots supporting the certification of compliance. If the Board wants to have meetings about the revision, I am not against that, but the meetings should come before finalization of the documents. I do, however, sometimes advise that the measure and written ballots maybe passed out at the annual meeting to give the Board an opportunity to explain to those interested enough to come that importance of getting approval, and encourage those present to talk to others about the importance of returning a ballot. In that case I would advise that the package be given out at the end of the meeting to be taken home to review. Some will review, some will not. The packages passed out to the homeowners present in person at the annual meeting need not be re-mailed to those homeowners so long as the rest of the packages are mailed out shortly after the meeting is held, and the association documents how the packages were delivered.
Q: If a written ballot (mail) is used, may homeowners change their minds, after they vote?
A: Written ballots come in handy. By law, they cannot be revoked (absent, fraud or misrepresentation, of course).
Q: What should our CC&R; revision committee do?
A: In my opinion, the best functions served by the committee or board (if not committee) are to solicit and process homeowner input, to identify to the best of the members' ability problem areas and concerns, to review documents drafted by the attorney carefully and with diligence, to meet with the attorney after the first draft is completed, to respond to homeowner inquiries, and, ultimately, to lead the amendment voting campaign with diligence and zest!
I do not advise that committees or board members try to draft language for the new documents. In my experience, it often creates complications (at least for me). It is a difficult and frustrating process for a committee member to try and draft something legally binding. If I can't use the language (as often occurs), then the person's feelings are generally hurt. It creates more documents for me to review and analyze in the process (more time consumption - and time is money!)
Besides, I don't want the committee or board members to "burnout" before the most critical stage of the process - THE DOCUMENT CAMPAIGN!
Q: Can't we just eliminate steps in the process to save money?
A: I like to say "yes", but the process as I describe in the article, "AMENDING GOVERNING DOCUMENTS - IT DOESN'T HAVE TO BE PAINFUL!!" is geared to assure that the association gets a complete service. The Articles have to be reviewed at any rate, to see if any conflicts exist. In my opinion the should be restated to simply incorporate reference to the Bylaws for all critical provisions so that if the Bylaws are amended in the future, no conflict could arise by overlooking the Articles. As for the process, its pretty minimal already. I do try to make special arrangements for the really small associations. Even though the process is much the same, the process is usually very naturally simplified by lack of numbers.
Q: Can't we just go to court and get these approved?
A: I advise associations at the outset that a court process is available if the association achieves majority approval but cannot get the high percentage needed (often as high as 75%). However, my general advice is "DO NOT RELY ON THE COURT - RELY ON YOURSELVES - YOUR SUCCESS DEPENDS ON JUST HOW MUCH YOU ARE WILLING TO DO ON THE "FRONTSIDE".
Please keep in mind that these questions and answers are based on the suggested process of Attorney Beth A. Grimm and may not reflect the processes of other attorneys. See the companion article called for more information on the author's perspective and process. AMENDING GOVERNING DOCUMENTS - IT DOESN'T HAVE TO BE PAINFUL!!
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THE MATERIALS BEING MADE AVAILABLE HAVE BEEN WRITTEN OVER THE YEARS AND DO NOT COVER STATUTES OR CASE LAW OR PRACTICAL ISSUES THAT AROSE AFTER THEY WERE WRITTEN.
By Beth A. Grimm, Attorney. A "service oriented" attorney and member of ECHO and CAI and various other industry organizations in California and nationally, host of the website www.californiacondoguru.com; two Blogs: California Condominium & HOA Law Blog, and Condolawguru.com Blog, and author of many helpful community association publications which can be found in the webstore on her site.