The “governing documents” of a homeowners association are the Declaration of Covenants, the Articles of Incorporation, the Bylaws and the Rules and Regulations. Many times, HOAs make a decision to amend by looking to the provisions that needed changing. This however is only one step in the amendment process. The next step, and likely the one which carries the most weight as it determines if the amendment is actually adopted is determining “how” (i.e., the votes and procedure) the amendment is accomplished.
Traditionally, an association would look at its HOA documents for amendment guidance. If the governing documents are silent however, one must look to Section 720.306(b), Florida Statutes:
Unless otherwise provided in the governing documents or required by law, and other than those matters set forth in paragraph (c), any governing document of an association may be amended by the affirmative vote of two-thirds of the voting interests of the association.
A voting interest is the vote assigned to each lot in the community. Usually, it is the owner of the lot, but there are times that voting interests are allocated differently in communities so you would need to check your governing documents and speak to your Association’s lawyer.
Of course as with any law, there are exceptions. Section 720.306(c) does require a different vote in certain instances. For example, if the amendment proposes to materially alter the voting interests allocated to a parcel or proposes to increase the percentage each owner pays in common expenses, all owners and their lienholders will need to agree to such an amendment. This statutory provision is often implicated when an Association wants to add or remove any lots in a community.
There are also times when the governing documents require the approval of the mortgagees of the lots as part of an amendment. The procedure to follow in obtaining mortgagee consent will depend on the language in the governing documents as well as the date the mortgage was recorded. The Association’s counsel will guide your community on this issue.
Another “how” consideration is not the vote itself but the procedure which is to be followed to put the amendment before the membership for a vote and the nature of the vote. In this regard, the HOA will need to follow any procedure that is outlined in the governing documents paying special attention to any special notice requirements, whether the amendment must be adopted at a meeting or must be by written consent, as well as the manner in which the amendment must be presented to the members for voting. Section 720.306(b) also provides that a copy or notice of the amendment will need to be provided to owners within thirty days after the amendment is recorded.
Amending an Association’s governing documents may seem simple and it is if working hand-in-hand with counsel to accomplish the amendment. The risks associated with going solo in the amendment process, such as doing it wrong and having a void or invalid amendment which cannot be enforced, are simply not worth it for an Association.
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Becker, with headquarters in Fort Lauderdale, FL., is a multi-practice commercial law firm with attorneys, lobbyists and other professionals at offices throughout the East Coast.
