This article is Part I of a two-part series on the vital subject of amending community association governing documents. This article will focus on the common reasons why a community association should consider amending its governing documents. Part II will focus on how to amend governing documents. There are three common reasons why associations should consider amending their governing documents: (1) the language was drafted by the developer; (2) ambiguity; and (3) the current language is not consistent with current state or federal laws.
Developer Drafted Language
A community association lawyer who represents post-turnover, unit-owner controlled associations, will draft governing documents from the association-client’s perspective and in the best interest of the client based on the specific needs of a particular community. The same is true for a developer’s lawyer drafting governing documents. The developer’s attorney drafts governing documents from the perspective, and in the best interest of, the developer. Once the developer is out of the picture, your association should strongly consider revising its governing documents to change the focus and purge non-relevant developer-control provisions and substitute that language for provisions that put the unit owner-run association in the best position to efficiently and peacefully govern the community.
Ambiguous terms in governing documents create a volatile environment ripe for legal dispute. Further, even if disputes do not immediately rise to the level of a legal battle, ambiguous terms leave owners and associations left “guessing” as to who is responsible to do what within the community. There is no doubt that ambiguity leaves associations in a situation where eventual strife will arise. Remember, it is very likely that just one lawsuit will be more expensive than the cost associated with amending ambiguous terms out of the governing documents.
Consistency With Law:
As you are likely aware, each year there are numerous bills introduced by the Florida Legislature which impact community association operations. Very often these are passed and become Florida law. Are your governing documents in sync with current law, especially if they have not been amended in over a decade or longer? There is a legal concept called “unconstitutional impairment of vested contractual rights” which may impact whether, and to what extent, these new laws govern over preexisting provisions in your association’s governing documents. There are ways to deal with this perplexing legal analysis of “which law applies,” but it takes amending the governing documents to address the issue.
I personally recommend my clients completely rewrite (or as we call it, “amend and restate”) governing documents following the departure of the developer from the community, and then once every 10-12 years thereafter. By doing so, the association’s governing documents will remain consistent with applicable law and consistent with the changing dynamics of the ownership and the will of the community. If you have not done so recently, I recommend that you reach out to your community association attorney to discuss whether amendments (either complete rewrites or spot amendments) are right for your association’s governing documents.
Now you know why to amend….next month you will learn how to amend!