Clients frequently ask how to amend their governing documents, and how to make the amendment process easier. There is one preliminary step I recommend, to help an association successfully amend their governing documents. First, I recommend a board look to the amendment provisions in the governing documents. Your declaration of condominium or declaration of covenants, conditions and restrictions should have its own amendment provision, as should the articles of incorporation and bylaws of your association. Review the amendment provision of the specific document you want to amend and determine whether your association has enough member participation to achieve the requisite voting threshold required by the amendment provision.
If your amendment provision was drafted by the Developer of your community, you may have a very high amendment threshold. In such a case, an association must have a high percentage of member participation to amend a governing document. If your association consistently struggles to achieve the required level of member participation necessary to amend your governing documents, you will need to amend the amendment provision of the document before you amend any substantive provisions. I recommend an amendment to lower the amendment percentage to an achievable number based on the realistic level of participation in the community.
Any amendment to an amendment provision must still be approved by the high amendment threshold in the operative governing document. To achieve this high level of participation, I recommend volunteers take proxies door-to-door. Explain the need for a lower amendment threshold to non-participatory community members, face-to-face, to generate the participation required to amend the amendment provisions. Once the association has successfully lowered the voting threshold requirement for amendments to match the level of participation in the community, adopting substantive amendments will be much easier.
