Amending Association Documents
November 4, 2013
Often we are asked about amendments to CCRs, master deeds, or bylaws. An amendment to a master deed, CCRs, or bylaws is fairly simple. It is a document that alters or otherwise changes a provision in the existing document. The amendment may add, delete, or substitute language or exhibits in a master deed, CCRs, or bylaws. The idea being that the end result is a better document. Further, the amendment relates back to the original document for priority purposes.
There is no set method for amending a master deed, CCRs, or bylaws. This is because each document is different. The requirements in one master deed regarding amendment may not be the same as those found in another. As we have said before, in Tennessee the documents are important. That being said, it is safe to say that an amendment will require the vote of a super-majority of the Association. Since a vote of the Association is required, a meeting of the Association will likely be required. A meeting is required because the vote must be held at a meeting of the Association because the Association is a corporate entity and acts by and through its members at duly-held meetings. Thus, the notice and quorum provisions of the bylaws of the Association come into play. Generally stated, the amendment process requires notice of a meeting at which the amendment will be discussed and voted upon, a duly-held meeting, and an affirmative vote authorizing the amendment by some super majority of the membership of the Association. When you think about this process, it becomes logistically complicated.
Further, an amendment is a legal document. Amendments are recorded in the local county Register’s Office. As such they track with the title to the property they encumber. They become a part of the title to your lot or condominium unit. As such they are important because they impact your use and enjoyment of your property. Unfortunately, all too often we have seen amendments that have been improperly drafted or not prepared by legal professionals. In the long run these documents can seriously hinder the ability of an Association to function. For example, we have seen “homegrown” amendments that have inadvertently deleted the bylaws (thus causing the Association to rely upon the Tennessee Non-Profit Corporation Act, Tenn. Code § 48-51-101, et seq.), that have created conflicting insurance provisions, and that have deleted enforcement provisions, amongst other things.
Typically, we recommend that an association considering an amendment have its documents reviewed. We prepare an opinion letter that reviews the governing documents of the Association. That letter then explains how the individual Association may amend its documents, walks the Association through the process, and explains how certain logistical hurdles may be overcome. Finally, we request a meeting with the Board of Directors to discuss the opinion letter. The amendment process moves forward from there.
Amendments are important legal documents. If your Association is considering an amendment, please be sure to contact a qualified legal professional.
Tags: association, board of directors, bylaws, CCRs, condominium, condominium association, condominium unit, Declaration of Covenants Conditions and Restrictions, HOA, homeowner, homeowner association, homeowners, homeowners association, laws, Master Deed, non-profit corporation, tenn. code 48-51-101, Tennessee, Tennessee Condominium Act, tn, unit