Amending the Declaration and the Bylaws
Changing a declaration is a vote, a certification and a recording, in that order. Miss the recording and nothing has changed. Aim at the wrong provision and no percentage will be enough, because some changes require the consent of every owner affected.
The rule in short
An amendment to a declaration takes effect only after approval by the percentage the declaration requires, certification in a signed and acknowledged writing, and recording in each county where the property lies. Bylaws are amended by the members and are usually not recorded. Statutes cap how high a declaration may set the threshold, protect certain matters with a unanimous or mortgagee consent requirement, and in several states allow a court to reduce a threshold that cannot be met.
Communities outgrow their documents. A declaration drafted for a subdivision of forty houses says nothing about home occupations, charging equipment or short lets, and the board discovers that its rulemaking power stops well short of the problem. The answer is an amendment, and amendments fail for procedural reasons far more often than for lack of support.
Three conditions, all of them necessary
A representative statute states that an amendment is effective after all of the following have occurred: the amendment has been approved by the percentage of members required by the declaration and by any other person whose approval the declaration requires; that fact has been certified in a writing executed and acknowledged by the officer designated in the declaration for that purpose, or by the president if none is designated; and the amendment has been recorded in each county in which a portion of the community is located.
The order is fixed and the third step is the one that gets skipped. An amendment approved by ninety percent of owners and never recorded is not law. Purchasers searching title will find the original declaration, take subject to it, and be entitled to rely on it.
Where the declaration specifies no percentage, statutes supply a default, commonly a majority of all members. Some statutes also impose a deadline for recording after adoption, which converts a delay in the management office into an invalid amendment.
Ceilings on the threshold itself
Declarants historically wrote very high thresholds, sometimes requiring unanimity, which made a community permanently unable to change its own rules. Statutes responded by capping them. One provides that except for specified matters, a declaration recorded after a stated point may not require amendments to be approved by more than four-fifths of the voting interests, and supplies a two-thirds default where the declaration provides no method at all.
Even a lawful threshold can be unreachable in a community where turnout is low. Several states therefore allow a petition to the superior court to reduce the percentage. The statute typically applies where the declaration requires more than fifty percent, and the petition must describe the effort made to solicit approval in the manner the declaration provides, the number of affirmative and negative votes actually received, and the percentage required.
Courts granting such a petition generally require that the amendment be reasonable, that a substantial majority of those voting supported it, and that proper notice was given. It is a remedy for apathy, not for opposition.
Statutes protect a category of matters by requiring consent from every affected owner, and often from their lenders. Changing the boundaries of a unit, the share of common elements appurtenant to it, its share of common expenses, or its voting rights typically requires unanimous or individually affected consent, because those are the terms on which each owner bought. An amendment purporting to reallocate them by a supermajority is invalid as to any owner who did not consent.
| Change sought | Usual approval needed | Recording required |
|---|---|---|
| Use restriction added to the declaration | The declaration's percentage, subject to the statutory cap | Yes |
| Bylaw change on meeting or election mechanics | Member vote as the bylaws provide | Usually no |
| Board rule under existing authority | Board vote at an open meeting | No |
| Reallocation of common expense or voting share | Consent of every affected owner | Yes |
| Correction of a scrivener's error | Simplified statutory procedure | Yes |
| Amendment affecting security interests | Member vote plus mortgagee consent where required | Yes |
Drafting, notice and the ballot
Statutes regulate the form of the proposal. A proposal to amend an existing provision must generally contain the full text of the provision being amended, with new words underlined and words to be deleted struck through, and may not amend a provision by reference to its title or number alone. Where the rewrite is extensive, a notation stating that the provision is substantially reworded, directing readers to the existing text, is permitted instead.
The vote itself usually runs under the general balloting statute, which requires a secret ballot for amendments to the governing documents along with director elections and assessments requiring a vote. That means the notice periods, the inspector of elections and the public count described in the article on board elections, quorums and proxies apply here as well.
Notice content deserves the same care as the ballot. Owners who receive a one-line summary and a ballot frequently vote no on principle, and an amendment defeated once is much harder to bring back. Sending the marked-up text with a short statement of the problem the change solves is both the statutory requirement and the practical one.
Bylaws are the easier document and are often the right target. Meeting procedure, board size, terms, quorum for member meetings and committee structure usually live there, are amended by the members without recording, and carry a lower threshold. Boards frequently attempt an expensive declaration amendment when a bylaw change would have done the work.
Getting to the number
Amendments fail on turnout more often than on opposition. A threshold expressed as a percentage of all voting interests counts every silent owner as a no, which means an amendment with overwhelming support among those who care can still lose to the owners who never opened the envelope.
Associations that succeed treat it as a collection problem. They send the proposal well before the ballot with a plain explanation of what changes and why, they identify the units least likely to respond and contact them directly, and they use the full return window rather than a single meeting. Where the statute permits electronic voting, adopting it before the campaign rather than during it usually raises returns substantially.
Documentation should be built as it goes. If a court petition to reduce the threshold becomes necessary, the petition has to describe the solicitation effort in the manner the declaration required and state the votes actually received. A campaign run informally leaves nothing to describe.
Retroactivity and the owners already there
An amendment properly adopted and recorded binds all owners, including those who voted against it, because the covenants run with the land as described in the article on why the declaration binds a buyer who never signed it.
The exception is growing. Several statutes now provide that a restriction on renting adopted after a stated point applies only to owners who acquire title afterward or who consent, which is a legislative grandfathering rule rather than a constitutional one. That regime, and the narrow carve-outs within it, is the subject of the article on leasing caps and owners who bought before them.
Where an amendment tightens architectural standards, applications already pending are normally judged under the standards in force when they were submitted, which is one more reason the submission date matters in the way described in the article on when a review committee misses its deadline.
Points to carry away
- An amendment to a declaration is effective only when approved, certified in writing and recorded.
- Where the declaration is silent, statutes supply a default approval percentage.
- Statutes cap how high a recorded declaration may set the amendment threshold.
- Changes to unit boundaries, common element shares or voting allocations usually need consent from every affected owner.
- Several states allow a court petition to reduce an approval percentage that cannot realistically be met.
Questions readers ask
Do lenders have to approve an amendment?
Sometimes. Many declarations require the consent of a stated percentage of first mortgagees for amendments affecting security interests, insurance, reserves, unit boundaries or termination, and statutes in several states impose their own mortgagee consent rules. Where consent is required, a common provision deems a mortgagee to have consented if it does not object within a stated period after written notice. Associations often struggle to identify current holders after loans are sold, which is why the notice provision matters more than the consent itself.
How is an amendment written so it survives challenge?
By showing the change rather than describing it. Statutes commonly require the proposal to set out the full text of the provision being amended, with new words underlined and deleted words struck through, and forbid amending a provision by reference to its title or number alone. Where the rewrite is extensive enough that markup would confuse rather than help, a notation stating that the provision is substantially reworded and directing readers to the existing text is generally permitted instead.
Can a scrivener's error be fixed without a full vote?
Usually yes. Statutes provide a simplified route for correcting an omission or error in the declaration or another document required to create the community, often by a vote of a majority of voting interests where the declaration supplies no method. The limit is substantive: the simplified process cannot be used where the correction would materially or adversely affect property rights of owners unless those owners consent in writing. Boards that use it to make a substantive change invite exactly that objection.
Sources
- California Civil Code § 4270 — Amendment of a declarationApproval, written certification and recording in each county as the three conditions of effectiveness.
- California Civil Code § 4275 — Court petition to reduce the approval percentageThe petition available where a declaration requires more than fifty percent and the vote falls short.
- Florida Statutes § 718.110 — Amendment of the declarationDefault approval percentages, the cap on thresholds, markup requirements and the correction procedure.
- Virginia Code § 55.1-1829 — Amendment to declaration and bylaws; consent of mortgageeAmendment authority and the circumstances in which mortgagee consent is required.
- Arizona Revised Statutes § 33-1817 — Declaration amendmentAmendments affecting fewer than all lots, the consent required, and the recording deadline after adoption.
- California Civil Code § 5100 — Balloting requirementsSecret ballot procedures that apply to a vote amending the governing documents.
- Uniform Law Commission — Common Interest Ownership ActThe uniform framework for amendment thresholds and protected matters adopted in many states.
Metro Law Advisors is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
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