Amending the Governing Documents: Strategies for Engaging Homeowners
Dec. 6, 2013 — Residents' evolving needs and changing legal requirements often present a co-op board or condo association with a daunting task: amending your governing documents. A well-crafted amendment that complies with applicable law is the obvious objective. Developing this amendment document itself is generally the easy part of the amendment process if the board is represented by an experienced co-op / condo attorney. More frequently, the hardest parts of amending governing documents are getting the homeowners' attention, marketing the amendment to them and obtaining their approving votes.
Here are four questions to ponder if your board is proposing to amend its governing documents:
Is the amendment really necessary?
The amendment process involves significant expense and effort. A smart board will ask whether the issue the amendment is intended to fix can be addressed another way. In consultation with the board's attorney, you will want to consider whether, for example, an available statute will serve to address the issue or whether a board resolution would have sufficient authority to avoid the need to go through the amendment process. Similarly, you will want to consider whether the issue arises so infrequently that attempting to amend the documents in order to address it is justified.
Can homeowners be expected to perceive the value of the amendment?
Because board members are engaged, often on a nearly-daily basis, in the business of the association, you can readily appreciate the value of the proposed amendment. This isn't usually so with homeowners, who little time to understand or worry about issues that, to the directors, mandate an amendment to the governing documents. A proposed amendment has a far better chance of homeowner approval if you can show the need and value of the amendment in as brief and "non-legalese" a way as possible.
Board members should carefully think about "talking points" for use in both oral and written presentations to the members. Talking points must simply and clearly set out the reasons for, and anticipated effect of, the proposed amendment. These talking points must make the strongest case possible as succinctly as possible.
What is the "marketing plan" and how will it be implemented?
A plan might include a mailing to homeowners containing the language of the draft amendment; a red-lined copy of the section or sections to be amended showing the change being made; a covering memorandum using the talking points to explain the reasons for and effect of the amendment and reporting the board's (hopefully, unanimous) recommendation of the amendment; and, if approval can be obtained outside of a meeting, a ballot form.
The plan might also call for one or more "town hall" meetings of the members to present the amendment and respond to members' questions.
If the association documents require a vote at a meeting, a formal meeting might replace the town hall meetings. In that case, the package to the owners would include a formal notice of meeting. The marketing plan might also provide for a follow-up mailing or e-mail to members that addresses any questions or concerns as a result of the mailed package or during the town hall meetings.
What steps will be taken to obtain homeowners' approvals (or disapprovals) of the proposed amendments?
Assuming, as is frequently the case, that homeowners votes may be obtained outside the confines of a meeting, the board will want to plan steps to get members to submit ballot forms. You can do this in several ways. Forms allowing can be included in the package sent to owners, or be made available at town hall meetings. Drop boxes in the lobby and e-mail voting should be considered if consistent with the amendment and voting provisions of the association's documents.
The board should have a plan to follow up. This can include e-mail broadcasts to members, telephone trees to contact those who have not previously responded and, should it prove necessary, door-to-door campaigns at a time when most members can be expected to be at home. In considering follow-up steps, you will want to remember the need to encourage non-resident members to respond, as non-residents can often make the difference on whether the amendment will be approved or not, even though those members are often the least engaged in the association's affairs.
If the governing documents require that amendments must be voted on during a meeting, you should include proxies in the package provided to all owners. Consult with the board's attorney to be sure the proxy form is valid and any limits on the number of proxies a single person may exercise are honored.
The board of directors' critical role in insuring that an amendment to the governing documents becomes effective lies in developing support among homeowners. The steps described will help you more easily get approval for an amendment you know to be necessary for the good of your co-op or condominium.
Marla J. Diaz is an attorney at Whiteford Taylor & Preston who specializes in community-association law. This is adapted from her blog post at her firm's website.
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