Amending an association’s Declaration can be a daunting task if you don’t have a strategy in place. If you are thinking of amending your association’s Declaration, the plan below will provide a strategy to help make the process easier. Also, if you have specific questions, the Mulcahy Law Firm would be happy to assist.
1. Requirements to Amend
Almost always, to amend the Declaration, the association must have member approval. Your Declaration will set forth the required number of votes necessary to amend the Declaration, but you must also be mindful of Arizona statutes.
If you live in a condominium, Arizona’s Condominium Act sets forth the requirements to amend a Declaration within a condominium and states the Declaration may be amended only by a vote of the unit owners to which at least sixty-seven per cent of the votes in the association are allocated, or any larger majority the declaration specifies.
2. Determine what language needs to be amended
While the association’s primary purpose for amending the Declaration may be to amend a specific section, this is a good time to go through the declaration with an attorney to make sure that all provisions comply with applicable federal and state laws.
For example, many associations want to amend assessment language; however, Arizona’s Planned Community Act contains a provision that states planned communities cannot impose a regular assessment that is more than twenty per cent greater than the immediately preceding fiscal year’s assessment without the approval of the majority of the members of the association.
3. Solicit Community Input/Voting on the Amendments
Associations would be remise to overlook this step if the association anticipates a group of owners will be resistant to the amendments. It is important for the board to seek and listen to owner comments regarding the proposed amendments. This can be done at an open meeting or by mailing the proposed revisions to the membership for comments before putting the amendments in final form. If possible, the association should try to alleviate owner concerns in the final amendments.
After all final revisions have been made, the Board will need to conduct a formal vote to determine whether to adopt the proposed amendments. Your attorney should be consulted at this stage to make sure the ballot has all necessary requirements.
4. Record the Amendments
If the Amendments pass, the Declaration will need to be recorded in the county recorder’s office. The declaration may set a specific time the amendment must be recorded, and if your association is a condominium the Declaration must be recorded within thirty days. Once the amendment has been recorded, the board should provide a copy of the amendments to all owners.
Hopefully, by utilizing the above steps, your Association can successfully amend its Declaration. If your association is considering amending the Declaration, the Mulcahy Law Firm would be happy to assist your association with the process.
