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Subject: Recording Prior Amendments & Amendment Typos
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CarissaM


Posts:0


08/09/2021 7:34 AM  
I am hitting two questions with this one!


When you do an amendment and it changes the CC&R do you provide the original CC&R with the amendments attached or do you modify original CC&R with strikethrough and revisions?

We had an amendment that is just attached to the CC&R's at the back. This amendment removes St. Augustine grass requirement and the allowance for wood fences, and a few other details on home size, paver driveway, etc. But reading the CC&R's you don't know this unless you get to the back and see the amendment.

I am wondering if a step was missed or if homeowners just need to learn to read every page, including amendments at the back to understand that there were changes?

______________________________________________________________

If you have a typo in your CC&R's, are we required to get an amendment approved to change?

Example:
HOA is required to maintain the eastern wall (we don't have a wall, we have a fence) that borders XXX road (we don't border XXX road, we border YYY road). So it appears that we are to maintain a wall on another road.



AugustinD


Posts:1920


08/09/2021 8:11 AM  
CarissaM, from your other posts I see this is an FS 720 HOA. First, you are talking about how to present a proposed amendment to members, for them to vote on subsequently, correct? Second, you are talking about how the amendment (if passed by the membership) should ultimately be recorded, correct? My rough thoughts:

-- As you probably saw, the net has many sites discussing "how to amend governing documents." I have yet to find one that got into the nuts and bolts of how to present proposed amendments and what format the ultimate submission (of the approved, amended governing documents) to the county clerk should take.

-- I wish I could say that a "best practices" existed for how to proceed, but I think the only widely accepted best practice is to use an experienced HOA attorney for the amendment process.

-- "Restating" may be a better approach than simply amending? Also what about "revitalizing" (a big topic for FS 720 HOAs). Talk to the HOA attorney about these subjects.

-- From reading FS 720, and if not "restating" nor "revitalizing" I think the expectation by the legislature was that the original covenants remain recorded, and amendments are recorded subsequently.

-- To me, this seems to suggest the approach you described, both for presenting the proposed amendments and subsequent recording: Present the original covenants and then present the pages that are the proposed amended sections. (An attorney will clean this up some.)

-- I have seen HOAs/COAs present a matrix laying out the essence of what the original covenants said and what the proposed amendments do, section by section, then attaching the original covenants and the pages of proposed amendments. I think this is where creativity should strive to result in clarity, so owners understand what the subject of the vote is.

-- Off the top of my head, I think bona fide typos that do not have a material effect on the contractual terms can be ignored. But this of course begs the question of when a typo has a material effect. I think the example you gave is more than a typo and should be corrected via amendment, if possible.

-- One can google and turn up Florida HOA Declarations that have been amended or restated. Maybe locate ten; review closely; and do your proposed amendments using what these other HOAs did?
AugustinD


Posts:1920


08/09/2021 8:15 AM  
Googling on the following turns up a number of amended or restated Florida Declarations:

"restated" "declaration" "amendments" "florida" filetype:pdf
CathyA3
(Ohio)

Posts:2601


08/09/2021 8:39 AM  
I think it's going to depend on the extent of the amendment and how much the association wants to spend for legal work.

Last time I looked in my area, an amendment cost us about $1000 - that included the original drafting, preparing the paperwork to send to homeowners (including ballots for voting) and final recording with the county. A full re-statement means many hours of legal work, and thus many $$$.

Our most extensive amendment was the one that brought us into compliance with the most current state law. There were a number of lines of things like "replace common area with common elements" but there were also a few more significant changes. Not terribly reader-friendly as far as comprehension goes, but it got the job done. And in this case no vote was necessary since compliance with current state law isn't open to debate.
JohnC46
(South Carolina)

Posts:11665


08/09/2021 8:48 AM  
Posted By CarissaM on 08/09/2021 7:34 AM
I am hitting two questions with this one!


When you do an amendment and it changes the CC&R do you provide the original CC&R with the amendments attached or do you modify original CC&R with strikethrough and revisions?

We had an amendment that is just attached to the CC&R's at the back. This amendment removes St. Augustine grass requirement and the allowance for wood fences, and a few other details on home size, paver driveway, etc. But reading the CC&R's you don't know this unless you get to the back and see the amendment.

I am wondering if a step was missed or if homeowners just need to learn to read every page, including amendments at the back to understand that there were changes?

______________________________________________________________

If you have a typo in your CC&R's, are we required to get an amendment approved to change?

Example:
HOA is required to maintain the eastern wall (we don't have a wall, we have a fence) that borders XXX road (we don't border XXX road, we border YYY road). So it appears that we are to maintain a wall on another road.







I agree. It is up to people to read the entire document.
AugustinD


Posts:1920


08/09/2021 8:58 AM  
Interestingly, a number of sites state that the Florida Supreme court has asserted (opined?) that only a Florida-licensed attorney may prepare amendments to governing documents. Here is a site that explains the Florida Supreme Court's position:

https://caselaw.findlaw.com/fl-supreme-court/1717326.html

Here are two sites that assert what I assert, regarding only attorneys being authorized to draft/prepare amendments to governing documents:

https://www.floridatoday.com/story/money/2019/12/28/hoa-legal-work-done-volunteers-may-engaging-unauthorized-law-pracice/2737439001/

https://www.floridacondohoalawblog.com/2017/05/30/changing-governing-documents-generally-requires-homeowner-approval/

The basis for this is that preparing amendments to a COA/HOA's governing documents is the practice of law and thus may only be done by a licensed attorney.

Granted if a person who is not an attorney is not being paid to prepare amendments, then the person is not practicing law no way no how.

The Florida Supreme Court appears to have homed in on paid HOA/COA managers drafting amendments and said, "No, not allowed. This is the unauthorized practice of law by HOA/COA managers." I believe it is something to which, for one, CAI manager training gives a bit of attention.

I would think much or all of this would be true in all 50 states of the U. S.
KerryL1
(California)

Posts:8729


08/09/2021 9:03 AM  
We've been in the process of restating our entire 100+ page CC&Rs, Carissa, for a long time, now, and just met with our HOA general counsel on the topic last week. I'm the lead on this project on our Board due to having served a long time and I know them pretty well.

Our orig. CC&Rs have one amendment and it is in the back just as you describe. It is in the Table of Contents so is easy to find. In the body of your CC&Rs that relate to that topic. Add at the end of relevant section "(See Amendment One)." If this is the only change that was made, it's fine as an amendment. "Restatement" seems to refer to much larger sets of changes and is what our attorney calls our project.

As Augustin shows, the amendment must be recorded and ours at the back has the county stamp on it.

Since we're restating the entire document, the version that will be discussed in a Town Hall with owners when we seek their opinion will be e-blasted to them. It's now about 80 pages. But since we've made numerous changes, the redlined version will be on our web site so they can compare the two. After Owners' input, we'll be close to sending it to them USPS for their votes.Ours, maybe like yours, Carissa, required 67% of eligible votes to approve. The redlined version will stay on the website for their reference.

If it's just one amendment, I'd send the original section(s )that applies and the suggested amendment, as Augustin suggests.

since the typo is a "material" change as Augie points out, it defietley should be corrected. But how can owners "approve" with, say, their vote something that cannot be refuted? so you do need your HOA attorney's advice on how to make this important correction.

CarissaM


Posts:0


08/09/2021 9:07 AM  
First, to clarify this is for prior amendments passed and included with a copy of the CC&R's as a subsequent document. So we give CC&R's, By-Laws, and Amendment 1 to homeowners.

So perhaps what I'm looking to do is "restate" the CC&R's to include the verbiage from the past amendment so it's clear? But that would definitely have to come from an attorney based on the responses, and he is expensive so we can just keep it two documents if that is the case.


Also, with regard to the proposed amendments, we did have the attorney create them, provide all the documentation and then we didn't get enough responses from the proposed amendments so those are dead in the water for now.

CarissaM


Posts:0


08/09/2021 9:12 AM  
Posted By KerryL1 on 08/09/2021 9:03 AM
We've been in the process of restating our entire 100+ page CC&Rs, Carissa, for a long time, now, and just met with our HOA general counsel on the topic last week. I'm the lead on this project on our Board due to having served a long time and I know them pretty well.

Our orig. CC&Rs have one amendment and it is in the back just as you describe. It is in the Table of Contents so is easy to find. In the body of your CC&Rs that relate to that topic. Add at the end of relevant section "(See Amendment One)." If this is the only change that was made, it's fine as an amendment. "Restatement" seems to refer to much larger sets of changes and is what our attorney calls our project.

As Augustin shows, the amendment must be recorded and ours at the back has the county stamp on it.

Since we're restating the entire document, the version that will be discussed in a Town Hall with owners when we seek their opinion will be e-blasted to them. It's now about 80 pages. But since we've made numerous changes, the redlined version will be on our web site so they can compare the two. After Owners' input, we'll be close to sending it to them USPS for their votes.Ours, maybe like yours, Carissa, required 67% of eligible votes to approve. The redlined version will stay on the website for their reference.

If it's just one amendment, I'd send the original section(s )that applies and the suggested amendment, as Augustin suggests.

since the typo is a "material" change as Augie points out, it defietley should be corrected. But how can owners "approve" with, say, their vote something that cannot be refuted? so you do need your HOA attorney's advice on how to make this important correction.





I do like the idea to add "see amendment 1" to the areas it was changed just so they know to look for something, rather than leaving a document at the end for them to find.

We have included the typos as such in an amendment but alas, no 67% so we just ignore them. We know we aren't responsible for XXX road even though it says in the CC&R's. I was wondering if we could correct them without a vote but it seems any change, even a correction of a typo, must still be approved.

We will definitely go back again for an attempt to amend but I was trying to give more time to educate the homeowners.

Attorney is helpful but very expensive so I thought I'd float it here for some of you folks.

Thanks for your help!
AugustinD


Posts:1920


08/09/2021 9:19 AM  
Posted By CarissaM on 08/09/2021 9:07 AM
So perhaps what I'm looking to do is "restate" the CC&R's to include the verbiage from the past amendment so it's clear? But that would definitely have to come from an attorney based on the responses, and he is expensive so we can just keep it two documents if that is the case.
Like you I think, I am seeing that the only difference between "amending" and "restating" is a difference in scope.

Lots of changes argue for a restatement.

Else I agree about weighing the expense of putting a much cleaner version of the (amended) Declaration on record vs. leaving things as they are. I wouldn't sweat leaving things as they are. Title companies typically send an enormous package to prospective buyers. In Florida, this must include any amendments. A buyer is either going to wade through the dozens of pages of Declaration, and a number of additional pages of amendments, or not. Once disclosed, the HOA and seller did all it was required to.

Besides, who knows what is coming down the pike after the Surfside condo collapse? I know you all are not a condo, but I am thinking the chances are good that FS 720 is going to see some changes. Wait a few more years at least. Then see if any FS 720 changes might push your board over the edge such that the board thinks a full restatement is worth the money?
KerryL1
(California)

Posts:8729


08/09/2021 9:58 AM  


Carissa wrote: "...this is for prior amendments passed and included with a copy of the CC&R's as a subsequent document." I may misunderstand, but an amendment is a part of the CC&Rs. It's not a separate document.
CarissaM


Posts:0


08/09/2021 11:40 AM  
Posted By KerryL1 on 08/09/2021 9:58 AM


Carissa wrote: "...this is for prior amendments passed and included with a copy of the CC&R's as a subsequent document." I may misunderstand, but an amendment is a part of the CC&Rs. It's not a separate document.




I'm probably saying the same thing, I'm thinking in terms of documents stored on a network. So we merged them together to provide "one document" The CC&R's with Amendment One and the Bylaws.

I guess in my head I assumed the attorney who prepared them would "merge them" and provide a copy of the Amendment that shows how they were restated with the change.

So when they removed the wood option for fences with the first amendment, I would have thought you'd go to that CC&R document and edit that section as amended to remove wood altogether. We have the original that says wood and you have to go to the amendment and see that they removed that.

But, if as you mentioned we can just put a note "see amendment one" they know 1) something has changed and 2) where to find it.
CarissaM


Posts:0


08/09/2021 11:42 AM  
Posted By AugustinD on 08/09/2021 9:19 AM
Posted By CarissaM on 08/09/2021 9:07 AM
So perhaps what I'm looking to do is "restate" the CC&R's to include the verbiage from the past amendment so it's clear? But that would definitely have to come from an attorney based on the responses, and he is expensive so we can just keep it two documents if that is the case.
Like you I think, I am seeing that the only difference between "amending" and "restating" is a difference in scope.

Lots of changes argue for a restatement.

Else I agree about weighing the expense of putting a much cleaner version of the (amended) Declaration on record vs. leaving things as they are. I wouldn't sweat leaving things as they are. Title companies typically send an enormous package to prospective buyers. In Florida, this must include any amendments. A buyer is either going to wade through the dozens of pages of Declaration, and a number of additional pages of amendments, or not. Once disclosed, the HOA and seller did all it was required to.

Besides, who knows what is coming down the pike after the Surfside condo collapse? I know you all are not a condo, but I am thinking the chances are good that FS 720 is going to see some changes. Wait a few more years at least. Then see if any FS 720 changes might push your board over the edge such that the board thinks a full restatement is worth the money?





True, I think the "end game" here with all the questions is whether it's better to do a little or a lot with regard to amendments. On one hand, it's hard to get them if you have lax participation so you go for as much as you can but on the other hand, folks might feel it's too many changes. Less changes are easier to educate and hopefully get a response.
AugustinD


Posts:1920


08/09/2021 11:51 AM  
FS 720 repeatedly seems to distinguish the CC&Rs from amendments to same. Direct quotations from FS 720 include:

-- "The recorded declaration of covenants for a community and all duly adopted and recorded amendments"

-- "A copy of the declaration of covenants and a copy of each amendment thereto."


For the archives, FS 720.306 (1) (e) does have some specifics on the nuts and bolts of amending:
A proposal to amend the governing documents must contain the full text of the provision to be amended and may not be revised or amended by reference solely to the title or number. Proposed new language must be underlined, and proposed deleted language must be stricken. If the proposed change is so extensive that underlining and striking through language would hinder, rather than assist, the understanding of the proposed amendment, a notation must be inserted immediately preceding the proposed amendment in substantially the following form: “Substantial rewording. See governing documents for current text.” An amendment to a governing document is effective when recorded in the public records of the county in which the community is located.
CarissaM


Posts:0


08/09/2021 1:42 PM  
Posted By AugustinD on 08/09/2021 11:51 AM
FS 720 repeatedly seems to distinguish the CC&Rs from amendments to same. Direct quotations from FS 720 include:

-- "The recorded declaration of covenants for a community and all duly adopted and recorded amendments"

-- "A copy of the declaration of covenants and a copy of each amendment thereto."


For the archives, FS 720.306 (1) (e) does have some specifics on the nuts and bolts of amending:
A proposal to amend the governing documents must contain the full text of the provision to be amended and may not be revised or amended by reference solely to the title or number. Proposed new language must be underlined, and proposed deleted language must be stricken. If the proposed change is so extensive that underlining and striking through language would hinder, rather than assist, the understanding of the proposed amendment, a notation must be inserted immediately preceding the proposed amendment in substantially the following form: “Substantial rewording. See governing documents for current text.” An amendment to a governing document is effective when recorded in the public records of the county in which the community is located.





OK that makes sense, thanks for sharing that wording from FS720.

Yes the proposal for the amendments had to be written up rather specific, we used the attorney for that part to be sure we were correct.

This is helpful. Thank you.
KerryL1
(California)

Posts:8729


08/09/2021 3:59 PM  
Yes, Carissa, your attorney is. your best bet here. sounds like you're a little different in FL than in CA,, which I won't go into with more clarity since CA isn't your state.

I have seen on this forum the CC&Rs and the Bylaws being "the same document," so I guess that's different too. They cover very different topics and usually have different requirements for amending them with the Bylaws usually requiring less or sometimes even simple board approval.

JohnC46
(South Carolina)

Posts:11665


08/09/2021 4:42 PM  
Kerry

We have confusion among our owners in that they were all given "one package" with the front page saying Covenants when the package was Covenants, Bylaws, and Rules and Regulations. Most refer to everything as the Covenants.

All of the above were recorded with the deeds though all SC requires is the Covenants to be recorded with the deed.
KerryL1
(California)

Posts:8729


08/09/2021 5:15 PM  
I'll bet it's confusing, JohnC since a lot of owners think Bylaws means rules & regs. sigh.

Say, Carissa, did you once write that your HOA has no rules & regulations? If you don't ,do your CC&Rs say that rules may be made about certain things, e.g., parking, fencing, etc? You have definition of terms age the front of your CC&Rs, right? Is Rules, or Rules and
Regulations among them? One of our definitions in the front of our CC&Rs is "Governing Documents," which includes Rules & Regs.

So long as you do not contradict your CC&Rs or conflict with them, the Board, if permitted by your CC&Rs, can almost aways make rules. This requires no attorney in CA, and maybe not in FL. It also doesn't require owners' votes in CA--just a 28 comment period for owners own proposed rule changes.
JohnC46
(South Carolina)

Posts:11665


08/10/2021 7:34 AM  
Carissa

As Kerry said:

So long as you do not contradict your CC&Rs or conflict with them, the Board, if permitted by your CC&Rs, can almost aways make rules. This requires no attorney in CA, and maybe not in FL. It also doesn't require owners' votes in CA--just a 28 comment period for owners own proposed rule changes

Many BOD's get in trouble at they try to "override" Covenants and/or Bylaws with Rules & Regulations. This they cannot do. One that many BOD's try to override concerns rentals.
CarissaM


Posts:0


08/10/2021 8:57 AM  
Posted By KerryL1 on 08/09/2021 5:15 PM
I'll bet it's confusing, JohnC since a lot of owners think Bylaws means rules & regs. sigh.

Say, Carissa, did you once write that your HOA has no rules & regulations? If you don't ,do your CC&Rs say that rules may be made about certain things, e.g., parking, fencing, etc? You have definition of terms age the front of your CC&Rs, right? Is Rules, or Rules and
Regulations among them? One of our definitions in the front of our CC&Rs is "Governing Documents," which includes Rules & Regs.

So long as you do not contradict your CC&Rs or conflict with them, the Board, if permitted by your CC&Rs, can almost aways make rules. This requires no attorney in CA, and maybe not in FL. It also doesn't require owners' votes in CA--just a 28 comment period for owners own proposed rule changes.




You are correct, we don't have any rules and regulations. I have not found in our CC&R's any wording about the Association making rules or regulations so I'm not sure if that is an option for us. It would be helpful for defining some of the ambiguous declarations.

I did find out that Florida Building Code does consider a screen enclosure a wall with regard to pool safety so our CC&R's were most likely in the spirit of safety and we don't need to chase down a word change from "wall" to "screen" because it's already assumed in that manner. So that was helpful!



AugustinD


Posts:1920


08/10/2021 9:29 AM  
Posted By CarissaM on 08/10/2021 8:57 AM

You are correct, we don't have any rules and regulations. I have not found in our CC&R's any wording about the Association making rules or regulations so I'm not sure if that is an option for us. It would be helpful for defining some of the ambiguous declarations.
I would bear in mind that FS 720 has several sections stating when a Florida HOA board may create reasonable rules and regulations as follows:

-- FS 720.303 (2) (b), the board may create certain reasonable rules concerning participation of owners at board meetings.

-- FS 720.303 (5) (c), the board may create certain rules concerning records inspection.

-- FS 720.304 (1), the board may create rules concerning use of the common areas.

-- FS 720.306 (10), the board may create rules concerning recording of meetings.
I did find out that Florida Building Code does consider a screen enclosure a wall with regard to pool safety so our CC&R's were most likely in the spirit of safety and we don't need to chase down a word change from "wall" to "screen" because it's already assumed in that manner. So that was helpful!
AFAIC, great work by you once again. Someone ought to increase your salary.
JohnC46
(South Carolina)

Posts:11665


08/10/2021 9:35 AM  
We only ever had a copy of our Covenants, Bylaws, Plus Rules and Regulations in a PDF Format. Several months ago I did a PDF to MS Word conversion and spent time cleaning up any conversion errors. I then went and over layed our Amendment Changes in addition and in the same place. I did say that this Word Version was a conversion from PDF and should not be considered a legal copy. Only the original PDF copy was a legal copy. That said, most not use the Word Converted copy. MS Word makes it so easy to search.
CarissaM


Posts:0


08/10/2021 10:46 AM  
Posted By JohnC46 on 08/10/2021 9:35 AM
We only ever had a copy of our Covenants, Bylaws, Plus Rules and Regulations in a PDF Format. Several months ago I did a PDF to MS Word conversion and spent time cleaning up any conversion errors. I then went and over layed our Amendment Changes in addition and in the same place. I did say that this Word Version was a conversion from PDF and should not be considered a legal copy. Only the original PDF copy was a legal copy. That said, most not use the Word Converted copy. MS Word makes it so easy to search.




John, that is what I wanted to do as well, since we only have the scanned PDF and it's a HOT MESS but I wasn't sure how that would fly. I also have a redlined and marked up copy just for the board so we know what we're dealing with.
KerryL1
(California)

Posts:8729


08/10/2021 1:02 PM  
Glad to hear your screens are considered walls.

based on Augustin's citations, you may create rules. The one about crafting some dealing with your common areas seems most useful in your case.

Say, Carissa, don't your CC&Rs have a Section on architectural changes, etc.? Often they will say something like the Board may make rules or POLICIES about exterior homes color palettes, Fence heights, etc. Rules do give Boards an opportunity to clarify or elaborate on the CC&Rs.

Our CC&Rs give us a lot of latitude to make rules. So, for instance, Owners have exclusive use deeded parking spaces in our underground garage. The deliver started our original Rules & Regulations, which state cars and their attached menus may not hang over the physical parking space; that car alarms that go off frequently must be removed by owners, etc. Rules were added by board that say only one automobile and one personal shopping cart may be in each space.
CarissaM


Posts:0


08/11/2021 1:04 PM  
Posted By KerryL1 on 08/10/2021 1:02 PM
Glad to hear your screens are considered walls.

based on Augustin's citations, you may create rules. The one about crafting some dealing with your common areas seems most useful in your case.

Say, Carissa, don't your CC&Rs have a Section on architectural changes, etc.? Often they will say something like the Board may make rules or POLICIES about exterior homes color palettes, Fence heights, etc. Rules do give Boards an opportunity to clarify or elaborate on the CC&Rs.

Our CC&Rs give us a lot of latitude to make rules. So, for instance, Owners have exclusive use deeded parking spaces in our underground garage. The deliver started our original Rules & Regulations, which state cars and their attached menus may not hang over the physical parking space; that car alarms that go off frequently must be removed by owners, etc. Rules were added by board that say only one automobile and one personal shopping cart may be in each space.





Our CC&R's are pretty vague all around actually.

We have a section called Development Control and one amendment tried to address that, change Development to Architectural and add "The Board of Directors of the Association may promulgate architectural criteria (e.g., pre-approved paint palettes) and procedures (e.g., application forms) to facilitate the review process."

But we can't get the votes.





KerryL1
(California)

Posts:8729


08/11/2021 6:22 PM  
Hmmm, I'm lost. It looks like your only need Board approval to make rules or guidelines. Oh, you're saying you Tired to change it to give the board some control, right?

Our t of curiosity, what does the section on Development Control say now?

I just feel that somewhere in you CC&Rs, probably, the board of your Assn. has powers to make policies or rule for guidelines without owners voting on every single little thing!

Say, is it possible something useful is in your Articles of Corporation?
CarissaM


Posts:0


08/12/2021 6:16 AM  
YES, they are in the Articles of Incorporation! The association has the power to make rules and regulations. I study the CC&R's a lot of the time but the PDF of the AoI is really a scan of a scan of a scan and hard to read but I did find that.

So the good news is YES we can make rules and regulations. The bad news is, I need more experience and knowledge to use that to the board/community's advantage. I say both board and community because in the end, I want freedom of enjoyment.

CarissaM


Posts:0


08/12/2021 6:18 AM  
Attached is the Development Control section to review so you can see what we have now.

Attachment: 1812182072371.pdf

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Forums > Homeowner Association > HOA Discussions > Recording Prior Amendments & Amendment Typos



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