A community’s governing documents, including its bylaws and house rules, are like a country’s constitution and laws. They are—or at least they should be—‘living’ documents that like our state and national laws and constitution, occasionally need review and amendment in order to remain relevant, meaningful, and respected. The question is how often, and how much?

Review & Maintenance 

Like your building or HOA’s physical plant, your governing documents should be reviewed and refreshed on an occasional basis. You may find that the original documents, frequently put in place by the property developer, converter, or builder, may no longer be serving the community as originally intended. If that’s the case, then much like a leaky roof, those documents need review, and perhaps repair, from time to time.

“The way a building operates changes over time,” says Hal Coopersmith, a partner at Coopersmith & Coopersmith, a law firm based in New York City. “Initial documents prepared by the sponsor may contain only generic boilerplate terms. Over time, boards may find that they are operating differently than the bylaws dictate, or that the needs of the community are not properly addressed therein.”

“It’s a proactive issue,” says Chris Tarnok, a partner with DL Partners Law Firm based in New York City. The decision to review and potentially amend documents often depends on whether it’s a newly formed condominium, or one that has been around awhile. A board must always be aware of what’s in their documents—in an older building, the existing documents may not be reflective of current conditions.”

How & Why

The question of amending documents can get complicated. In a condominium association or a co-op corporation, bylaws often require approval by a supermajority of members. That can be both tedious and hard to get. Amending your house rules, when applicable and possible, is often the easier route to achieving changes with the least amount of pushback.

Jonharold Cicero, also a partner with DL Partners, recommends addressing things in house rules rather than bylaws, “as governing documents require a 67 percent approval. If the changes needed can be addressed in house rules, that should be the way. If the changes relate to common elements, then those changes likely must be made to the bylaws and amended as such.”

In Illinois, notes Michael Kim, an attorney with Schoenberg Finkel Beederman Bell Glazer in Chicago, “Changes to recorded documents such as the declaration or bylaws must be approved by a supermajority of members, either by written consents or a vote at a meeting. Notice to mortgagees, or in some instances the consent of some proportion of the mortgages requires formal recordation of the amendment with the county in which the association is situated. However, under the Illinois Condominium Property Act and the Illinois Common Interest Community Association Act, an amendment to conform the declaration and bylaws to the statute can be adopted by the board alone without the regular amendment process. Changes to rules and regulations usually can be done by the board of directors alone, though the members must be notified—and possibly allowed to comment prior to adoption by the board. Rules typically are not recorded.”

Richard Brooks, a partner with Marcus, Errico, Emmer & Brooks, a law firm based in Braintree, Massachusetts, notes that “in Massachusetts, the requirements for amending bylaws and/or master deed documents require the approval of at least a majority of owners. Because of that it’s a major undertaking to change those documents.” So, he recommends to clients that the simpler way of approaching the problem is to modernize the documents, rather than changing them completely. “If you’re going to do it, it’s a big deal,” Brooks says, “So, how about modernizing?  There might be a few things that don’t work, but for the most part they are just enabling docs and other than rules, it’s how the place works and operates. If there’s something that needs to be fixed, then fix it.”  

Brooks cites an excellent example with respect to the use of Zoom for meetings. Prior to the pandemic, “There weren’t provisions in bylaws for Zoom meetings in associations.  If you want to use Zoom [to hold meetings remotely], you must update your docs. As it happens, very recently a law was passed in Massachusetts permitting Zoom meetings, so now you don’t have to make the update change. The law catches up with the problems.”

But not everywhere is the same. In New Jersey for example, we see a different set of factors. New Jersey’s Radburn decision has changed the way bylaws are viewed and amended.

“Prior to 2017,” says Michael Simone, principal of The Simone Law Firm, located in Cinnaminson, New Jersey, “amending governing documents was difficult, and the option to make changes through house rules was more viable. But the passage of the Radburn Act made it significantly easier to update bylaws. In the past, a supermajority was needed, or even in some cases a unanimous vote to pass an amendment. With Radburn, a new rule stated that amendments can be made as long as proper notice is given to the association members in writing, and then discussed at the following board meeting. The board can make proposed changes, and as long as 10 percent or less object to changes made by the board, it can implement the changes. Essentially, Radburn bypasses the bylaws’ strict supermajority quorum necessary to pass those changes.”

How About House Rules?

Under most circumstances, a community’s house rules can be amended or changed by the board of trustees or directors without the permission of the members of the association or shareholders of the corporation. “Boards are generally able to amend house rules unilaterally,” confirms Coopersmith.

 But there are other considerations besides the ease with which a board can change house rules that should be taken into consideration when deciding how to go about making changes. “Changing house rules involves much less legal work, so it’s much less expensive,” says Tarnok.

Kim points out that there are both practical and political considerations when making changes and doing so without conflict within the community. “It’s usually advisable for the board to get a good sense of whether the membership is amenable to a new or changed rule, especially if it will have a significant impact on the membership. That process can be done via surveys, focus groups, town hall type gatherings and the like. Otherwise, there may be compliance issues and in the extreme case, lead to membership action to remove or not re-elect board members.”

Simone points out that while “notifying residents is not relevant in New Jersey under Radburn, it’s always good practice to keep members in notice to avoid potential issues later when trying to enforce rules or bylaws. We live in a litigious society so you want to avoid legal actions through notifications.”

What’s Reasonable?

Each building is different, of course, and costs are a factor. The nature of reviewing documents and determining if changes are necessary requires the help and guidance of the corporation’s or association’s attorney—and attorneys don’t work for free.

“If you live in an older building,” says Cicero, “and the governing documents haven’t been updated, the board should authorize your attorney to look at them. With the advice of counsel, you may need to make changes. Most importantly, be proactive about it, not reactive. Again, make changes in house rules to avoid other complications. In my experience, most communities wait too long.”

Brooks concurs and offers a tale from real life: “Updating documents can cost up to $10,000,” he says. “There are lots of little changes, and you have to convince a majority of the association to read it and vote on it. Inertia is not uncommon in our business; about 20 years ago, one condominium client of ours wanted to do this. We got a call back last week. In the final analysis, it’s a very large undertaking, and difficult to do. Legally, it may not be necessary. That’s why I always ask the client, ‘What are you trying to do?’ If it’s a small, obvious thing like no smoking or no rentals, and we can fix it by adding a new amendment which is not updating the docs, just adding one thing, we take that route. Regardless, the board should always hold a meeting first to let people know and let them speak and get the temperature of the community.”

In the end, good legal advice and sound judgment should be used in determining what you and your community want to do to keep up with the times and keep your community functioning at its best.  If an amendment is needed, make it—but if it ain’t broke, don’t fix it.

A J Sidransky is a staff writer/reporter with New England Condominium, and a published novelist. He may be reached at alan@yrinc.com.