The central governing documents in condo ownership outline your control over your unit. They dictate the terms of your occupancy and your ownership rights, including who can live there, what activities may take place in the unit, whether the unit can be leased, and any restrictions thereon.
Governing documents are also unique in that they define the details of certain aspects of the relationship between the unit owner and the association as represented by the board of directors. Like all legal documents, governing documents have to be living, breathing, and evolving, adapting over time to reflect changes in the laws and legislation that relate to them, as well as the larger cultural and market climate.
When, and Why?
“You don’t want to fix something that doesn’t need fixing,” says Margery Weinstein, an attorney with Ganfer Shore Leeds & Zauderer, a law firm located in New York City. “But when the governing documents are not working, for whatever reason, it’s time to examine them.”
According to Ellen Shapiro, a partner with Goodman, Shapiro and Lombardi, a law firm based in Dedham, Massachusetts, “There’s really no hard and fast rule as to when governing documents should be updated, but [one should] look at them every 10 years or so, because issues relating to documents change. The law changes, and that’s why documents need to be amended.”
Jeff Reich, a partner with New York City-based law firm Schwartz Sladkus Reich Greenberg & Atlas, adds that “human nature is such that documents usually get reviewed when one of two things happens: either some problem arises that can’t be satisfactorily resolved with existing provisions, or the board brings on a new attorney, and as part of the transition they look at the existing documents and suggest an update. Of course, there’s a third possibility: when owners or shareholders read this article.”
Experts agree that the two main factors that compel boards to review and possibly update their association’s or corporation’s governing documents are changes in federal or state laws, and obsolete or problematic language in the documents that at best make it difficult for the board to make governance decisions, and at worst open the board to liability. Shapiro points out an important, if extreme, example of the latter: older associations may still have covenants on their books that would be considered discriminatory today. Obviously, and for an array of reasons, those can’t be left in place. Having discriminatory rules, regulations, or policies of any kind in your documents — even if they’re not enforced — is considered discriminatory, and not only can lead to liability and possible financial penalties, but also can have a corrosive effect on a community as a whole.
Additionally, says Weinstein, as condos and HOAs have proliferated and outnumber co-ops by larger and larger margins, their more lenient provisions make them more appealing places to live for many — particularly younger buyers — and may put co-ops at a disadvantage when it comes to attracting new purchasers. “Co-ops may be restrained by old-fashioned regulations that may make attracting new shareholders difficult, such as no subletting, no pets, et cetera,” she says. “Buyers may be turned off. Co-ops may want to examine their documents to make them more ‘condo-like’ to attract potential buyers.”
Additionally, adds Reich, these same provisions may contain outdated language — or omit language necessary to deal with modern-day realities and mores. “Omission is even more problematic than obsolete language,” he says. “Additionally, legal decisions taken since the documents were written may require changes or amendments to reflect them. Many current issues didn’t exist when these leases [and other documents] were written.” A good example of that is smoking — both in common areas and private units. Today, smoking policies must be codified and made public. Banning smoking entirely usually requires an amendment, which would require a building-wide shareholder vote.
As Reich observes, many issues facing today’s co-ops and HOAs didn’t exist when their leases and other foundational documents were written as much as 40 or even 50 years ago. Consider the requirement that boards meet monthly to make decisions about the operation of the building, for one example. Telemeetings didn’t exist at that time — so contemporary options for meetings need to be incorporated into governing documents. (The caveat here being that votes on some issues may be required by law to be made in person — so consultation with legal counsel is crucial to make sure that any alterations to documents are compliant in this regard.)
Another major consideration today is the rewriting of documents to reflect changes in attitude toward gender. For example, Weinstein explains how old leases and bylaws refer to shareholders and owners almost uniformly as male — and often incorporate such language as “the shareholder and his wife.” In writing a new lease today, she says, she adjusts the language in it to be gender neutral and applicable to everyone in the community.
Other major considerations that should be taken into account when making governing documents more contemporaneous are clauses dealing with occupancy — including who may live in an apartment, when, and under what circumstances, as well as repair responsibilities, smoking, flip taxes, and subletting policies. Weinstein explains that the use provision in co-op proprietary leases, which governs who can live in the unit, may permit a child or parent of a shareholder to live in the unit with them, but not if the primary unit owner or shareholder is not themselves occupying the unit. So, if a shareholder in Boston wants to move to Florida, but wants to let their adult child — and perhaps that adult child’s family — live in the apartment, that may well be prohibited. The existing language may be too vague or too restrictive, and might require some redefinition. The same is true of subletting provisions, says Weinstein; the language in these is often vague, and needs to be made crystal-clear. Additionally, some condos — which traditionally are extremely liberal with lease provisions for non-owner tenants — are taking a page from co-op buildings and requiring more scrutiny and supervision of tenants.
Provisions dealing with repairs often need clarification as well. Too often, a board and an owner may end up in conflict relative to who is responsible for what repairs, particularly when the repair involves systems like plumbing, which traverse both common and private areas. For example, where within a wall does a pipe become the responsibility of the association or corporation? Where does the liability of the owner or shareholder end? Documents should contain specific parameters, spelled out in concrete terms of feet and inches to clarify these issues and to avoid conflict.
The process of amending and updating documents is not a short one, and requires a number of steps. According to Reich, “First, the attorney should review the existing [documents] and recommend changes. At the same time, the board should have some ideas of their own about changes they would like to see. The attorney and board should collaborate on these changes.
“The second step is to draft amendments. The attorney should then meet with the board to review the changes. The next step is to memorialize the changes for the owners or shareholders in both exact legal language and in a ‘plain English’ translation, along with an explanation from the board to the residents explaining why the review was done. A meeting should then be set up for the residents to provide feedback. After that feedback, a revision should be made, and a second version of the amendments presented. After a second community-wide review and perhaps another meeting, a final version should be produced, and a date set for a meeting to ratify the changes.”
Shapiro outlines a similar process for changes to governing documents for condominium associations in Massachusetts, but notes that in some cases mortgage holders on the individual units may require consent to the changes, and that the changes must be recorded within six months of the first signatures obtained to ratify them. Trust amendments also require filing at the county level.
When, and How Often?
How often should a co-op or condo association consider revising their governing documents? According to Reich, Shapiro, and Weinstein, about every five to 10 years. One consideration factoring in to how frequently to review and revise is how attentive and responsive the board and its attorney have been to changes in laws and operational needs, and whether they’ve been amending the governing documents regularly to reflect those changes. The more prudent, incremental changes that have been made to keep up with legal and market factors, the less frequently a total revision will be necessary. According to Reich, this is where your community’s relationship with its legal counsel is key, because “attorneys should be on top of issues affecting the proprietary lease and keep the board informed!”
Board members, owners, and shareholders must keep in mind that a co-op or condo community is a living, breathing organism — and like any organism, it needs to grow and change in order to remain healthy and vital. Those changes may be organic to the needs of the community, like changing a policy relative to smoking or subletting, or they may be stimulated externally, by changes in law and legislation that affect corporations and associations. In either event, these changes need to be attended to for the overall health and effective operations of the community.
A J Sidransky is a staff writer/reporter for New England Condominium, and a published novelist.