Make Your HOA Amendments and Restated Documents Legal!

What Does It Take To Make Amendments And Restated Documents Legal?

I just did a post that discussed “Adding and Enforcing Restrictions on HOA Properties” which went into detail about what HOAs can do about amending and restating documents, and I did an E-newsletter on the topic back in March (see the E-news archives at www.californiacondoguru.com.)

This is a followup to double down on a very important point. You need to follow through entirely when doing an amendment or restatement project to make the new document legal!

In an HOA that is already in place with CC&Rs, restrictions can be added or the document can e restated if approved by the percentage of owners or voting power stated in the CC&Rs.

Civil Code 4270 contains the requirements to make any amendment or restatement legally binding. Be sure to pay attention to this because sometimes HOAs go through the whole process of amendment and updating and never record the documents after approval. And no, it’s not the attorney’s fault! When I finish a project with an association I send the final documents to the Board/management for voting along with instructions to contact me to assist with signing and recording instructions which gives me the opportunity to help them finish the process which requires getting the amended or restated CC&Rs recorded and the Restated Articles of Incorporation filed with the state. If they do not follow through after voting with these steps, neither of these documents has any legal effect!

Here is what 4270 says:

(a) A declaration may be amended pursuant to the declaration or this act. Except as provided in Section 4225, 4230, 4235, or 4275, an amendment is effective after all of the following requirements have been met:

  • The amendment has been approved by the percentage of members required by the declaration and any other person whose approval is required by the declaration.
  • That fact has been certified in a writing executed and acknowledged by the officer designated in the declaration or by the association for that purpose, or if no one is designated, by the president of the association.
  • The amendment has been recorded in each county in which a portion of the common interest development is located. (my emphasis)

(b) If the declaration does not specify the percentage of members who must approve an amendment of the declaration, an amendment may be approved by a majority of all members, pursuant to Section 4065.

You can get more on this process by reading the article on amending CC&Rs and can more guidance by reviewing the actual laws regulating HOAs in THE DAVIS STIRLING IN PLAIN ENGLISH, a book that is available at www.californiacondoguru.com.

 

 

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