July 17, 2009

Amending Your Association's Declaration or Covenants

The original United States Constitution has been amended 27 times in the 222 years since its adoption. There have also been 6 other proposed amendments that passed Congress but were not ratified by enough states to become binding amendments. Most condominium and homeowners associations also find it necessary to amend their declarations or covenants from time to time to correct inconsistencies, shift responsibilities, and furnish themselves with additional tools to address recurring problems.

Condominiums created before July 1, 1990 are legally required to obtain the approval of at least 60% of the owners to amend their declarations. Condominiums created after July 1, 1990 are legally required to obtain the approval of at least 67% of the owners to amend their declarations. Those newer condominiums must also secure the approval of at least 90% of the owners (including the owners of all affected units) to enact certain types of amendments (including those that change unit boundaries, allocated interests, or uses of units). Some condominium declarations state that higher percentages of owner approval and the consent of a specified number of mortgagees are required for amendments. Washington law does not specify a minimum amount of owner consent that homeowners associations must obtain to amend their covenants, so it necessary to review those covenants to determine what is required to amend them.

Governing document amendments can take many forms. Some amendments require owners to maintain and repair specified portions of the property (such as windows) and repair damage to common property if certain circumstances are present. Others restrict the ability of owners to alter their property (such as by installing hard surface flooring) without the board’s consent. Amendments can provide associations with more options to collect delinquent assessments (including non-judicial foreclosure) and can enhance their lien rights in some cases. They can also place limits on how owners may use the property (for example, by imposing a cap on rentals). If an association’s governing documents contain contradictions (documents that make maintenance and repair of limited common elements the responsibility of owners in one place and the association in another are surprisingly common), amendments can fix those mistakes.

An association’s governing documents reflect its values and priorities. Seeking input from the association’s property manager, attorney, and owners at an early stage will make the amendment process as smooth and productive as possible. The end result will be a document that empowers the board to better serve the needs of the community in the future.