As associations age, the notion of amending the declaration is brought up more and more often. These associations are usually coping with modern community issues while operating under a declaration that was written long before these issues were relevant. Since approval requirements to amend the declaration typically range from 51% to as high as 100% of the owners and first mortgagees, the mere thought of amendment may be overwhelming even if governance will be more efficient in the long run. Therefore, consider looking at the project in three phases.

First, determine whether the issues facing the board can be overcome by adopting rules and regulations to clarify the existing declaration. Declarations are frequently written with broad powers, including the power to adopt rules that do not conflict with the declaration. Some of the community’s issues may be solved with rules regarding the day to day operation of items such as parking, pets, leasing, collecting assessments, design standards, and maintenance obligations. As long as the board is not attempting to change the declaration, a rule may provide an efficient means of governance without the cost and time needed to amend the declaration.

Second, if the board cannot accomplish its goals through rule-making, meet with the association’s legal counsel to determine the nature and extent of the amendment needed. For instance, the maintenance provisions in the declaration may be so vague that it is unclear for what the association is responsible. Or, the association may wish to make the insurance obligations more flexible. For limited issues, a limited amendment may be appropriate. On the other hand, the board may have numerous items that they have been struggling with because the declaration as a whole needs updating. Once the board and legal counsel discuss the goals of the board, the attorney can draft proposed language to meet those goals.

Third, once the board is satisfied with the proposed language, it can provide a copy to each owner for review and comment. As part of consensus building, we recommend notifying owners in advance that the board is working on a proposed amendment so that owners do not feel that an amendment has been sprung upon them. Once the draft is ready, the board should set up a meeting to discuss the draft, owners’ comments, and any possible changes based on those comments. The board should also request written comments from those owners who are unable to attend the meeting. Once a final draft is prepared, incorporating owner comments when appropriate, the board can send the final document to owners for approval. Typically, the solicitation of approvals continues until the necessary approval has been obtained, so it is important to monitor these as they come in.

Even though the approval requirement to amend your declaration may be daunting, Colorado law permits associations to petition to district court to approve an amendment when the association faces apathy on the part of owners or first mortgagees. For more information on the court petition process click here.

Additional articles:
To Amend or Not to Amend
Turning Bad Documents into Good Ones

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