HOA Life Under Quarantine: Do We Need to Amend?
Hey everyone, it’s Double Blog Day! We are getting a lot of COVID-19 related questions and a lot is happening at the state level, so we decided to double up this week. Some of the questions we are getting are about whether communities should be amending their governing documents to fit the realities of social distancing or quarantine, including amendments to change the date of the annual meeting, allow video meetings, electronic notice, or electronic voting. Cutting to the chase, the answer is PROBABLY NOT.
Chances are, your documents allow video meetings and electronic voting – even if those words do not appear in the document and even if you’ve never tried it before, but Proclamation 20-51, covered in the other article, makes this even easier by removing statutory bars to video meetings and voting. Proclamation 20-51 makes some temporary changes to state laws relating to attendance at meetings, but no changes were made to the statutory provisions requiring mailed notice for condos or email notice for HOAs if the owner opts in. So amendments that change the way you provide notice may actually cause you to violate state law. In Oregon, both the Condo and Planned Communities Act allow electronic notice and voting already and specifically trump governing document language to the contrary. And frankly, while electronic notice is certainly easier, there is nothing about the proclamations that would prohibit mailing of notices.
Moreover, the amendment process takes time. Declaration or CC&R amendments must be voted on or consented to by the members and are not effective until recorded, so your community may not even be able to take advantage of the new language for months. Some communities can amend their Bylaws without a vote of the owners, but the Bylaws cannot contradict the Declaration or CC&Rs, so you may not have the option of implementing special procedures if the Declaration or CC&Rs reference those provisions. For this and other reasons, “temporary” amendments are generally not cost efficient, especially if they have to be reversed when the pandemic is over.
What our communities need is a way to temporarily ignore specific provisions that would constitute violations of the gubernatorial Proclamations – and that is exactly what those Proclamations provide. The Orders have the effect of making many of the temporary changes your community would want to make without having to invest in an amendment. There is no financial cost associated with the change, amendments are not required, and there is nothing more for a community to “fix” or change back once the order is lifted. In other words, the Governor’s Proclamations orders do exactly what communities need them to do - make temporary changes to Association practices without the investment of Association funds and time.
There are some issues specific to communities that may need to be addressed during this time and for those, we recommend contacting your community’s counsel, but for the vast majority of communities, these emergency-type amendments are not the answer.