The Mother of All Amendments
Has your condominium or HOA declaration been amended fifteen times? Are you tired of page after page of references to a declarant or developer that has been out of the picture (or out of business) for years, or even decades? Is your association’s declaration so old, poorly recorded or otherwise hard to read, that parts are virtually illegible? Do you suspect that portions of your declaration conflict with current law? If you answered yes to one or more of the above questions, you should probably consider the Mother of All Amendments—an amended and restated declaration.
What does it mean to amend and restate a declaration?
An amended and restated declaration is just another type of declaration amendment. Most boards and owners are familiar with the most common type of amendments, which we call targeted amendments. A targeted amendment simply describes changes to the declaration made by that amendment, and the defining characteristic is that the prior declaration remains effective. A targeted amendment might delete a declaration section and replace it, add a new sentence or section, impose rental restrictions, or describe a parking reallocation.
An amended and restated declaration is meant to completely replace the currently operative declaration and all subsequent amendments. The nature and extent of changes that can be made by amending and restating a declaration are virtually unlimited. Let me provide several examples. If an association has a declaration that is particularly difficult to read because it was recorded 40 years ago, and it has five subsequent amendments, the association could consider a simple amendment and restatement to transcribe and reformat the entire declaration and incorporate all amendments, yielding a clean and legible recorded declaration. If an HOA has 25 amendments recorded by declarant when they were adding subsequent phases, an amendment and restatement might help to consolidate the declaration into a more manageable document. In any of the above scenarios, an amended and restated declaration might make sense.
How does a Board evaluate their association’s needs?
Our attorneys are available to explain whether an amended and restated declaration might be right for your association. From consent requirements and timing, to planning and costs, we can review your current documents and discuss whether your association should consider an amended and restated declaration.