How to Rewrite HOA Governing Documents

To rewrite HOA governing documents, start by identifying which document you are changing, because each one has its own process. Rules and regulations can usually be changed by a board vote after notice to the owners. Bylaws and CC&Rs need a vote of the members at the threshold your documents set, and a CC&R amendment generally takes effect only once it is recorded with the county. In every case, have the association’s attorney draft or review the language.

The documents were written at different points in the life of the association and serve different purposes, so it makes sense that they change in different ways. The details vary from one association to the next. This article covers what each document does and what that means for how it can be amended.

When to Rewrite HOA Governing Documents

Several documents are involved in setting up an HOA. The ones most likely to need revision are the Declaration of Covenants, Conditions and Restrictions (CC&Rs), which sets the basic restrictions and obligations for the property; the bylaws, which say how the association is governed; and the rules and regulations, which provide the detailed operating rules. Our article on HOA governing documents explains each one.

Sooner or later these documents need changes to specific sections, and sometimes a full rewrite (often called a restatement). Common reasons include:

• State law has changed and parts of the documents are now out of date or unenforceable.
• The documents still contain developer-era provisions that no longer apply.
• The community’s needs have changed, for example on rentals, parking or electric vehicle charging.
• Sections contradict each other or are too vague to enforce.

There is no required schedule. A sensible habit is to have the association’s attorney review the documents every few years and after any major change in state law. If the review turns up only a few problems, targeted amendments are cheaper. If the documents are decades old and have been amended many times, a full restatement may be easier to read and to enforce.

Start With the Hierarchy

The process for changing each document should already be written into your governing documents, usually in an amendment section of the CC&Rs and another in the bylaws. The documents rank in a hierarchy, and the ones at the top require the most support to change. It works a lot like the law: the U.S. Constitution is much harder to amend than a local ordinance, and an association’s CC&Rs are harder to amend than its rules for the same reason. Each sits at the top of its own hierarchy.

Changing Rules or Regulations

The rules are the easiest document to change. In most associations a rule change takes a vote of the board and notice to the homeowners. Some states also require advance notice and a comment period before the board votes.

Conflicts often start because homeowners did not know a rule had changed. Communicating openly before and after the vote benefits everyone, even where the law does not require it. It gives homeowners a fair chance to follow the new rule and shows them their views were heard. A rule also has to stay within the authority the CC&Rs and bylaws give the board. If the change you want goes further than that, you need to amend the higher document.

Changing Bylaws or CC&Rs

Bylaws and CC&Rs generally can be changed only with the approval of the association’s members. The size of the vote differs from one association to another. Some documents require a simple majority. Many require a supermajority, such as two-thirds or 75 percent of all owners, especially for the CC&Rs. Read the amendment section closely, because it will also tell you whether the percentage is measured against all owners or only against those who vote. Some documents also require consent from mortgage lenders or the developer for certain changes.

Since the community has to vote, plan on at least one open meeting where homeowners can ask questions and weigh in on the proposal before ballots go out.

The harder and more expensive part is settling the exact wording. Governing documents have legal consequences. They affect the board’s exposure to lawsuits, the association’s options for collecting unpaid assessments, and owners’ property rights. For that reason you need an attorney’s help with any change to the bylaws or CC&Rs. The board can save time and fees by first deciding what it wants to achieve and writing that down in plain language, so the attorney can turn it into the exact amendment.

Steps to Amend the CC&Rs

Amending the CC&Rs usually follows these steps:

1. The board proposes a change to the CC&Rs and has the association’s attorney draft the amendment.
2. A meeting is scheduled to give homeowners and board members an opportunity to discuss the proposed change.
3. Ballots are sent to the homeowners, along with the text of the amendment. Many states and governing documents require a secret ballot.
4. The ballots are counted. The change passes or fails based on the percentage the CC&Rs require, and a minimum number of ballots may have to be returned for the vote to count.
5. If the amendment is approved, an officer certifies the result and the amendment is recorded at the county recorder’s office.
6. All homeowners are sent a copy of the recorded amendment or the amended CC&Rs.
7. The board reviews the bylaws and rules and updates anything that no longer matches the amended CC&Rs.

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Bylaw amendments follow a similar path, but bylaws normally are not recorded. For help with the voting steps, see our article on how to conduct effective HOA elections.

If You Cannot Get Enough Votes

The usual obstacle is turnout. When the CC&Rs require approval from two-thirds or more of all owners, every owner who does not return a ballot counts the same as a “no” vote. Give owners plenty of time, explain the amendment in plain language, send reminders, and extend the voting deadline if your documents and state law allow it. Some states also let an association ask a court to approve an amendment that won majority support but fell short of a supermajority. Your attorney can tell you whether that option exists where you are.

What to Do About State Law Changes

One thing a board cannot control is when the state changes its HOA laws, or which laws it changes. Some states amend their statutes almost every year. Each time, the board has to work out whether the change affects the association, which documents are affected, and how to update them. A provision in your documents that conflicts with current law generally cannot be enforced, so keeping up matters, even though it takes time and energy.

In Florida, some associations handle this with what is called “Kaufman language,” named for a Florida appellate decision, Kaufman v. Shere. The documents refer to the state statute “as amended from time to time,” and Florida courts have read that phrase to mean later changes in the statute apply to the community automatically. Other states approach the question differently, and in many of them a mandatory statute overrides conflicting documents with or without such a clause. Ask your attorney how new legislation interacts with your documents in your state, and whether a cleanup amendment is needed.

In California

California’s Davis-Stirling Act sets rules for each kind of change. These are the main ones:

• Amending the declaration. Under Civil Code section 4270, an amendment takes effect only after it is approved by the percentage of members the declaration requires (and by anyone else whose approval the declaration requires), that fact is certified in a signed and acknowledged writing by the designated officer or, if none is designated, the president, and the amendment is recorded in each county where the development is located. If the declaration does not state a percentage, a majority of all members can approve the amendment.
• Secret ballot. Votes to amend the governing documents must be held by secret ballot under Civil Code section 5100. Section 5115 requires ballots to go out at least 30 days before the voting deadline, with the text of the proposed amendment.
• Court petition to reduce the required vote. If the declaration requires more than 50 percent of the votes to amend it, Civil Code section 4275 lets the association or any member petition the superior court to approve the amendment with fewer votes. The court may grant the petition if it finds, among other things, that the balloting was properly conducted, a reasonably diligent effort was made to let all eligible members vote, owners holding more than 50 percent of the votes approved the amendment, and the amendment is reasonable. The court’s order and the amendment must then be recorded, and a copy delivered to each member.
• Operating rule changes. Civil Code sections 4340 to 4370 govern operating rules. For rules on the subjects listed in section 4355, such as use of the common area or a separate interest, member discipline and fine schedules, architectural review procedures and elections, section 4360 requires the board to give members general notice at least 28 days before it makes the change, with the text of the proposed rule and a description of its purpose and effect. The board then decides at a board meeting after considering member comments, and gives notice of the adopted change within 15 days. An emergency rule can skip the advance notice but lasts no more than 120 days. Members owning 5 percent or more of the separate interests can call a special vote to reverse a rule change if they deliver the request within 30 days after the association gives notice of it (section 4365).
• Changes the board can make without a member vote. The board must delete unlawful discriminatory covenants without member approval (Civil Code section 4225), and it may correct outdated cross-references to the Davis-Stirling Act by board resolution (section 4235).

When a California statute and your documents conflict, the law prevails under Civil Code section 4205. Our explainer on California HOA law gives more background on the Act.

Cost and Timing

Changing your association’s governing documents is usually neither fast nor free. Before starting, the board should think through why it wants the change and whether the owners are likely to support it, particularly for the CC&Rs.

Budget for an attorney to draft the language and guide the process. There are also costs for printing and mailing notices and ballots, for an inspector of elections where one is required, and for recording fees. A full restatement costs more than a single amendment and can take many months from first draft to recording. Getting homeowners involved early, through a survey or a town hall, makes it more likely the vote will pass the first time.

For related topics, visit our rules and governing documents section.

The Law Behind This Article

Every legal point in this article comes from the official text. Each link below opens it in a new tab.

Civil Code sections: 4205 · 4225 · 4235 · 4270 · 4275 · 4340 · 4360 · 4365 · 5100 · 5115

This article is general educational information, not legal advice. Laws vary by state and your association’s governing documents control many of these questions, so check with your association’s attorney or another qualified professional about your situation.