![]() Once the attorney forwards the draft of the amendments to the Board, the Board will need to decide whether another meeting with the attorney is in order. (Another benefit is that the document will show the provisions that are not being changed.) This is extremely helpful for both the Board of Directors and eventually the homeowners so that everyone can see the precise changes that would be made. If an Amended & Restated Declaration of Covenants is to be prepared, we recommend that the amendments be prepared in a redline format so that all of the additions or deletions are clearly shown. If the Board of Directors decides to proceed, the attorney will prepare the first drafts of the amendments. After that initial consultation, the Board can then decide whether to move forward with the amendment project and, if so, to define its scope. Normally, the procedure to amend the covenants is different from the by-laws. The attorney can also explain the technical amendment procedures that will need to be followed. The attorney can then meet with the Board for a couple of hours to review the “wish list”, but also to point out other provisions that should or could be amended at the same time. We also recommend to our clients that the Board members prepare their own “wish list” of amendments they want. What’s the first step? That perhaps is the most daunting question facing the Board! We recommend that the Board provide copies of all of the original covenants and by-laws, as well as all amendments, to a community association attorney who has extensive experience in amending such governing documents. The main benefit of preparing amended and restated versions of covenants or by-laws is that the former versions no longer need to be referenced. This is very helpful if a number of amendments have been previously adopted, or if the Board is going to propose a significant number of changes. Other times, the Board will decide to prepare an Amended and Restated version of either the covenants and/or the by-laws. Other times, the Board will propose several amendments at the same time. Sometimes, a Board will decide to only amend or add one provision. The scope of amendments is to be decided by the community’s Board of Directors. As communities age, it is important for homeowners to keep up their properties so that their neighbors don’t suffer. Often, the original covenants are ambiguous in this regard. Another provision commonly added is one that clearly states what homeowners must do to adequately maintain their property. Rental restrictions are one of the most popular things that Indiana HOAs want to add to their covenants. If the Board wishes to change those types of provisions, the covenants would need to be amended, not the by-laws.īoards can consider not only amending the original provisions, but also adding more restrictions. For many Indiana communities, that document is called the Declaration of Covenants, Conditions & Restrictions. Restrictions on items like mini-barns and fences are typically not contained in the by-laws, but instead are addressed in the covenants. Therefore, that is the document that needs to be amended in order to reduce the quorum to a more realistic figure. Normally, the quorum is set forth in the community’s by-laws. If your community consists of fifty, two hundred, or five hundred homes, experience shows that a 50% quorum is simply unrealistic. The original documents for many Indiana communities set the quorum at 50%. Boards should seriously consider a comprehensive legal review of the covenants and by-laws, especially if the Board is experiencing problems because of some of the provisions.Ī common problem concerns the quorum, which is the percentage of homeowners who must attend a homeowners’ meeting (such as the annual meeting) in person or by proxy. Finally, there may be provisions that are contrary to law or simply “don’t fit” the community. ![]() Additionally, the original covenants and by-laws may contain mistakes or inconsistencies. Common examples of this would be references to Class A Membership and Class B Membership as well as the “applicable date”. Once the homeowners association or condominium association is “turned over” to the homeowners, many of the provisions become obsolete. Typically, there are many provisions that are included for the developer’s benefit. The Boards of Directors of many Indiana homeowners associations and condominiums feel that they are “stuck” with the covenants and by-laws that the developer wrote.
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