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Michigan HOA Lawyers to Assist with Amending HOA Covenants

Michigan homeowners associations are governed by the Articles of Incorporation, Declaration (which is sometimes referred to as a Deed Restrictions, CC&R’s or Covenants, Conditions and Restrictions), the HOA Bylaws and any Rules and Regulations adopted by the HOA to implement the Declaration or Bylaws. The older the documents, the greater the likelihood that the board should be amending HOA covenants to comply with changes in Michigan law or changes in society. Once the determination is made that amending HOA covenants is appropriate, the second step is to contact an experienced HOA attorney to assist the homeowners association through the amendment process.

In Michigan, a homeowners association must regularly review and update its articles of incorporation, bylaws, covenants, declarations and deed restrictions to ensure they comply with applicable laws, and adequately address owners’ needs and changes in technology. Amending HOA covenants will often help your homeowners association avoid costly litigation.

When Should an HOA Amend the HOA Bylaws?

While there is no frequency as to when your homeowners association should be amending HOA covenants and bylaws, it is a good idea to review the governing documents every 3 to 5 years. Below are some common signs that your articles of incorporation, HOA bylaws, covenants, declarations or deed restrictions need to be updated.:

1. The articles of incorporation are dated before January 15, 2018.

In 2015 and 2018, major revisions were made to the Michigan Nonprofit Corporation Act, MCL 450.2101, et. seq., Act 162 of 1982.

A few examples of the changes include:

• Participation in meetings by electronic means
• Voting by electronic means
• Additional limitations on director and officer liability
• New requirements for the inspection of association records
• The ability to create nonexecutive committees

The articles of incorporation should also permit a Michigan homeowners association to act by voting outside of a meeting to accommodate the busy lifestyles of owners in today’s society.

Our Michigan HOA attorneys recommend reviewing your homeowners’ association’s articles of incorporation to determine if they need updating. You can search for a copy of your Michigan HOA’s articles of incorporation here.

2. The bylaws, covenants, declarations or deed restrictions were drafted by the declarant’s attorney.

Subdivision developers, or declarants, often draft bylaws, covenants, declarations and deed restrictions to protect their own interests. A declarant’s goals are primarily to sell lots and complete the subdivision as quickly as possible.

After control of a homeowners association’s board of directors is transferred from the developer to the homeowners, it is wise for a homeowners association to amend its governing documents. The amendments not only make the documents more user-friendly, but they also help ensure the HOA can properly function.

3. The bylaws, covenants, declarations and deed restrictions do not address current issues.

Bylaws, covenants, declarations and deed restrictions can become outdated based on changes in technology or the law. Times are changing and so should your HOA documents.

Given that the law evolves much slower than technology and various other trends like Airbnb and drones, homeowners associations should take a proactive approach to anticipate potential issues. A reactive approach will often result in litigation if potential problems are not addressed in the governing documents before they arise.

4. The bylaws, covenants, declarations and deed restrictions contain conflicting provisions.

Many bylaws, covenants, declarations and deed restrictions that govern homeowners associations are extremely old and very unsophisticated. Ambiguous drafting often leads to expensive litigation. Homeowners association documents that contain conflicts in the bylaws, covenants, declarations or deed restrictions should be amended immediately to avoid potential litigation. Accordingly, Michigan homeowners’ associations should review the requirements of their existing restrictive covenants in order to determine whether the covenant can be amended with less than unanimous consent of the owners.

5. The bylaws, covenants, declarations and deed restrictions do not contain adequate enforcement mechanisms.

One of the main issues that should be addressed in bylaws, covenants, declarations and deed restrictions is whether the homeowners association is voluntary or mandatory. It is extremely difficult for a homeowners association to operate if membership is voluntary, and the governing documents lack appropriate enforcement mechanisms.

All bylaws, covenants, declarations and deed restrictions should allow for a homeowners association to place a lien to recover sums owed to the association and recover attorney’s fees and costs. Also, the governing documents should allow for the assessment of damages, attorney’s fees, and costs back to an owner that has violated the governing documents.

Not all bylaws, covenants, declarations and deed restrictions permit the homeowners association to impose fines for violations of the governing documents. Accordingly, governing documents that lack appropriate enforcement mechanisms should be amended so that the financial burdens associated with bylaw violations are shouldered by the owner that has violated the governing documents and not by the remaining members of the community.

6. The bylaws, covenants, declarations and deed restrictions are unclear.

At Hirzel Law, PLC, we believe that homeowners association documents should be drafted in plain English.  The attorneys at Hirzel Law, PLC meet on a regular basis to simplify the language in their template governing documents to reduce legalese and make the governing documents more user friendly for homeowners associations. Many HOA bylaws, covenants, declarations and deed restrictions are drafted by attorneys and for attorneys, which make them incomprehensible to homeowners associations, HOA boards and property owners.

If a homeowners association is constantly having battles over the interpretation of language contained in governing documents, it may be time to look at amending HOA covenants to clarify specific issues.

7. The covenants, declarations or deed restrictions are difficult to amend.

Many older restrictive covenants, declarations and deed restrictions contain onerous amendment provisions. In some instances, a simple vote will not suffice to amend the governing documents and the homeowners association is required to collect signatures of numerous owners to record an amendment.

Some older restrictive covenants, declarations and deed restrictions also contain finite periods in which the covenants, declarations and deed restrictions can be amended. Specifically, it is not uncommon for older covenants, declarations and deed restrictions to automatically renew for 10 years and contain language that an amendment would not be effective until the end of the renewal period.

Accordingly, homeowners associations with difficult amendment provisions should consider modernizing their documents to permit amendments to be effective based on a vote of the owners and to be effective immediately.

How Do You Amend Restrictive Covenants? 

Before amending HOA covenants, HOA boards must first consider why they want to change their bylaws. If there is no justifiable reason to do so and the board simply wants to alter the documents “just because,” then the board should think twice before doing so. Amending HOA covenants and bylaws is time-consuming.

While the process may vary depending on laws and governing documents, below is how to amend HOA covenants and bylaws:

1. Questionnaire for input

2. First Draft to Board

3. Board Approves and we hold an information meeting for owner feedback

4. Vote or Signatures (some HOA documents only require signatures)

5. Recording if Approved

Should Your HOA Have Its HOA Documents Reviewed by an HOA Lawyer?

With our vast experience in homeowners association governing documents, we are well equipped to amend and modify these documents. Our goal is to make the language as clear as possible to avoid ambiguities that lead to unnecessary litigation. Our Michigan HOA attorneys also seek to update HOA documents so they comply with the most current Michigan HOA laws.

One thing that sets Hirzel Law PLC apart is that we have bi-annual meetings will all our HOA attorneys to review documents. We are constantly updating governing documents based on new cases, changes in Michigan HOA law and new issues we spot in our practice.

Contact Our HOA Lawyers for Help with Amending HOA Covenants

At Hirzel Law, PLC, our Michigan HOA lawyers can help your homeowners association with amending HOA covenants and bylaws. We stand by our clients, offering the highest quality legal representation and promptly responding to our clients’ needs.

Contact Hirzel Law online or call 248-986-2921 (Farmington) or 231-486-5600 (Traverse City) or 616-319-9964 (Grand Rapids office) to see how our Michigan HOA lawyers can assist with amending HOA covenants for your homeowners association.