Amending HOA bylaws, covenants, declarations and deed restrictions.
HOA Lawyers Serving All Of Michigan
Reviewing and Updating Bylaws, Covenants, Declarations and Deed Restrictions
In Michigan, a homeowners association must regularly review and update its articles of incorporation, bylaws, covenants, declarations and deed restrictions. This is to ensure the HOA’s governing documents adequately address owners’ needs. Let us help with this complicated task.
When Should You Update Homeowners Association Governing Documents?
As time passes, laws change and so does technology. And for newly formed homeowners associations, sometimes you don’t know what you don’t know. Here are common signs that your homeowners association’s bylaws, covenants, declarations and deed restrictions need to be updated.
1. The articles of incorporation are dated prior to January 15, 2015.
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 lawyers 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 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 owners, it is wise for a homeowners association to amend their 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Bylaws, covenants, declarations and deed restrictions can become outdated based on changes in technology or the law.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, 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.
Here are examples of common issues not addressed in many HOA governing documents:
- Assessment Increases
- Electric Vehicle Charging Stations
- Electronic Voting
- HAM Radio
- Insurance Coverage
- Medical Marijuana
- Remote Meeting Participation
- Rental Caps
- Short-Term Rentals (Airbnb)
- Social Media
- Smart Phone Use
- Smoking Bans
- Solar Panels
- Website Use
- Wi-Fi Use
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.
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. In addition, 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. Many 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 amend the documents 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 time 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.
Do Your HOA Documents Pass or Fail?
We offer an HOA Report Card that outlines the strengths and weaknesses of your homeowners association’s governing documents. Our written review also offers suggestions for improvement. The HOA Report Card is included in our Premium Service Plan.
Improving Documents Can Help Prevent Lawsuits
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. We also seek to update documents so they comply with the most current laws.
One thing that sets Hirzel Law PLC apart is that we have bi-annual meetings will all our attorneys to review documents. We are constantly updating governing documents based on new cases, changes in the law and new issues we spot in our practice.
The Right HOA Lawyers for Your Needs
Clients come to us with huge, messy problems because they know we have a great track record of resolving complex issues. We are known for our ingenuity, responsiveness and peer-recognized legal prowess. We pride ourselves on educating clients and providing the highest quality legal representation.
Contact Our Michigan HOA Lawyers for Help with Homeowners Association Governing Documents
When you want top-notch service, quick response times and cutting-edge thinking, contact Hirzel Law PLC online or call 248-478-1880. Our team of award-winning HOA lawyers is ready and willing to help with your homeowners association legal issues.
Farmington MI Office
37085 Grand River Ave, Ste 200
Farmington, MI 48335
Monday - Friday
9:00am - 5:00pm
Traverse City MI Office
1001 Bay St., Suite E
Traverse City, MI 49684
Monday - Thursday
9:00am - 4:00pm
Friday: By Appointment