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Getting the Vote: What it Takes to Change Your CC&R's
 

Getting the Vote: What it Takes to Change Your CC&R's

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Mulcahy Law Firm, P.C. puts together an easy, 5 step plan for amending your Community Association documents. Reserve Funds are also discussed, including how to make, keep, and grow your community ...

Mulcahy Law Firm, P.C. puts together an easy, 5 step plan for amending your Community Association documents. Reserve Funds are also discussed, including how to make, keep, and grow your community association's investments.

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    Getting the Vote: What it Takes to Change Your CC&R's Getting the Vote: What it Takes to Change Your CC&R's Presentation Transcript

    • By: Charlene Cruz, Esq., Mulcahy Law Firm
    • The most common reasons for amending association documents are the following:  To delete or modify restrictions that are outdated, ambiguous or unreasonable;  To comply with changes in federal, state and local laws or ordinances;  To delete or modify provisions inconsistent with the management and operation of the association;  To delete provisions regarding the rights of the developer after the developer is no longer in control; and  To correct provisions that conflict with other governing documents (bylaws, articles of incorporation and rules and regulations).
    •  The Mulcahy Law Firm, P.C. has successfully assisted hundreds of associations in the process of amending documents using the following five step plan.
    •  The board of directors should check the specific language of the association’s documents.  Typically, there is a provision in each document which outlines the proper procedures to amend the CC&Rs, articles of incorporation, bylaws and rules and regulations.
    •  Most documents require a vote of the membership, additionally, in many associations, a percentage of the membership must approve the amendment.  In some rare cases, the association’s board of directors can amend the documents without the approval of a percentage of the membership.  However, the condominium act requires an approval of 67% of the votes within the condo association to amend the CC&Rs.
    •  The rules and regulations can be promulgated and amended in most associations by a majority vote of the board.  However, again in some rare cases, some associations require a vote with approval by a percentage of the membership to amend the rules and regulations.  The association should consult with legal counsel to assist with determining what is required to amend the documents.
    •  The board of directors should form a committee to research and prepare amendments to the association’s documents.  The amendment committee should solicit the ideas of committee members, board members and owners regarding changes to the documents and draft the proposed changes.  It is important that the association’s legal counsel review the documents and assist in the drafting of proposed changes during this step so that the documents are legally proper and enforceable.
    •  The board and/or amendment committee should use informational meetings, homeowner input forums, town hall meetings, coffees and/or newsletters and other printed materials to educate and inform the membership of potential changes.  The input and comments should be discussed by the board and/or amendment committee and legal counsel and final changes to the proposed amendments should be made at this time.
    •  The amendment committee and legal counsel should create strategic steps for completion (owner meeting/use of mail-in ballot) with a time line and proposed dates for voting.
    •  Once the amendments to the CC&Rs have been approved as specified in the documents, the CC&R amendments must be placed into final form and recorded at the county recorder’s office to become enforceable.  The Condominium Act requires amendments to the CC&Rs to be recorded within 30 days from the date approved.
    •  Bylaws and rules do not need to be recorded, but should be maintained with the official records of the association. Legal counsel should assist with this process.  www.recorder.maricopa.gov – You can search for documents by going to the top of the page and clicking on “Recorded images are now available for viewing and purchase from 1871 forward.” (note: records are available approximately 15 days after submittal.) From the search page you can search for your documents by inserting the requisite information on the form. (note: you do not need to create an account to view information)
    •  12.8 Antennas. No radio, television or other antennas of any kind or nature, or device for the reception or transmission of radio, microwave or other similar signals, shall be placed or maintained upon any Lot except as may be permitted by the Association Rules or in accordance with the Design Guidelines, and any such Rules shall be in compliance with applicable Federal Law concerning Satellite and Antenna Restrictions.
    •  Arizona law does not require an Association to have a reserve fund…but it is advisable to have both a reserve study done and have the reserve funded.  Check Association docs (usually in CC&Rs or Bylaws) to see if there are any special requirements for the Association to have a reserve account or to fund the reserve.
    •  Arizona does not require reserves or a reserve study, however, planned communities and condominiums in Arizona with fifty or more lots/units are required to disclose to purchasers the amount of money held in reserves and provide a copy of the most recent reserve study (if any) in a disclosure statement pursuant to A.R.S. Sections 33-1806, community associations and A.R.S. Section 33-1260, condominiums.  A copy of the reserve study.  The total amount of money held by the association as reserves.