QUESTION: Our board opted to amend our CC&Rs. Is it necessary to hire an attorney or can we just write what we intend and take it to the county and record it?
ANSWER: Although boards can prepare amendments on their own, they run the risk that the wording they devise may have unintended consequences. Directors must keep in mind that the amendment will be recorded against and become a restriction upon every property in the development. An improperly crafted provision could result in litigation as the unexpected consequences manifest themselves.
Membership Approval. Moreover, boards cannot simply draft language and record it. Amendments must first be approved by the membership. The amendment must also be in proper format for recording purposes and properly certified, otherwise it will be rejected by the recorder's office. Failure to include legal counsel in the amendment process may result in problems that could invalidate any attempt to petition the court for approval in the event membership approval falls short of the required amount.
Statute of Limitations. The statute of limitations for challenging an amendment is four years.
Recommendation: Associations should involve HOA legal counsel in amendment/restatement projects. Doing so reduces the risk of legal challenges since an experienced attorney will know how to draft language that will have the intended outcome.
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.