Finally it is a new year! 2020 is over, and hopefully brighter days are ahead for you, your families, and your communities.
Whether it was a product of a struggling economy or a certain hesitancy to ask an attorney for help and guidance, in the last year our firm saw a surprising number of requests to finalize an amendment recording when we had not been involved in the underlying discussion regarding whether or not an amendment should be pursued in the first place or the actual amendment language itself. This is concerning for several reasons. First, without being involved in the amendment process we often find out that the procedure used to pass the amendment was flawed. Second, your HOA/Condo association attorney has experience in drafting language that best accomplishes the association’s goals and has the ability to advise on whether or not the particular language would be found to be reasonable and enforceable by a court. It is difficult to perform these various tasks once the genie is out of the bottle.
This article should not be construed as merely a grab for additional business, but should instead be a word of caution to those attempting to draft amendments without seeking legal counsel. Most Board members and community managers do not have a legal background. There are potholes that your attorney may be able to steer clear of that the lay person may not see coming. Furthermore, the consequences of poorly drafted amendments can be significant and can sometimes lead to costly litigation or administrative nightmares when it comes to enforcement.
It is important to realize that the association’s governing documents (i.e. declaration, bylaws, rules and regulations) are all legal documents. They are almost always drafted by attorneys and therefore it is strongly encouraged that legal counsel be involved when making changes to such documentation. The cost of involving an attorney is real. However the expense is less in the drafting and amendment process than it is when legal counsel is involved to defend the association in a lawsuit.
Our community association attorneys at Law Firm Carolinas have a wealth of experience in assisting associations throughout North and South Carolina. We can help your association with a wide range of amendment projects and can help your community avoid those pesky potholes.