It is important for boards to be familiar with and to regularly review their community’s governing documents. The governing documents of a community generally consist of the declaration of covenants and restrictions (often referred to as declarations), the code of regulations/bylaws, the articles of incorporation, and possibly, rules and regulations, and these documents provide the foundation for every action an association takes. Given the importance of an association’s governing documents, we recommend that boards occasionally review and update these documents to ensure they remain practical and are consistent with current best practices.

In general, we recommend that all the governing documents of the association be reviewed by legal counsel no less than every five years. The reason for these regular checkups is to make sure that the association’s documents are consistent with not only any legal changes that may have occurred but also the current actions being taken by the association. These checkups also prevent older documents from becoming stale and hard to enforce.

In addition to simply reviewing the governing documents from time to time, there are other specific events that should trigger a review of the governing documents for a variety of reasons:

Prior to Turnover - The turnover of control of an association from a developer-controlled board of directors to an owner-controlled board of directors is a great opportunity for a community to update and amend the governing documents. The developer-controlled board is often in a unique position to update governing documents because, in most cases, the amendment process does not require approval from anyone but the developer. As such, the developer may be able to add or clarify certain restrictions through an amendment that would enhance the community and address any oversight or overreach in the original governing documents. Accordingly, if you are a board member of a transitioning community, this transition period is a great time to seek counsel and have the community’s governing documents reviewed.

Immediately following Turnover – If the developer has not taken advantage of their amendment authority to address community concerns prior to turnover, the newly elected/appointed ownership-controlled board of directors should attempt to engage in a review process and, when necessary, attempt to amend the governing documents within the first six months following turnover. This time is often a good time for the community to work on amendments because interest in the association and its governance among the owners often peaks in the months following turnover. In most cases amending governing documents requires a high level of participation from the owners if it is done after turnover. The number one obstacle to most attempts to amend governing documents post-turnover is not opposition to the amendments, but indifference from owners. Engaging with your association’s legal counsel at this stage, when community involvement is likely high, will not only help the new board better understand how the governing documents are used in the management of the association, but it will also provide a ripe opportunity to consider amendments.

Changes in the Law – Every year new laws are passed that affect the governance and management of associations. Additionally, new cases are decided in the courts that can have a dramatic effect on how the association approaches and executes its duties. In many cases, the changes in law are only properly addressed by updated governing documents. In September of 2022, Ohio’s legislature passed the S.B. 61 bill that resulted in many changes to O.R.C. 5311 and 5312. In limited cases, the bill empowered the association’s board of directors to unilaterally amend documents without owner approval. In other instances, it expanded the authority for the community to amend their governing documents in ways that may not have been possible before. However, associations who were not regularly meeting and engaged with legal counsel may not have heard of these changes or how to navigate them. At Williams and Strohm, we provide regular updates on such matters through our blogs and board education seminars that we host for our clients. Additionally, we meet with clients annually to discuss the needs of their association and provide updates. These conversations often result in the board learning about amendments for the governing documents.

If your association is overdue for a review of the governing documents or if you have any other legal questions pertaining to your association, please contact Williams and Strohm, LLC at (614) 228-0207.