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Q&A: Making Amendments Making Amendments

Q How do you go about amending a board’s condominium documents? Our condo has often voted in favor of making amendments to the declaration but has never followed up to do so. The general understanding is that amendments must be handled through an attorney which can cost an association a lot of money, which for us and most associations is in short supply.

—Questioning in Des Plaines

A “There is no law that requires attorney involvement in the amendment process and I cannot recall having seen such a requirement in the governing documents,” says attorney Charles T. VanderVennet of Arlington Heights. “Nonetheless, it is prudent business practice for an association to consult withlegal counsel to make sure that the amendment process is handled properly. The provisions of an amendment not put in place using proper language andprocedures would be unenforceable. There may be ways for the cost for attorneyinvolvement to be streamlined somewhat while still providing appropriateguidance for the project.

“I recommend to my condominium clients that the Board of Managers oversee and pursue the suggested amendment effort even if the board members are not necessarily in favor of the proposed changes. In that way, the association’s resources can be used to evaluate the proposal and then to move the proposal forward into proper documents and using proper procedures if it is determined that the proposal does not conflict with applicable law and has sufficient support to warrant consideration.

“The amendment provisions may call for the unit owners’ approval of the proposed amendment to be established by their signatures on a written instrument setting forth the amended language or by voting at a meetingof the unit owners called for that purpose. Whichever way is established by the governing documents must be the approach that is used. A project that would change the fundamental “contract” affecting the unit owners and the association should not be taken lightly. Most amendment projects involve a significant number of issues and concerns that must be addressed. Circumstances at one association are not always the same as those in another association.

“A “cookie cutter” document likely would not be adequate. Most often, the association is best served by involving legal counsel at least to some extent to ensure the propriety of the subject matter and the amendment procedures. The expertise \provided by legal counsel should lead to amended language that conforms to thelaw, does not conflict with the other terms set forth in the governing documents and can be enforced.”