How Many Votes to Amend?!
Many community associations want to amend their documents for various reasons such as they are out of date, over burdensome on the members, “need to be tweaked,” etc. But, when considering an amendment, how does a Board know what vote is required?
If the association is a condominium, Section 718.110 of the Florida Statutes provides for the process to amend the Declaration of Condominium and states that unless your documents provide otherwise, not less than two-thirds of the owners of the units can approve an amendment.
However, this does not apply to amendments changing the configuration or size of any unit, alter the appurtenances to a unit, or change the proportion of unit owner shares in the common expenses. These can only be amended with the consent of the record owner of the unit affected and its lienholders, and all record owners of all other units in the condominium. Additionally, no amendment can be made to create a timeshare without the approval of all unit owners and their lienholders.
Similarly, when it comes to the bylaws of an association, Section 718.112 of the Florida Statutes provides in sub-section (h) that the bylaws may be amended by an affirmative vote of not less than two-thirds of the voting interests, unless the bylaws provide another approval threshold.
When considering an amendment, please keep in mind that the proposed amendment must include the full text of the sections or documents to be amended. That means you must show the language as originally written and then show your changes in the original language by striking through deletions and underlining additions. However, if the proposal is so extensive that this process would be difficult to follow, a proposed amendment or rewrite of the documents can include the statement “Substantial rewording of bylaw. See bylaw for present text.” placed before the proposed amendment language.
If the association is a homeowner association, Section 720.306 (1)(b) of the Florida Statutes controls and provides that unless the governing documents state otherwise, any of the documents of a homeowners association can be amended by an affirmative vote of two-thirds (2/3) of the voting interests of the association. Although the Homeowners Association Act does not require underlining or striking changes to the amended provisions, such practice is advisable.
In recent years, this statute was changed to add a requirement that an association provide a copy of the new amendment to the members within 30 days of recording the amendment. In lieu of a copy of the amendment, the association can provide notice as to the location of the recorded amendment (official records book and page or instrument number where recorded), as long as the content of the amendment was mailed to the owners previously and the proposed amendment was not changed since that mailing.
For more information about amendments and what your specific documents require, please contact your community association attorney.