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August 24, 2006

Can We Save $$ By Drafting Our Own Document Amendments?

This is a question I frequently have to answer: "We put together a CC&R committee last year and came up with a revised set of CC&Rs by taking our old ones and redlining them - can you review it and let us know if it is OK?"

The natural assumption of the Association Board or Committee Member is that it should be a lot cheaper if they do the drafting; at least that seems to be the case in California. So a group of people gather CC&Rs from their HOA friends, go to the library and pull the Davis Stirling Act, and have at it.

Then ... I have to tell them that it may cost more to get a good set of updated documents, because now I have at least double everything to review (the original documents, the changes, and often a list of board or committee notes, minutes, thoughts and concerns). I have to expend extra time and energy looking for what is missing and what needs to be written, and trying, in a nice way, to let the bodies that spent their whole last year working on this project that it is quite faulty.

Think about it - if a committee has among its members an HOA expert, they do not need the review of an HOA expert. If they do not, the documents are likely to be inexpertly written, so then I have to spend as much or more energy telling the Board and Committee members why I cannot use many of their provisions as I would just providing well written provisions. I am good at massaging egos but I would always rather preserve my energy for doing the best job possible. I, like many attorneys, have a format for amended or restated governing documents that is user friendly. I do not often find older documents that are in a format that is user friendly. I know the basis things that are in my documents related to current laws (and California seems to be annually prolific on adding new ones) are up to date, accurate and understandable. When I get a committee draft it is like looking for needles in a haystack, and making sure all are found before finishing the review.

And the other problem is of course that the Board and Committee members are sometimes hurt (pride of authorship) if their writing is picked apart. Sometimes they are even too bent out of shape to work with the one who had to tell them their work was inadequate or to keep the steam up on taking the project to fruition, which involves (in successful campaigns) a lot more work on the campaign end of things, like contacting owners and discussing the changes with them. In many cases a telephone calling or door-to-door campaign is necessary to garner enough interest to get enough votes back to pass amendments to the governing documents like the CC&Rs. If the Board or Committee is too frustrated with me for suggesting changes to their work product, the project becomes much more difficult (and it is a challenge to begin with).

I love working with boards and committees to rewrite, update and amend documents. When an attorney has a high level of knowledge of cases, laws, and experiential disasters from solving problems other boards have gotten themselves into, others in the room can be quite impressed, and that is gratifying.

So the answer is "no" - writing CC&Rs, Bylaws and other association documents should be left to the experts. Helping the Association's expert is the key, and that involves the willingness to answer questions of the attorney, read the drafts and participate in the meeting(s) where feedback and education about the provisions is requested or offered.

If you would like more information, there is a newsletter on the front page of my website explaining in more detail the process and importance (in California) of amending outdated governing documents. Just go to visit the guru at http://www.californiacondoguru.com.

Posted by Beth Grimm at August 24, 2006 1:11 PM