Updating outdated governing documents
Know when a stale clause needs a simple amendment, and when the whole document needs a fresh start.
Outdated governing documents are ones that conflict with current law, no longer reflect how the community operates, or have grown hard to read after years of amendments. Fix a single outdated provision by amending it; fix documents riddled with problems by restating the whole set. Either path needs a vote at the required threshold, then recording to bind future owners.
What makes documents outdated
Not every outdated document needs the same fix, but the first step is recognizing the signs. The clearest one is language that conflicts with current law. Racially restrictive covenants that once appeared in many older declarations have been legally void since Shelley v. Kraemer, 334 U.S. 1 (1948), and are separately barred by the Fair Housing Act, whether or not anyone has ever filed paperwork to strike the words from the recorded document.
A second sign is a provision that no longer matches how the association actually operates: a reference to a declarant who sold out decades ago, or a committee nobody uses. A third is a patchwork problem, where enough amendments have piled on top of each other that owners cannot tell which clause controls without cross referencing several documents.
There is also a practical cost to leaving documents disorganized. Lenders reviewing a project for financing check the recorded governing documents as part of approving a mortgage, and documents that are hard to verify can create friction for owners trying to sell or refinance.
"legal and recorded documents including the covenants, conditions and restrictions, declaration of condominium, or other similar documents that establish the legal structure of the project."
Source: Fannie Mae Selling Guide, B4-2.1-01, Fannie Mae
Amend one clause, or restate the whole document?
Two different tools fix two different problems. An amendment changes one provision, or a small number of them, in the document currently in force. A restatement produces a brand new, single consolidated document that folds the original text together with every amendment adopted since, then records that consolidated version to replace the patchwork.
Boards typically reach for an amendment when a specific clause needs fixing: an outdated reference, a wrong cross citation, a rule that no longer applies. They consider a restatement when the accumulated amendments have made the documents hard to read or administer as a set. There is no fixed number of years or amendments that makes restatement the right call; that judgment belongs to your board and your attorney, weighing how unworkable your specific documents have become.
| Amendment | Restatement | |
|---|---|---|
| Changes | One provision, or a few | The entire document, replaced in one recording |
| Used when | A specific clause is outdated or wrong | Years of amendments make the set hard to read or administer |
| Result | Original document stays in force, with the change layered on | A single clean document replaces the original plus all amendments |
The vote and the recording still apply
Whichever path you choose, the same two steps follow: a vote, then a recording. The vote threshold needed to amend a declaration is set by your own document or, where it is silent, by your state's statute, and it is not the same everywhere. Nevada's version of the Uniform Common Interest Ownership Act, for example, defaults to a majority of the association's votes unless the declaration sets its own percentage. That illustrates how this kind of provision is commonly structured, not a number you can assume applies to you.
Once owners approve the change, it is not final until it is recorded with the county land records office. An unrecorded amendment generally has no effect against a later buyer who relied on the public record.
"The persons executing the amendment shall provide a copy thereof to the association, which shall record it. The amendment must be recorded in the names of the parties and the common-interest community."
Source: Nevada Revised Statutes Chapter 116, State of Nevada Legislature
Check yourself
Answer before you read the explanation, recalling it is what makes it stick.
Your declaration has one clause referring to a declarant who sold out years ago. What should the board do?
Your declaration still contains old language restricting sales by race. Nobody has ever filed paperwork to remove it. Is it enforceable?
Thirty years of amendments have left the declaration hard to read, with conflicting numbering. What is the better fix?
Sources
- Nevada Revised Statutes Chapter 116, Common Interest Ownership, State of Nevada Legislature
- Fannie Mae Selling Guide, B4-2.1-01, Fannie Mae
- Shelley v. Kraemer, 334 U.S. 1 (1948), Supreme Court of the United States
- Fair Housing Act overview, U.S. Department of Housing and Urban Development
- A Step by Step Approach to Amending and Restating Governing Documents, CAI California Legislative Action Committee
Governing Documents
See exactly how an amendment moves from vote to recorded document next.
Whether a specific clause calls for an amendment or the whole set needs restating, and what vote threshold and recording steps apply, depend on your own declaration and your state's statute.