Why, When and How to Update Your Governing Documents

Outdated governing documents can leave associations enforcing rules written for a different era—leading to confusion, conflict, and unnecessary legal risk. In this episode of Take It To The Board, host Donna DiMaggio Berger is joined by Becker shareholder Nataly Gutierrez Vazquez, a Florida Bar board-certified specialist in condominium and planned development law, to break down what happens when documents fall behind—from obsolete developer provisions to vague standards and evolving statutes that create enforcement gray areas.

Donna and Nataly outline a practical roadmap for updating declarations, bylaws, articles and rules, including how to recognize when it’s time to act, build community support through workshops and town halls, and position a rewrite as smart risk management—not a power grab. They also explore when targeted amendments make sense versus when a full rewrite is the better path.

The conversation also tackles key documentary risk areas: AI-generated amendments, Document Rewrite Committees, Kaufman language, termination thresholds post-Biscayne 21, amendment challenges in mixed-use communities, addressing and defining scrivener’s errors, and removing outdated or unlawful restrictions that can impact trust and resale value. Whether you’re a board member, community manager, or advisor, this episode offers a clear, practical framework for modernizing your documents and strengthening your community.

Conversation Highlights:

• When is it time to update your governing documents—and what red flags boards should never ignore
• The real risks of operating under decades-old documents
• Should you form a Document Rewrite Committee? What works, what doesn’t, and how to avoid derailment
• How often governing documents conflict with state statutes—and why that matters
• Spot amendments vs. full rewrites: how to decide what’s right for your community
• The hidden risks of repeatedly patching outdated documents
• When (and why) to lower amendment thresholds before a full rewrite—and the risks involved
• Kaufman language explained: what it is, why it matters, and where its limits lie
• Budget-conscious strategies for updating documents—and which amendments deliver the biggest impact
• Condo termination provisions in the spotlight: lessons from Florida's landmark Biscayne 21 case
• Removing outdated discriminatory covenants and unwinding illegal restrictions
• The reputational risks of leaving problematic provisions on record
• Can you future-proof your documents—or will history repeat itself?
• First steps: what boards should do right now if their documents are outdated

Related Links:

• Podcast: A Board Members’ Guide to Unexpected Issues – Your Questions Answered
• Online Class: Rewriting Your Documents from Start to Finish
• Article: Making It Easier to Amend Governing Documents

Transcript

Why Old Documents Fail Today

SPEAKER_01 0:02

Hi everyone, I'm Attorney Donna DiMaggio Berger, and this is Take It to the Board, where we speak condo and HOA. Today's episode is one every board member, manager, and association attorney should bookmark. Governing documents are the backbone of every condominium and homeowners association, but many communities are still operating under documents drafted in the 1960s, 70s, 80s, or 90s. They reference developers who are long gone, statutory provisions that no longer exist, and sometimes even restrictions that would never survive legal scrutiny today. Updating governing documents isn't just a legal exercise, it is a governance reset. To help us unpack how and when communities should update their documents, I'm joined by my law partner, Natalie Gutierrez-Vasquez. Natalie is board certified in condominium and plan development law by the Florida Bar, and she serves as an adjunct professor at St. Thomas University School of Law, teaching Florida condominium law. Natalie works extensively with Miami Date boards, navigating everything from targeted amendments to full-scale document rewrites, and she brings a thoughtful, strategic approach to what can otherwise feel like a daunting process. If your community hasn't revisited its governing documents in decades, this conversation is long overdue. So with that, Natalie, welcome to take it to the board.

SPEAKER_00 1:22

Thank you for inviting me.

SPEAKER_01 1:23

So let's start at the top. Sometimes clients will reach out to us, Natalie, and say we are looking to update documents. And sometimes we have been asked to give a legal opinion or work on another matter, and we're going through the documents, some of which look like they're on papyrus paper, and we're saying, oh my gosh, it's time that they update these documents. What is your general rule of thumb when talking to boards and managers about, you know, when should they consider updating?

Friction As The Update Trigger

SPEAKER_00 1:52

I think that, of course, the age of the document is a good clue. If your documents haven't been updated since the 80s and the 90s, then those documents were written in a different world. So they definitely require us looking at them and seeing what can be done. But I think the better argument is is there friction in your association? If every time you have a meeting of the members, there's a debate about the rules, there's friction. If every time you need to review your documents, you're calling your attorney to interpret a legal provision, there's friction. And that's probably the documents telling you it's time to talk to the attorney to see what needs to be updated and give them a list of those frictions that you're seeing in your community so that your attorney can tell you these are the spots where you can amend your governing documents to remove some of that friction and really have a harmonious community.

SPEAKER_01 2:52

You know, it's great advice. And a lot of times when a client will contact me, the first thing I'll say if they've mentioned, hey, we want to update the documents this year. This is the year we've budgeted for it, what have you, I'll say, well, what are the problems? Because a lot of times they're just thinking, we're gonna update these documents, we're it's gonna be a guidebook for for operations, and we'll we'll rarely have to contact our attorney again. But how realistic is that? I mean, as as fresh as we can make these documents, there's still going to be times that they're gonna reach out to association counsel. It's not, it's not a silver bullet. It's not, it's not a magic wand.

Owner Workshops Build Trust

SPEAKER_00 3:30

You still need your attorneys, the statutes change all the time. You need to see how they interplay with your documents. And you're gonna need your attorney for enforcement mechanisms, right? Your documents can't address everything because if they did, they'd be hundreds and hundreds of pages long. And that just doesn't make any sense. And it's it's not workable for an association. I do laugh when I start the document amendment process with a client. And one of the first things they tell me is, is this realistic in the next 60 days, 70 days? And I have to tell them that it really isn't, mostly because one of the most important portions of amending your governing documents is that communication with your owners, letting them know what's coming in the horizon, letting them know what the changes might look like, especially if you're doing a full rewrite, because that's a shocking thing, right? You're telling them you're rewriting all of these governing documents, and they're thinking sometimes, well, if this is happening so quickly, are they trying to pull a fast one on us? Are they trying to change something behind our backs? So, really that communication with your owners, understanding what it might be that they think should be updated with these documents, explaining to them what's actually realistic and having some of these town halls before you ever ask them to vote on something, that's takes time.

SPEAKER_01 4:50

If you're doing more than a handful of amendments, particularly if you're doing more complicated amendments, which I want to discuss with you in this episode, then you need that workshop because people need to understand why you're doing this and why you're why the board is asking them to vote yes on this amendment package. I will give you a classic example that I had. Sometimes the workshop actually produces useful input from the members, and you can revise those amendments to enhance the likelihood that they'll get adopted. You know, the typical screening, Natalie. And sometimes the boards want to throw in screening of heirs after after the owners die. Well, I've been to a lot of workshops where people push back against that. Yes, we want to have tenant screens. Yes, we want to have potential purchaser screening. I don't know that you need to screen my adult children who are going to inherit. Boards need to listen to that input. And I have revised those screening provisions before we presented the amendment package to the members. Have you had similar experiences?

SPEAKER_00 5:48

Absolutely. I think that before you ever ask your members to vote on something like this, you need to show them what they're going to be asked to vote on and really get their input to adjust some of these provisions. I think that the screening provisions are probably some of the ones that get the most pushback. Um, I do see it in my elderly communities, right? My 55 plus communities, where uh transfer after uh inheritance just becomes uh a back and forth pool. What do you do? So your children inherit and now they have to sell immediately because they didn't meet the screening criteria. So I agree when you present what you're looking to amend to your ownership before it ever goes out for a vote, you get their input, you have that transparency, you're going to see better results. You're gonna see the involvement of the community, and you're probably gonna get them to vote in favor of this in the long run. So you increase your probability of it passing.

SPEAKER_01 6:44

So I'm a skeptical member sitting at your workshop, Natalie. What can you say to me that's going to convince me that, yeah, this is a good idea. I'm gonna vote yes. What do you think resonates with the members when we're talking about a major document rewrite project?

SPEAKER_00 7:01

I think mostly these major rewrite projects are really risk management. Reducing the amount of times you need a contact council, reducing the ambiguity in your documents, it really saves the association time and money and really allows the association to accomplish its goals in the long run. Because if you're constantly in the state of we don't actually know because it's so ambiguous, it's just going to become harder for the association to operate. You can't always convince everyone. We know that. We work in community associations all the time. But if you have transparency and you communicate the goal, and that ultimate goal is risk management and removing some of this ambiguity in these documents and creating some clear rules so that it's easy to follow, I think you pretty much win over the majority that you need or the percentage that you need in order to get these to go through. I can't convince everyone, but I think that with some practical, transparent conversations, we can get the goal or that threshold that we usually need.

SPEAKER_01 7:58

So you've convinced me because you've you've hit on the cost savings, which is always a really big thing for most association members. Also, I think if the association has been dealing with a particular issue, whether it's parking or they've had a lot of nuisance activity in a particular unit or units, or they have some tension with the commercial units versus the residential units, I think those issues can be used to kind of get get you over the hump of the approval threshold.

Spot Amendments Versus Full Rewrite

SPEAKER_00 8:28

Absolutely. You lay out these are the problems you guys have been facing. This is the friction you guys have been seeing. And then once you have that outlined, and this is how we're looking to address each one of these things, it's for the betterment of the community.

SPEAKER_01 8:42

So at what point does a number of spot amendments or individual amendments tip over into a complete document rewrite project?

SPEAKER_00 8:50

When your documents start looking like they're Frankenstein, right? They are, it's just hard to follow, hard to track. A couple of days ago, I was actually working on reviewing some documents for a client, and that same provision had been amended, I think, upwards of eight times, and it made it difficult to track the language. So it's just for community flow and the ability to conduct your day-to-day operations in a smooth way. If you have too many attachments and amendments to your governing documents, it just makes it that much harder to operate. And you have these amendments that were created in different times, right? You have one from the 80s, one from the 90s. They're not cross-referencing the right sections anymore. The definitions may no longer be consistent because you've amended it so often. It becomes smoother to rewrite the entire document. Now, spot amendments are extremely beneficial. When you have a very straightforward, concise issue that you need to address and you need to address it fast. That's where you're looking at your spot amendments. You really need to update the fact that you want to be able to pass a special assessment in a certain way. Well, that's something you might need now because you might need that funding for that structural integrity uh reserve project or that milestone project, right? You need that money now. So let's focus in on this. But we can't wait that year that it might take to thoughtfully update the entire document. But if you've got a lot of issues or you have so many amendments to those sections already, you would really benefit from that rewrite.

SPEAKER_01 10:26

I mean, you you hit the nail on the head because over the number of years, maybe this provision, maybe it's the maintenance and repair provision. It's been amended eight times, but it may have been amended by four different boards with completely different perspectives on maintenance and repair obligations. Who should be responsible? So that's, you know, confusion kills. Clarity is definitely the goal here. I agree with you. If we do a complete document rewrite project, though, do you warn clients that it's a straight up or down vote? So, you know, we may present a package of 75 pages of documents. And most people, in my experience, they're not going to read all 75 pages. And confidence in what the board is doing and what council is doing are crucial. So a lot of them will say, I have every belief that this is good. I believe the board, I believe council has done a good job. I'm just voting yes. But for those people who read all 75 pages, and maybe they like 74 pages, but they hate what's on one page, it's a straight up or down vote. So that's a pretty high hurdle to reach.

SPEAKER_00 11:31

What do you think? Absolutely. And I think that's why those town halls and that communication to owners from a very early stage is so important because it is a you take all of these amendments or you leave them situation. So you really want to make sure you are explaining the benefit of each one of those amendments and that you don't treat this amendment and we stated as a wish list, that you have practical amendments in there. Because if the second we start treating it as a wish list, and we've got this one board member or this one committee member that says, Well, I really think we need to drive in and drive home that pet restriction policy or remove it, right? But that's not what the community wants. We're treating this as a wish list now. We're not treating this as a practical risk management tool for the association. So it's really about communication, understanding what it is that your members are actually going to approve in the long run, and tailoring your amendments to that. Because it makes no sense to go through this very long and expensive process of updating these amendments, sending them out to a vote just to get it rejected, because you jot for that wish list rather than the practical approach.

SPEAKER_01 12:45

What about bifurcating the process? Let's say the client says, we're gonna go for it, Natalie. We're gonna and we're gonna build in, we'll have two workshops, we'll have you come out, we'll explain. Do you talk about perhaps lowering the amendatory threshold in the governing documents first and throwing in a few maybe innocuous amendments at the same time, like changing the date of the annual meeting or maybe even the size of the board, just a few things that are not as meaty and do that first, and then you've made it a little easier when you hit them with the entire rewrite package?

SPEAKER_00 13:16

I've certainly done that for clients. I think it's a useful tool when you have such a high threshold that maybe targeting just that one issue of lowering the amendment threshold first and then attacking those bigger projects. It's also a double-edged sword. It doesn't always work. Sometimes you have members in the association that are very skeptical as to why you want to lower that threshold. They think you're trying to push something past them later on, uh, or you know, go behind their backs somehow. Uh so I it's all about transparency and communication, explaining what the ultimate goals are and explaining that at the end of the day, you're going to want their input in that phase two, in those more media amendments, and that you're gonna want their involvement in those media amendments and want to hear their opinion as to what should be amended, what shouldn't be amended, how should it read, what's best for the community. It's about communication at that point. Does it make sense to lower that threshold first? It does, because it's a cheaper amendment before you go through that long rewrite. Well, let's talk about costs, because you just you just mentioned it.

Budgeting And Managing Legal Costs

SPEAKER_01 14:27

The cheaper way would be first just do a few spot amendments to lower the amendatory threshold. But when we're talking about a complete document rewrite project, that's an investment of association funds.

Legal Risk From Ambiguity

SPEAKER_00 14:38

It definitely is. And it's something that the association is gonna want to budget for. It's not gonna be a$1,000,$2,000 project. And it also is going to heavily depend on how many changes the board is really looking at, how lengthy your documents currently are, and that back and forth, right? Do you have that committee that is charged with looking at the problems that the association is currently experiencing and making suggested revisions, such as this is our list of goals that are now going to be presented to the attorney so that the attorney can realistically review them and guide the association as to what is practical, what is lawful, and make that ultimate suggestion to the board. This is the list of things we can actually accomplish. So it can become costly. Uh certainly you're looking at$10,000, maybe$20,000, maybe more, depending on that back and forth of an investment. But in the long run, what I've seen is it really reduces the cost to the association. It reduces disputes, it brings clarity, it reduces how often you need to use your attorney because these documents are now filled with life and certainty to some degree. Of course, you're still going to have to, you know, ask for some guidance from your attorney. That I don't think will really ever change, but it will make your day-to-day smoother because you've got so much more certainty in your documents. And they're not Frankenstein, right? They're not littered with a few decades worth of amendments that have been tagged onto it.

SPEAKER_01 16:10

So you litigate it. You have litigation experience in your past. What risk do boards face if they continue operating under decades old documents? Is that uh is that going to be a useful defense when they when they encounter a legal challenge to say, well, we were following what was in our documents, Judge?

SPEAKER_00 16:28

Uh unfortunately, it's not that clear-cut or that simple. And you really run the risk of that uncertainty that your documents weren't clear. You made a choice, a business judgment decision to take a certain path based on the interpretation of this board, and a judge doesn't see it your way. And what I've seen too is when your documents aren't clear, different boards interpret things different ways. I I can give an example of language in a governing document that says reasonable pets are allowed. Well, for me, a reasonable pet could be a great deign, but for the next board, it may not be a great dein. So I, this board approves a great dein, the next board does not. Well, now you're creating inconsistency. It almost looks like selective enforcement. And because of that uncertainty in the governing documents, you're now faced with that risk of liability. And you're kind of at the whim of a court to see if they believe you acted reasonably in that situation. And I don't like leaving things up to a court or a jury if it comes to that.

SPEAKER_01 17:28

We're only as good as the documents in terms of the legal arguments we can mount. So if those documents are decades old, if they don't uh take into account legislative changes, if they don't take into account uh case law rulings over the span of those decades, if they don't embrace best practices in the association industry, uh we're a little handicapped as counsel, aren't we?

SPEAKER_00 17:50

Absolutely are. We can only do what's there. We can only defend you based on the language there and the act that you actually took. So I think ultimately, like we started off this uh episode saying, it's a risk management tool to look at these documents and just bring them into 2026 based on the law that currently applies to the association, so that you're not living in a world of uncertainty.

Rewrite Committees And Clear Roles

SPEAKER_01 18:11

You mentioned document rewrite committees, and I have very strong feelings about this particular committee. I have varied experiences. Some of them have made my job easier when I was drafting amendments or complete rewrites, and others have made my job very hard. So I want to ask you what your experience has been with document rewrite committees, and if sometimes we get it where they've already done their job. And here's the document rewrite project that our committee has come up with. Now we have to do it twice. Or they're saying we're we've got one, we're just at inception. So thoughts on document rewrite committees?

SPEAKER_00 18:49

I actually like these committees. If I can get in front of them from the start, and the reason is I think that if they have this opportunity to speak with counsel, a brief conversation, this isn't an hour or two-hour conversation. It's really just to focus their goals as a committee. Their goal is not going to be to write the amendments. That is the lawyer's job. And it has to be the lawyer's job because the lawyer is going to be thoughtful about that amendment, is going to make sure that that amendment jives with all of the other documents, with any other amendment that's being written, that it's consistent with the definitions in the governing documents. If somebody gives me an amendment, it's going to take me twice as long to make sure that it's consistent. It's going to become much more expensive for the association than if I just drafted it from the beginning. But if we can focus that committee on identifying that friction, identifying those issues within the community, it could be that your association no longer needs a lot of the provisions that are in the governing documents. Let's take pets again. It's one of the easiest things to conceptualize. You might be living in a condominium association that has a pet restriction, despite the fact that most of your members now have pets. You're no longer living in a building where the grand majority of those members actually want to exclude them, but you've got that requirement to restrict in the governing documents that you're not enforcing.

SPEAKER_01 20:13

Let's talk about that before we step off because some of the old documents say this is a no-pet building. So one of the questions I ask the client is, are you sure there's not a goldfish in a goldfish bowl or a little hamster? Those are pets or reptiles, small reptiles. Have you conducted an audit of all your units? Then you're right, because that old from the 1950s, 1960s language that this is a no-pet community no longer serves its purpose and creates enforcement issues. Absolutely.

SPEAKER_00 20:43

Because now the association is looked at as not enforcing and it has an obligation to enforce. So that's where a committee is incredible because they live there. They know the community, they know what's actually happening and what conflicts there are now with the governing documents because the association isn't enforcing, or vice versa, the association wants to enforce, but it doesn't have that enforcement mechanism. But the community needs that now because the community has evolved, right? We might have a different demographic of people living there. It might be younger people or older people that just want something different from their community. The community outgrew their old documents and now we need new ones. So the committee can identify those goals. They live there. It makes our jobs easier and it makes the process smoother if they now have a set of goals, not a wish list, but practical goals that we want to achieve. And with those goals, then they can come back to the attorney and have that meeting and say, this is what we want to accomplish, and the attorney can guide them. This is what's practical, this is what's not. And from in the list of what's practical, this is what we can achieve. This is how it can look like. Now, do you want to take course A here, course B? But it's not for them to give me the actual amendment. So I feel like if we don't have that conversation with them up front, they're gonna give me the amendment. And it's going to create, I guess, hard. Feelings when I tell them I can't use this or I don't recommend that I use this for a myriad of reasons, usually. So before they spend all of their very precious time, sometimes years, on this, I do think that they're valuable, especially if we can give them those that clear role upfront.

AI Drafting Pitfalls For Amendments

SPEAKER_01 22:17

I think it's great advice. I will tell you, I have been presented with amendments prepared, and they've spent maybe a year, the document rewrite committee preparing these amendments, but they're drafting in a vacuum because they're they're not fully aware of in and then we have people listening all over, but let's take Florida, for example, because 718 is very unwieldy in terms of the length and the different provisions. They're not fully aware of all the different conflicting provisions in 718, the administrative rules, the body of case law. So they're sort of drafting in a vacuum. Now, here's my next concern because when you do that and they present it to you, and you're like you said, you can't use a lot of it, and they've invested a year or more of time creating this work product. Here's my next concern AI. We're going to get presented with document rewrite committee work product that has been generated by our good friend ChatGPT. We know this is coming. Probably some of our colleagues have already received it, where they may plug into it and say this is what we want. And we have the same issues, don't we, Natalie, with a work with the draft amendments created by ChatGPT.

SPEAKER_00 23:31

I agree. I've received them myself. They're very easy to spot. Um, they mix up statutes, they mix up concepts, they are very much drafted in a vacuum that's not cohesive with the rest of the documents, or you know, the language isn't consistent amongst the documents, and it doesn't understand the nuances, like you said, of especially condominium law. Because condominium law feeds itself from so many different areas. It definitely feeds itself from the governing documents, from the statute, from the administrative code, from case law, from Supreme Court decisions, from so many places. And AI is just not there. It's not the human review, it's not the expert review that we want it to be, and it's just not a good work product that gets produced. So do please don't do it harmful. I don't think AI is harmful. I think it's good for issue spotting sometimes. It's not the it's not the drafter, and it can substitute that human review or that attorney review. The attorney has focused in on condominium law, understands the interplay of these concepts, and can really tell us, hey, this is workable or it's not. And AI can't do that. I fight with AI sometimes because it it tells you, right? I mean, everything has AI these days. It tells you that this is an answer and it's just not an answer, oftentimes. And and I say this when I'm fighting with unit owners, right? Because a lot of times unit owners are only responding to me through AI, and it's like a fight back and forth. No, you're you're even looking at the wrong statute, and I know they're responding with AI, and AI is telling them that they're right. So right now we're at a place where I think AI could be helpful for issue spotting, what you might want to consider including into your governing documents. It's not there to draft, it's a brainstorming tool only, I think.

SPEAKER_01 25:22

So, Natalie, you have a small community, let's say, and let's say they only have less than five hours of legal time that they can pay for. How crucial is it to remove developer references? A lot of clients say, well, you're amending the documents, and we've got all this language in here referring to the developer. Um, how crucial is it to spend money removing those developer references?

SPEAKER_00 25:43

I think that if it's an association that's really worrying about their costs and only has a limited budget in order to attack certain issues, I think we want to pinpoint what those disputes, the biggest disputes within the association might be. I think we want to pinpoint where their biggest friction in the association is and kind of focus in on those areas. I wouldn't necessarily focus in on removing the developer language. I think it's very efficient to do that if you're doing a full document rewrite. I think you want a clean set of documents that are easy to read and don't have provisions that are no longer really relevant. So, in that aspect, if we're doing a full rewrite and we have those funds, let's definitely do it. It really adds to the readability of the document once we've removed a lot of that. But if we're really looking at costs, we're gonna want to focus in on where you're you're having the most issues. And if costs are not something that the association is really focusing on, then we can have a little bit more leeway and make those documents more pristine, right? Easier to read, remove those references.

SPEAKER_01 26:43

So we have a lot of people listening to this podcast in Florida, and we can't have this conversation about document amendment projects without mentioning Kaufman. So, can you give us a little sound bite about the Kaufman language, where it came from, what case it emanated from, why does it matter?

Kaufman Language And Future Statute Changes

SPEAKER_00 27:01

Kaufman came from a case called uh Kaufman Reshir. It, if I'm not mistaken, was a Miami-Dade case. And it really talks about whether or not the governing documents for an association contemplated adopting changes to the statute as the statute exists today. It's really a question of did these governing documents agree to be bound by the Florida Condominium Act as it exists today and as it's amended in the future. I see Kaufman as a great tool for many associations that really want to keep up with the statute. I see it as a good risk management tool. It doesn't mean that every change to the statute necessarily is going to apply to you. It still requires an analysis based on what's in your governing documents, what the legislature intended with those changes. It's something that was supposed to apply to everyone, is it something that was supposed to be retroactive? So it doesn't mean that everything that gets done by the legislature immediately gets kind of sucked into your governing documents and the way that you operate, but it certainly brings in a lot of it. I think that many associations benefit from Kaufman language, this ability that if the statute now changes to, you know, allow or restrict something, that it's now something that you are governed by because it removes a lot of uncertainty as to what law applies, right? It does minimize that analysis a little bit. And I do think that for some associations, it just may be something that they don't want. They want more certainty in what rules apply to them. And they don't want to be at the whim of the legislature changing the rules from one day to the next because they don't know what that might look like. So it really depends on the makeup of an association, what the association's goals are, and how comfortable they are with that uncertainty of is the legislature gonna maybe put something in that I'm not comfortable with in the future, or am I going to be comfortable with it because I trust the legislature to act in the best interests of our unit owners or owners within the community? I saw your face, Donna.

SPEAKER_01 29:12

No, our listeners are our listeners aren't gonna see that, but you you know, I used to be a registered lobbyist going up to Tallahassee, speaking to legislators about changes. Our partner, Jelini Goyne, did that for years as well. You know the old saying that you two things you don't want to see being made are sausage and laws. There's a reason for that saying. Have you ever done spot Kaufman amendments where in a doc set of documents you will insert Kaufman type language, but only for that particular provision?

SPEAKER_00 29:43

I have. I find it very useful in my assessment sections uh to include and my lean sections to include spot Kaufman language. Um I do have many associations that opt for spotting Kaufman in there, right? There's only certain portions of our governing documents that would incorporate the future changes to the statute as they might be changed over time or maybe renumbered, but just for this one topic. And then you you keep the certainty elsewhere. And that's usually the happy medium that many of my boards decide to go with because it does bring back some of that control to the unit owners. If the unit owners do in the future want to adopt certain changes or not adopt certain changes, right, it brings that control back. They can exercise their voting power to make those changes if they so choose. It's not an automatic incorporation into their governing documents because they chose to add Kaufman to the entire document.

SPEAKER_01 30:38

Natalie, I hate to be the bearer of bad news about losing unit owner control over one's own destiny in one's own association, but there is a pending amendment in this session, because we're taping this right now on March 3rd, that will make Kaufman language mandatory in declarations for new associations and will require a mandatory vote for those older associations that don't have it as to whether or not they want it. Which I actually found that amendment, I don't know if it's gonna pass. Okay, I don't know if this is gonna become law. And this episode is not gonna be released for a couple of weeks, but it's a lot more nuanced than that, as we've just been discussing, as to whether or not you want to wholesale have subsequent changes to the statute applied to your governing documents, which really are a contract between the association and the owner. So stay tuned. I don't know if you were aware of that amendment. I just read it a few days ago and I'm yeah, I was a little shocked about that. If a set of documents does not have Kaufman language, Natalie, can you explain what's what changes to the statute would apply anyhow?

SPEAKER_00 31:49

Absolutely. So Kaufman really says that those substantive changes will automatically apply if you have that kind of language, right? So if you it's usually materializes itself through language that says the condominium act applies to these documents as it might be amended from time to time. So if you've got that language, that means that some of those substantive changes from the statute will kind of automatically be incorporated into your governing documents because you have what we call Kaufman. But regardless of whether you have Kaufman or not, procedural changes will always apply to your governing documents. And that's because of a concept of uh impairment of contract, right? So, in the concept of impairment of contract, substantive things can't just be changed without the two contracting parties being okay with it. So if you have Kaufman language that says, I'm okay with the future changes to the statute being incorporated, then it's deemed that you've kind of okayed this change, right? Because you agreed in your contract that those changes are going to apply. But procedural changes are treated differently, right? They are not treated as something substantive that can affect that contract. So things like what kind of notice I have to give for collections, uh, the the ability to try and do collections or send um or obtain a lien, all of those things are considered more procedural. How much notice I have to give to an owner would be considered more procedural. And you have to follow that um no matter what.

SPEAKER_01 33:24

Yeah. You know, if we got a bunch of association attorneys in one room, we would not have complete consensus as to what legislative changes are substantive versus what which legislative changes are procedural. I guess this that's a topic for a whole different podcast episode. I would say to boards listening to managers listening, get a legal opinion. Uh, not and not a chat GPT opinion, get a legal opinion if you're considering whether or not something in the statute applies. And look, there are times in the Florida statutes where the statute clearly defers to the governing documents, where it will say, unless otherwise provided in the declaration, blah, blah, blah. You know, so get an opinion. Because again, there's there is some uh disparity amongst association practitioners as to what constitutes substantive changes and which are procedural.

SPEAKER_00 34:16

I myself have that discussion all the time on the forum.

Termination Votes And The Biscayne 21 Case

SPEAKER_01 34:20

Well, on another area that I cannot conclude this episode without covering is the termination provisions. So in Florida in particular, we've got a lot of older housing stock. Um, some of the oldest housing stock in Florida is cooperative house housing stock, which is a little bit easier to terminate. But let's talk about condominium housing, where we've got older, you know, 40, 50, even some 60-year-old buildings, they are now faced with deferred maintenance projects, they're faced with mandatory reserve funding. They may be looking to terminate and sell. Uh, we've got the Biscayne 21 case that I've talked about in the media. If you were asked right now, Batali, to do they these folks would not be looking to do a complete document rewrite project because they're looking to wrap things up and get out of there. But let's say they come to you and say, look, right now, uh, we've got uh 90% or more requirement to terminate. We'd like to lower it and have it be in line with the statute. What do you say?

SPEAKER_00 35:19

I think that's a very thoughtful question. I think that now we have some certainty on this because of that Biscayne 21 case. I remember the days when we didn't have certainty on this issue, and I we could draft the um the lawsuits on behalf of unit owners, or where those lawsuits on behalf of unit owners would get filed on be uh against associations. I think that the Biscayne 21 case has made this pretty clear. We have to look at your governing documents to see what the threshold would be to obtain termination right now. And if that threshold is unanimous in order for you to terminate your condominium, then if you want to amend that threshold, you need everyone on board. You can't use your general amendment provisions in your governing documents to essentially amend-undercut, yeah. Yeah, terminate the uh or reduce the threshold for termination and essentially take a shortcut around the fact that when those governing documents were first drafted, when that declaration was first drafted, it required everyone's consent to terminate. And you can't remove someone's veto power for termination by simply amending the governing documents through that general amendment, maybe 50% or 66% provision. And we now have clarity on that. So it's gonna require an analysis of the governing documents to see what the threshold looks like and the advice is that obtain that threshold because we've got the Biscayne 21 decision now that tells us that you can't take the shortcut. Your declaration sets a high bar for termination. You can't just get around it by using that lower threshold amendment process.

SPEAKER_01 36:57

What if a community amended their documents six years ago to lower the threshold using the general amendatory threshold? And now it says 80%. But before, six years ago, it said 100%, but we didn't yet have the Biscayne 21 ruling, which by the way, the Florida Supreme Court has not taken up. So we do not have clarity. There may be subsequent appellate decisions that conflict with Biscayne 21.

SPEAKER_00 37:21

But what do you think in that case? I think that there we need to execute the old-fashioned go talk to your attorney so that they can give you a legal opinion on that issue. If you're one of those associations that amended that threshold before the Biscayne 21 case. In general, when you are looking to terminate, that's a big deal thing. And for big deal things, we want to call the association's attorney to really understand what are your options.

Mixed-Use Communities And Competing Interests

SPEAKER_01 37:46

Good advice. And it gets this is complicated. This is why a lot of times when when associations or or management professionals are contemplating these kind of projects, it's just not clear-cut sometimes, depending on what they want to do. So I'm going to throw two more. I've really thrown a lot of really thrown a lot of curveballs at you in this episode, but let's talk about doing undertaking amendments when it's a mixed-use condemnable project or even a mixed-use HOA. Um, we've got those as well. What are the pain points that associations need to think about when they're trying to amend in a mixed-use community?

SPEAKER_00 38:21

With mixed use, you have competing interests a lot of the times. So it just makes that amendment process a little bit more tedious. And it requires that two different sets of owners really communicate what their individual goals are, and they have to reach a happy medium with these re-reg projects. And it is gonna require give and take on both sides. It's not everyone really seeking the same thing all the time. You're gonna have different use patterns, you're gonna have different insurance requirements, you're gonna have different maintenance concerns, right? Your spa on the bottom floor uh or your restaurant is gonna want something aesthetically different than the residential portion of this condominium. So it really makes the process of amendment a little bit more tedious. It requires much more communication amongst the parties. And it it really becomes a little bit more political. So I think that you just have to start the process early and have those communications and those conversations beforehand. You can't just draft these revisions, send them out for a vote, and expect them to pass because that will fail. You need that participation beforehand and that communication beforehand.

SPEAKER_01 39:32

And if they're if they have a document rewrite committee, Natalie, in a mixed-use community, I'm assuming you're gonna say, put at least one commercial unit owner on that committee.

SPEAKER_00 39:43

I I would say it's almost a requirement because you need to understand what their interests are and what they what they need and what they want to see as well. Because you probably, I mean, depending on your voting thresholds, would not be able to accomplish the change without their support. So make this something that's beneficial for everyone.

Scrivener’s Errors Versus Real Changes

SPEAKER_01 39:59

That's good advice. What qualifies as a scrivener's error? So I know you've had this come up. I've had this come up too. It could be the percentage. It typically comes up in the context of uh percentage of common element ownership and responsibility for common expenses. So the developer has done the typical exhibit and the percentages don't add up. Let's take that as an example.

SPEAKER_00 40:22

Like a math issue. A scrivener's error is a true drafting error, right? It was or a recording mistake. Uh it's something that when you look at that document as a whole, you can tell this is an error and this wasn't intended. The percentages don't add up to 100. That's going to be an error in the document. And if there is a scrivener's error, a true scrivener's error, you can correct that without a full vote of the membership. You know, the board can vote, the board can get it done. We can get that recorded to make sure that you have a clean recorded copy without that error. There's some limited language in Florida Statute 718, which is that condo statute, that allow for amendments to those math errors or to um maybe you omitted an exhibit that you referenced but you didn't attach, that allow for those things to be corrected uh fairly easily without that full vote. But that's really what it is. It's just a true drafting error. Your math didn't add up, or you forgot to attach something. It isn't something substantive, uh, which I feel like I have had this give and take with some of my boards where, oh, that was just a scrivener's error. We can certainly fix it as the board. And it's really something more substantive. It really affects somebody's right, right? No rewriting that pet provision to add the specific breeds is more substantive. That's not necessarily an error. It will affect the way that you guys are gonna now enforce.

Illegal Age Limits And Marketability

SPEAKER_01 41:47

Oh, and even getting back to who pays for what is, you know, why are the three-bedroom units paying the same amount as the one bedroom or the studio? This should just gotta be a mistake. No, it's not. This was the development scheme. So yeah. So that's certainly something to be aware of if a board is trying to categorize substantive changes as Griffner's errors. What about illegal age restrictions? So we've got a community. It says no, you know, no children younger than 16, or I've even seen 14. So that right off the bat doesn't even comply with the law, that that age restriction. But add on to that the fact that the community has not enforced age restrictions for decades, but it still has that hanging out there in the public records. I've always taken the position that just having that hanging out there, Natalie, could be construed as de facto discrimination because somebody could look at the documents and go, oh, well, I guess I shouldn't even apply to live here because it's, you know, it's an age-restricted community when in fact it isn't. So what's your advice if they have an illegal uh age restriction that's still in the public records?

SPEAKER_00 42:55

I agree with you. I think that those kind of provisions, just like discriminatory provisions, long time ago we had the race provisions in those governing documents. Um, thankfully, we've seen those really age out, right? People have changed them, is what I mean. But, you know, you every once in a while you come across them and they're shocking to read. I think for a lot of different reasons, having a thoughtful review of the documents and having your attorney guide you on how to get those out of the documents is great for trust building. It's great for marketability if you're building. And, you know, it it really is, like you said, if you're already just because of the language in your governing documents, which to any of your listeners, people do read before they purchase into a community. If it's going to start discouraging people just because of the language that exists there, um, you you really want to take notice and you really want to address those. Don't assume something's valid in your governing documents just because it's been there for a hundred decades. You know, you you want to make sure that it gets addressed in a thoughtful way and really for the trust that you're building with any potential purchasers or with your own community. If you have anybody in your gov in your community that one day Decides to take on the project of reviewing those documents and read something there. And maybe they fall within that class that's now being restricted, even if it's not being enforced, that hurts. And I don't think anybody wants to do that intentionally. So let's be intentional and remove that from those documents.

How Often To Revisit Documents

SPEAKER_01 44:14

I'm finding more and more people actually are starting to read the documents before they purchase, or they're paying somebody to read it for them if they can't get through it. But you know, to the point you made, you know, at the outset, it's very difficult if there's been 25 amendments over the years and you've got to be cross-referencing sections. And of course, then occasionally we find amendments that were done by the border manager themselves that don't even, they just reference a section. They don't lay out the language that's being amended. So there's a lot of cleanup to be done out there. And as I said in the introduction, if if you haven't revisited your documents, your governing documents in a number of years, it's time. What do you think? How often do you think these documents need to be updated, Natalie?

SPEAKER_00 45:01

I don't know that it's a routine, it has to happen every 10, 15 years. I do think that reviewing your documents regularly is just an obligation that the board really should undertake. It's part of making sure you've got a well-maintained, managed building. But I think that as you see those disputes where the same legal provisions in your governing documents are being debated back and forth, when you see those conversations happening, when you're asking yourself more often than not, but it's not clear, or you're saying, well, do we even have that authority? That's because your documents aren't clear. And that's really when you need to start revisiting them to make sure that you are doing these document readwrites. Uh but of course, time does play a factor. We started off with that. Age is definitely a clue. If you haven't done it in two to three decades, you probably want to make sure that you're addressing it. Um, as the makeup of your building changes, the needs of your building change. Maybe you started off with very young professionals and now you've aged, right? Three or four decades later, you might have an older population. The needs of somebody in their 30s is not the needs of somebody in their 60s, right? They want different things from the space that they live in. So that's when you start thinking to yourself, look, we're aging, we're changing, we're having this dispute. This is probably a good time to look at our documents and freshen them up.

SPEAKER_01 46:26

So true. I mean, there are communities that have not touched up their documents. They were created back in the day where there was one vehicle household. So one person drove a car. It was usually the man who went off to work, and that's what that's how their documents were written to address a one vehicle per household uh situation. Now we have multiple vehicles. Um, you know, we could apply that across the board. So I think that's that's very true. I I say normally every five years, I want to take a look with them and see what's going on. To your point. Same thing, the pets have changed. Same thing working from home. Most of those documents say residential use only, but as we know, everybody today does some remote work on one level or another, whether it's jumping on a team's meeting or Zooms or what have you. Is that work? Is that a violation of the residential usage only?

Final Takeaways And Listener CTA

SPEAKER_00 47:17

We want to fix the ambiguity and we want to add the the proper restrictions there. I agree. So any final words of wisdom, Natalie, about amending your documents? I think that when it comes to amending documents, it really is bringing your documents into the future, into the cur into the presence, I should say, and looking at your community to see where what is it that we need now? Our building is 50 years old, our documents are 50 years old. That doesn't reflect what this building needs now. Um, who lives in here now, what restrictions we need, what restrictions are no longer at play. So it is such a good tool to use. And I don't think our associations use it enough to really plan for a more cohesive community, plan for risk management, and save yourself a lot of money on attorney's fees in the long run because you're creating just clear rules and you're not imposing the board's opinion, the current board's opinion as to the interpretation of a rule, because you've left those uh provisions so ambiguous as they were at one point. If you remove that ambiguity as best you can, you're really making everything easier to enforce uniformly rather than uh a board imposing what its opinion must be because this is how it reads and it's not clear enough.

SPEAKER_01 48:36

I'm gonna underscore what a safety net updated documents provides for volunteer board members. It really does. It really does. Natalie, thank you so much for joining us today. It's been a real pleasure. Thank you for having me. Thank you for joining us today. Don't forget to follow and rate us on your favorite podcast platform or visit ticket to the board.com for more ways to connect.