Maintain the Maintenance

“Dinosaur Documents.” I love that title, but the credit is not mine. Rather, I found it in the materials provided by an Attorney who gave a speech on this subject at the Community Association Institute conference in New Orleans last January.1 What follows is a mix of the information he provided and my experiences as well.

Dinosaur Documents are a set of the Declaration and Bylaws at any condominium association where they are, simply put, so old as to have outlived their usefulness, sometimes in many ways. I have seen documents that allowed Notice of meetings to be given by telegraph. At one Association the documents noted they prohibited loud noise from phonographs. (I assumed it was still okay to use 8-track tapes.)

Some older documents have quorum requirements as high as 75% when the Condominium Act suggests 33% and allows an Association to go lower. (I saw one Association that had a 100% quorum requirement, essentially granting power in the Association to one person who could refrain from appearing unless there was prior agreement to vote the holdout's way.)It could be the Declarant has been gone for twenty years, but the documents still reference him and his control over the Board.

And sometimes they are just bad. There may be odd provisions for things that don't even exist in the Association such as a pool. In some cases, the Declarant has simply downloaded them from the Internet or is using a form set of documents for multiple associations.

None of these are, of course, any better than a car that works, but that costs more in maintenance and upkeep than it is worth. It's the same with condominium documents. It's generally a good idea to start thinking about updating them if they are 10-15 years old as the law have changed, technology has changed (we have the Internet now), and the needs of an Association change over time.

How to be sure? Check with an attorney, a condominium attorney. Not all attorneys are the same. Just as you would not go to a cardiologist for brain surgery, you should not go to your divorce attorney to review the condo documents. And it's worth it to do a review. It's possible only a few things need to be changed to come into compliance with changes in the law. Having a few amendments will be cheaper than re-drafting them in their entirety.

And don't just have someone give you a quote. Ask for a review of the documents. The attorney should be able to give you a detailed overview of what is good; what you might want to change and why; what you need to change and why; and what is fine and why. Then talk to the attorney. Ask how much it is going to cost and what comes with the cost? Do you get just a delivery of a set of documents that could run sixty pages without explanation? Is the attorney willing to meet with the Owners and explain the documents and get their input on what idiosyncrasies need to be in the documents? Is the attorney going to charge for every meeting and every change to the documents that come from the meetings?

No one wants to spend money on attorneys. Even I don't. It's a question of whether an Association is going to do things right or whether it will put things off until they are in the middle of a storm that they saw coming on the horizon long ago.

Suggestions on particular language will come in future columns, but start by taking a look at how old your documents are. I have pointed out for a long time that Boards don't let paving, roofs, siding and other items lay idle for 20 or 30 years. They shouldn't let their condo documents lie fallow, either. In the long run, a bad set of documents can cost a lot more money than a roof replacement.

1Allen B Warren, Esq. “Amending Governing Documents: Providing Effective Legal Counsel (and Effective Amendments)”