McKenna S. Walsh, March 27, 2026
It is in the best interest of the community to periodically have its governing documents reviewed. This ensures that outdated provisions do not expose the association to unnecessary risk.
What are Governing Documents?
Governing documents are the written rules, regulations, and operational guidelines that the community must follow. These legal documents include, but are not limited to, the Declaration, Articles of Incorporation, and Bylaws, and may also include a subdivision map or condominium plat, as well as any policies, rules, or guidelines adopted by the Board. Below are some common considerations for why and when an association should consider amending its governing documents.
When the Law Has Changed
Common interest communities remain a favorite topic of the Colorado legislature. As such, the laws governing common interest communities are in a state of constant flux and it is important that the governing documents are current with new legislation and case law. If the governing documents conflict with current laws, the law will supersede the governing documents. This may mislead members to believe the documents accurately convey the members’ rights, legal procedures, etc. Updating governing documents periodically to comply with state and federal law is an important step to minimizing risks.
When Governing Documents are Outdated
Associations may wish to amend the governing documents due to outdated provisions. Particularly with communities over 15 or 20 years old, there may be obsolete provisions no longer enforced. Examples may include developer privileges, changes in technology, or changes in how the association operates.
When there are Clerical Errors
Additionally, governing documents may need to be amended or revised to correct mistakes. Mistakes and errors are most convenient to address when governing documents are being updated or amended to make other, more substantive, changes.
When Governing Documents are Confusing
Lastly, associations may choose to revise the governing documents to minimize future legal fees. If an association has sought legal clarification or interpretation of its documents on multiple occasions in the past, it may be beneficial to revise poorly drafted documents and clarify ambiguous provisions.
How to Prepare for Governing Document Revisions
Prior to seeking legal review and revisions, an association may involve the community by reaching out to and educating members to solicit feedback on what changes to the governing documents may be important or desirable. Additionally, a committee appointed to solicit input and support from members could be in the interest of the association. In the end, the members will have to vote to approve amendments, so seeking initial support and feedback from the community will likely make the voting and approval process much more efficient.
While providing an initial draft of amendments or revisions to an attorney rarely results in any savings, an association may save fees by providing a list of suggestions to an attorney as well as basic information such as number of directors, length of term of office, number of pets permitted, number of vehicles permitted, etc. This information allows an attorney to efficiently work through revisions and amendments.
Do Our Governing Documents Need to be Amended?
Below is a list of questions an association can review to determine whether it should seek amendments to its governing documents:
- Does the Declaration contain declarant or developer rights which have expired, never expire, or provide for two classes of voting?
- Do the governing documents conflict with state or federal law?
- Does the Declaration contain use restrictions which are impractical, no longer desirable, or have been overridden by state law?
- Are covenants in the Declaration frequently violated or not enforced?
- Is there an assessment cap based on a percentage of the previous year’s assessments or consumer price index?
- Has the association consulted with legal counsel several times for assistance in interpreting the governing documents?
- Is the allocation of maintenance obligations unclear?
- Does the association have difficulty obtaining a quorum at the annual meeting?
- Are the Articles of Incorporation missing the express limitation of the personal liability of directors?
- Are the Bylaws missing an indemnification provision?
- Are the governing documents more than ten years old?
- Do the governing documents conflict with each other?
- Are the board and members overwhelmed and confused by the content of the Articles of Incorporation, Bylaws, and/or Declaration?
Consider the number of applicable statements above. If governing documents are reasonably up to date and only minimal amendments are needed, simple amendments to the association’s current governing documents may suffice. If many of the above statements are applicable, more substantial revisions may be advisable.
What is the Process for Amending Documents?
After determining whether amendments or revisions to the governing documents are necessary, the first step in the process for amending documents is approving amendments. The current governing documents will indicate the requirements needed to approve amendments. Requirements may include certain voting percentages, city or county approval for certain provisions, or legal rights requiring full voting approval or written consent rather than voting approval. After amendments have been properly adopted, the president and secretary must execute the original amendment document and (with the help of the association’s legal counsel) have the document recorded. Additionally, the board must keep copies for reference purposes and provide copies to all members.
For questions on whether your documents are putting your community at risk, or assistance on amendments, contact your community’s legal counsel or an attorney at Orten Cavanagh Holmes & Hunt, LLC.
