Many different questions were asked. First, please be clear that the Declaration and Bylaws are completely separate documents and usually require different affirmative voting percentages for amendment.
The Declaration will require no less than 2/3 of owners approve any amendment – but often the required percentage will be higher. This is a good thing because these are the covenants and restrictions that keep the community uniform. They should not be amended lightly.
On the other hand, Bylaws usually can be amended by a simple majority vote and often by the Board. The upside to the Board being able to amend the Bylaws is that they can change as the Board thinks policy and governance should change. The downside to the Board being able to amend the Bylaws is that they can change each time the Board thinks they should.
The Board can also enact Rules and Regulations. That is more common when Bylaws require owner vote on amendments.
Changing the requisite percentage to amend either the Declaration or Bylaws does not affect the other.
Sara A. Austin
Austin Law Firm LLC
226 E. Market St.
York, PA 17403
Each of the two documents should have its own voting burden for amendments. Most modern documents require a vote of at least 67% to amend the Master Deed or Declaration – some older documents impose a higher burden. This burden can be reduced by an amendment, but in no event lower than that permitted by statute (67% in PA). Bylaws are generally amended by a majority vote of the unit owners, in some cases by a vote of the Board.
Clemons Richter & Reiss, PC, Attorneys at Law
Stefan Richter, Esq.
107 East Oakland Avenue
Doylestown, PA 18901-4682
Phone: (215) 348-1776
The passage in July of 2017 of a bill (known as the Radburn Act – N.J.S. 45:22A-45.1 et seq.) that amended the Planned Real Estate Development Full Disclosure Act (“PREDFDA”) now permits Associations, through its Board of Trustees, to pass amendments to the By-Laws, subject to 30 days’ notice to the membership with a rejection ballot and at least 10% of the membership do not reject the amendment (“10% Rejection Method”). However, the Radburn Act does not apply to amendments to the Master Deed. Therefore, the Master Deed amendment you propose would need to be adopted in the traditional manner of amending the Master Deed as spelled out therein. However, as to changing the percentage of ownership the New Jersey Condominium Act specifically ( N.J.S. 46:8B-11) states that: “ . . . no amendment shall change a unit unless the owner of record thereof and the holders of record of any liens thereon shall join in the execution of the amendment or execute a consent thereto with the formalities of a deed.” (emphasis added). Accordingly, the Condominium Act would not permit the Association to amend the master deed to change the percentage of ownership without all owners of record agreeing in writing.
As to amending the By-Laws, pursuant to the Radburn Act, your Association, in addition to the 10% Rejection Method referenced above, could amend by way of an affirmative vote of a majority (more than 50% of the authorized votes) even if your Association’s By-Laws require more than two-thirds
(67%) of the authorized votes to amend. By way of an example, if your By-Laws require 75% of the membership to amend the By-Laws if the Association receives greater than 51% of the total authorized votes in the Association then the amendment passes.
Of course, Association counsel should be contacted to review the provisions of the governing documents, the relevant statute and issue an opinion based upon that full review.
Becker & Poliakoff
Karl T. Meth
Ext. 66003 (973.898.6502)