Amending condominium declaration and bylaws can be difficult; particularly if boards are not guided properly. The original bylaws when the condo was conceived by the sponsor may be outdated, incorrect or need to be changed for a myriad of other reasons. If the board doesn’t do it correctly, the condo could get caught up in a litigation like the Towers on the Park Condominium in Manhattan. A pro se unit owner sued years ago and the appellate court in New York just put an end to the amendment challenge. In doing so, the Court absolved the condo from a few errors that it made in the amendment process. The better course however is to get it right the first time so that expensive litigation and acrimony in the condo because of challenges like this do not occur in the first place.
The first step is to determine what the board wants to change in the declaration and bylaws and whether it can obtain the required number of unit owners to vote for the amendment. Usually, such amendments require a super majority that can be difficult to obtain. There are way, however, to obtain the necessary vote, but it has to be done correctly or suffer a challenge.
In the Towers on the Park Condominium case the Court mentioned the process used in the vote where the board left the meeting open because it did not obtain the necessary 80% at the first meeting. This is a typical tactic employed by condo boards but it has to be done correctly at the meeting. If not, it could be fatal to a vote, but at least this Court saw the defect as technical and absolved the board. It helped though that the challenger overlooked and did not dispute this error in her litigation papers. This is an example of getting is right the first time and avoiding the chance that another court may not be so forgiving. Imagine if the Court threw out the amendments years later after the condo was governing under the amendments, possibly invalidating board actions under the improper amendments.
The other step that the Towers on the Park Condominium didn’t take correctly was recording the declaration and bylaw amendments with the City Register. Amendments to declarations and bylaws have to be recorded against each unit in the condominium after the amendments is properly approved by owners. This is another important step. The Towers on the Park Condominium board did not record the amendment right away but did do so before the lawsuit to challenge the amendment was filed with the Court. As so, the Court forgave the condo board again. The law in NY is that such amendments are not effective until recorded with the City Register against each unit. Thus, the recording should be planned in advance and done right after the necessary vote is obtained.
Realizing that amendments are difficult, it is important to get the language of the amendment correct. Once that is nailed down, as long as proper procedure is taken, the road should be smooth for a board. With Towers on the Park Condominium, the road was not so smooth tying it up in litigation for years. But, now that the clouds have passed, the changed declaration and bylaws should serve the condo well for years to come.
Read the Reynolds v. Towers on the Park Condominium decision.
