Conflicting versions of condo documents creating confusion
A: There is a very simple answer to your question. Your legal documents are recorded among the land records in the county where your association is located. Go down to the local recorder of deeds office, give them the address of the condominium, and get a copy of the recorded declaration and bylaws.
Here’s the problem: When a condominium is newly constructed, the developer’s attorney drafts the legal documents. Those documents — after approval by any relevant state agency — are provided in what is known as a public offering statement to any prospective buyer. However, so long as the developer still owns all of the units, the developer can make changes to those documents. For example, let’s say a mortgage lender to potential condo purchasers objects to certain language in the bylaws and the developer therefore makes changes to the language. To my knowledge, every state law requires the developer to advise potential purchasers of those changes, but that does not always happen.
Accordingly, we often see two (or more) sets of the same document. The only one that is valid and enforceable is that which is recorded among the local land records.
The management company — when preparing the documents for the resale package that is given to potential condo purchasers — must make sure the legal documents in the package are the recorded documents.
A: If someone takes the board to court based on not following the strict requirements spelled out in your legal documents, the amendment (even if it was approved by the requisite supermajority of owners) may be voided.
A May 2017 Colorado Court of Appeals case is right on point. In that case, Tyra Summit Condominiums II Association Inc. v. Clancy, the association’s bylaws required that all owners be provided at least 10 days’ notice of any proposed amendment. Notice was not sent per the legal requirements.
Accordingly, the court held that the amendment was invalid, and in fact, awarded attorney’s fees to the winning party.
The moral of this story: Make absolutely sure your association complies with every legal requirement spelled out in the legal documents.