Declarant-era CC&Rs were written for a neighborhood that didn't exist yet, by a party whose job was to sell houses in it. They tend to be strict about anything a prospective buyer might see from the street and vague about anything that only matters once people are living there.
Once owners control the association, changing them becomes possible. It also becomes a formal process with a vote threshold, a recording step and a set of things that can't be changed at all. For the mechanics of running an amendment start to finish, our step-by-step guide to amending CC&Rs is the how-to; if the handover is still ahead of you, start with how a community changes hands.
First, check whether it's a CC&R at all
Nolo's explainer on covenants, conditions and restrictions draws the line. CC&Rs are recorded legal documents that regulate how an owner can use, maintain and improve the property, and they run with the land, which means they stay with the home when it's sold or transferred to a new owner. They're recorded in the county clerk's office, and buyers generally sign an acknowledgment that they've read them and agree to be bound.
Rules and regulations sit underneath. A board can usually adopt, change or drop those by board vote, following whatever notice the bylaws require. Trash-can placement, pool hours, guest sign-in: those are usually rules. Whether you may build a fence at all, and what the association owns and maintains, is usually the declaration.
Work out which document holds the provision before you plan a campaign. Many of the changes a new board wants don't need a membership vote.
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The threshold is set in two places
Your declaration states a percentage for amendments, and your state statute may override it.
Under section 209.0041 of the Texas Property Code, a declaration may be amended only by a vote of 67 percent of the total votes allocated to property owners entitled to vote on the amendment, plus any governmental approval the law requires. If the declaration sets a lower percentage than that, the declaration's number controls. If the declaration is silent about voting rights for an amendment, the statute supplies 67 percent of the lots subject to it. The section applies regardless of when the dedicatory instrument was created, and it supersedes a contrary requirement in the instrument itself.
Under that design a declarant-era declaration demanding 90 percent is less immovable than it looks. Whether your own state does anything similar is the question to put to an attorney licensed there, who can read your declaration and your state's act together before you count votes.
The same Texas section adds a line worth carrying anywhere: a bylaw may not be amended to conflict with the declaration.
What developer-era declarations usually get wrong
Reserved declarant rights that outlived the developer. Approval rights, architectural veto, the ability to add land. Some expire on their own terms; some sit there until amended.
Architectural standards written for a sales office. Materials lists naming products that are no longer manufactured, and approval processes routed to a committee the developer appointed.
Parking and vehicle rules built for a build-out phase. Streets designed with construction traffic in mind, guest parking measured against a half-occupied neighborhood, restrictions on trailers and commercial vehicles that were never enforced while the developer was still selling.
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Maintenance splits that don't match reality. Declarations sometimes assign the association responsibility for components the developer expected to look different, or leave a component unassigned entirely.
Assessment mechanics with no escalation. Caps written when costs were lower, with no provision for the association to keep up.
Running it so it holds
Draft the exact language before you campaign, and circulate that language. Owners vote on words, and an amendment described one way and recorded another ends in a dispute.
Give proper notice under your bylaws, keep the ballots, and record the count in the minutes. Then record the amendment itself with the county. A membership vote that never reaches the public record hasn't changed the property.
Watch the parts that are harder to change: provisions protecting lender interests, and rights that state or federal law protects regardless of what owners vote for. Attorney review before the vote is cheaper.
Finally, decide what you're solving. An amendment campaign takes months and spends goodwill, and a board that opens three of them at once usually finishes none. If the underlying problem is uneven enforcement, selective enforcement is the piece to read.
Related Reading
- HOA Developer Turnover: How Your Community Changes Hands
- What Is a Declarant in an HOA? Meaning, Rights, and Control
- How to Amend Your HOA's CC&Rs: A Step-by-Step Guide
- CC&Rs Explained: The Rulebook Your HOA Runs On
Read what you inherited before you rewrite it.
Communities running an amendment can put the ballot out and keep the count with the voting tools on the HOA-OS Community plan. See what each plan includes, starting with a 30-day free trial and no credit card.