The Importance of Governing Document Maintenance

Do You Need to Amend or Restate Your Governing Documents?

Article By Melissa Bauman Ward, Esq., CCAL

This article first appeared in the Communicator Magazine, Spring 2026 Issue.  

Association boards are familiar with their fiduciary duty to maintain their buildings and other common area components, pursuant to their governing documents and the law. Many directors don’t realize that they have an obligation to maintain their corporations as well. An important way to maintain your governing documents is to make sure they are up to date and comply with the law. How do you know if your documents need updating? We’ll discuss the ways to tell and options for amendment or restatement.

What Are Governing Documents?

The Davis-Stirling Act defines governing documents as the declaration (usually known as covenants, conditions & restrictions or CC&Rs), bylaws, articles of incorporation (or articles of association if the association is not incorporated) and the operating rules. Each of these documents has different requirements for how it is amended or restated. The articles, bylaws and CC&Rs usually require a member vote in order to amend or restate. Rules are adopted by the board after notice and a comment period for the members.

Why Do Governing Documents Need Updating at All?

Typically, the articles, bylaws, and CC&Rs remain valid regardless of how old they are.¹ However, due to changes in the law, old documents become increasingly less useful as a reference source for directors, managers and members.  There are many reasons why an amendment, or better yet, a complete restatement of the governing documents, may be appropriate:

• May contain provisions that are contrary to current law.
• May not contain provisions that are required by law.
• Maintenance obligations may be unclear, which leads to expensive legal opinions and possibly litigation over the allocation of maintenance, repair and replacement responsibilities.
• Enforcement tools, such as reimbursement assessments or fines, may not be authorized.
• Obsolete provisions, such as those pertaining to the original developer, may remain.
• Technological advances, such as the availability of solar energy systems, electric vehicle charging stations and the like, are not addressed.
• Discretionary restrictions desired by the community, such as those relating to rentals, pets and occupancy, may not be included.
• Insurance provisions may be incomplete or no longer sufficient for the community’s current situation, such as requiring full replacement value insurance when it is not available or failing to specify who is responsible for paying the deductible.
• Supermajority member approval requirements that do not serve the community and impede future amendments should be reduced to statutory standards.

Amend or Restate?

If your documents are less than 20 years old and only a few specific items are in need of change, an amendment may be appropriate. Amendments are faster and cheaper to get approved, and allow the members to focus on a particular topic of importance when voting. However, if you have too many amendments, they may get overlooked, and it becomes difficult to use the main document because of all the changes located in different places.

If your documents are more than 20 years old, there will almost certainly be so many statutory and nondiscretionary changes that a restatement is more efficient and cost-­effective. Your attorneys can use their up-to-date templates for statutory updates, leaving only the items specific to your community to focus on and customize your new documents. You won’t have the confusion of multiple amendments. And, if you are updating the bylaws and CC&Rs at the same time (recommended), the two documents can reference each other seamlessly and accurately. It often is cheaper to restate documents than to amend them.

Conclusion

A governing document restatement project may seem daunting, but keeping the community’s documents up to date actually helps make day-to-day operations more efficient, increases the members’ understanding of their rights and responsibilities, and reduces the need for expensive legal opinions on maintenance and governance issues. Boards would be well-served to plan ahead and budget for periodic updates and restatements of the bylaws and CC&Rs, and to make such document maintenance part of their governance expectations. Consult with your community’s legal counsel to determine when and how your governing documents need to be amended or restated.

Melissa Bauman Ward is the partner in charge of the Adams Stirling law firm’s Northern California offices. Her practice consists of serving as general counsel to associations all over California. When not practicing law, Bauman Ward enjoys traveling, reading and learning to sail.