What Should Be Required to Amend a Declaration?
Part 1 and Part 2 of this blog Amending HOA Declarations, dealt with the mechanics of amending an HOA declaration and the issue of even permitting a supermajority amendment requirement in a declaration. Part 3 provides a look at the question what should be required to amend a declaration?
Competing Interests in Common-Interest Communities- Not Unlike National tensions
Amending a declaration of covenants, conditions, and restrictions (CC&Rs) is a serious governance act. It alters the legal fabric of the community, affecting property rights, use restrictions, financial obligations, and often, resale value.
But how easy—or difficult—should it be to make such changes?
Before going further, lets take a look at how the Framers of America's US Constitution look at the issue.
Amendments to the U.S. Constitution require a supermajority vote to ensure that changes reflect a broad and deep national consensus, not just temporary political majorities. This design choice was intentional and rooted in both philosophical and practical concerns- choices (except for # 3) I see having similarly to HOA declarations that serve as a community's "constitution".[i]
Protection Against Factionalism- James Madison, in Federalist No. 10, warned against the dangers of factions—groups driven by narrow interests rather than the public good. A supermajority requirement (two-thirds of both Houses of Congress and three-fourths of the states) helps ensure that amendments are not pushed through by fleeting or regional political movements.
Stability and Continuity- The Constitution is the nation's foundational legal document. Requiring a supermajority avoids frequent or hasty changes that could undermine legal stability and the rule of law. This reinforces the Constitution’s role as a durable framework rather than a constantly shifting political tool.
Federalism and State Sovereignty- By requiring the approval of three-fourths of state legislatures (or conventions), the amendment process respects the role of states in the federal system. It prevents the national government or populous states from imposing constitutional changes on smaller or less populous states without their substantial agreement.
Deliberative Process- The supermajority threshold encourages careful deliberation and negotiation. Proposals must be compelling enough to cross partisan and geographic divides, fostering compromise and thoughtful reform rather than impulsive policymaking.
Historical Precedent and Intent- The supermajority model was established in Article V of the Constitution. The Framers debated various thresholds, ultimately choosing a high bar to balance the need for constitutional evolution with the dangers of instability or tyranny of the majority.
Conclusion - The supermajority requirement to amend the Constitution acts as a structural safeguard. It reflects the Framers’ intent to make constitutional change possible—but only when there is overwhelming and sustained agreement that such change is necessary and just.
The Case for Lowering the Threshold: Majority Rule with Guardrails
Promotes Democratic Governance
Rigid supermajority thresholds (e.g., 75%–90%) allow small minorities to block reasonable reforms.
In most democratic institutions, a simple or qualified majority suffices for policy change—why should HOA declarations be any different?
Reduces Governance Gridlock
As communities age, declarations often become outdated or legally noncompliant. Without a feasible amendment process, HOAs are forced into noncompliance or legal ambiguity.
Increases Responsiveness to Changing Needs
Communities evolve. Demographics shift, technology changes, public policy adapts. Easier amendment rules allow CC&Rs to keep pace with modern needs (e.g., solar panels, short-term rentals, accessibility upgrades).
Reduces Legal Costs and End-Runs
Impractically high thresholds often lead to court petitions (as in NRS 116.21175), contested elections, or even litigation—all costly and divisive.
The Case for Preserving Supermajority Requirements: Stability and Property Protections
Protects Minority Property Rights
Declarations impact core property interests (e.g., land use, assessments, rental rights). Majority rule alone may allow abusive or opportunistic changes that devalue minority-owned homes.
Maintains Predictability and Stability
Supermajority thresholds ensure stability in community governance, preventing constant rule changes that create confusion and erode owner confidence.
Ensures Broad Consensus for Foundational Changes
Amending the declaration is not like passing a board resolution—it alters the community’s foundational contract. Broad consensus should be required for such consequential shifts.
Respects the Original Bargain
Owners often buy into a community based on the rules as written. Permitting too-easy changes to declarations may undermine the reasonable expectations that guided the purchase.
Striking a Balance: Possible Middle Ground
Graduated Thresholds Based on Impact
Higher threshold (e.g., 67–75%) for amendments affecting property use, assessments, or rights to exclude;
Lower threshold (e.g., 50–60%) for procedural, clarifying, or administrative amendments.
Court-Supervised Amendments (e.g., NRS 116.21175)
Allow judicial approval of majority-supported amendments where the original threshold wasn’t met—if the amendment is “reasonable and not arbitrary.”
Sunset Clauses or Periodic Review Requirements
Require that declarations undergo review every 15–20 years, with the option to modernize outdated provisions by owner vote.
Pre-Turnover Review
Mandate that developer-imposed declarations be subject to early owner review/amendment, perhaps within 2 years of turnover.
Policy Considerations for Legislators
Should declarations be treated more like public governance instruments or private contracts?
How do we protect majority rights without trampling minority interests?
How much weight should we give to the practical barriers of participation (apathy, mobility, absentee ownership)?
Can we design an amendment process that reflects both the durability of law and the flexibility of governance?
Conclusion
The debate over how difficult it should be to amend HOA declarations reflects a larger tension between governance agility and property rights security. Requiring a supermajority may protect owners from abuse—but may also trap communities in outdated rules. Majority rule encourages reform—but carries the risk of majoritarian overreach.
The best path forward likely lies not in choosing one side, but in crafting tiered, transparent, and judicially reviewable processes that reflect the weight of the decision and the rights of those affected.
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[i] James Madison – The Federalist No. 43 & No. 49, Max Farrand, The Records of the Federal Convention of 1787, Bruce Ackerman, We the People: Foundations (1991), Sanford Levinson, Our Undemocratic Constitution (2006)
