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QUESTION/ANSWER BY JOHN H. GETTINGER, ESQ.

Question:

Must an amendment that was voted on and approved be filed with the county? How much time is allowed? (The amendment was voted on and proved in 2011 when there were other owners - is the amendment still binding?

Answer:

In the case of a condominium, an amendment to the by-laws must be recorded with the county clerk's office in the county in which the condominium is located. Pursuant to 399-(u) of the Real Property Law of this State of New York "no modification of or amendment to by-laws shall be valid unless set forth in amendment to the declaration and such amendment is duly recorded. "In the case of a homeowners association, you would need to review the declaration of covenants, easements and restrictions to determine if it requires that the amendment be recorded with the county clerk in order to be valid. However, we advise all of our homeowners association clients to record any amendment to the by-laws. The recording of the by-laws gives owners and future owners of a home within the community constructive knowledge of the matters contained within the by-law amendment. As a matter of good practice, we also advise that they have actual knowledge of the matters contained within the by-law amendment.

In doing so, owners and future owners may not claim that they did not have any knowledge of the amendment.

In your case, if you are an owner in a condominium or if you are an owner in a homeowners association whose declaration requires amendments to be recorded, the failure to record the amendment rendered the amendment invalid so that it was never binding on the owners. Since there is not time frame provided in the Condominium Act within which the recording must be accomplished, I assume that the by-law amendment, upon being recorded with the county clerk, will become valid.

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