On July 18, 2006, I posted an article about the sections of the Recodification that automatically apply to existing condominiums as well as the sections that do not automatically apply to existing condominiums.

If you’d like to eliminate punitive damages for your condominium association or reduce the approval requirement for declaration amendments and leases of the common elements, Hawaii Revised Statutes §514B-23 is the answer. Hawaii Revised Statutes §514B-23 will allow you to amend your governing documents to conform to the provisions of Hawaii Revised Statutes Chapter 514B. While an amendment would not be needed for those sections that automatically apply to existing condominiums (provided that one of the three exceptions do not come into play), existing condominiums must adopt an amendment for the other provisions of the Recodification to apply. Originally, Hawaii Revised Statutes §514B-23 was silent on the approval requirement for these amendments. That meant that for most condominiums, By-Law amendments would require the approval of 67% and Declaration amendments would require 75% approval.

However, an amendment to the Recodification was adopted as Act 273 which provides that these amendments only require the approval of a majority of the owners. Most involved in the Recodification effort has referred to as the “opt-in” provision. With the approval of a majority of the apartment owners, you can adopt amendments to the governing documents which would allow you to take advantage of the Recodification sections that do no automatically apply to existing condominiums.

Any existing condominium association that is considering an amendment to their Declaration should seek a vote to opt-in. Even if you’re not amending your Declaration, there are significant provisions that could benefit the Association. Opting-in also has the benefit of eliminating the concern that the automatic provisions would not apply because of a contract clause issue. For that reason, it is likely that most condominium associations will eventually choose to opt-in.