Hawaii Condo Law

Yesterday, Hawaii’s Smoking Law became effective. For the most part, provisions in each of the county ordinances have provided similar if not greater restrictions on smoking. One difference, however, is that the State law prohibits smoking outside the entrance, windows and ventilation intakes of partially enclosed areas where smoking is prohibited.

Coincidentally, this week a Colorado judge has upheld an association’s authority to adopt a bylaw amendment to prohibit smoking in the units. Please note that section 7 of the new smoking law specifically exempts from the provisions of the smoking ban private residences unless the residences are used for health care, child care or adult day care. Therefore, absent unusual circumstances, an association ban on smoking in the units would require a similar amendment to the association’s bylaws.

Under Hawaii Condo Law, an amendment to the governing documents must be submitted to the owners for approval. An amendment to the Declaration will require the approval of owners holding at least 75% of the common interest in the Project unless the project has five or fewer apartments. In these smaller projects, the Declaration may have a higher owner approval requirement for amendments. Under Hawaii Condo Law, an amendment to the By-Laws will require approval of owners holding at least 65% of the common interest in the Project. The owner approval for an amendment may occur at a meeting of the members or by written consent. The written consent is normally a ballot that is mailed to the members with a text of the proposed amendments and cover letter. The Recodification, if applicable to your condominium will change the approval requirements for amendments to Declarations and By-Laws to 67%.

After the amendment has been approved by the owners, the amendment must be recorded in the Bureau of Conveyances or filed with the Office of the Assistant Registrar of the Land Court. The amendment is not effective until it has been recorded or filed. After the amendment has been recorded, the normal practice is to mail out copies of the amendment to all the owners of the condominium association.

There are certain amendments that are either not permitted or would require 100% approval of the owners. For instance, changing a common element into a limited common element or part of an apartment would require approval of 100% of the owners. Judges have also ruled that changing the way maintenance fees are assessed requires approval of 100% of the owners.