Much like any organization, a functioning homeowners association requires a set of documents that serve as its guide. These HOA governing documents dictate what you can and cannot do. However, the governing documents of HOAs can be difficult to identify or differentiate, even for members of the association.
Which document takes precedence over another? What should a board member refer to when dealing with matters of violations — the CC&Rs or the Bylaws? These are all too common questions asked by HOA board members who are themselves just volunteers from the community.
In this article:
The Hierarchy of HOA Governing Documents
Operating an HOA requires a fair amount of diligence and effort. With so much documentation involved, board members can find it overwhelming. After all, these documents can be dense and multiple. And, sometimes, the hierarchy of governing documents can be confusing.
So, what’s what when it comes to governing documents? Find them ranked below from top dog to bottom of the pyramid.
1. Laws of the Land
The laws of the land refer to legislation imposed by the governing bodies at the federal, state, and city levels. These laws take superiority over all other governing documents within the association.
These laws contain a hierarchy in itself: federal legislation takes precedence over state legislation. In the same way, state laws come before the city or local laws.
If your association has a rule that contradicts the law, the rule becomes unenforceable. For example, some community associations forbid the use of clotheslines due to their unpleasant appearance. However, at least 19 states have laws that protect a homeowner’s “right to dry.” These states prohibit bans on clotheslines. So, before creating or implementing rules, make sure to check federal, state, and local laws first.
The legislative laws may not be clearly stated to be at the top of the hierarchy in every association. However, they are universally considered as such. Enforcement of these laws should ultimately fall in the hands of corresponding officials, such as police officers. However, individual community members may report illegal activity to a board member, who would then need to contact the proper authorities.
2. HOA/Community Plan
The community plan, which is also referred to as the plat, outlines the jurisdiction of the association and the limits of properties and lots within that jurisdiction.
Some may also know it as a subdivision map. It usually takes the form of a visual illustration of the entire community, with properties divided into lots and units accordingly.
When first establishing a community, one of the first documents an association files is the community plan. Licensed professionals prepare these maps at the beginning of a development. Government agencies then evaluate the plan before recording it with the county’s recorder office.
The association can use the community plan to determine whether violations took place within the confines of the community, as well as to settle any property disputes among homeowners. It is linked to the deeds and mortgages on the parcel.
While the community plan is one of the first documents prepared, it is not unalterable. It is entirely possible to make changes to the plan, though that may require the agreement of everyone involved. Some associations include it in the CC&Rs, discussed below.
3. CC&Rs
The Declaration of Covenants, Conditions, and Restrictions, more commonly referred to as CC&Rs, follows the HOA plat in the document hierarchy. The CC&Rs are what provide the HOA board with the power to enforce certain rules of the association.
This governing document contains the maintenance responsibilities of the association and homeowners. It also contains general rules concerning architectural control, such as the installation of satellite dishes or antennas. Moreover, the CC&Rs state how assessments are computed and collected. This document also defines the consequences of unpaid fees, the proper way to handle violations, and the right process of resolving disputes.
As you can probably tell, this governing document is perhaps the most comprehensive. It contains a library of information that every homeowner must know. In fact, most HOAs require new homeowners to read through these rules and consent to them by signing. If you plan to rent out your home to someone else, the tenant is not exempt from following the CC&Rs.
Within the CC&R is the ARC, or Architectural Review Changes committee, which reviews any requested alterations to separate interests (building a fence, for example) and approves blueprints for new builds.
Due to the complex nature of these HOA governing documents, board members typically elect to hire an association management company to help enforce the CC&Rs.
4. Articles of Incorporation
The Articles of Incorporation aren’t as high within the hierarchy of governing documents because it is rarely something board or community members need to refer to. It is a short document that establishes the homeowners association as a non-profit organization and filed at the state level.
Essentially, this document gives the association the legal right to act as a governing body over the community as outlined by the HOA plan and the CC&Rs. While it is important within the association, it does not hold much superiority over the other documents.
5. Bylaws
The bylaws established by a homeowners association set forth guidelines for the governing body or the HOA board. Typically, the bylaws will state the number of board members, how each board member functions within the association, how often meetings should be held (usually dictated by the size of the association), procedures for annual board elections, and so on.
While the bylaws sit on the lower end of the hierarchy, they remain an essential document within any association. In fact, board members often refer to the bylaws. Community members (including board members) can refer to their bylaws for issues pertaining to the association, such as the removal of a board member.
6. Rules and Regulations
The CC&Rs may already consist of general rules within the association, but the operating rules and regulations go more into the specifics.
An example of a regulation could be how high a homeowner can build a fence, whereas the CC&Rs give the HOA board the power to enforce any violations of this regulation.
Some examples of things outlined within the association’s rules are the allowance of pets, restrictions on pet size or breed, the usage of community areas, and noise levels. Other regulations can extend to the exterior modifications of separate interests, landscaping, and even menial things such as whether or not a homeowner can have a basketball hoop in their driveway.
An HOA can create new rules and regulations, but they must make sure they are acting within federal, state, and local laws. Remember: the laws of the land take precedence over HOA rules. Furthermore, if a rule or regulation conflicts with a provision outlined within the CC&Rs, the latter takes precedence.
Complaints and disputes often arise from rules and regulations. They are a source of inconvenience for some homeowners. Board members must remain prepared and know how to handle these types of situations. Follow the CC&Rs and ensure no one is given special treatment.
The rules and regulations are important within the association, as is their enforcement. Associations usually seek help from professionals, who will assist the board with enforcing violations, should the board be unfit to do so themselves. However, it’s vital for board members to continually review the rules and regulations and assess their necessity. Members of the HOA board can still amend or remove these rules.
The Importance of HOA Governing Documents
As a homeowner, it is important to familiarize yourself with the HOA governing documents. They contain everything you need to know about the community, as well as its do’s and don’ts. A knowledge of these documents allows you to act within your rights and fulfill your responsibilities.
Understanding the hierarchy of these documents is equally significant for when board members need to establish which takes precedence. Commonly, a document ranks higher or lower depending on its filing or creation date — older documents hold higher ranking over newer documents.
If you find yourself and the other board members unable to establish a clear hierarchy or have problems governing other aspects of the HOA, consider hiring an HOA management company. We’d love to hear from you. Give us a call at (855) 238-8488 or email us at help@emspm.com.
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