What Are HOA Governing Documents?
As a homeowners association is a legally incorporated organization, it is governed by a group of documents. Each document contains provisions relating to different aspects of the association, but there is a strict hierarchy. A provision from a document higher on the scale will always out rule a conflicting provision in a lower document. These documents allow the association to function, and more importantly, when followed, flourish.
For clarification purposes, each document begins with a glossary of frequently used terms. These definitions will hold true throughout the document and aid in the understanding of legal terminology.
The highest document on the hierarchy is the Declaration of Covenants, Conditions, and Restrictions (CC&Rs) along with the recorded map. The map is the official plat of the community, showing the boundaries and each individual lot.
The CC&Rs begin by defining ownership of the elements of the community, such as what are considered common areas, limited common elements, and lots, and the responsibility for maintenance of each. Also included are the powers for funding the association and purposes and goals. The restrictions make up the largest portion of the document, outlining the protective standards for the community. These protective standards are to ensure the quality of the community and the value of the homes.
Some CC&Rs include many explicit restrictions, such as rules for sheds and other architectural guidelines, leasing restrictions, and parking rules. Other CC&Rs can be very general and only state the board of directors has the power to establish restrictions and guidelines as they see fit, with the benefit of the community in mind.
2. Articles of Incorporation
The articles of incorporation come in just below the CC&Rs in the hierarchy. They legally establish the association as a nonprofit corporation, the general powers of the HOA, with the formation of the board of directors. This governing document is filed at the state level. It includes the association’s legal name and address. The articles of incorporation can also define some of the association’s functions.
The articles of incorporation sit below the CC&Rs in the hierarchy of homeowners association governing documents. Therefore, the provisions outlined in the CC&Rs take precedence over those defined in the articles of incorporation.
3. Association Bylaws
The bylaws, sitting below the articles, set the procedures and general rules for governmental operation. These procedures include meeting notices and requirements, the number of board members and officers, frequency of elections, and so forth. It can also include information on who will take charge of certain responsibilities within the association. In short, any procedures specific to the association should be found in the bylaws.
Because of its position in the hierarchy, the bylaws are overruled by both the CC&Rs and the association’s articles of incorporation. Therefore, if a provision in the bylaws comes into conflict with a provision in the CC&Rs or the articles, the latter takes precedence.
4. Rules and Regulations
A power listed in the CC&Rs is the ability of the board to write a more concise rules and regulations document, which will fall below the bylaws. These operating rules and regulations often provide a more detailed explanation of the restrictions in the CC&Rs, then establish necessary guidelines for the community. These guidelines include additional architectural guidelines, and covenant enforcement and collections procedures. All guidelines must comply with the applicable local, state, and federal laws, and cannot conflict with anything set forth in a document with a higher ranking. Rules and regulations documents may or may not be legally adopted.
The Importance of Understanding HOA Governing Documents
In order to make living in a homeowners association the best experience possible, it is important to always read and understand the HOA governing documents. These documents contain essential information for both the HOA board and community members. They outline what the association, the board, and its members can and cannot do. Adherence to the governing documents is impossible without proper understanding. As such, the association must make the governing documents readily available to all homeowners.
It is equally important to note that federal, state, and local laws take precedence over all HOA governing documents. If a particular provision in your governing documents comes into conflict with the law, such as the Fair Housing Act, the latter immediately overrules the former. If your association finds that some of its provisions do not align with the law, consider amending your governing documents.
Governing documents can be amended if need be, but the process can also be time-consuming and confusing. The document to be amended will state the procedures for making an amendment, in addition to any state and county procedures. An HOA attorney can be most helpful to ensure an amendment is made appropriately. Alternatively, an association can also turn to a professional management company for help in amending HOA governing documents.
Elite Management Services offers a wide variety of solutions designed to specifically aid homeowners associations in their daily operations. Our services include legal assistance, board education, reserve planning, value-added services, maintenance and violations, and accounting and financial reporting. Feel free to contact us at (855) 238-8488 or online to learn more about the Elite difference.