If your HOA governing documents are in conflict with one another, how do you know which one to follow? Which one would win between HOA bylaws vs state laws? And what if some HOA documents are in violation of your state or national rights?
The Hierarchy of HOA Documents Explained
As an HOA board member, you have a responsibility to uphold and follow the association’s governing documents. However, these documents were written by people, and people aren’t perfect. Conflicts in provisions happen all the time. So, what do you do when you find two or more documents advising different courses of action?
The answer is to simply look at the hierarchy of documents within your association. Some documents take precedence over others. If you don’t know which one supersedes the others, take a look at the list below:
1. Federal and State Laws and Statutes
The laws of the land take precedence over all other HOA documents. State laws come before local laws, while federal laws outweigh everything else. Whether you’re drafting your governing documents or deciding which one to follow, it’s important to always check the law first. This way, you’re not acting against the laws of the land.
So if your HOA CC&R documents have restrictions on things like sex and religion when it comes to potential homeowners, that would be in conflict with the Fair Housing Act. In this case, the related provisions in your CC&Rs violate federal law, which makes them unenforceable.
2. Recorded Map, Plan, or Plat
Next up on the HOA documents hierarchy is the map or plat that your association recorded with the county office. It’s simply the recorded plan of your entire subdivision or community. This document establishes maintenance responsibility and property location. It also shows the exact dimensions of each unit, easements, and setback requirements. Other items of note include:
- Trash enclosures specifications
- Restrictions on vehicular access
- Handicapped parking spaces and parking restrictions
- Landscaping restrictions
- Lighting requirements and prohibitions
- Areas for future development
- Lighting and other requirements/restrictions
The Declaration of Covenants, Conditions, and Restrictions (CC&Rs) take the third spot on the HOA documents hierarchy. This document details the rights of homeowners and the responsibilities of the HOA board members. Typically, the CC&Rs also contain stipulations associated with assessment obligations, maintenance responsibilities, and enforcement authority. This is also where you’ll find specific procedures on how to handle various issues such as disputes and violations.
Others know the CC&Rs as the rules of the community. This document guides homeowners on what they can and can’t do, particularly when it comes to property use and other aspects of HOA living. Before purchasing your home in an HOA community, you’ll be informed of the CC&Rs and asked to agree to them. You may even need to sign something as proof of agreement.
When a homeowner violates a covenant, certain consequences take place. Most associations send out a notice of warning on the first offense. Fines and the suspension of privileges are typical courses of action for future violations. Failure to settle these fines can eventually lead to legal action.
4. Articles of Incorporation
The Articles of Incorporation includes essential information such as the legal name of the HOA, address, and the association’s corporate status. Some articles also contain a few basic functions of the HOA. This document, while necessary, doesn’t consist of much. It’s filed with the state upon the formation of the association.
Coming in fourth on the HOA documents hierarchy means the Articles of Incorporation supersede the HOA bylaws and the operating rules. However, they don’t take seniority over the state laws or the CC&Rs. So, if something in your Articles of Incorporation comes into conflict with a provision in your CC&Rs, the latter takes precedence.
5. HOA Bylaws
The HOA bylaws consist of important information related to how the association is run. Like a business, a board of directors oversees the workings of an HOA. The bylaws simply state the particulars of how to operate the HOA, such as how often to conduct meetings, the process of holding meetings, and voting rights. This document also includes how many board members there should be as well as the functions of each of those board members.
As fifth on the list, the only document the HOA bylaws prevail over is the operating rules and regulations. So, if your bylaws clash with, say, your Articles of Incorporation, you must follow the latter document. If you wish to see your HOA bylaws or any other governing document, you can request a copy from your HOA board or with the county recorder’s office.
6. Rules, Regulations, and Resolutions
Whereas the CC&Rs and bylaws determine the procedures and responsibilities of the HOA board, the rules and regulations focus on the day-to-day aspect of operations. This can include rules regarding clubhouse use, pets, and even architectural or landscaping specifications.
These rules can change from time to time, though the board must ensure that new rules or amendments don’t come into conflict with other governing documents. Moreover, it’s a good idea to have the association’s attorney look over these policy changes to make sure the board is acting within their scope.
On the other hand, if you’re a homeowner who disagrees with one or some of the operating rules, you’re not entirely powerless. Make sure to let the board know why you (and/or others) oppose the rule. You can also check your local laws or reference other governing documents to see what else you can do. After all, every state and association is different, so what may work for one HOA might not work for another.
The Importance of Homeowner Association Documents
HOA documents are clearly essential for all homeowners associations, no matter the size. They define what HOAs can and can’t do, how to do them, and when to do them. Every organization needs a set of documents governing its operations. Without these documents, an association would fall into anarchy.
Consistency is important when it comes to HOA documents. So, whether you’re just beginning to draft your governing documents or considering amending them, make sure they’re in line with the laws and provisions that precede them. This way, you won’t run into conflict or, worse yet, legal trouble.
- The Ins And Outs Of Covenant Enforcement For Your HOA
- HOA Attorneys – Why They Are Important and How To Find One
- Can Homeowners Change Rules In Your HOA?