Most people who own condominiums or homes that are part of a common interest development that is governed by a homeowners association know that there are laws that apply to the association, and that their association has “governing documents,” but a very small percentage of those people understand what the laws are, what the term ” HOA governing documents” includes, or the function of the various different documents that are part of their association’s governing documents. Unfortunately, this lack of understanding of applicable laws and/or an association’s governing documents frequently extends to an associations officers, directors, and management personnel. As a result of this lack of understanding, it is commonplace for there to be deficiencies in the operations of the homeowners association and a multitude of conflicts between all those involved in the operations including association members and their tenants and/or guests, the association’s officers and directors, and management personnel. These deficiencies and conflicts frequently lead to costly problems and litigation that would not have occurred or been necessary if those involved were more aware of important laws and the content of their association’s governing documents– and complied with them.
The term “HOA governing documents” will generally be defined in a state’s statutes that apply to condominiums and other common interest developments and their homeowners associations. Typically, an association’s governing documents consist of the following items:
Tract Map
Tract maps are created when a common interest community or planned development with multiple lots is being planned. The Tract Map shows the boundaries, locations, shapes, and dimensions of the different lots, common areas, and the adjacent streets. The tract map is a public record.
Condominium Plan
State statutes require the developers of condominiums to create a “condominium plan” that includes a description or survey map of the project that details the improvements and provides dimensions in sufficient detail to identify the common areas and the separate interests. The condominium plan is recorded in the county where the association is situated and attaches to the interest of every owner of property within the common interest community that the plan applies to.
Declaration of Covenants, Conditions, and Restrictions (CC&Rs)
An association’s CC&Rs set forth the rights and obligations of the association and the association members. The provisions in an association’s CC&Rs cover such topics as: rights and obligations of association members; management and maintenance responsibilities of the association and the members; restrictions on use of common areas and separate interests; assessments, lien and collection rights; dispute resolution and many other topics. The CC&Rs are documents that get recorded in the county where the association is situated and they attach to the interest of every owner of property within the common interest community that the CC&Rs apply to.
Articles of Incorporation
Articles of Incorporation are public documents that are filed with the secretary of state for the state in which a homeowners association is created through the process of incorporation. The articles of incorporation provide the public with certain basic information about the association such as the correct name and the purpose of the association.
Bylaws
The bylaws of a homeowners association set forth the policies and procedures for the governing of the association such as: qualifications for the election of directors; directors’ meetings; association member meetings; appointment of officers and elections. The bylaws are internal documents that are adopted by the association’s board of directors.
Policies and Procedures (i.e. Internal Dispute Resolution, Collection)
Homeowners associations adopt various policies to document a consistent procedure that details how certain things are to be done within the association.
Rules (i.e. General, Election)
Rules are a form of laws that are imposed on the owners, their guests, and tenants by the managing body of a homeowners association (board of directors). State statutes and/or an association’s CC&Rs will typically vest the association’s board of directors with the authority to adopt rules that are in harmony with the CC&Rs. The rules adopted by an association’s board of directors typically relate to such things as pets, parking, use of facilities, leasing of separate interest. Some states may also require the adoption of certain types of rules such as election rules, and rules pertaining to the resolution of disputes or the collection of assessments.
Architectural Guidelines
Associations have architectural guidelines to establish consistent policies and procedures relative to alterations, modifications and improvements to an owner’s separate interest property, common areas, and exclusive use common areas that are part of a common interest community.
State laws and association governing documents establish a hierarchy of the governing documents that is important to understand as some forms of an association’s governing documents will take precedence over others. State laws also provides that provisions in the applicable state statutes control over the provisions contained in an association’s governing documents unless a particular statute contains language that defers to HOA governing documents. Thus, it is also important for those involved with issues pertaining to homeowners associations to have a general familiarity with the relevant state statutes. After the state statutes, the typical hierarchy of governing documents is as follows: (1) CC&Rs; (2) Articles of Incorporation; (3) Bylaws; (4) Rules and Regulations.
An association’s governing documents are complex documents that are drafted by attorneys which contain provisions and language that can be very confusing to the average person and difficult to understand. Even the hard-working dedicated volunteer directors who are vested with the responsibility of properly managing a homeowners association (who are presumed by those who elect them to serve to be familiar with their association’s governing documents) are frequently ignorant of all the documents that comprise their association’s governing documents, their content, and the relationship between the various documents. Unfortunately, this lack of awareness also frequently extends to the paid management personnel that an association’s board of directors relies on for guidance.
While a full understanding of applicable laws and the content of each document that is part of an association’s governing documents is not realistic, it is possible for those who are involved in common interest community living and the management of a homeowners association to be well versed in what bodies of law are applicable and the various documents are that comprise their association’s governing documents, the subject matter that is covered by each of the documents, and the hierarchy of the various documents. Such people should have access to the applicable laws and complete up-to-date copies of each document that is maintained in a notebook or computer files that are easily accessible. Having all of the HOA governing documents available and an awareness of what each document covers will enable those confronted with issues relating to their homeowners association to review the relevant documents when needed and develop a better understanding of the applicable provisions. Having an understanding of the provisions of their association’s governing documents will facilitate dealing with issues and enhance the association’s operations.