Members of homeowners associations for common interest developments know that the associations have governing documents which spell out the legal structure for the association and specify the requirements relative to the associations operations. The term governing documents is a catchall term that includes recorded documents such as maps, the declaration, CC&Rs, articles of incorporation or association, bylaws, and any other documents that govern the operation of the development or the association, the associations operating rules, policies, and resolutions. An associations governing documents do not all cover the same topics, but frequently there is overlap regarding various provisions. While the provisions contained in the different governing documents should be consistent and free of conflicts, frequently amendments, rules or policies are adopted that are in conflict with other provisions contained in the associations governing documents. When such a conflict is discovered, the association must deal with the issue in question in accordance with the required hierarchy of the associations governing documents. The general hierarchy for an associations governing documents is as follows:
No. 1 Recorded Maps, Declarations / CC&Rs
These documents are recorded with the office of the Recorder for the county in which the common interest development is located. They are prepared by licensed professionals and reviewed by governmental authorities prior to recording and the provisions are incorporated into every deed or mortgage that pertains to a property located within that common interest development. They specify such things as boundaries of separate interests and common areas, define rights and obligations of the association and the individual owners, cover maintenance responsibilities, operating costs, dues and assessments, use restrictions, HOA enforcement powers, and dispute resolution procedures. The content of the recorded maps, declarations / CC&Rs takes priority over all other association governing documents.
No. 2 Articles of Incorporation or Association
The organizers of a homeowners association typically form a legal entity such as a nonprofit corporation or association that will be the framework for the homeowners association. The first document to create that entity is the Articles of Incorporation, which is filed with the appropriate governmental agency within the state of formation– generally the Secretary of State. The Articles are typically short documents that contain minimum information that is required by the state of incorporation such as the name of the association and its initial agent for service of process who is authorized to receive legal notices on the associations behalf. Some incorporators of homeowners associations elect to file longer and more extensive Articles that may include additional provisions that cover various topics such as voting, directors, and amendments. To the extent such provisions are included in the Articles, they are subordinate to the content of the recorded declarations, but take priority over the other governing documents.
No. 3 Bylaws
An associations bylaws are prepared by attorneys and they describe the procedures and mechanics of the associations management and decision making. They cover such topics as membership meetings, elections, voting, board of directors, decision making, and record keeping and reporting. The bylaws are internal documents that are not recorded or filed with governmental agencies and they frequently contain provisions that overlap with some of the content that is contained in the associations declaration or CC&Rs.
No. 4 Rules and Policies
Typically, homeowners associations have procedures for passing internal rules and adoption policies through the processes outlined in their CC&Rs. These rules and policies cover things such as restrictions on how much a unit or lot may be altered, pets, waste disposal and the use of signage, parking and recreational facilities. An associations CC&Rs take precedence over rules and policies in the hierarchy of governing documents.
Irrespective of the hierarchy of the associations governing documents, all of the above are all subordinate to applicable federal and/or state laws that apply to a given situation.