HOA Document Hierarchy Guide Part I
HOAs are governed by many rules and regulations —to a point where it may confuse board members and homeowners alike. It’s essential to clearly understand homeowners association documents to know which HOA documents take precedence in your community.
HOA Document Hierarchy Explained
As an HOA board member, you must uphold and follow the association’s governing documents. However, conflicts in provisions happen all the time. It’s also possible that some board members may have different interpretations of the rules and regulations that govern the community. So, what do you do in these instances? How do you follow the proper course of action?
The answer is simple: look at the hierarchy of HOA governing documents within your association. Some HOA 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 drafting your governing documents or deciding which one to follow, constantly checking the law first is essential. 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 regarding potential homeowners, that would conflict with the Fair Housing Act. In this case, the related provisions in your CC&Rs violate federal law, which makes them unenforceable.
2 Recoded 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 registered 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
Accessible parking spaces and parking restrictions
Landscaping restrictions
Lighting requirements and prohibitions
Areas for future development
Lighting and other requirements/restrictions
3 CC&RS
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, where you’ll find specific procedures 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 regarding property use and other aspects of HOA living. Before purchasing your home in an HOA community, you will receive the CC&RS to review and to agree to them. You may even need to sign something as proof of agreement.
When a homeowner violates a covenant, inevitable consequences take place. Most associations send out a notice of warning on the first offense. Fines and suspending privileges are typical courses of action for future violations. Failure to settle these fines can eventually lead to legal action.
4 Articles of Incoporation
The Articles of Incorporation include essential information such as the legal name of the HOA, its address, and the association’s corporate status. Some articles also contain a few crucial 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 conflicts with a provision in your CC&Rs, the latter takes precedence.
5 HOA Bylaws
The HOA bylaws consist of important information about how the association. Like a business, a board of directors oversees the workings of an HOA. The bylaws state how to operate the HOA, such as how often to conduct meetings, hold meetings, and have voting rights. This document also includes how many board members there should be and 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 your Articles of Incorporation, you must follow the latter document. Suppose you wish to see your HOA bylaws or any other governing document. You can request a copy from your HOA board or the county recorder’s office in that case.
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, including laws regarding clubhouse use, pets, and even architectural or landscaping specifications.
These rules can occasionally change, though the board must ensure that new regulations or amendments don’t conflict with other governing documents. Moreover, having the association’s attorney look over these policy changes is a good idea to ensure the board is acting within its 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. Let the board know why you (and 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.
Other HOA Documents
Apart from the governing documents, HOAs also have many other official documents. Though these documents do not directly affect how the association runs, they are official records of the HOA. They can provide further insight into an HOA’s operations, which can be helpful if you are a current or potential community member. Here are other HOA documents you need to know:
Board Meeting Notices, Agendas, Minutes, and Committees
HOA Board Election Notices, Ballots, Minutes
HOA Membership List or Directory
Insurance Policies and Records
Vendor Bid Proposals, Contracts, Third-Party Agreements
Rental Documents — If your HOA is leasing property, rental documents will include tenant application forms, rental agreements, and rental restrictions.
Legal Documents — Includes judgments, liens, and other legal records not subject to confidentiality agreements.
Financial Documents — Documents that establish the financial status of an HOA include account ledgers, balance sheets, annual budgets, financial statement reviews, annual audits, invoices, reserve studies, tax returns, and bank statements
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Stay tuned for next week’s post where we explain who can access these documents and answer frequently asked questions. Contact us in the meantime which questions!