Legal Articles

The Governing Documents
Few people like fine print or red tape, but there are several important documents homeowner association board members need to be familiar and comfortable with. Collectively, they’re called "governing documents". Depending on the type of HOA you live in, individual documents will differ. Each is a very useful tool that will provide specific guidance.

Why are governings documents so important?

They give the board authority to govern by providing for the operation and regulation of the HOA.
They provide guidance and protect board members.
They protect HOA members by spelling out their rights and responsibilities.
They are supported by local ordinances, state statutes, and federal regulations.

Governing documents provide the structure within which the board can work effectively, they’ll guide board decision making, and support HOA operations. Their greatest value, however, may lie in the protections they provide to board members.

Homeowner association governing documents typically include several items in descending order of authority.

1. Declaration or master deed, including Covenants, Conditions & Restrictions (CC&Rs) in condominiums and planned communities and proprietary lease, master lease, or occupancy agreement in cooperatives.
2. Articles of Incorporation
3. Bylaws
4. Rules and Regulations

The Declaration. The Declaration (or Master Deed) contains the CC&Rs that regulate resident behavior. They bind all the owners to the HOA, establish association responsibilities, and define owners’ rights and obligations. (In cooperatives, this document is called the proprietary lease or occupancy agreement.)

Articles of Incorporation. Articles of Incorporation initially create the corporation under state law and define the homeowner association’s basic purposes and powers. They may specify such things as the number of directors, terms of office, and other specifics about how the board functions. (In some states, condominium and planned communities are not legally required to incorporate, and these may have articles of association.)

Bylaws. Bylaws contain provisions concerning HOA operations such as meetings, procedures for electing board members and general duties of the board. Sometimes the bylaws cover the same topics as the declaration.

Rules & Regulations. Boards adopt rules and regulations. They must be consistent with the declaration or proprietary lease, the bylaws, and state law. Rules are usually recorded at a board meeting in the form of a motion called a policy resolution. Making and enforcing rules are important responsibilities for boards that must be undertaken with care.

In addition to policy resolutions, boards will also adopt administrative, special, and general resolutions. These resolutions specify how the homeowner association should operate. Board members should familiarize themselves with all resolutions along with the other governing documents.

The Four Types of Resolutions:

1. Policy resolutions affect owners’ rights and obligations.
2. Administrative resolutions address the internal operations of the homeowner association.
3. Special resolutions record board decisions that apply a policy to an individual situation.
4. General resolutions record board decisions regarding routine events.

Cautions. The distinction between areas that are owned separately and areas that are owned in common is the cause of much misunderstanding in HOAs. It’s important to understand the differences based on the information in the governing documents. Governing documents must not conflict with federal regulations, state statutes, or local ordinances. It’s important to have your HOA governing documents reviewed by a knowledgeable attorney to ensure that they do not conflict.

From The Board Member Toolkit by Community Associations Institute. BACK