Governing documents are the legal foundation of every HOA, defining how the association operates, what rules apply, and what rights and responsibilities homeowners have. Understanding these documents is essential for successful HOA living.
Types of Governing Documents
HOAs have several types of governing documents:
1. Articles of Incorporation
The legal document that creates the HOA as a corporation:
- Establishes the association as a legal entity
- Defines the association's name and purpose
- Filed with the state
- Typically brief and basic
2. CC&Rs (Covenants, Conditions, and Restrictions)
The most important document for homeowners:
- Defines property use restrictions
- Establishes maintenance obligations
- Sets architectural standards
- Defines assessment obligations
- Recorded with county recorder
- "Runs with the land" (binds all owners)
3. Bylaws
Define how the association operates:
- Board structure and elections
- Meeting procedures
- Voting requirements
- Officer duties
- Amendment procedures
4. Rules and Regulations
Detailed rules adopted by the board:
- Specific usage rules
- Enforcement procedures
- Fine schedules
- Can be changed by board (within limits)
5. Architectural Guidelines
Design and modification standards:
- Approved materials and colors
- Design requirements
- Modification procedures
- May be part of CC&Rs or separate
Document Hierarchy
Documents have a hierarchy of authority:
- State and Federal Law: Highest authority
- Articles of Incorporation: Basic corporate structure
- CC&Rs: Property restrictions and obligations
- Bylaws: Operational procedures
- Rules and Regulations: Detailed rules (lowest authority)
Lower-level documents cannot contradict higher-level documents.
Key Provisions in Bylaws
Important bylaws provisions include:
Board Structure
- Number of board members
- Election procedures
- Term lengths
- Officer positions and duties
Meetings
- Frequency of board meetings
- Annual meeting requirements
- Notice requirements
- Quorum requirements
- Voting procedures
Voting
- Voting rights and procedures
- Proxy voting rules
- Majority and supermajority requirements
- Election procedures
Amendments
- How to amend bylaws
- Voting requirements for amendments
- Notice requirements
Reviewing Documents Before Buying
Before purchasing, you should review:
- CC&Rs: Understand restrictions and obligations
- Bylaws: Understand governance and procedures
- Rules: Know current rules and policies
- Amendments: Review any amendments to original documents
- Reserve Study: Understand financial planning
- Financial Statements: Review association finances
Understanding Document Language
Governing documents can be complex:
- Legal Terms: May use technical legal language
- Definitions: Check definitions sections
- Context: Read provisions in context
- Consult Professionals: Consider attorney review for complex issues
Amending Governing Documents
Amending documents is typically difficult:
CC&Rs
- Usually requires supermajority vote (67-75%)
- May require unanimous consent for some provisions
- Must be recorded with county
- Some provisions may be unamendable
Bylaws
- Typically requires majority or supermajority vote
- Easier to amend than CC&Rs
- May need to be recorded
Rules and Regulations
- Can usually be changed by board vote
- Must comply with CC&Rs and bylaws
- May require notice to homeowners
Your Rights Regarding Documents
You have rights:
- Right to Receive: Must receive documents before purchase
- Right to Review: Can review all governing documents
- Right to Copies: Can obtain copies of documents
- Right to Vote: Can vote on amendments
- Right to Challenge: Can challenge illegal or unenforceable provisions
Red Flags in Documents
Watch out for:
- Extremely restrictive provisions
- Vague or ambiguous language
- Provisions that violate laws
- Unreasonable enforcement powers
- Lack of due process
- Discriminatory provisions
Conclusion
Governing documents are the foundation of HOA living. By understanding different document types, their purposes, and how to review them, you can make informed decisions and protect your interests. Before purchasing, thoroughly review all governing documents and seek professional advice if needed.