Are You Confused By, Or Concerned With, What Your HOA is Doing?
HOA actions are governed by many rules, laws, and documents. Oftentimes, an HOA will circulate a new set of “Rules and Regulations”, or an HOA will attempt to change its current set of Rules and Regulations. But, in reality, those changes should have been effectuated through a vote of members and documented by amending the CC&Rs, which is a much more difficult undertaking than changing Rules and Regulations. For example, what if an HOA attempts to govern short term rentals through Rules and Regulations when, according to the CC&Rs, the HOA should have amended the rental provision contained in the CC&Rs instead? This tactic is becoming more and more popular by HOAs.
Similarly, what if the bylaws of an HOA require that the HOA govern itself in one way; but the HOA deviates from the stated form of governance? Which rules and laws actually apply? And, which rules and laws take precedence over others? Below is an explanation of the hierarchy of HOA laws and documents. Additionally, we have included information on how to quickly and painlessly obtain the HOA records you need, including the documents described below.
- Federal and State Laws
Federal, state, and local laws take precedence over HOA documents. For instance, if your CC&Rs have restrictions on race, religion, or gender, those CC&Rs would be in conflict with the Fair Housing Act and violate federal laws. These CC&Rs may be deemed illegal altogether or, at the very least, the illegal portion of the document will be unenforceable.
- Recorded Plans, Plat Maps, or Recorded Maps
The next up on the HOA hierarchy is the map or plat recorded when your community was being developed. Among other things, this document usually establishes boundary lines, contains some maintenance obligations, lists dimensions of each property and depicts the easements associated with the development. These documents often provide for areas of future development and may contain landscaping obligations. These documents prevail if there is a conflict with other HOA documents but do not prevail if they conflict with federal and state laws.
- Covenants, Conditions, and Restrictions (the “CC&Rs”)
The CC&Rs contain the rights and responsibilities of homeowners and those of HOA board members. CC&Rs usually provide specific procedures for handling disputes; the handling of architectural and design changes to properties; the right to rent properties (both on a traditional and “short-term” basis); and they also contain a list of consequences for violating HOA rules. CC&Rs are a very powerful contract among members of an HOA and provide various properties rights and restrictions. CC&Rs will prevail if there is a conflict between the CC&Rs and the other documents described below.
- Articles of Incorporation
Articles of incorporation are the fourth document on the hierarchy of HOA documents. The articles of incorporation contain a list of the basic functions of the HOA and include the legal name of the HOA, the address, and the corporate status of the HOA (usually a non-profit corporation). In most instances, if there is a conflict between the articles of incorporation and the CC&Rs, the CC&Rs will prevail. State law similarly prevails if there is a conflict with the articles of incorporation.
- HOA Bylaws
An HOA’s bylaws address “how” the HOA is run. An HOA is a legal entity and has a board of directors that oversees the HOA. The bylaws outline operations, such has how often to conduct meetings, the process for holding a meeting, and how voting is tabulated. Bylaws also list the number of board members for an HOA and the function of the board members. In general, if your bylaws are inconsistent with the articles of incorporation or your CC&Rs, the articles of incorporation or CC&Rs control.
- Rules and Regulations
An HOA’s “Rules and Regulations” typically address the day-to-day functions of an HOA. For example, rules and regulations can include restrictions on clubhouse use, architectural and landscaping specifications, and whether pets are permitted in certain areas. Rules and regulations usually change over time and it is an obligation of the HOA board to confirm that the rules and regulations do not conflict with other documents, especially the CC&Rs.
The above documents are essential for all HOAs. These documents govern the operation of an HOA and define what homeowners can do with their properties. As a homeowner, you are entitled to review and inspect the above documents and many others, including membership and director lists, vendor invoices, financial and legal documents, and insurance records.
If you need assistance in obtaining these documents, we provide a free “form” letter that can be utilized to request many items from your HOA. To obtain this form letter, feel free to email me at firstname.lastname@example.org.