What Are in the Basic Governing Documents of an HOA

If you own, or are thinking of buying, a condominium or home in a planned development (PUD), you know they are popular places to live. They're widely available, often affordable, and offer numerous amenities, such as security gates, guards, and private streets, as well as pools, playgrounds, and fitness rooms that all the owners can use.

Because these common amenities must be maintained and regulated, each development is typically run by a condominium or homeowners' association (an HOA). The HOA might have a lot of power over homeowners' lives—but must also act in accordance with the terms and conditions contained in a set of governing documents (as must the homeowners themselves).

A potential buyer or owner of property in a development should therefore develop a basic understanding of what the governing documents contain, in order to further research their acceptability. Although every development is different, the governing documents typically include:

• articles of Incorporation
• bylaws
• Declaration of Covenants, Conditions and Restrictions (CC&Rs), and
• rules and regulations.

This article provides an overview of the purpose and contents of these governing documents.

What's in an HOA's Articles of Incorporation

Before any property in a condominium or planned development is sold, the developer forms a condominium or homeowners' association to run it. Each purchaser of property in the development automatically becomes a member of the association or HOA. Some might also volunteer to serve on its board of directors.

The HOA is typically created by filing articles of incorporation for a nonprofit organization with the secretary of state where the development is located (though some states allow unincorporated associations).

The articles are usually brief and contain only the basic information about the association, its name, location, and its purpose. There is ordinarily no need for a buyer or owner to review the articles.

What's in the Bylaws of an HOA

Once formed, the HOA typically adopts a set of bylaws. These describe how the association is run, set out voting rights and procedures, and contain rules for such things as how to call a meeting and how often meetings must be held.

The bylaws might also describe the association's rights and responsibilities. For example, the association is typically responsible for enforcing the rules and regulations and collecting dues or assessments from homeowners. The bylaws might also lay out procedures for creating the annual budget and determining assessment amounts.

Associations are generally run by a board of directors, made up of a certain number of members (owners) elected by the membership at large (all owners) during periodic elections. The bylaws typically set forth the length of the terms for the board members and the procedures for elections. If, for example, there's someone you wish would leave the board—perhaps so that you can assume a seat there—you'll want to know about the term limits!

It is helpful for an owner or potential buyer to review the bylaws to understand how the HOA functions and to be familiar with its powers and the restrictions on it. You might be surprised to find out, for example, that the HOA can hold closed meetings or remove a board member without notifying the owners.

What's in the Declaration of Covenants, Conditions and Restrictions (CC&Rs)

Of all the governing documents, the CC&Rs are the most comprehensive and typically contain the most important information about the development and its operation. If there is anything in another governing document that conflicts with a provision of the CC&Rs, the CC&Rs win (and the conflicting provisions are considered invalid).

The Declaration of CC&Rs is typically a lengthy document, setting up the general structure of the development and describing what land is subject to the governing documents, as well as what parts of the development are common areas owned by the association.

The CC&Rs also contain restrictions on the use of each owner's property as well as of the common areas. They specify the association's authority and obligations and define the rights and responsibilities of its members (owners). Every owner must abide by all the rules, restrictions, terms, and conditions found in the CC&Rs.

By reviewing the CC&Rs, an owner or potential purchaser can learn about the general restrictions on the use of the property in the development, and about the rights and responsibilities of owners. For example, a review of the CC&Rs could reveal that owners might not have visible satellite dishes or antennas, or that all owners must mow their lawns once a week.

Most CC&Rs also contain procedures for amendments. If the development is older, the CC&Rs might already have a number of amendments revising the original terms.

Most state laws require recording the CC&Rs in the real property records in the county where the development is located. A copy must ordinarily be provided to a buyer prior to making a purchase. If you are an owner or potential buyer and don't already have a copy of the CC&Rs, get one, and familiarize yourself with its terms.

HOA Rules and Regulations

Although general rules and regulations may be contained within the CC&Rs, the HOA typically also adopts separate (usually more lengthy and specific) "rules and regulations." The HOA likely has wide discretion to adopt rules and regulations (provided they do not violate any state or federal law and do not conflict with the terms of the CC&Rs).

Rules and regulations can cover anything from prohibiting broken cars and trash in yards to regulating the height of fences to limiting the number of swimmers in the pool. Because the purpose of the HOA is to do what's best for the common good and value of the development, regardless of whether all individual owners agree, the rules and regulations are often the most controversial documents in a development and the cause of many disputes.

Because the rules and regulations can affect how the property in the development is used, a potential buyer should study them and determine whether they can live with them before making a purchase. For example, you might have second thoughts about purchasing in the development if you find out that you'd have to get rid of your golden retriever because owners are not allowed to have dogs over ten pounds. Current owners should also be familiar with the rules and regulations and keep up with any changes.

Need Further Help Understanding Your HOA's Governing Documents?

Trying to make sense of all the issues surrounding ownership of a condominium or a home in a planned development can be overwhelming. Laws relating to developments vary from state to state, and can depend on such things as the types of common areas and whether it's an older or newer development. If you have a specific concern or question about the development you live in, or are hoping to live in, an attorney in your area can often be a great help.