Note: This page was originally posted by Ray Harwood on another web site, but is included here as an introduction to governing documents in general.
If you want to participate in your HOA, you should get to know the documents that govern you. Here’s an overview of those documents, which will probably be helpful to you regardless of what state or HOA you are in, but is geared primarily for Arizona. Where county or HOA-specific references are give, it’ll be Maricopa County (where Phoenix and the surrounding communities are located) and the Rio Crossing Homeowners Association in northern Avondale. I’ll try to give you pointers on how to find similar information in other states, counties, and HOAs along the way.
First disclaimer of many: I am not a lawyer, and this is not legal advice. I’m a homeowner in an HOA with limited experience, but I have studied HOAs (my own, and others) and hope to give you a head start on studying your own!
Who does this apply to?
First of all let’s discuss what I mean here by HOA. Rules and terminology vary from state to state, but the Governing Documents theme here really pertains to neighborhoods, subdivisions, communities, or properties that have a non-government organization that governs what can be done by the owners and residents. Common terms for this includes:
- Homeowners Association
- Condominium Association
- Townhome Association
- Planned Community Association
- Common Interest Development
You are a member (some would say “forced to be a member”) of such an association simply because you own property that is covered by a document called “Covenants, Conditions, and Restrictions” – often referred to as CC&Rs. You can’t be a member if you don’t own the property (you might be a resident by virtue of renting or leasing), and like it or not, if you do own property covered by a CC&R, you are a member, and therefore subject to the Association’s rules.
There are some HOAs that are not incorporated – in other words, people in a community have an agreement to all follow the governing documents, but they have not registered their organization with the state. But most HOAs are incorporated. For simplicity, this document will assume you are part of an incorporated HOA.
One more important point: Your community’s governing documents apply to everyone in the community. This includes the Board of Directors and any Committee Members appointed by the board. It also applies to all homeowners. And while it could be said that the documents do not apply to non-homeowner residents, parts do apply to all residents, like prohibitions on certain activities. But residents who are not homeowners aren’t given a vote in the elections and typically can’t be on the board of directors, for example.
The first thing you should know is that there are statutes (laws) in virtually every state that are specific to HOAs. In Arizona, for example, there is a specific section of the Arizona Revised Statutes (within ARS Title 33 – Property) that applies to condominiums (see Chapter 9 “Condominiums” in Title 33), and another section that applies to other similar associations (see Chapter 16 “Planned Communities” in Title 33).
For those HOAs that are incorporated, some of the provisions of ARS Title 10 – Corporations and Associations may apply. In virtually all cases, an HOA should be a non-profit organization, which means that Chapters 24 thru 40 of Title 10 would apply.
If you’re going to read part of the statutes, I suggest you focus on the chapter of Title 33 that most applies to you: Chapter 9 for condos and townhomes, and Chapter 16 for most everything else. You’ll notice that most of the language is consistent between the two chapters, but the differences are key, which apparently makes keeping two sets of rules easier for legislators, lawyers, and judges.
The state statutes have the highest priority over any of the governing documents. If your Bylaws, CC&Rs, or Association Rules say “nobody can videotape a board meeting”, the Open Meetings provision of ARS 33-1804 overrides your association documents.
If you’re not in Arizona, you should be able to find the applicable statutes in your state by searching on your state legislature web site.
Covenants, Conditions, & Restrictions
Mostly likely the first item that creates your association (chronologically speaking) is the Covenants, Conditions, & Restrictions document – usually referred to simply as CC&Rs. When the developer of your neighborhood first lays out the individual properties, they file a Plat Map (see the Plat Map for Rio Crossing) with the County Recorder. This gives the property lines between each lot, and also typically lays out certain common areas, such as parks, greenbelts, and drainage areas.
Typically not long after getting approval by the city for the Plat Map, the developer files the property restrictions document with the County Recorder (see the CC&Rs for Rio Crossing).
Normally the CC&Rs will have a lot of language referring to “The Declarant”; unfortunately most of this language is confusing! But it is also pretty simple. Keep in mind that the developer is not going to stay around the community forever, but that while the developer is… well, developing… they want to maintain some level of control of the appearance of the community. The developer is the person “declaring” the CC&R document, so the developer is the declarant, and vice versa.
The reason a lot of the language seems confusing is because there are generally a lot of references to what rule applies while the declarant/developer is still in control, and what rules then apply once the declarant/developer no longer has control. For example, while the declarant is still in control, they probably want to decide who is on the board of directors, and they most likely will want people who are not homeowners in the subdivision to be on the board. But once the developer has sold all the properties and gone on to build other new communities, only homeowners in the subdivision can be board members, typically.
Most every CC&R document will have sections that give detailed rules about each of the following items:
- Definitions of terms
- Architectural Control, meaning what types of buildings can be constructed, and what sort of approvals are required for any changes to a building or lot.
- Use restrictions, including such things as animals/pets, trash container placement, vehicles and parking, playground equipment, and so on.
- Easements, meaning the rights of one person to use property owned by another person. Often includes the rights of members of the association to use common areas.
- The Association, including the requirement for one, the board of directors and officers, voting, membership rules and rights.
- Liens and Assessments. The HOA is typically given the right to set the amount of money members must contribute to the Association. Typically also includes a provision that the HOA can assess late fees and even create a lien against the home of a member for failure to pay assessments, fees, and fines. (Note: This lien also is what gives the Association the right, typically under state laws relating to liens and foreclosures, to force a sale of the home to recover money owed.)
- Homeowners responsibilities for maintaining their property, and often gives the Association the right to perform maintenance activities and charge you for them, should they deem you as not keeping your property up to the community standards.
All homeowners should be familiar with their CC&Rs. Don’t do anything to your property without reviewing your CC&Rs (outside mostly, though be aware of occasional restrictions inside, especially for condos).
The other thing to know is that your CC&Rs can be modified, but typically the declarant/developer specifies that to make a change, a two-thirds vote of all lot owners is required before a change can be made. This isn’t “two-thirds of those members present at a meeting”… it’s two-thirds of all lot owners. Getting that level of participation takes a lot of work… but it can be done!
Articles of Incorporation
While the CC&Rs may state that the Association must be formed, the first formative document is the Articles of Incorporation, which are filed (along with fees and forms) with your state’s Corporation Commission. The Articles, as they are sometimes briefly referred to, are usually available from your Corporation Commission’s web site. (See the Rio Crossing entry at the Arizona Corporation Commission site here).
In some cases, the Articles of Incorporation were filed long enough ago that the Articles themselves are not available online. Typically you can obtain a copy by asking a member of your board or your management company representative. Another option is to locate the published version online, since many newspapers that publish incorporation information have archives you can search.
My own opinion is that you should take a quick look at the Articles to see what is there, but in most cases, there’s very little there that you would normally need to reference. Much of the information will have changed from the time the Articles were originally filed:
- The address, or “known place of business”, which is typically the declarant/developer address initially.
- The statutory agent – the person who should be “served” any legal papers, and is typically a member of the developer’s staff.
- Members of the board of directors, initially members of the developer’s staff.
Most corporations have Bylaws, a set of rules that govern how the organization operates, typically at a very high level. The Bylaws are not required to be published anywhere, and you will typically have to request a copy from your board or management company.
In my experience, there is some duplication of information in the Bylaws, including rules about membership, meetings, quorum, and voting, as well as the board of directors and officers.
There are often some specifics in the Bylaws that are not included anywhere else, and typically the Bylaws are shorter and more straightforward than the CC&Rs and other documents. I’d recommend being familiar with the Bylaws and referring to it frequently when issues come up.
Most CC&Rs give considerable latitude to the Board of Directors to establish and maintain a set of Association Rules. It should be noted, however, that the Association Rules should never conflict with State Statutes, the Articles of Incorporation, the CC&Rs, or the Bylaws. If a conflict is discovered, the other documents take precedent over the Association Rules.
Here’s a finer point that is tougher for everyone involved: The Association Rules should also not establish any rules that are more restrictive than any of the higher-precedent documents. The Association Rules might be more detailed, but not more restrictive.
For example, suppose the CC&Rs say that nobody can plant a tree in their yard that is not on the “approved tree list, as maintained by the board”. Typically the board’s Approved Tree List is made a part of the Association Rules, and made available online to all members. (And hopefully, all members are notified when the Association Rules are changed! I hate it when someone says “it’s on the web, you should have checked” when there are updates.)
The CC&Rs typically provide for the levying of Assessments, Fines, and Fees, but the Association Rules contains the details of how those items are determined, what their current values are, and how they are to be collected and handled.
Architectural or Design Guidelines
In some Associations there is a separate document that contains such things as approved tree and flower lists, approved colors for building exteriors, permitted lawn decorations, and such.
In some Associations, the Association Rules and the Architectural/Design Guidelines are combined into one document.
As with the Association Rules, the Guidelines should also not establish any rules that are more restrictive than any of the higher-precedent documents; they might be more detailed, but not more restrictive.
Policies and Procedures
I’ve found that comparatively few Associations or Boards actually go to the extent of creating any policies or procedures, but they are a good thing to have.
For example, this is where a policy for New Board Member Orientation should be delineated. Your annual meeting comes around, a few board members don’t put their names in the hat, and several new folks are elected who never had any HOA board experience. Who trains them? What if there’s nobody left to train them? There should be guidance in this policy to effect that any new board member is required to familiarize themselves with the Governing Documents, and should also include a form which every board member should sign at the beginning of their term stating that they have read and are familiar with the governing documents.
I’ve seen the following types of policies in other association’s documents:
- Policy on Policies. Yes, indeed. It says you’ll create and maintain policies! And how they’re maintained, formatted, controlled, numbered, etc. This doesn’t have to be huge or onerous, but it should be the first section!
- Code of Conduct. This would be where it states that every board member will be familiar with the governing documents.
- Finance. Policies relating to Operating Fund, Reserve Fund, Surplus Fund, and Capital Fund. Also policies relating to who can approve payments to vendors, and the requirements for audits. Also might contain a policy relating to negotiation of past due assessment, fines, and fees.
- Emergency Operation. Every good organization should have a contingency plan for emergencies. Think of floods, wildfires, long-term power outages, even community-wide communicable diseases. Communication is key. Find someone in your neighborhood who works for a hospital and has experience on their Disaster Team.
- Property Management. Could include what responsibilities are delegated to the management company and what is taken care of directly by the board. Should include specific guidelines on processing violations, including notifications, appeal process, and fines.
- Web site. Including backups, content guidelines, etc.