FREQUENTLY ASKED QUESTIONS

The term “governing documents” is used as a general reference to the entire group of legally recognized paperwork that creates and controls a condominium project or planned unit development. The governing documents typically include a subdivision map and/or condominium plat, a Declaration of Covenants, Conditions and Restrictions (or “CC&Rs”), Articles of Incorporation (if the project is incorporated), Bylaws, and Rules.

The Articles of Incorporation or “Articles” are usually short and often contain only the name of the homeowners’ association, the name of the association’s initial agent for the service of process (the person authorized to receive legal notices), and a statement that the association is a nonprofit mutual benefit corporation. Sometimes the Articles also include language about voting, directors, amendments, and dissolution of the association. Articles are required only when an association is incorporated. (Unincorporated associations sometimes have Articles of Association, but these are not required.) Articles are prepared by the developer’s attorney and filed with the secretary of state. The Bylaws describe the mechanics of association decision making and management. Bylaws vary widely in content and length, but usually include the following:

• Numbers and selection methods for officers and directors;
• Notice, meeting and voting procedures for owner and board decisions; and
• Association record keeping and reporting requirements.

The initial project Bylaws are typically prepared by the developer’s attorney and may be reviewed by a government agency at the time a condominium project or planned development is formed.

The law provides that the use of real estate can be restricted when a document (such as the CC&R’s) describing the restrictions is recorded with the county where the property is located. The restrictions “run with the land,” meaning they apply to each owner who acquires the property after the restrictions are recorded. The map or plat and the CC&Rs are different types of recorded restrictions which “run with the land,” and that is why they bind each owner of a unit or lot. The Articles, Bylaws, and Rules may not be recorded, but derive their binding power from the recorded CC&Rs. With the Articles and Bylaws, this binding power arises because the CC&Rs makes each owner a member of the homeowners’ association, and the law makes each member of the association subject to the association’s Articles and Bylaws. With the Rules, the binding power arises because the CC&Rs specifically empower the association to enact additional binding rules.