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About AMS

AMS reviews all documents after transition. These include the CC&Rs, Bylaws, Reserve Study, Budget, and Insurance. AMS reviews these documents to ensure uniformity and that the Community functions optimally. AMS also evaluates all contracts and expenses to look for potential savings based on scale or relationships.

Association Powers and Decision Making

Association Structure and Funds

Common Interest Developments (aka Homeowner Associations)

Common Interest Development (aka Homeowner Associations)

The Declaration of CC&Rs is the most difficult of the governing documents to amend. In general, any amendment to the CC&Rs must be approved by a vote of the owners. An owner vote to amend the CC&Rs typically requires approval of a super-majority of the total voting power of the Association and may require approval from a government agency. There is usually a section of the CC&Rs that states the percentage of owner votes required to adopt a CC&R amendment, and sometimes the required percentage varies depending on which part of the CC&Rs is being amended. For example, the CC&Rs might state that at least 50% of the owners must approve an amendment in general, but that an amendment that would shift maintenance responsibility for some element of the property from the HOA to the individual owners requires a 75% vote. In another variation, the CC&Rs might state that to change the boundaries of someone’s lot, or to change the percentage of expenses someone pays, a 50% vote of the owners is required plus the approval of 100% of the owners who will be directly impacted by the amendment. Refer to your governing documents for specific percentages.

There are a few types of CC&R amendments that can be adopted by the board of directors without an owner vote. The board can amend the CC&Rs to delete provisions that illegally discriminate against or harass any person because of the race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, or genetic information. The board can also delete references to sections of law that no longer exist or have been renumbered.

If an owners’ association is unable to get the votes needed to adopt a necessary amendment, it is possible to petition the court to amend the CC&Rs without the required number of owner votes; however, a court will not grant such a petition unless there is a good reason to ignore the voting requirement spelled out in the CC&Rs.

It is common for CC&Rs to provide that some or all amendments must be approved by eligible mortgage lenders who hold mortgages on the lots or units within the property, or by a local government agency. These provisions are intended to prevent the owners from adopting amendments that undermine the lenders’ or local government’s rights or powers. Before adopting an amendment, owners should review the CC&Rs to determine whether the approval of lenders and/or a local government agency might be required.

Once a CC&R amendment has been approved, it must be recorded in the records of the county where the property is located. A CC&R amendment that has not been recorded in the county records is not valid.

As with the CC&Rs, amending the Bylaws or Articles generally requires an owner vote, and the number of votes required for amendment is specified in the document being amended. Bylaws typically only require an affirmative majority of the total voting rights for amendment.
The CC&Rs usually empower the homeowners’ association to adopt Rules, and give the Rules the same binding power as the other governing documents. The Rules often provide usage restrictions relating to alterations, signage, waste disposal, parking, pets, and recreational facilities. Where the same topics are discussed in the CC&Rs, the Rules may add to or explain the CC&Rs but cannot conflict with them. Association Rules are usually enacted after some of the units or lots have been sold and the owners have taken control of the association. They are not subject to any governmental review and do not need to be filed or recorded with any governmental agency.
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.

CC&Rs describe the rights and obligations of the homeowners’ association and of each owner. CC&Rs are recorded with the county recorder of the county where the property is located, and automatically bind anyone who becomes an owner of the property after the CC&Rs are recorded. CC&Rs vary widely in content and length, but usually cover some of the following topics:

  • The boundaries of the common area and of each unit or lot;
  • The legal description of the property;
  • The allocation of association operating costs among the owners
  • The mechanism for collecting owner payments;
  • Allocation of owner voting rights;
  • Any restrictions on alienation of units; and
  • The rights and protection of mortgage lenders.
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.

Director Election and Term

Enforcement and Disputes

Insurance and Liability

Maintenance, Alteration, and Defects

Meetings and Decisions

Mortgages and Liens

Officers, Managers, and Committees

Owner Assessments

Ownership and Possession

Ownership and Possession

If the LCE is assigned to a particular unit or lot on a map or plat recorded separately from the CC&Rs, the sale or exchange would require an amendment of the map or plat as described in the previous answer. If the LCE is assigned to a particular unit or lot only in the CC&Rs and/or the initial deed conveying the unit or lot, and is not assigned on the map or plat, the sale or exchange will require an amendment to the CC&Rs and/or a new deed. In these cases, the owners directly involved with the sale or exchange will need the approval and cooperation of both the association and of their mortgage lenders. The CC&Rs may also require approval and cooperation of some or all the other owners and their mortgage lenders.

Most CC&Rs state that the homeowners’ association has the right to enter any unit or lot whenever necessary to fulfill the association’s duties. Among the duties that would justify entry are common area maintenance, verification of an owner’s compliance with owner maintenance requirements or alteration restrictions, and pet rules. Often, the CC&Rs will require that the association provide advance notice of the entry except in an emergency. When the CC&Rs are silent on these issues, both the right of entry, and the requirement for advance notice, would be implied.

The term “limited common elements” (“LCE”) refers to parts of a condominium project that are not within the defined boundaries of a unit but are intended to be used exclusively by one owner. Technically, LCEs are part of the common elements owned by all the owners, but one owner holds a type of easement which gives him/her exclusive usage rights. The easement is permanent, and cannot be taken away by the association or by the other owners. Decks, patios, parking spaces, and storage spaces are often assigned as LCEs on the recorded plat or survey map, in the CC&Rs, or in the deed conveying the unit to its owner.

The term “party wall” usually means a shared wall, fence, or other building element that sits on the border of two or more lots or between two or more units in a condominium. Where there are party walls, the CC&Rs will usually allocate responsibility for maintenance, impose restrictions on alterations, and provide access rights for maintenance. When the CC&Rs are silent on any of these issues, general rules of law apply. These laws are complex and beyond the scope of this article. For additional information, consult an attorney.

In a condominium project, the individually owned area is called the unit. The exact physical location of each condominium unit within a project is shown on the recorded map or condominium plan for that project. The map or plan, and/or the CC&Rs, will also contain a definition of the term “unit” as it is used for that project, listing the elements of the building that are part of the unit. These definitions vary significantly from project to project, and it is unwise to apply generalizations or assumptions. Instead, read the definition with the following questions in mind:

  • Does the unit include any exterior surfaces such as roofing, siding, or foundation?
  • What portions of the interior walls does the unit include? The whole wall (i.e., both sides and everything in between), half the wall (i.e. everything from one side to a point halfway to the other side), one finished surface (i.e., only the wallboard or plaster on one side), or just the finish (i.e., the paint or paper)? Note that some unit definitions distinguish perimeter walls (i.e., walls between units, or between a unit and the common area) from partition walls (i.e., walls between rooms in the same unit), or structural walls (i.e., walls that help hold up the building) from non-structural walls (i.e., those that simply divide rooms). Where these wall-type distinctions are made, the portions of the wall that are part of the unit will vary depending on wall type.
  • What portions of the floors and ceilings does the unit include? The entire floor or ceiling, all portions up to a midpoint, the finished portion (i.e., ceiling plaster or sheetrock, finished wood flooring), or just the finish (i.e., paint or carpet)? Here again, some definitions distinguish floors and ceilings between units, or between a unit and the common area, from floors and ceilings between levels of the same unit.
  • What portions of the windows and doors does the unit include? The entire window or door, or only glass and screens? Note that some definitions distinguish interior doors from exterior doors. Does the definition include window and door frames? Does it include window and door hardware?
  • Does the unit include all of the fixtures and appliances located within it? Note that the term “fixtures,” when used in this context, encompasses cabinetry, lights, electrical outlets, sinks, showers, and tubs.
  • What portions of the plumbing, electrical, heating, and air conditioning systems are part of the unit? All elements that serve only the unit, or only elements visible from within the unit?
  • Does the unit include any decks, balconies, or patios, and if so, how does the definition describe the boundaries of these areas? Note that even if the unit does not include these areas, they may be assigned as exclusive use common area as discussed below.
In a planned development, the individually owned area is called the lot and typically consists of a piece of land and everything on it. The exact physical location of each lot within a project is shown on the recorded map for that project. Where there are walls or fences that sit on the border of two lots, ownership may be shared or may be owned by the Association unless the CC&Rs provide otherwise. Note that the map and/or CC&Rs for planned developments sometimes give neighbors and even the public the right to cross a private lot (a type of “easement”).
Title to the common area can be held by the homeowners’ association in a planned unit development or by the owners of percentage shares in a condominium. The decision is made by the developer at the time the governing documents are prepared and is very difficult to change later. To determine who owns the common area in an association, refer to the CC&Rs. The method of common area ownership has no significant consequences in a properly insured association. Note that in condominium projects, title to the common elements must be by undivided interest to all owners. The percentage held by each owner does not necessarily determine that owner’s usage rights or cost responsibility.

Use of Common Area

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