Common Interest Development (aka Homeowner Associations)
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.
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.
Yes, associations must enforce their governing documents. In some cases, HOAs have discretion whether to enforce the governing documents if the dispute can be better resolved between a few neighbors. This discretion is removed, and enforcement is mandatory in instances where the governing documents explicitly require association action. But regardless of whether enforcement is mandatory, it is usually advisable for the association to avoid future enforcement problems.
Board meetings are likely to be more productive, and less frustrating for participants if formal procedures are adopted and followed. Boards should refer to Robert’s Rules of Order for direction on meeting requirements, however, other less-formal procedures are acceptable.