What are governing documents?
The paperwork that creates and runs your HOA, in four parts.
Governing documents are the legal instruments that create and run a homeowners association: the declaration (CC&Rs), articles of incorporation, bylaws, and board-adopted rules. The declaration restricts property use and binds every owner; the articles create the HOA as a legal entity; the bylaws govern internal administration. A hierarchy decides which one controls when two conflict, not which was adopted recently.
The four documents, and what each one does
Every HOA runs on the same four-part document set, even though the paperwork looks different from one community to the next.
The declaration, usually called the CC&Rs, is the recorded document that creates and restricts property rights across the whole community. Because it is recorded against the land itself, it binds whoever owns the property next, not just the person who signed the original.
"Runs with the land."
Source: Covenants, Conditions, and Restrictions, FindLaw
The bylaws are a separate document. Where the declaration restricts property, the bylaws govern how the association runs itself: board elections, meetings, and officer duties. The articles of incorporation are different again, the document filed with the state that creates the HOA as a legal corporate entity in the first place. And rules, policies, and board resolutions sit below all three: they implement or clarify what the higher documents already say, and cannot lawfully go further than those documents allow.
Why the order matters
The four documents are not equal. Federal law controls first, then state statute, then the association's own documents rank in order: declaration, articles of incorporation, bylaws, then rules. When two documents conflict, rank decides which one wins, not which one was adopted more recently.
"Conflicts or inconsistencies between these documents are resolved by giving precedence to the higher-ranking document."
Source: Understanding the Hierarchy of Governing Documents in a Community Association, Community Association Management (CAMS)
That is why a board resolution or a new rule can never override the declaration: whatever it is called, a document lower in the hierarchy loses to one higher up, even if the lower one is newer. Some restrictions, such as racially restrictive language once common in older declarations, are void everywhere regardless of hierarchy, because they conflict with federal law.
Where to find your own set
Your declaration and its amendments are recorded at the county land-records or recorder's office where the property sits. That recorded version, read together with every amendment on file, is the one that legally governs, not necessarily the copy a homeowner was handed at closing.
Where to request your bylaws, articles, and current rules, and what your state or your own documents require for amendments and notice, depends on your association and state. Ask your board secretary or manager for the current set.
Check yourself
Answer before you read the explanation, recalling it is what makes it stick.
The board adopts a rule banning basketball hoops in driveways, but the CC&Rs explicitly allow them. Which document controls?
A new owner never signed the CC&Rs. Does the declaration still bind them?
Which document creates the HOA as a legal corporate entity, separate from the declaration?
Sources
- Covenants, Conditions, and Restrictions, FindLaw
- Understanding the Hierarchy of Governing Documents in a Community Association, Community Association Management (CAMS)
- Decoding HOA Governing Documents: The Articles of Incorporation, Goodwin and Company
- Robert's Rules of Order Newly Revised, "How to Adopt", Robert's Rules Association
- Nevada Revised Statutes Chapter 116, Common Interest Ownership, State of Nevada Legislature
Governing Documents
Next, see how these four documents rank against each other and against state and federal law.
Which document controls a specific question, and the exact amendment or recording process for each one, varies by state and by your own declaration and bylaws.