What happens when documents conflict?
Two documents say different things. Here's how to figure out which one actually controls.
When two governing documents conflict, the higher-ranking one wins, not the newer one. Federal and state law control first, then the declaration (CC&Rs), then the articles of incorporation, then the bylaws, then board rules and policies. A rule that conflicts with the declaration is unenforceable to that extent, no matter when the board adopted it.
The higher document wins, not the newer one
It's tempting to assume the most recent vote settles things: the board just adopted this, so it must be current. Conflicts between governing documents aren't resolved by date, they're resolved by rank. The hierarchy runs federal law, then state law, then the declaration (CC&Rs), then the articles of incorporation, then the bylaws, then board rules and policies. Whichever document sits lower loses, even if it was adopted last Tuesday.
"For example, if a rule contradicts a provision in the CC&Rs, the CC&Rs will take precedence."
Source: Understanding the Hierarchy of Governing Documents in a Community Association, Community Association Management (CAMS)
What actually counts as a conflict
A conflict is narrower than it sounds. If your declaration requires a unanimous board vote to approve an exterior color change, and the board later adopts a policy allowing a simple majority instead, that policy is unenforceable to the extent it lowers the threshold the declaration sets. A rule or resolution works the same way: it can fill a gap the declaration is silent on, like setting pool hours, but it cannot override what the declaration already says. Boards often use "rule," "policy," and "resolution" loosely, but none of them outrank the declaration or bylaws they sit below.
Federal law sits above everything. Racially restrictive language that once appeared in some older declarations has been legally void since the U.S. Supreme Court's Shelley v. Kraemer decision in 1948, and any declaration provision that conflicts with the Fair Housing Act has no legal effect, whether or not anyone has formally struck the language from the recorded document.
What to do when you spot one
Name the two documents in tension and check where each sits in the hierarchy. If a rule or policy is the lower one, it's unenforceable to the extent of the conflict, and the fix is usually to rescind or rewrite it, not to argue over which vote happened last. If the conflict is inside the declaration itself, or between the declaration and your state statute, that usually means an amendment, not a rule change.
Whether a provision truly conflicts can turn on whether it uses mandatory "shall" language or discretionary "may" language; see mandatory versus discretionary provisions. Exactly what your board must do to resolve a given conflict depends on your state's common-interest-ownership statute, so check how your documents interact with state law. For anything genuinely ambiguous, that's a question for when legal review is appropriate, not something to settle at the board table.
Check yourself
Answer before you read the explanation, recalling it is what makes it stick.
The declaration requires a unanimous board vote to approve exterior color changes. The board later adopts a policy allowing a majority vote instead. Which one controls?
Your declaration still contains language a court has ruled illegal, but nobody has ever formally amended it out. Can the board still enforce it?
The bylaws set a 10-day notice period for board meetings. A newly adopted rule sets a 3-day notice period instead. Which notice period controls?
Sources
- Understanding the Hierarchy of Governing Documents in a Community Association, Community Association Management (CAMS)
- Shelley v. Kraemer, 334 U.S. 1 (1948), Supreme Court of the United States
- Fair Housing Act overview, U.S. Department of Housing and Urban Development
- HOA Rules vs. Policy: What's the Difference?, Boardline Academy
Governing Documents
Want the full stack from federal law down to board policy, in order? Read Understanding the hierarchy of HOA documents next.
Whether a specific provision actually conflicts, and what your board must do to fix it, depends on your state's common-interest-ownership statute and your own recorded documents.