Conflicts with governing documents

Documents rank; the higher one wins

Every governing document in your community sits somewhere in a ranking, and when two documents disagree, the one ranked higher wins, regardless of how carefully the lower one was adopted.

From most protected to least: a legal mandate that overrides board discretion entirely, such as the Fair Housing Act's duty to grant reasonable accommodations; the recorded declaration, treated as a restriction that runs with the land and binds every owner; state statute governing the association, which sets a floor the governing documents cannot go beneath; the bylaws and articles, which govern how the association itself operates; and last, rules adopted by the board for day-to-day matters the other documents do not cover.

Practitioners describe the same structure in three tiers: the declaration creates restrictions that run with the land, the bylaws govern the corporation, and rules are board-adopted regulations for everything else, generally the easiest of the three to change and the least protected if challenged.

Source: Restatement (Third) of Property: Servitudes, American Law Institute; Cal. Civ. Code Section 4360, State of California; Perez Mayoral, P.A.

A rule works harder to survive a challenge than a CC&R does

A board rule does not get the same protection as the declaration. Courts apply a strong presumption of validity to a restriction recorded in the declaration, defeated only if it violates public policy, bears no rational relationship to the property, or imposes burdens wildly out of proportion to its benefit.

A rule adopted by the board is judged differently.

"[T]he rule of reasonableness" is "the touchstone by which the validity of a condominium association's actions should be measured."

Source: Hidden Harbour Estates, Inc. v. Basso, Florida District Court of Appeal

A rule does not need to reach the level of a legal nuisance to be valid, but it does need an actual relationship to the health, safety, or enjoyment of the community, not just majority sentiment. Owner approval of a rule by a lopsided vote did not, by itself, make an unreasonable rule reasonable in the case that established this test. The same restriction is far harder to overturn sitting in the declaration than standing alone as a board rule.

State law can set a floor your documents cannot go under

Some states set procedures a board cannot skip, no matter what the bylaws say.

Before adopting most operating rule changes, a California board must give notice "at least 28 days before" acting, and the decision must be "made at a board meeting, after consideration of any comments made by association members."

Source: California Civil Code Section 4360, State of California

Connecticut requires the same kind of notice and comment, but only 10 days' notice instead of 28. Whether your state imposes any statutory notice and comment requirement at all, and how long it requires, varies. Check your state's common-interest-ownership or condominium statute before assuming your bylaws' process is the last word.

When you spot a conflict, start at the top

When a rule looks like it conflicts with something else, start at the top of the ranking, not with the rule itself. Ask whether the declaration or bylaws actually grant the board authority to regulate the subject at all. An association has no inherent power to control what happens on individually owned property, including structures, landscaping, or design, unless a statute or the declaration specifically hands it that power. A rule adopted with a perfect vote and full notice is still invalid if the board never had the authority to adopt it in the first place.

If a rule conflicts with a higher document, the fix is to repeal or amend the rule, not to keep enforcing it and hope nobody challenges it.