*Remember, HOA and condo laws vary greatly depending on what state or country you live in. This article is mainly dealing with Arizona and Texas. So, if you live outside of these two states, this advice may not apply to you. Keep that in mind when reading this article.
The Bylaws and CC&Rs Grant All the Power
If you’re a board member, you probably already have a grasp on this; but, if you don’t, or if you are a homeowner who is new to an HOA neighborhood, it’s important to understand that the bylaws and CC&Rs—not the board—govern the neighborhood. You see, when the developer creates the neighborhood or the HOA is established, a series of rules governing the board and the community is created; respectively, these rules are the bylaws and the CC&Rs. Both are public record and both can be changed with a vote (the percentage that’s needed to change depends on the documents themselves); however, once you begin serving on the board or once you move into the neighborhood, you implicitly agree to follow the rules these legal documents set forth. Here is a quick breakdown of these legal documents and what they pertain:
- Bylaws: Bylaws, in essence, set up the HOA’s board and governs how the HOA is operated. This means dictating how often HOAs can hold meetings, the type of meetings that can be created, who can call meetings, quorum requirements, the duties of officer positions, and the rights of the membership (aka homeowners). Overall, these rules set up the structure.
- CC&Rs: CC&Rs (also known as covenants, conditions and restrictions) set up the actual rules of the association or the restrictions giving the association authority to regulate things such as pool placement, maintenance of the yard and home, and other aspects of the community. For more information about the differences between bylaws and CC&Rs, Nolo has a good summary which you can find here.
Checks and Balances
Most articles of incorporation build checks and balances into the association that allow members (or homeowners) certain powers over the board itself. Chief among these powers, of course, is the power for homeowners to not only vote board members into power, but also vote them out. Under most CC&Rs, this can happen to anyone (or everyone) on the board at anytime—as long as the official quorum has been reached and vote has been gained. Check your specific documents for an understanding as to the procedure for your association.
The Importance of Rules
At the end of the day, the rules created by CC&Rs/bylaws and enforced by the board are, for the most part, supposed to be for the good of the community. People like their community to be beautiful, well-run, and to offer quality amenities, and these legal bodies help keep it precisely this way. But, in the event that the board begins acting outside the spirit of their creation, homeowners still have the ability to change things up on a fundamental level. It may not be a perfect system however, it’s something that can be made to work for homeowners and board members alike with proper community involvement. Keep that in mind, and everyone will be happier when all is said and done.
State & Canadian Provincial laws vary widely, making the above valuable advice not universally applicable. Because our jurisdiction’s legal heritage is thankfully tough against ‘affirmative obligations’ ( eg pay/comply/pass along do not bind transferees without expressly renewed covenant ), what we call non-statutory ‘building schemes’ are far less virulent than in many US states. Thank God our owners association here, for example, has NOT ONE SHREAD of jurisdiction ( vires) even over our huge tenancy in common lakefront. More like Neighbourhood Watch without handguns, than North Korea. But the same could not be said about many of the statutory counterparts (condo/strata/syndicat). Want some respectful advice ? ; keep the 2nd amendment. Many of you will need it.
Thanks for the reply! I updated the article to reflect that these tips only apply to Arizona and Texas, where we are primarily located.
Is there in existence a by law that can penalize a resident for infractions, through fines? Does a 13th amendment exist?
With HOAs having as much power as the IRS, how do you change the authority level to decrease an HOA power over the homeowner. i.e. setting fines and putting a lien on a home? How would you change the CC&R guidance? There should be state and federal laws that protect home owners from power hunger HOA board members