2.1 Governing Document Hierarchy

In community association management, understanding the legal framework and the precise hierarchy of governing documents is a core competency tested on the CMCA exam. A community association operates under a dual nature: it is both a real estate development governed by property covenants and a corporate entity governed by corporate law. When disputes or ambiguities arise regarding use restrictions, architectural controls, assessment collections, or voting rights, the community manager must apply the proper order of authority to resolve conflicts.

The Foundation: Government Statutes and Regulations

At the apex of the hierarchy are federal, state, and local laws. No community association document can override or contradict applicable government statutes. For example, if a state's Condominium Act requires a specific notice period for board meetings, that statute supersedes any shorter notice period written in the association's bylaws. Similarly, federal laws like the Fair Housing Act (FHA) or Federal Communications Commission (FCC) rules override any restrictive covenants in the association's documents. Managers must recognize that local municipal zoning codes and health ordinances also carry higher authority than association rules.

Level 1: The Declaration (CC&Rs)

Below government statutes, the Declaration of Covenants, Conditions, and Restrictions (CC&Rs)—also known in some jurisdictions as the Master Deed or proprietary lease—is the supreme governing document of the association. The Declaration is a legal contract that is recorded in the county land records and "runs with the land," meaning it legally binds all current and future owners of parcels within the development.

The Declaration serves several critical functions:

• Defines the legal boundaries of the common elements, limited common elements, and individual lots or units.
• Establishes the covenant to pay assessments, giving the association the power to levy fees and place liens on delinquent properties.
• Outlines maintenance responsibilities, delineating what the association must maintain versus what individual owners must maintain.
• Contains primary use restrictions, such as rental limits, architectural guidelines, and land-use designations.

Because the CC&Rs restrict property rights and run with the land, courts grant them a high presumption of validity. Consequently, amending the Declaration typically requires a supermajority vote of the membership (e.g., 67% or 75% of all owners) and must be formally recorded.

Level 2: Articles of Incorporation

The Articles of Incorporation (sometimes called the Corporate Charter) establish the association as a legal entity under state corporate law. This document is filed with the state’s Secretary of State or corporate regulatory agency.

Its primary purposes are to:

• Create the corporate entity, granting it the legal standing to sue and be sued, enter into contracts, and hold property.
• Define the broad corporate powers and purpose of the association (usually as a non-profit corporation).
• Set forth the basic structure of the corporation, including the names of the initial board of directors (incorporators).

In the hierarchy, the Articles of Incorporation sit below the Declaration but above the Bylaws. If a conflict occurs—for instance, if the Bylaws state the board consists of five members but the Articles limit it to three—the Articles of Incorporation prevail. Amending the Articles requires filing amended articles with the state after obtaining the necessary membership approval.

Level 3: Bylaws

While the Declaration focuses on the real estate and property rights, the Bylaws serve as the administrative operating manual for the corporate entity. The Bylaws govern the internal governance of the association rather than the physical property.

Key provisions within the Bylaws include:

• Board structure: Number of directors, qualifications, term limits, and procedures for filling vacancies or removing directors.
• Meeting procedures: Quorum requirements, notice delivery methods, voting procedures, and the timing of annual membership meetings and regular board meetings.
• Board powers and duties: Authorization to adopt budgets, hire managers, and establish committees.
• Officers: Selection, duties, and terms of the President, Vice President, Secretary, and Treasurer.

Bylaws are generally not recorded in land records (though some states require it) and sit below the Articles of Incorporation. Amending the Bylaws typically requires a vote of the membership, though the required threshold is often lower than that for the Declaration (e.g., a simple majority of a quorum).

Level 4: Rules, Regulations, and Board Resolutions

At the bottom of the hierarchy are the Rules and Regulations (sometimes implemented through Board Resolutions). These are administrative guidelines adopted by the board of directors to govern the day-to-day use of common areas and the conduct of residents.

Examples include:

• Clubhouse and pool hours, pool safety rules, and guest limits.
• Trash disposal locations and collection schedules.
• Parking restrictions and vehicle registration policies.
• Architectural review committee (ARC) guidelines (e.g., paint color palettes, fencing materials).

Rules must be "reasonable," meaning they must be logically related to the health, safety, and welfare of the community, applied uniformly without discrimination, and enacted in accordance with procedural guidelines. Crucially, rules cannot contradict or expand upon the restrictions established in the higher-level documents. For instance, if the Declaration explicitly allows owners to lease their units, the board cannot pass a rule banning leasing altogether; doing so would require an amendment to the Declaration.

Rules of Construction and Resolving Document Conflicts

When evaluating a legal question or compliance issue, community managers must apply the rules of construction. This legal principle dictates that in the event of an inconsistency: \text{Statutory Law} > \text{Declaration (CC&Rs)} > \text{Articles of Incorporation} > \text{Bylaws} > \text{Rules and Regulations} If a manager identifies a conflict, they should consult the association's legal counsel. Operating under an invalid, conflicting rule exposes the board to litigation and can invalidate enforcement actions, such as fines or architectural violations.