In a perfect world, every homeowner or condominium association's bylaws, CC&Rs and other governing documents would be crafted by lawyers so they are fully in compliance with municipal, county, state, and federal laws and do not contradict one another.
In the real world, this can never be the case. Occasionally, there are areas of conflict between various association governing documents and the law, or amendments that are made to one document without the necessary changes being made to the others so that everything is brought into alignment. For example, a dispute can arise when a resident points to a passage in the association rules and regulations that allows them to do something while the CC&Rs contain conflicting information.
When both parties can point to language in different documents that justifies their actions or non-actions, how can such differences be resolved? Is there an established order for which document takes precedence?
It turns out there is such an order of precedence, at least in most areas. Just as the Constitution trumps federal laws, and federal laws take precedence over state laws and so on, there is a similar order of precedence, or hierarchy, of documents when it comes to homeowners associations and condominiums. Specifics vary by state but, in general, there is a typical hierarchy of documents.
Most if not all states impose similar governing document hierarchies.
Likewise, the hierarchy of governing documents also restricts the authority of association boards to infringe on the liberty of the owners, except within certain parameters defined by the law, the declaration and the CC&Rs. For example, except within very narrowly defined contexts, association boards cannot create a rule or regulation that infringes upon First Amendment rights, except where homeowners have ceded them.
Things get a little fuzzy when it comes to state laws that pass after the homeowner or condominium association documents were drafted. After all, the Constitution doesn't allow state governments to shred existing contracts by force of law. Florida attorneys Gary and Ryan Poliakoff explain which takes precedence:
"[It] depends on whether the statutory amendments are procedural (affecting simply how laws are carried out) or substantive (an actual change to rights or regulations). The Constitution prohibits states from passing laws that impair existing contract rights. So, for example, one could debate whether a state law that prohibits an association from restricting leasing of units would be applicable. If the no-leasing provision was in the declaration before the legislature passed its law, then the change is arguably an impairment of contract (with the contract being the actual declaration of condominium).
Some documents contain language that affirms that they are automatically modified by all legislative amendments. Lawyers refer to such clauses as "Kaufman" language, after the case that stated that if such a provision is contained within the document, then legislative changes do not impair the existing documents because applying these changes is strictly an interpretation of the document."
In general, whichever document gets recorded first is the one that usually governs. So, below the law, the top document in the hierarchy is the plat the developer files in the county recorders' office defining the geographical limits of the development. The declaration usually comes after that. Once a homeowner or condominium association declares its existence, they usually go on to file as a corporation or other entity, and then go on to develop CC&Rs and bylaws, and so on down the chain.
Understanding the hierarchy of governing documents can help avoid or settle costly litigation and predict how a court may rule. This, in turn, can save associations and their members thousands of dollars in court fees.
Say what you will about lawyers, but practicing law—and even simply understanding legalese—is exceedingly tough. Unless you have a board member with some training or understanding of the applicable laws, how can your association expect to safely navigate through complicated legal situations like those presented by issues related to conflicting association governing documents?
There's one simple solution available to homeowner and condominium associations in need of legal advisors: work with an association management company. In addition to providing better financial management, dues collection and governance, professional association managers help their clients comply with federal, state, and local laws, and avoid costly litigation.
Get free, no-commitment quotes from association management companies in your area and learn how they can serve as your legal advisor, dues wrangler, maintenance mogul, and more.