The HOA governing documents play an integral role in the operation and management of a community. These documents outline the obligations of both the HOA and its members, place limits on the association’s authority, and dictate the procedures that boards must follow. Board members and homeowners alike should make an effort to understand them.
What are HOA Governing Documents?
The homeowners association governing documents are a set of official rules and legal papers that control how a community operates. They define the board’s authority, the owners’ rights, and how the association must operate. Violating the governing documents can lead to penalties.
The Hierarchy of HOA Governing Documents
The governing documents follow a strict hierarchy, dictating which document takes precedence over others. Here’s the hierarchy of HOA governing documents in Oregon.
1. Federal, State, and Local Laws
Federal, state, and local laws reign supreme. While not in document form, these laws trump all others. If a community’s restriction conflicts with the law, the law controls, and the restriction becomes invalid.
Some notable federal laws that apply to HOAs include the Fair Housing Act, the Americans with Disabilities Act, the OTARD Rule, the Servicemembers Civil Relief Act, and the Freedom to Display the American Flag Act.
Most states have their own statutes that govern planned communities. In Oregon, the Oregon Planned Communities Act and the Oregon Condominium Act apply. Other than that, boards must also check their local ordinances and regulations.
2. Recorded Plat
The recorded plat or community map depicts the entire plan of the subdivision or neighborhood. This document shows easements, unit dimensions, vehicular access restrictions, setback requirements, trash enclosures, handicapped spaces, landscaping restrictions, lighting requirements, and areas for future development.
The plat helps separate the association’s maintenance responsibilities from those of its members. It is recorded with the county clerk or recorder’s office.
3. Declaration of Covenants, Conditions, and Restrictions (CC&Rs)
The CC&Rs, sometimes referred to as simply the declaration, are the third-highest in the governing HOA documents hierarchy. If an operating rule conflicts with a covenant, the covenant wins.
Associations must record the CC&Rs with the county. Amendments must also be recorded to become effective. To amend the CC&Rs, voting requirements apply. According to ORS 94.590, at least 75 percent of the membership must vote to approve amendments. The CC&Rs themselves may require a higher percentage to pass the change.
The CC&Rs define the rights and obligations of the association and the homeowners. Common provisions include dues obligations, maintenance responsibilities, and enforcement powers. It is essentially a handbook that details what owners can and can’t do. Boards can also typically refer to the CC&Rs for guidance on handling violations and disputes.
4. Articles of Incorporation
The articles of incorporation establish an association as a corporate entity. In Oregon, most HOAs and condominiums operate as nonprofits. This document is filed with the Secretary of State.
The articles of incorporation outline basic information about the HOA, including but not limited to:
- The association’s name,
- The property address, and
- Corporate status of the association.
In some cases, this document may also explain the association’s function or purpose.
5. Bylaws
The HOA bylaws come fifth in the hierarchy, trumping only the operating rules. Whether or not an association must record its bylaws with the county depends on local regulations.
That said, amendments typically require a vote by the membership, with the exact threshold or voting percentage outlined in the bylaws. In Oregon, ORS 94.635 states that the bylaws may require that amendments be approved by a simple majority of votes.
The bylaws dictate how the association must operate. It details information relating to annual meetings, board meetings, board terms, elections, and voting rights. It doesn’t so much cover the obligations of owners as it guides the inner workings of the association.
6. Rules and Regulations
At the bottom of the hierarchy are the HOA rules and regulations. Also known as operating rules, these rules expound on or clarify the CC&Rs. They have more to do with the rules surrounding day-to-day operations. Common examples include pet rules, amenity use, and quiet hours.
Unlike the CC&Rs, changes to the rules are usually adopted through simple board resolutions. This means that rule changes only need a board vote, not a membership vote. Additionally, rules don’t need to be recorded with the county.
Where to Find HOA Governing Documents
Homeowners must familiarize themselves with the association’s governing documents. The CC&Rs, bylaws, and rules, in particular, are the most critical, as these outline obligations, procedures, and rights. That said, not everyone knows where to even find these documents.
Here’s how homeowners can obtain HOA governing documents.
1. Upon Purchase of Home
Buyers are given a copy of the governing documents as part of the disclosure packet. This practice allows buyers to review the association’s rules and restrictions before proceeding with the sale. After all, if they don’t agree with how the HOA is run, they can back out of the transaction.
Of course, most new homeowners misplace their copy of this packet. In that case, they can pursue other routes to secure these documents.
2. Public Records
Some governing documents are public records. This means that owners can go directly to the county clerk or recorder to ask for a copy.
The CC&Rs and recorded map are usually recorded, but the bylaws can be a hit or miss. The operating rules aren’t usually recorded, since there is no requirement, and it makes them easier to amend. To view the association’s articles of incorporation, owners must go through the Secretary of State.
3. Formal Request to the Board
State laws generally protect owners’ right to inspect or copy the association’s books and records, including the HOA governing documents. Both ORS 94.670 (for HOAs) and ORS 94.670 (for condos) require associations to make records reasonably available to owners upon written request.
According to Oregon law, associations have 10 business days to comply with the request. That said, boards may adopt reasonable rules concerning the time, location, notice, frequency, and manner of examination. Associations may also charge a fee to cover copying and personnel costs.
4. Community Website
If an association maintains a website or owner portal, residents can usually access the governing documents online. On their part, board members must make sure that these virtual copies are up-to-date.
Adhering to the Governing Documents
Associations begin and end with the HOA governing documents. These documents not only serve as guides but also outline the requirements and obligations of both HOAs and homeowners. Board members must understand these documents to ensure they are not in breach.
CWD Group offers management services to community associations in Oregon and Washington. Call us today at 503-488-2008 or contact us online to learn more!
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