Each governing document of a community association is an essential piece that holds the association together. The governing documents create a legally binding relationship between the owner and the association, allow for a well-defined operation of the community and promote harmonious living.
One of the most important things to understand when dealing with a community association’s governing documents is the hierarchy of authority for these documents. Understanding this hierarchy is essential when enforcing rules, drafting resolutions or dealing with already existing conflicts between documents. The hierarchy of documents is best summarized by the Governing Documents Pyramid.
Documents that fall lower on the hierarchy cannot or change any of the documents that are above them. It is critical that boards check the documents that fall higher on the hierarchy before amending documents or writing resolutions.
For example, if a board decides to increase the association’s late fee, they should first check the declaration. If the declaration explicitly states that a $10 late fee be imposed, then the board cannot raise the late fee without first amending the declaration, which will require a vote by the owners.
By doing their due diligence, the board will minimize the headache that inevitably comes along when dealing with conflicts between documents. Case law, federal law and state law should also be taken into consideration, as they trump all of the governing documents of a community association.
Conflicts between documents often already exist. In this case, the higher document will take precedence. It is important that boards seek legal counsel, or the counsel of their Community Manager, if they discover a discrepancy between their documents, or if their documents conflict with case, federal or state law.
For further reading on this topic please refer to: M100 Participant Guide: The Essentials of Community Association Management by Community Associations InstituteContent on this site is provided for informational purposes only. It is not intended as, and does not constitute, legal advice. While all content is believed to be correct within the scope of its purposes when written, it may be incomplete and/or the relevant law may have changed. Content on this site is not intended to comprehensively cover any subject, does not cover a number of related matters, and does not cover any person or entity's particular situation. As such, it is not reasonable for anyone to rely upon the information herein with respect to any particular legal matter. Rather, readers are encouraged to retain a licensed attorney to provide individualized and current legal advice.lackadaisical