HOA Governing Documents Hierarchy: Which One Wins?

When Documents Disagree

Every HOA community runs on a stack of documents. State law sits at the top. The day-to-day rules the board passes sit at the bottom. In between you've got the CC&Rs, bylaws, and articles of incorporation.

Usually these documents don't step on each other. But when they do (and they will), the hierarchy tells you which one controls.

This isn't theory. It comes up when a homeowner fights a rule, when a buyer is trying to figure out what restrictions actually stick, and when a board tries to enforce something that conflicts with a document above it in the pecking order.

The Standard Hierarchy

In most states, governing documents follow this order, highest authority to lowest.

1. Federal and State Law

Always on top. No HOA document can override federal or state law. Period.

If the Fair Housing Act says you can't discriminate based on familial status, an HOA can't enforce a "no children" rule in the CC&Rs. Doesn't matter if that restriction has been sitting there since 1985. The law wins.

State HOA statutes (Florida's Chapter 720, California's Davis-Stirling Act, Colorado's CCIOA) set baseline requirements the association has to follow. CC&Rs that conflict with state law lose every time.

Common areas where state law takes over:

• •Assessment collection procedures
• •Board election requirements
• •Open meeting requirements
• •Financial reporting obligations
• •Owner access to records
• •Estoppel delivery timelines and fee caps

2. The Recorded Declaration (CC&Rs)

The declaration, usually called the CC&Rs (Covenants, Conditions & Restrictions), is the primary governing document. It's recorded in the county land records and runs with the land. That means it binds every owner who comes after, whether they read it or not.

CC&Rs typically cover:

• •Use restrictions (what you can and can't do with your property)
• •Architectural standards
• •Assessment authority and amounts
• •Common area definitions and maintenance responsibilities
• •Enforcement and lien rights
• •Amendment procedures

Because the declaration is recorded and runs with the land, it carries more legal weight than anything else the association produces. Bylaws say one thing, CC&Rs say another? CC&Rs win.

3. Articles of Incorporation

The articles of incorporation establish the HOA as a legal entity, usually a nonprofit corporation. They're filed with the state and define the association's corporate structure: name, purpose, registered agent, basic organizational framework.

Conflicts between the articles and the CC&Rs are rare because they do different jobs. But when a conflict does come up, the CC&Rs generally prevail on community matters. The articles control corporate governance basics.

4. Bylaws

Bylaws govern how the HOA operates as an organization. They cover:

• •Board composition and officer roles
• •Meeting procedures and voting requirements
• •Election processes
• •Committee creation and authority
• •Fiscal year and budgeting procedures

Bylaws sit below the CC&Rs and the articles of incorporation. If the CC&Rs say the board has 7 members but the bylaws say 5, the CC&Rs control.

That said, bylaws are the primary authority on internal governance stuff the CC&Rs don't address. Most CC&Rs don't get into meeting notice requirements or election procedures. That's bylaws territory.

5. Rules and Regulations

At the bottom of the stack are the rules and regulations the board adopts. These are the day-to-day operational rules:

• •Pool hours and guest policies
• •Parking assignments
• •Pet restrictions (size, breed, leash requirements)
• •Noise policies
• •Common area usage rules
• •Landscaping standards

The board can typically adopt and change these without a membership vote, which makes them the most flexible governing document. Also the most frequently changed.

The catch is that rules and regulations can't contradict the CC&Rs, bylaws, or state law. If the CC&Rs say owners can have up to two pets, the board can't pass a rule banning pets entirely. It won't hold up.

Where Conflicts Actually Happen

CC&Rs vs. Board-Adopted Rules

This is the one I see most often. A board adopts a rule that's more restrictive than the CC&Rs allow. For example:

• •CC&Rs let owners lease their units with board approval. The board passes a rule requiring a minimum 12-month lease term.
• •CC&Rs permit "reasonable" exterior modifications. The board passes a rule prohibiting all exterior changes, no exceptions.

Whether the board's rule holds up depends on whether the CC&Rs actually grant the board authority to adopt stricter standards. A lot of declarations include a provision giving the board broad rule-making authority "consistent with" the CC&Rs. But "consistent with" is a phrase lawyers will argue about until the retainer runs out.

Old CC&Rs vs. New State Laws

This happens all the time. CC&Rs written in the 1980s or 1990s are full of provisions that state law has since overridden. Common examples:

• •Restrictions that violate the Fair Housing Act
• •Assessment collection procedures that don't comply with current state requirements
• •Board election rules that conflict with updated state statutes

These provisions are dead on arrival, but they're still sitting in the recorded declaration. If you're a buyer reviewing CC&Rs, know that not everything in the document is currently enforceable. Some of it is just leftover language nobody's bothered to clean up.

Bylaws vs. CC&Rs on Board Authority

Sometimes the bylaws give the board authority to do something the CC&Rs don't contemplate, or expressly limit. The bylaws might say the board can borrow money without member approval. The CC&Rs might require a membership vote for debts above a certain dollar amount.

CC&Rs control. The bylaws can't expand the board's power beyond what the CC&Rs allow. I've seen boards get burned by this one more than once.

Why This Matters for Buyers

When you're reviewing HOA documents before closing, understanding the hierarchy helps you spot problems before they're your problems.

1. 1.You can identify which restrictions are actually enforceable. That "no satellite dish" provision in the 1990s CC&Rs? Unenforceable. Federal law (the Telecommunications Act) overrides it.
2. 2.You can evaluate board-adopted rules with a critical eye. If the board has passed rules that go beyond what the CC&Rs allow, those rules may be challengeable.
3. 3.You'll understand how hard a restriction is to change. CC&Rs typically require a supermajority vote (67% or 75%) to amend. Rules can be changed by a simple board vote. Knowing which document contains a restriction tells you everything about how permanent it is.
4. 4.You can assess how well the community is managed. A community where the governing documents are internally consistent is usually in better shape than one riddled with conflicts. Conflicts mean either bad legal counsel or a board that's overstepping.

When to Get Legal Help

Most governing document reviews don't need an attorney. But if you spot a conflict between documents, especially one that affects how you plan to use the property, get a legal opinion.

Scenarios where it's worth the call:

• •CC&Rs appear to prohibit your intended use (rental, home business, specific modifications)
• •The board is enforcing a rule that seems to contradict the CC&Rs
• •The CC&Rs contain provisions that may violate current state or federal law
• •You're buying in a community with ongoing governance disputes

A real estate attorney who knows HOA law in your state can sort out the hierarchy and tell you what's enforceable. It's a few hundred dollars. The headache it prevents can be worth tens of thousands.