What if there is an inconsistency between my Association’s governing documents?

Most community associations have a number of legal documents that govern the use of the property within the association. The documents may include, but are not limited to: the Plat, the Declaration of Covenants, Conditions and Restrictions (CC&Rs), the Bylaws, the Rules and Regulations, Architectural Guidelines, and the Articles of Incorporation. In addition to being governed by all of these documents, community associations are also subject to federal and state laws, including, but not limited to: the Condominium Act, the Planned Communities Act, the Non-Profit Corporation Act, and the Fair Housing Act.

What should your association do if there are inconsistencies between your governing documents or inconsistencies between your governing documents and relevant state and federal laws?

First, it is important to recognize the hierarchy of legal documents. If there is an inconsistency between the various documents in your community, keep in mind this hierarchy, where the document earlier in the hierarchy prevails or trumps the other document.

1. Plat
2. CC&Rs
3. Articles of Incorporation
4. Bylaws
5. Rules and Regulations and Architectural Guidelines

Second, the association may consider amending its documents to be consistent with each other and to be consistent with state and federal law. Many association’s CC&Rs are outdated and in need of updating. If your association is going to move forward with the amendment process, determine what is required to amend the documents. There should be a provision in each document that outlines the proper procedure to amend the CC&Rs, Articles of Incorporation, Bylaws and Rules and Regulations. Most of the documents require approval by a specific percentage of the membership. However, many times the Board is authorized to amend the Rules and Regulations on its own by a majority vote.

Third, the association should keep in mind that most times the federal law will trump any state statute and the provisions in the association’s governing documents. Sometimes the state statutes trump the association’s governing documents, and sometimes the state statutes defer to the association’s governing documents to control.

If your association has any questions about which document or law applies in the event of an inconsistency, the Board should consider consulting an attorney to determine which provision prevails. Further, the association should consult an attorney to assist with determining what is required to amend the documents. For more information on amending association documents, please refer to our firm’s cheat sheet titled, “Amending Association Documents & Implementing Rental Restrictions.”

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