Owners often ask the question: What is a governing document? Technically, a “governing document” is defined by Civil Code section 1351(j) as “the declaration and any other documents, such as bylaws, operating rules of the association, articles of incorporation, or articles of association, which govern the operation” of an association. For most associations, these documents include:
|Articles of Incorporation Bylaws Condominium Plans (Condo) or Tract Map (PUD) Declaration of Covenants, Conditions and Restrictions (CC&Rs) Rules and Regulations Architectural Guidelines Board Resolutions|
While all of these documents govern the association (as a corporation) as well as the owners, most owners are only familiar with the rules and regulations and sometimes the declaration. Pursuant to Civil Code section 1368, anyone selling a residence within an association must provide to the new owner a copy of the governing documents of the association as well as various other documents. When purchasing a residence within an association, owners agree to be bound by all of the association’s governing documents.
Most associations are also corporations. Their corporate existence begins upon filing Articles of Incorporation with the California Secretary of State. Bylaws are then adopted by the corporation to govern meetings, board members and the general operating structure of the corporation. These documents may be consulted to determine how the corporation should be run.
Before building a development, a developer will record a condominium plan or tract map and a declaration against the entire project and all property contained therein. The declaration has additional regulations for the corporation as well as regulations of owners within the association. Because these documents are recorded against the property and require a vote of the members to change, the restrictions and rights in the declaration are typically very broad.
One right provided to the board within the declaration and/or bylaws is the authority to adopt rules and regulations and/or architectural guidelines more specific to that community. These rights are typically held exclusively by the board of directors. There are a variety of reasons for granting this right to a board. First, the rights and restrictions within a declaration are fairly broad. Second, because the declaration is very lengthy, a developer may use a similar declaration for different associations. Third, the board must have the right to grant rights and adopt restrictions more specific to a particular project. Fourth, if the board were forced to take a vote of the owners every time a regulation or rule needed to be adopted or amended, it would be extremely difficult to accomplish anything (the board can never please everyone, every time). Fifth, times change and sometimes rules must change as well.
The rules and regulations are typically more specific guidelines for living within the community. While the rules can be more restrictive than the declaration, if there is a conflict, the declaration will almost always prevail.
All of the governing documents are tools for the association to run smoothly and for the owners to live peacefully within the community. All owners must keep in mind, however, that the board is comprised of owners and the board members must abide by every decision they make. Furthermore, once elected, the board is charged with the fiduciary duty to enforce the association’s governing documents. Sometimes the board is saddled with restrictions which board members may not personally like, but that are best for the community. This sometimes makes it difficult to be a volunteer board member, but remember, that is why board members get paid the big bucks, right!?
Society is governed by rules. Associations are no different and therefore have in place the declaration, rules and regulations and other governing documents. Every owner is charged with knowing and complying with the rules just as every driver is charged with knowing and obeying the traffic laws in California. All owners who live within an association should become familiar with the rules of their association to prevent inadvertent violations. If owners receive violation notices, they should contact the board and/or property manager to open the lines of communication and resolve any outstanding issues. With a fair understanding of the rules governing an association, and a reasonable amount of enforcement, an association is often the best place to call home.