– By James R. McCormick, Jr., Esq. (originally published in July 1999)
A Governing Document is defined in California 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 the common interest development or association.”
If you live in an association, you’ve probably heard many terms like “Articles of Incorporation,” “Declaration,” “CC&Rs,” or “Rules and Regulations.” But what these mean, and how they affect your association may be a mystery. Generally, Governing Documents set forth the rights and obligations of owners, and establish the general rules for running the association. In order to serve their purpose, certain Governing Documents are considered to “run with the land” which means that the rights and obligations are binding on any owner upon purchase of a unit or lot within the association. Governing documents can generally be set forth in two categories:
1. Documents which place conditions on ownership and control the way real property and improvements can be used; and
2. Documents which control the way that the association (i.e. the corporation) manages and operates the business of the association.
Documents falling under the first category are usually recorded with the county recorder’s office. By recording these documents, they “run with the land.” That is, if you purchase a lot or unit which is affected by these documents, you are also purchasing the rights and obligations contained in the documents. No matter who owns the property, this characteristic stays the same.
Common examples include a planned unit development (“PUD”) permit, condominium plan or subdivision map, easements, maintenance and indemnity agreements, deeds, the declaration of covenants, conditions and restrictions (CC&Rs), architectural guidelines, and rules and regulations. (While rules and regulations and architectural guidelines are usually not recorded, they fall into this category because typically the CC&Rs elevate their status to that of a recorded document.) Because these terms are often used, and less often understood, the following is a brief description of these documents:
Subdivision Map, Condominium Plan or Plat Map: The developer of a project will file with the county recorder a subdivision map, a condominium plan, or plat map. In a planned residential development, this map will set forth the location of individual lots, and any common areas within the project. In a condominium project, this plan/map will set forth the respective ownership rights of owners and the association, and should indicate the physical location and boundaries of the condominiums and any common areas. These maps will also include a description and location of any easements within the community.
Declaration of Covenants, Conditions and Restrictions (CC&Rs): Perhaps the most often discussed document, the CC&Rs is thought to be the “constitution” of the association. This document is initially created by the developer and recorded with the county recorder. Included are the powers and restrictions on the owners and the association pertaining to the maintenance, and governance of the association. These can include occupancy and use restrictions ranging from what activities can be engaged in within the association, to control of pets or parking. Often architectural or landscape provisions are also contained in the CC&Rs. Also set forth is the obligation requiring each owner to pay assessments to the association.
Rules and Regulations: While these rules are guided by, and cannot conflict with the CC&Rs, they allow more specific input from the community through the board. For example, rules are often appropriate to establish pool use and hours, trash pick-up hours, architectural rules and guidelines, pet restrictions, parking rules and other specific matters. These rules and guidelines must follow the general scheme provided for in the CC&Rs, but are usually left up to the reasonable discretion of the board.
Architectural Guidelines: To maintain property values throughout the community, an association’s board or architectural committee will usually establish architectural guidelines. These can include items such as what color schemes are acceptable within the community, what unit or landscape modifications are permissible, and the procedure for submitting plans to the architectural committee.
Maintenance and Indemnity Agreements: These are agreements made between individual owners and the Association which are recorded against the individual property. The purpose of these agreements is usually to provide for the maintenance of items which an owner installs on the common area or on exclusive use common area.
Documents falling under the second category control the way that the association (i.e. the corporation) manages and operates the business of the association and are usually not recorded with the county recorder’s office because they do not directly affect the property, Examples include the Articles of Incorporation, Bylaws, and any resolutions of the board or owners regarding how business of the association is to be conducted.
These documents usually provide for notice of meetings, election procedures, duties of the association, duties of directors, or other items pertaining to how the association is to be run. Examples include:
Articles of Incorporation: The Articles of Incorporation of a corporation are filed with the state. When filed, the Articles of Incorporation legally forms the corporation and sets forth the corporation’s general purpose. An association is typically formed as a California non-profit, mutual-benefit corporation. Usually, the stated general purpose of an association is to protect, maintain and enhance property values within the project.
Bylaws: Bylaws contain the general rules for the administration and management of the association. Typically included is information on the requirements for membership, the requirements for meetings, the voting rights of member owners, the procedures for electing the board of directors, and the general powers and duties of the board, and often, limitations on such powers.
Whether you are on the board of your association or simply an owner, you should be familiar with your association’s Governing Documents. The Governing Documents will often answer any questions you may have about the duties of the board, the duties of the association, and the duties of the owners. Many disputes and misunderstandings as to what type of community and system of government an owner buys into when purchasing his or her home are directly tied to a lack of knowledge or misunderstanding about what is contained in the Governing Documents. After reviewing your documents, if you have any questions, you should ask your property manager or board for clarification. After all, understanding your association’s Governing Documents will inevitably make living in a common interest development a much more positive and gratifying experience!