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BOD using “Resolutions” to issue rules

Most homeowners look at the CC&Rs and the Bylaws of their HOA, thinking these are the governing Docs… Our BOD has been using “Resolutions” to change or bypass or just establish control outside those traditional documents… is this legal?

1 Response

  1. dennisl

    Susan,

    There is a hierarchy to the documents that govern all Common Interest Communities. They are state law contained in ARS Title 33 chapters 9 (for condominiums) or 16 (for planned communities (HOA)), then the community Declaration (CC&R’s) , then the Articles of Incorporation, then the Bylaws and finally the Rules or policies.

    No provision contained in a lower document can contradict or conflict with any provision in a higher document. Only the CC&R’s are recorded and thereby only that document can restrict or limit the use of the individually owned property. In general the CC&R’s give very wide latitude for the association to create rules over the use of common property or to protect the use of the common property for the enjoyment of the community members.

    For example you cannot create a rule that conflicts with any provision of the Bylaws, without first changing the bylaws. You also cannot implement a bylaw change that conflicts or expands on a restriction cited in the CC&R’s. You also cannot create a rule or bylaw change that would add a restriction on the use or behaviors within any private property not authorized in the CC&R’s without first modifying the CC&R’s. One issue commonly missed is you cannot change the bylaws in any way that would conflict with the Articles of Incorporation.

    Far too often associations try and create additional rules to control the behavior of homeowners in their homes, or to restrict the use of private property. Unless those provisions have legitimate purpose to protect the ability of the community to enjoy the common property or are not specifically authorized in the CC&R’s they are inappropriate and illegal.

    Hopefully this helps.

    Dennis

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