Saturday, July 16, 2016

The Condominium Governing documents of the HOA

The HOA - Home Owners Association is governed by a series of multiple documents.
 In this series I will outline these types of governing documents.
 Part One:

  The five main Governing documents are as follows:
1) The Declaration of Covenants, Conditions and Restrictions (often referred to as “CC&Rs..
2) Bylaws.
3) Articles of incorporation. 
4) Condominium plan. 
5) Operating rules. 

 The following is a basic outline of said documents and in noway is meant as legal advice. 
For detailed legal interpretation, Please consult an attorney the us fluent in HOA Law..

  Contents of CC&Rs
CC&Rs describe the rights and obligations of the homeowners’ association and of each owner. CC&Rs vary widely in content and length, but at a minimum the CC&Rs must contain a legal description of the development, a statement of the type of common interest development it is, the name of the association and any use restrictions”, typically including common area use restrictions, pet regulations, and alteration controls. The CC&Rs may contain other matters such as the following: (1) the boundaries of the common area and of each unit or lot; (2) the maintenance responsibilities of the association and the individual owners; (3) the allocation of association operating costs among the owners, and the mechanism for collecting owner payments; (4) the dispute resolution procedure; (5) the enforcement powers; and (6) the rights and protections of mortgage lenders.”

The bylaws describe the mechanics of association decision-making and management. Bylaws “vary widely in content and length, but usually include the following: (1) number of and selection methods for officers and directors; (2) notice, meeting and voting procedures for owner and board decisions; and (3) association record keeping and reporting requirements.
Although bylaws are common for both incorporated and unincorporated associations, they are required only for certain incorporated associations. Bylaws are prepared by the developer’s attorney and reviewed by a government agency (unless the project has fewer than five units or lots) at the time a condominium project or planned development is formed. But unlike articles and CC&Rs, bylaws are not recorded or filed with any government agency, and this makes them easier to change.

   Articles of Incorporation
A corporation is formed by filing of articles of incorporation (or simply “articles”) with the California Secretary of State. The articles must include the information required by both Civil Code § 4280 and Corp. Code §§ 7130-7132. Failure to strictly comply with both statutes will result in rejection when the articles are presented for filing with the Secretary of State. Because of the technical requirements, preparation and filing of articles should be handled by an attorney.

    Condominium Plan
The term “condominium plan”, sometimes called a “subdivision map”, as well as the less common terms “final map” and “parcel map”, describe types of drawings that depict the “common area, exclusive use common area and individual ownership interests in three dimensional space and illustrate how a property is divided. These drawings show the exact location and boundaries of each unit or lot, and of the common area. They are prepared by licensed land surveyors, reviewed by government agencies, and recorded with the county at the time a condominium project or planned development is formed. Once recorded, the drawings become connected to every deed and mortgage on every unit or lot within the property, and this connection makes changing the map or plan very difficult without the consent of everyone with an interest in the property. There can be several maps or plans recorded at different times as new portions of a project are added by a process called “annexation”. In some condominium projects, a condominium plan is attached to the CC&Rs rather than recorded separately”

   Operating Rules
The CC&Rs usually empower the homeowners’ association to adopt rules and give the rules the same binding power, although not the same priority, as the other governing documents. The rules often provide use restrictions relating to alterations, signage, waste disposal, parking, pets, and recreational facilities. Where the same topics are discussed in the CC&Rs, the rules may add to or explain the CC&Rs but cannot conflict with them. Association rules are usually enacted after some of the units or lots have been sold and the owners have taken control of the association. They are not subject to any governmental review and do not need to be filed or recorded with any governmental agency.

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