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The declaration of covenants, conditions and restrictions (CC&Rs) is the basic governing document of a common interest development, which is a real estate development that combines individual ownership interests, like ownership of a condominium or a house, with common ownership of shared areas or facilities, like a clubhouse, pool, or open area. State laws require that it include specified information, such as the restrictions on the use of any portion of the development. Other governing documents include articles of incorporation or agreement and bylaws. The provisions of the CC&Rs are enforced by the board of directors of the homeowners' association (HOA). The governing documents must be made available for review, and some of them must be distributed to the homeowners. The governing documents can be amended.

CC&Rs

The declaration of covenants, conditions and restrictions (called the "declaration" or the CC&Rs) is a document which sets out legally required information about a common interest development. This is one of the documents that must be filed with the state's real estate department in order to sell units in the development. Some state laws require basic information, such as:

• A legal description of the common interest development
• A statement that the common interest development is a condominium project, planned development, stock cooperative, community apartment project, or combination of the foregoing
• The name of the homeowners' association (HOA)
• The restrictions on the use or enjoyment of any portion of the common interest development that are intended to be enforceable restrictions

Other state laws and regulations may state that the declaration is one of the governing instruments for a common interest development, and they set out the required subject matter of those instruments. The regulations include requirements that must be complied with in order to get state approval for the development.

Most of the provisions satisfying regulatory requirements typically appear in the declaration, with the remainder in the association's bylaws.

Key provisions of the governing instruments include:

• Creation of an organization (association) of subdivision interest owners
• A description of the common interests of the common interest development owners or lessees
• Transfer of title and/or control of common interests to the owners in common or to the association
• Procedures for making and collecting assessments to pay the expenses of the HOA
• Policies for obtaining liens upon privately owned separate interests if assessments aren't paid on time, and for foreclosure of these liens for nonpayment
• Policies and procedures relating to the disciplining of members for failure to comply with provisions of the governing instruments
• Creation of a governing body for the HOA
• Procedures for the election and removal of governing body members and officers of the HOA
• Enumeration of the powers and duties of the governing body and officers
• Preparation of the budgets and financial statements of the HOA for distribution its members
• Regular and special meetings of the HOA members and board (and notice requirements for the meetings)
• Amendment procedures for the governing instruments
• Architectural and/or design control
• Special provisions authorizing the governing body to represent the HOA in litigation or arbitration

Other Documents

Common interest developments are required to have other governing documents in addition to the CC&Rs. Homeowners' associations that are non-profit corporations must have the following documents:

• Articles of incorporation, which set out the name and address of the HOA, the name and address of the initial agent for service of process, the name and address of the managing agent, and a statement identifying the corporation as an association formed to manage a common interest development
• Corporate bylaws, which are used for regulation of the internal affairs of the association, including such matters as assessments, maintenance and repair, use of units and common areas and facilities, meetings of the board of directors and the members, and rules of conduct of the residents

While there is no legal requirement that an HOA which is an unincorporated association have either articles of association or bylaws, these documents should be prepared and signed since they constitute the agreement among the members and determine the nature of the association.

Enforcement of CC&Rs

Covenants and restrictions are part of the declaration and enforceable as equitable servitudes (restrictions on the use of land) and as covenants running with the land (agreements that concern the land). Generally, covenants and restrictions concern the architectural standards and controls and the uses of individual units. They are for the benefit of and bind all owners of separate interests.

Usually, the HOA's board of directors or designated committee has the initial responsibility for addressing violations of the covenants and restrictions. A homeowner will file a complaint or request approval of proposed changes. The association must provide a fair procedure to hear and decide the matter. If the dispute isn't resolved, the parties typically have to go through a more formal alternative dispute resolution process. If that fails, they can resort to a civil lawsuit to decide the matter.

Availability of Documents

Most of the time, a new homeowner becomes a member of the HOA and is given a copy of the CC&Rs when the homeowner purchases the property. Also, upon written request by the homeowner, HOAs are required to provide the homeowner with the following documents:

• A copy of the governing documents
• A copy of the most recent financial statement of the HOA
• A written statement specifying the amount of the HOA's current regular and special assessments and fees, and any amount due by the homeowner
• A copy of notices indicating any unresolved violations of the CC&Rs by the homeowner

Distribution Requirements

The HOA may be required to distribute certain documents to homeowners, including:

• A budget for the upcoming year that contains the association's revenue and expenses, available reserves and planned repairs and replacements
• A summary of the HOA's property, general liability, earthquake, fidelity and flood insurance policies

Amendment Procedures

The governing documents, including the declaration, the articles of incorporation or association and the bylaws, can be amended. State laws set out the requirements for amending these documents. The documents themselves also set out the procedures required for changing the rules. Usually, amendments are proposed and are voted on by the HOA. Amendments may require the approval of a majority vote of the board of directors, of the association, and of members who aren't developers. This process can require a lot of time, effort and expense.

If the declaration requires the approval of more than a simple majority of the homeowners, the HOA or a homeowner can petition the county court to order a reduction in the percentage of affirmative votes needed for an amendment.

If you have any questions about CC&Rs or other documents of a common interest development, contact a Residential Real Estate Lawyer in your area.

Questions for Your Attorney

• What happens if the provisions of the bylaws of a planned development conflict with the provisions of the CC&Rs?
• Can my HOA legally require me to pay assessments for community improvements that I didn't want?
• Do I have to show up for a hearing before the HOA board for allegedly breaking the HOA's rules, and is there a limit on the fines that the HOA can impose on me and my unit?

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