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Subject: Governing Documents
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Author Messages
RoyalpitA
(South Carolina)

Posts:149


10/01/2018 10:45 AM  
In order :

US Constitution (which guarantees us the right to enter binding contracts)

Federal Code of Laws

State Law (incl. any 'HOA' legislation)

County Law

City Law (if any)

Covenants and Restrictions

Rules and Regulations (made by BOD governing common areas)

State Corporate Law

Articles of Incorporation (if any)

Bylaws

[any item 'higher' on the hierarchy 'rules and governs' ALL items lower]


95% of the questions asked here would be answered in simple English IF the above were understood


to the moderator(s): could y'all make this a 'sticky post' ? please do so !
RichardP13
(California)

Posts:3059


10/01/2018 11:22 AM  
Not so fast buddy. This would not apply to California!
RoyalpitA
(South Carolina)

Posts:149


10/01/2018 12:06 PM  
Posted By RoyalpitA on 10/01/2018 10:45 AM
In order :

US Constitution (which guarantees us the right to enter binding contracts)

Federal Code of Laws

State Law (incl. any 'HOA' legislation)

County Law

City Law (if any)

Covenants and Restrictions

Rules and Regulations (made by BOD governing common areas)

State Corporate Law

Articles of Incorporation (if any)

Bylaws

[any item 'higher' on the hierarchy 'rules and governs' ALL items lower]


95% of the questions asked here would be answered in simple English IF the above were understood


to the moderator(s): could y'all make this a 'sticky post' ? please do so !




Yes, it does, in fact, apply to Kalifornia
RichardP13
(California)

Posts:3059


10/01/2018 12:09 PM  
It might be best to do some research.
RoyalpitA
(South Carolina)

Posts:149


10/01/2018 12:24 PM  
.....

State Law (incl. any 'HOA' legislation)

County Law

City Law (if any)

Covenants and Restrictions

Rules and Regulations (made by BOD governing common areas)

State Corporate Law

Articles of Incorporation (if any)

Bylaws

[any item 'higher' on the hierarchy 'rules and governs' ALL items lower]

.....


Would even more betterer if one READ what was posted.

RichardP13
(California)

Posts:3059


10/01/2018 1:09 PM  
Not going to give you anymore air time.
RoyalpitA
(South Carolina)

Posts:149


10/01/2018 1:40 PM  
translation: oops, he's correct, AGAIN

JeffT2
(Iowa)

Posts:400


10/01/2018 1:43 PM  
State corporate law should be on the same level as other state laws. If there is a conflict between State corporate law and the governing documents, then the state law prevails.
KerryL1
(California)

Posts:5767


10/01/2018 1:49 PM  
RoyalP wrote that within the hierarchy the rankings are:

Covenants and Restrictions

Rules and Regulations (made by BOD governing common areas)

State Corporate Law

Articles of Incorporation (if any)

Bylaws
--------------------------------------------
I'm pretty sure in CA it's:

State Corporate Code (if HOA is a corporation)

Covenants; restrictions; Declaration (CC&Rs)

Bylaws

Articles

Rules & Regs

The way you wrote it, RP, a Rule & Reg. can overturn a bylaw and that 's generally not true.

KerryL1
(California)

Posts:5767


10/01/2018 2:07 PM  
Gah-- I think the Article of Incorporation supersede the Bylaws. But maybe not in FL??
RoyalpitA
(South Carolina)

Posts:149


10/01/2018 2:23 PM  
The bylaws regulate the operation of the corporation.

The CCRs grant the BOD the authority to promulgate R&Rs regarding any common element.
RoyalpitA
(South Carolina)

Posts:149


10/01/2018 2:32 PM  
My 'hierarchy' is, in fact, CORRECT.

Any HOA legislation IS, in fact, part of state law.

This very discussion 'highlites' the need for actual READING in place of OPINIONATING.

My 'hierarchy' was obtained from one of the best contract/HOA attorneys in S.C.

To repeat it:

US Constitution (which guarantees us the right to enter binding contracts)

Federal Code of Laws

State Law (incl. any 'HOA' legislation)

County Law

City Law (if any)

Covenants and Restrictions

Rules and Regulations (made by BOD governing common areas)

State Corporate Law

Articles of Incorporation (if any)

Bylaws


ps. an attempt to 'amend' the CCRs by making a bylaw will NOT 'stand in court' as the (corporate) bylaws merely govern the operation of the corporation

pps. there is a major difference between a 'co-op' and a 'condominium'

ppps. in a 'co-op' one merely owns 'stock' in a corporate owned building entitling the use of x' of space which may be reassigned based on internal 'waiting lists'
TimB4
(Virginia)

Posts:15999


10/01/2018 3:18 PM  
John,

Your order of precedence is incorrect.
GenoS
(Florida)

Posts:2435


10/01/2018 3:51 PM  
Posted By RoyalpitA on 10/01/2018 10:45 AM
to the moderator(s): could y'all make this a 'sticky post' ? please do so !

I vote "no sticky". In Florida the Rules & Regulations are below the Bylaws.
GenoS
(Florida)

Posts:2435


10/01/2018 3:52 PM  
Posted By KerryL1 on 10/01/2018 2:07 PM
Gah-- I think the Article of Incorporation supersede the Bylaws. But maybe not in FL??

Yes, definitely in Florida. The Articles of Incorporation are higher in the hierarchy than the Bylaws. And the Rules & Regulations are below the Bylaws.
RoyalpitA
(South Carolina)

Posts:149


10/01/2018 4:06 PM  
A case CAN be made for the Bylaws to be above the R&Rs.

The Bylaws govern the BOD - the BOD promulgates R&Rs.

Especially if a Condominium type PUD.


I stand corrected.
RoyalpitA
(South Carolina)

Posts:149


10/01/2018 4:13 PM  
US Constitution (which guarantees us the right to enter binding contracts)

Federal Code of Laws

State Law (incl. any 'HOA' legislation)

County Law

City Law (if any)

Covenants and Restrictions ------------------V

State Corporate Law V

Articles of Incorporation (if any) V

Bylaws---V V

Rules and Regulations (made by BOD or Trustees governing common areas)


[R&Rs under Bylaws if incorporated, under CCRs if not incorporated]



COMPLEX, not complicated
RoyalpitA
(South Carolina)

Posts:149


10/01/2018 4:19 PM  
site will not 'hold' formatting

tried to have vertical downward arrows (which moved upon submittal)

there is an incorporated vs. unincorporated issue involved

US Constitution (which guarantees us the right to enter binding contracts)

Federal Code of Laws

State Law (incl. any 'HOA' legislation)

County Law

City Law (if any)

Covenants and Restrictions

Rules and Regulations (made by Trustees governing common areas)

State Corporate Law

Articles of Incorporation (if any

Bylaws

Rules and Regulations (made by BODs governing common areas)


however

The VAST majority of HOAs are in fact INCORPORATED
TimB4
(Virginia)

Posts:15999


10/01/2018 6:19 PM  
John,

The order of precedence is:



The Constitution
Federal law
Federal Regulations
State Law
State Regulations
County Codes
City Ordinances
Covenants (aka deed restrictions)
Articles of Incorporation (if association is incorporated)
Bylaws
Resolutions adopted by the Board (typically rules/regulations on common areas, architectural guidelines, etc.)


RoyalpitA
(South Carolina)

Posts:149


10/01/2018 7:09 PM  
Tim,

Are you saying that there are bylaws whether the HOA is or is not incorporated ?

John B.
RoyalpitA
(South Carolina)

Posts:149


10/01/2018 7:20 PM  
'bylaws whether' would better read as: 'bylaws regardless of whether or not'
RichardP13
(California)

Posts:3059


10/01/2018 7:25 PM  
I managed three associations that were not incorporated and had Bylaws.
TimB4
(Virginia)

Posts:15999


10/01/2018 7:57 PM  
As Richard pointed out, there are unincorporated Associations that have bylaws.
RoyalpitA
(South Carolina)

Posts:149


10/02/2018 6:28 AM  
Thank you Richard and Tim.

I stand corrected.


The Constitution
Federal law
Federal Regulations
State Law
State Regulations
County Codes
City Ordinances
Covenants (aka deed restrictions)
Articles of Incorporation (if association is incorporated)
Bylaws
Resolutions adopted by the Board (typically rules/regulations on common areas, architectural guidelines, etc.)
KerryL1
(California)

Posts:5767


10/02/2018 10:26 AM  
Thank YOU, RPain for putting bylaws where it belongs in the hierarchy.
KerryL1
(California)

Posts:5767


10/02/2018 10:26 AM  
Thank YOU, RPain for putting bylaws where it belongs in the hierarchy.
RoyalpitA
(South Carolina)

Posts:149


10/02/2018 11:09 AM  
You are welcome,

however,

I did not move 'bylaws', I moved 'R&Rs'




And, after being WRONG, the world is STILL revolving



Unless, of course, I was wrong about being wrong,

but,

I conceded the point
RoyalpitA
(South Carolina)

Posts:149


10/02/2018 11:15 AM  
'My' final hierarchy:

US Constitution (which guarantees us the right to enter binding contracts)

Federal Law

State Law (incl. any 'HOA' legislation & State Corporate Law)

County Law

City Law (if any)

Covenants and Restrictions

Articles of Incorporation (if any)

Bylaws

Rules and Regulations (made by BODs governing common areas)
JeffT2
(Iowa)

Posts:400


10/03/2018 4:34 PM  
Yes, but aren't there exceptions in the real world?
RoyalpitA
(South Carolina)

Posts:149


10/12/2018 10:32 AM  
Posted By JeffT2 on 10/03/2018 4:34 PM
Yes, but aren't there exceptions in the real world?




The question then becomes:

Who is watching the exceptors ?

and

Who is watching the watchers ?





ps. yes, I do
EdC5
(Florida)

Posts:59


10/13/2018 9:29 AM  
While I agree with this, in general, you must read each community's docs; I managed a property where the docs were written so that if the Articles and Bylaws were in conflict the Bylaws controlled (thereby putting them higher in the hierarchy).

Edward J Cooke, CMCA, LCAM
RoyalpitA
(South Carolina)

Posts:149


10/13/2018 10:30 AM  
then that provision in the bylaws is 'de facto' invalid


it would be akin to the cart pulling the horse
GimmeJ
(Georgia)

Posts:6


10/15/2018 9:47 AM  
It's better to mention specific acts.

For example in California it's civic code 4205:

(a) To the extent of any conflict between the governing documents and the law, the law shall prevail.

(b) To the extent of any conflict between the articles of incorporation and the declaration, the declaration shall prevail.

(c) To the extent of any conflict between the bylaws and the articles of incorporation or declaration, the articles of incorporation or declaration shall prevail.

(d) To the extent of any conflict between the operating rules and the bylaws, articles of incorporation, or declaration, the bylaws, articles of incorporation, or declaration shall prevail.


For Georgia - Georgia condominium act 44-3-75:

In the event of any inconsistency between this article and the provisions of any declaration, this article shall control. Unless otherwise provided in the condominium instruments, in the event of any inconsistency between the declaration and the provisions of any bylaws of the association, the declaration shall control.

but it's not clear where rules are. 44-3-76 states only "reasonable rules or regulations adopted by the association pursuant to the condominium instruments (declaration)"

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