Get 6 months of free community web site hosting from Community123.com!
Monday, October 20, 2014
HOA Websites by Community123.com (National Community Website Provider)
We built HOATalk and we'll build your community website for free!  Click here for information on a free trial website.
Community Associations Network (National HOA Reference Library)
News, articles and blogs about condos/HOA's
Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.
Subject: Declaration of Restrictions -vs- Bylaws
Prev Next
Please login to post a reply (click Member Login on the menu).
Author Messages
SusanP5
(Michigan)

Posts:13


07/27/2010 9:57 AM  
I went to the Registrar of Deeds for my county and pulled the Declaration of Restrictions. I also requested a search for any and all updates or ammendments - none have been filed.

On the HOA website, they have a document called "Bylaws."

At no point in the Declaration of Restrictions do they reference "Bylaws."

The "Bylaws" appear to be very similar to the Declaration of Restrictions - however there are changes which contradict the Declaration of Restrictions.

Are the "Bylaws" binding since they have not been filed?

If these changes were approved at some point, why would they not be filed with the Registrar?

RogerB
(Colorado)

Posts:4885


07/27/2010 11:08 AM  
Susan, The Declaration of Covenants, Conditions, and Restrictions and any amendments thereto apply to every lot (unit) in the defined area. They must be filed with the County Cleck and Recorder before they are enforceable. The Bylaws may or may not need to be filed with the County (we don't file them). They apply to the homowers association which the owners may (manditory assessment) or may not (voluntary dues) be members. The Bylaws establish the organizational structure of the HOA and are filed with the secretary of state if and when the HOA applies with the state as a not for profit organization.
SusanP5
(Michigan)

Posts:13


07/27/2010 11:43 AM  
Posted By RogerB on 07/27/2010 11:08 AM
The Bylaws establish the organizational structure of the HOA and are filed with the secretary of state if and when the HOA applies with the state as a not for profit organization.




So does that mean that at some point the board may have applied for non-profit status and the Declaration of Restrictions is no longer valid?

What's confusing is that it is basically the same info, with some changes/updates.
DanielH1
(California)

Posts:481


07/27/2010 12:14 PM  
Not an expert but I'd suspect that ...

Restrictions take precedence.

If a Bylaw was more restrictive than a Restriction, you would follow the Bylaw. If a Bylaw contradicted or attempted to invalidate a Restriction, the Restriction would win.

So, Bylaws would fill in the gaps or "upgrade" the Restrictions where ever it applied.

The requirement to file Bylaws may vary from state to state, entity type to entity type. I'm fairly sure that many states don't care and don't want to hassle with Bylaws. (They just have a "declaration" type statement that says that the entity exists.)
RichardP13
(California)

Posts:1659


07/27/2010 12:17 PM  
Posted By SusanP5 on 07/27/2010 11:43 AM
Posted By RogerB on 07/27/2010 11:08 AM
The Bylaws establish the organizational structure of the HOA and are filed with the secretary of state if and when the HOA applies with the state as a not for profit organization.




So does that mean that at some point the board may have applied for non-profit status and the Declaration of Restrictions is no longer valid?

What's confusing is that it is basically the same info, with some changes/updates.




If you read Chapter One of the Board Tool Kit, it should answer your question.

CCR's and Articles of Incorporation must be recorded with the County in which the property resides because it runs or is attached to the land. The Bylaws are instructions on how the corporation is to be run, BOD,meetings, elections, officers, duties, etc..Because they aren't attached or run with the land, they don't have to be recorded, but some Associations do have them recorded.

What is important is that you know the hierarchy of the documents: 1) State Law, 2) Article of Incorporation, 3) CCR's, 4) Bylaws, and 5) Rules and Regulations. Your Bylaws, at the end, should state that if there is a conflict between the CCR's and the Bylaws, the CCR's will prevail.
RogerB
(Colorado)

Posts:4885


07/27/2010 1:11 PM  
Susan, If you have a Declaration of CC&Rs without an HOA. There can be a Declaration and an HOA without having Articles of Incorporation. The Declaration is the key controlling document and goes with the property whether or not there is an HOA. If there is an HOA it needs to have Bylaws by which the members of the organization operates. If the HOA choses to Incorporate they must file Articles of Incorporation with the state and file a copy of the Bylaws. It is prudent for a Covenant Controlled community to have an HOA to enforce the restrictions; and it is prudent for an HOA to be incorporated to establish the HOA as a not for profit organization and to provide a "corporate shield" for the officers.

Does this help to clarify?
Please login to post a reply (click Member Login on the menu).
Forums > Homeowner Association > HOA Discussions > Declaration of Restrictions -vs- Bylaws



General Legal Notice:  The content of forum messages are from the posting member and have not been reviewed nor endorsed by HOATalk.com.  Messages posted by HOATalk or other members are for informational purposes only, are not legal or professional advice and do not constitute an attorney-client relationship.  Readers should not act upon this information without seeking professional counsel.  HOATalk is not a licensed attorney, CPA, tax advisor, financial advisor or any other licensed professional.  HOATalk accepts ads from sponsors but does not verify sponsor qualifications nor endorse/guarantee any sponsor's product or service.
HindmanSanchez Legal Notice:  (For messages posted by HindmanSanchez) This message has been prepared by HindmanSanchez for informational purposes only and does not constitute legal advice. This information is not intended to create, and receipt of it does not constitute an attorney-client relationship. Members of HOATalk.com should not act on this information without seeking professional counsel. Please do not send us confidential information unless you speak with one of our attorneys and get authorization to send that information to us. If you wish to initiate possible representation, please contact an attorney in our firm. Our attorneys are licensed to practice law in the state of Colorado only.

Legal Notice For Messages Posted by Sponsoring Attorneys: This message has been prepared by the sponsoring attorney for informational purposes only and does not constitute legal advice. This information is not intended to create, and receipt of it does not constitute an attorney-client relationship. Readers of HOATalk.com should not act on this information without seeking professional counsel. Please do not send any sponsoring attorney confidential information unless you speak with the sponsoring attorney or an attorney from the sponsoring attorney’s firm and get authorization to send that information to them. If you wish to initiate possible representation, please contact an attorney in the firm of the sponsoring attorney. Sponsoring attorneys that post messages here are licensed to practice law in a specific state or states as indicated in their message signature or sponsor’s profile page. (NOTE: A ‘sponsoring attorney’ is an attorney that is a HOATalk.com official sponsor and is identified as such in the posted message or on our sponsor page.)

Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.
Copyright HOA Talk.com, A Service of Community123 LLC ( Homeowners Association Discussions )   Terms Of Use  Privacy Statement