The HOA Document Hierarchy

When you discover a glaring conflict between two of your HOA's governing documents, there's no need to despair. There is a ready-made solution waiting in the wings: a document hierarchy, typically imposed by the state, that orders your governing documents by authority. The governing-document hierarchy almost universally begins with the original HOA community plat or map at the top and the latest rules and regulations at the bottom. In many cases, you can use this hierarchy to quickly resolve conflicts between governing documents at different levels in the hierarchy. However, in some cases, you may find conflicts between the governing documents and federal, state and local laws, which require other solutions outlined below. As a last resort, there is always the option of amending your governing documents with a partial rewrite, which requires a special procedure.

The HOA document hierarchy

Although it's important to check your state laws to discover how your state specifically handles the hierarchy, the general pattern tends to look like the following, although the official language will not include "legislative law" in the hierarchy:

1. Legislative law (federal > state > local)
2. HOA plat/map
3. Declaration
4. Articles of incorporation
5. Bylaws
6. Rules and regulations

The laws of the land hold sway over the original HOA plat/map, which in turn holds sway over the HOA's declaration of its existence, and so on.

Factors driving the hierarchy

There are at least two underlying factors driving rank within the hierarchy. The first is temporal precedence and the second is a degree of generality.

Precedence

You can see the order of temporal precedence in the list above. Often as a matter of logical necessity, the plat is drafted and recorded before the declaration; the declaration before the articles of incorporation; the articles of incorporation before the bylaws; and the bylaws before the rules and regulations. Therefore, knowing which document was drafted and recorded first will often tell you which has the most authority.

Generality

The governing documents toward the top of the hierarchy will tend to have more general, foundational, strategic statements and rules than those governing documents found toward the bottom of the hierarchy, which tend to include more specific, procedural, tactical statements and provisions.

Appeals to the hierarchy

The beauty of the HOA document hierarchy is that you can often resolve conflicts between two HOA rules simply by reminding others, or yourself, that the two rules belong to two documents at different levels in the hierarchy. The one that belongs to a document higher up on the hierarchy holds sway. End of debate.

Collisions with legislative law

While it's no surprise that federal law holds sway to supersedes over state law, and state law over local law, it's not so clear that legislative law, as a whole, always holds sway over HOA governing documents, despite appearances in the extended hierarchy. This is true because the U.S. Constitution prevents states from passing laws that impair previously valid contracts. A rule of thumb to resolve such conflicts that arise between new, state-level legislation and pre-existing HOA rules (comprising a contract) is that if the new state law is merely procedural, then it holds supersedes the HOA rule. However, if it goes beyond stipulating how an HOA should enact or enforce a given rule and dictates a material change to an HOA rule itself, then the new state law may find itself in conflict with the federal law stated above and ultimately be unenforceable.

To sidestep the entire issue, many governing documents contain stipulations, known as "Kaufman" language, explicitly stating that any new state laws that come to pass will automatically amend the HOA governing document at hand to incorporate the legislative change.

Improving your documents

Sometimes the best solution to a conflict in your governing documents is neither to appeal to the hierarchy, or to include "Kaufman" language, but to rewrite a poorly worded or otherwise problematic statement or provision itself. However, you will need to follow a precise, perhaps even lengthy procedure in order for your amendment to be valid including consulting with your association legal counsel. You will generally find the rules for amending governing documents within the documents themselves, which will include an approval phase.

Help from the hierarchy

An HOA's document hierarchy provides a ready-made solution for resolving conflicts between two governing documents. Typically imposed by the state and reflecting precedence and degree of generality, the hierarchy gives each governing document a certain level of authority. Whether explicitly stated or not, the hierarchy always begins with the laws of the land (constitutional/federal, state and local), followed by the original HOA community plat or map, the HOA's declaration, the articles of incorporation, the HOA's bylaws, and finally the latest rules and regulations. In many cases, resolving conflicts between two governing documents is as simple as deferring to the one at the highest level in the document hierarchy. However, in some cases, you may find conflicts between your governing documents and the legislative law, which may require "Kaufman" language or an amendment to your governing documents. And remember, it is best practice to consult with your association's legal counsel for matters pertaining amending association documents.