It’s the beginning of a new year so let’s start with some basic nuts and bolts information regarding homeowners associations. We’ll begin this series of blog articles with a discussion of the phrase “Governing Documents” which is used by board members, managers and homeowners.
What are the Governing Documents? They are the legal documents that govern and regulate the association and the community. The Governing Documents include the (i) Articles of Incorporation; (ii) Bylaws; (iii) Declaration; (iv) Plats (v) Rules and Regulations; and (vi) Resolutions. Each of these documents perform a particular function for the community.
- The Articles of Incorporation (“Articles”) organize and establish the nonstock corporation that is the homeowners association or as we now refer to them, the common interest community association. To form a corporation in Virginia, Articles must be filed with the State Corporation Commission. In general, the Articles provide information on the purpose of the association and identify the members and board of directors.
- The Bylaws set forth procedures for operating the association and the power and duties of board. The Bylaws will include specific provisions addressing board of director meeting procedures, member (lot owner) meetings, voting requirements, elections of officers and directors, budget process, establish the process for assessments and may address maintenance responsibilities.
- The Declaration is the document that establishes the type of community. The Declaration is recorded in the Circuit Court Clerk’s office where the property is located. It identifies Common Area, creates rights in owners to use the Common Area; establishes the assessment obligation for owner to pay dues; creates various easements; and defines the process for the developer to add property to the community development scheme.
- Plats are recorded with the Declaration and any supplemental declarations to show the location of roadways, common area and utility and drainage easements
- Rules and Regulations and Resolutions establish rules and procedures for the association. The adoption of Rules and Regulations is a power typically given to board of directors. Rules and Regulations govern the use of common areas and amenities and address such issues as pets, parking, safety rules for use of trails, pools and clubhouses, holiday decorations and trash disposal.
- Resolutions are used to address policies or to address a problem encountered by the association. The issue being addressed must be within the rule-making authority of the board. You may be familiar with your community’s collection policy or covenant enforcement policy. These are examples of resolutions that a board would consider.
In our next article, we will answer the question: What are Condominium Instruments?
Tarley Robinson, PLC, Attorneys and Counsellors at Law
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