Declaration of Restrictions -vs- Bylaws

Started by SusanP5 • 5 replies • 5057 views

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SusanP5 (Michigan)
Posts: 13

Posted:

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: 5,067

Posted:

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

Posted:

Quote:

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that mean that at some point the board may have applied for non-profit status and the Declaration of Restrictions is no longer valid?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: 482

Posted:

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: 1,767

Posted:

Quote:

Posted By SusanP5 on 07/27/2010 11:43 AM

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: 5,067

Posted:

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?

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