A Member's Guide To Understanding Homeowners Associations (HOA) Governing Documents
Facts All HOA Members Must Know
TABLE OF CONTENTS:
- Basic homeowners association documents and hierarchy of authority
- Seller's obligation to disclose HOA documents & information
- Association's obligation to allow its members to review and copy the governing documents
- How much should HOA documents cost?
- Tips on how to obtain copies of HOA documents
- Prospective buyers: Homeowners association document checklist
The homeowners association's governing documents contain the rules, regulations, and all other contractual terms that members are bound by. If a property is part of an association, membership is automatic when you purchase that property. For this reason, most state laws require the sellers to disclose to the prospective purchasers that the home being considered is part of an association. The law also obligates the seller to disclose the association's contact information and documents governing the use and occupancy of the property.
To assist our readers in understanding the right to access the association's documents, we will explain: (1) what the basic association's governing documents are, (2) the legal obligation to disclose the association's information and documents during the sale of a residential property, (3) the association's duty to make the documents available to all of its members, (4) cost of association documents, and (5) tips on how to obtain copies of the association's documents.
Basic homeowners association documents and hierarchy of authority
All associations have the following basic set of governing documents (listed in order of hierarchy) that dictate how a community may be governed:
- Federal and state law - Unless the statute defers to the association's documents.
- Declaration of Covenants, Conditions & Restrictions (CC&Rs) - Contains the rights and responsibilities of each member and the responsibilities of the HOA to its members. Information about architectural restrictions, property use restrictions, property maintenance standards, and more.
- Articles of Incorporation - Includes basic information about the HOA including the name of the association, its location, and the purpose of the association.
- Bylaws - Set out the technical rules and procedures for things like voting, the election of directors, and term limits.
- Rules and Regulations - Details how the CC&Rs are interpreted and implemented.
These documents are legally binding based on the implied contractual agreement as a homeowner member of the community. Therefore, it is very important that prospective buyers carefully review the terms of each of these documents because buyers will be contractually bound by them once they acquire ownership of the property. Violating the terms may also constitute a breach of contract.
Seller's obligation to disclose HOA documents & information
As mentioned above, most states have specific disclosure laws that require sellers to inform prospective purchasers about implied contractual obligations, such as payment of maintenance fees, and restrictions limiting the use and occupancy of a property. In fact, most states have specific Disclosure Statements and Resale Disclosure Certificates which are issued by the state or real estate associations that summarize the specific information prospective purchasers are entitled to have.
Here are few examples:
- Arizona Revised Statutes Section 33-1806 (§33-1260 applies to condominiums), obligates the seller of a property that is subject to covenants to deliver to a purchaser the association's governing documents and information required by subsection A of the statute.
- California Civil Code Section 4525 provides that an owner who is selling a property located within an association must provide specific information and documents to the prospective purchaser as outlined in the statute.
- Florida Statute Section 720.401 (§718.503 for condominiums) provides that a prospective purchaser of a property must be presented with a homeowners' association Disclosure Summary before executing the contract of sale. The statute provides the form sellers must use to disclose the required information.
These statutes are examples of laws that have been established to protect the interests of prospective purchasers who are considering acquiring ownership of properties governed by homeowners associations. Prospective buyers have the power to rescind the purchase contract if the seller fails to comply with state disclosure laws.
Association's obligation to allow its members to review and copy the governing documents
Members of homeowners' associations have the right to review and copy the association's documents also known as the "official records" after written request. The right to examine the association's documents stems from the contractual provisions of the association's governing documents and state laws.
Here is a list of the documents that are considered the official records of the association:
LIST OF HOMEOWNERS ASSOCIATIONS OFFICIAL documents
- All documents provided by the developer, such as community maps, plats, plans, land surveys, permits.
- Recorded Declaration of Covenants, Conditions and Restrictions (CC&Rs), Articles of Incorporation, Bylaws and any amendments.
- Rules and Regulations.
- All board and membership meeting Notices and Minutes, and related documentation.
- Membership roster that includes the Association's members' mailing addresses, units/lot, and telephone numbers
- Association's Insurance policies.
- Association's third-party agreements or contracts.
- Copies of Judgments, Liens, or any encumbrances recorded against, or on behalf of the Association.
- Recorded instruments related to all properties owned by the Association.
- Association documents related to membership voting, the election of officers, directors, and membership approvals, such as Ballots, Proxies, Notices, Minutes.
- All rental records of the Association, if the Association acts as a rental agent.
- All Association accounting records for the past 3 years, including but not limited to:
- Records of receipts and expenditures,
- Current account ledgers for each member of the Association reflecting the member's name, amount and due date of each annual assessment, payments made to the account and the current balance due,
- All Association financial reports, reviews, and audits,
- All contracts for work to be performed, including bids,
- Invoices for purchases made by the Association
- Other Association official records that relate to the operation and management of the community.
- All Association insurance records.
STATE LAWS GOVERNING THE RIGHT TO REVIEW AND COPY THE HOMEOWNERS ASSOCIATIONS DOCUMENTS
As you will see, some states have more developed laws pertaining to a member's right to inspect the association's documents than others. For example, California, Florida, and Arizona laws are quite detailed, whereas other states like Mississippi, Missouri, Oklahoma, Wisconsin will merely apply the principles of contract law.
This list of statutes below is not exhaustive and includes just some of the laws concerning the owner's right to inspect or examine the association's documents. To gain access to your state's applicable laws, please follow this link.
- Alabama Code, § 35-20-13 (b) - The law states that "[u]pon written request by a member or potential purchaser and upon payment of reasonable costs, the homeowners' association, as specified in subsection (a), shall provide or direct the member or potential purchaser to the location of the public record containing..."
- Alaska Statutes, § 34.08.490(a) - The association shall keep financial records sufficiently detailed to enable the association to comply with AS 34.08.590. Financial and other records must be made reasonably available for examination by a unit owner and an authorized agent of a unit owner.
- Arizona Revised Statutes, § 33-1805(A) - All financial and other records of the association shall be made reasonably available for examination by any member or any person designated by the member in writing as the member's representative. The association shall not charge a member or any person designated by the member in writing for making material available for review. The association shall have ten business days to fulfill a request for examination. On request for purchase of copies of records by any member or any person designated by the member in writing as the member's representative, the association shall have ten business days to provide copies of the requested records. An association may charge a fee for making copies of not more than fifteen cents per page.
- California Code, Civil Code §5205 - The association shall make available association records for the time periods and within the timeframes provided in Section 5210 for inspection and copying by a member of the association, or the member’s designated representative. See also Section 4040 for rules on written requests by members.
- Colorado Revised Statutes, § 38-33.3-117(2)(a) - This law provides that "all records maintained by the association must be available or examination and copying by a unit owner or the owner's authorized agent, the association may require unit owners to submit a written request, describing the reasonable particularity the records sought, at least ten days prior to inspection or production of the documents, and may limit examination and copying times to normal business hours or the next regularly scheduled executive board meeting if the meeting occurs within thirty days after the request. Notwithstanding any provision of the Declaration, Bylaws, Articles, or Rules and Regulations of the association to the contrary, the association may not condition the production of records upon the statement of a property purpose."
- Connecticut General Statutes, § 47-260(b) - All records retained by an association shall be available for examination and copying by a unit owner or the owner’s authorized agent.
- Delaware Code, § 81-318(b) - all records kept by the association, including the association's membership list and address, and aggregate salary information of employees of the association, shall be available for examination and copying by a unit owner or the unit owner's authorized agent so long as the request is made in good faith and for a proper purpose related to the owner's membership in the association. This right of examination may be exercised: (i) only during reasonable business hours or at a mutually convenient time and location, and (ii) upon 5-days' written notice reasonably identifying the purpose for the request and the specific records of the association requested.
- Georgia Code, § 14-3-1602 - A member is entitled to inspect and copy, at a reasonable time and location specified by the corporation, any of the records of the corporation described in subsection (a) of this Code section if the member gives the corporation written notice or a written demand at least five business days before the date on which the member wishes to inspect and copy.
- Kansas Statutes, § 58-4616(b) - All records retained by an association must be available for examination and copying by a unit owner or the owner's authorized agent.
- Kentucky Revised Statutes, § 381.9197(1) - All financial and other records shall be made reasonably available for examination by any unit owner and his or her authorized agents.
- Maine Revised Statutes, Title 33, §577 - The manager or board of directors shall keep detailed, accurate records in chronological order, of the receipts and expenditures affecting the common areas and facilities, specifying and itemizing the maintenance and repair expenses of the common areas and facilities and any other expenses incurred. Such records and the vouchers authorizing the payments shall be available for examination by the unit owners at convenient hours of weekdays.
- Maryland Real Property Code, § 11b–112(a)(1) - All books and records kept by or on behalf of the homeowners association shall be made available for examination or copying, or both, by a lot owner, a lot owner's mortgagee, or their respective duly authorized agents or attorneys, during normal business hours, and after reasonable notice.
- Michigan Condominium Act, § 559.157 - The books, records, contracts, and financial statements concerning the administration and operation of the condominium project shall be available for examination by any of the co-owners and their mortgagees at convenient times. The state does not have an Act for homeowners associations.
- Minnesota Statutes, § 515B.3-118 - All records, except records relating to information that was the basis for closing a board meeting under section 515B.3-103, paragraph (g), shall be made reasonably available for examination by any unit owner or the unit owner's authorized agent, subject to the applicable statutes.
- Missouri Revised Statutes, § 448.3-118 -The association shall keep financial records sufficiently detailed to enable the association to comply with section 448.4-107. All financial and other records shall be made reasonably available for examination by any unit owner and his authorized agents.
- Nebraska Revised Statutes, § 76-816 - The board of administrators, or other form of administration specified in the bylaws, shall keep or cause to be kept a book with a detailed account, in chronological order, of the receipts and expenditures affecting the condominium property regime and its administration and specifying the maintenance and repair expenses of the common elements and all other expenses incurred. Both the book and the vouchers accrediting the entries made thereupon shall be available for examination by any co-owner or any prospective purchaser at convenient hours on working days that shall be set and announced for general knowledge. Any prospective purchaser must be designated as such by a co-owner in writing. For condominiums created in this state before January 1, 1984, the provision on the records of the administrative body or association in section 76-876 shall apply.
- Nevada Revised Statutes, § 116B.680 - All financial and other records of the association must be (a) Maintained and made available for review at the business office of the association or some other suitable location within the county where the condominium hotel is situated or, if it is situated in more than one county, within one of those counties; and (b) Made reasonably available for any unit’s owner and his or her authorized agents to inspect, examine, photocopy and audit.
- New Hampshire Statutes, § 479-A:19 - The manager or board of directors, as the case may be, shall keep detailed, accurate records in chronological order of the receipts and expenditures affecting the common areas and facilities, specifying and itemizing the maintenance and repair expenses of the common areas and facilities and any other expenses incurred. Such records and the vouchers authorizing the payments shall be available for examination by the unit owners at convenient hours of weekdays.
- New Jersey Condominium Act, N.J.S.A. 46:8B-14(g) - The association, acting through its officers or governing board, shall be responsible for the maintenance of accounting records, in accordance with generally accepted accounting principles, open to inspection at reasonable times by unit owners. The New Jersey Appellate Court has held that the law also applies to homeowners associations and cooperatives. See Planned Real Estate Full Disclosure Act (N.J.S.A. 45:22A-44b).
- N.Y. Real Prop. Law § 339-Q - True copies of the floor plans, the declaration, the by-laws and any rules and regulations shall be kept on file in the office of the board of managers and shall be available for inspection at convenient hours of weekdays by persons having an interest. See also N.Y. Real Prop. Law § 339-W - Books of receipts and expenditures; availability for examination. The manager or board of managers, as the case may be, shall keep detailed, accurate records, in chronological order, of the receipts and expenditures arising from the operation of the property. Such records and the vouchers authorizing the payments shall be available for examination by the unit owners at convenient hours of weekdays. A written report summarizing such receipts and expenditures shall be rendered by the board of managers to all unit owners at least once annually.
- The Ohio Condominium Act, Chapter 5311.091 of the Ohio Revised Code - Except as otherwise prohibited by this section, any member of a unit owners association may examine and copy the books, records, and minutes described in division (A) of section 5311.09 of the Revised Code pursuant to reasonable standards set forth in the declaration, bylaws, or rules the board promulgates, which may include, but are not limited to, standards governing the type of documents that are subject to examination and copying, the times and locations at which those documents may be examined or copied, and the specification of a reasonable fee for copying the documents. See also The Non Profit Corporations Law, Section 1702.15 - Each corporation shall keep correct and complete books and records of account, together with minutes of the proceedings of its incorporators, members, directors, and committees of the directors or members. Subject to limitations prescribed in the articles or the regulations upon the right of members of a corporation to examine the books and records, all books and records of a corporation, including the membership records prescribed by section 1702.13 of the Revised Code, may be examined by any member or director or the agent or attorney of either, for any reasonable and proper purpose and at any reasonable time.
- Oregon Planned Community Act, ORS 94.670(9)(a) - Except as provided in paragraph (b) of this subsection, the association shall make the documents, information and records described in subsections (1) and (4) of this section and all other records of the association reasonably available for examination and, upon written request, available for duplication by an owner and any mortgagee of a lot that makes the request in good faith for a proper purpose. See also Oregon Condominium Act, ORS 100.480 and Oregon Non-Profit Corporations Act at ORS 65.774.
- Pennsylvania Nonprofit Corporation Law, 15 Pa.C.S. § 5508(b) - Every member shall, upon written verified demand stating the purpose thereof, have a right to examine, in person or by agent or attorney, during the usual hours for business for any proper purpose, the membership register, books and records of account, and records of the proceedings of the members, directors and any other body, and to make copies or extracts therefrom. A proper purpose shall mean a purpose reasonably related to the interest of the person as a member. See also 68 Pa. C.S. § 3316 of the Uniform Condominium Act.
- Rhode Island Condominium Ownership Act, § 34-36-17 - The manager or management committee shall keep detailed, accurate records in chronological order, of the receipts and expenditures affecting the common areas and facilities, specifying and itemizing the maintenance and repair expenses of the common areas and facilities and any other expenses incurred. Records and the vouchers authorizing the payments involved shall be available for examination by the unit owners at convenient hours of weekdays.
- Texas Business Organizations Code, § 22.351 - A member of a corporation, on written demand stating the purpose of the demand, is entitled to examine and copy at the member's expense, in person or by agent, accountant, or attorney, at any reasonable time and for a proper purpose, the books and records of the corporation relevant to that purpose. See also Texas Residential Property Owners Protection Act, § 209.005 - Notwithstanding a provision in a dedicatory instrument, a property owners' association shall make the books and records of the association, including financial records, open to and reasonably available for examination by an owner, or a person designated in a writing signed by the owner as the owner's agent, attorney, or certified public accountant, in accordance with this section. An owner is entitled to obtain from the association copies of information contained in the books and records.
- The Vermont Uniform Common Interest Ownership Act, 27A V.S.A. § 3-118(b) - Subject to subsections (c) and (d) of this section, all records retained by an association must be available for examination and copying by a unit owner or the owner's authorized agent. See also Vermont Condominium Ownership Act, § 1320 - The manager or board of directors, as the case may be, shall keep or see to keeping of detailed, accurate records in chronological order, of the receipts and expenditures affecting the common areas and facilities, specifying and itemizing the maintenance and repair expenses of the common areas and facilities and any other expenses incurred. Those records and the vouchers authorizing the payments shall be available for examination by the apartment or site owners at convenient hours of week days.
- Utah Community Association Act, § 57-8a-227 - Subject to Subsection (1)(b), an association shall keep and make documents available to lot owners. See Also Utah Condominium Ownership Act, § 57-8-17 - The manager or management committee shall (a) keep detailed, accurate records in chronological order, of the receipts and expenditures affecting the common areas and facilities, specifying and itemizing the maintenance and repair expenses of the common areas and facilities and any other expenses incurred; and (b) make those records available for examination by any unit owner at convenient hours of weekdays no later than 14 days after the unit owner makes a written request to examine the records.
- Wisconsin Condominium Ownership Act, § 703.20(1) - An association shall keep detailed, accurate records using standard bookkeeping procedures of the receipts and expenditures affecting the common elements, specifying and itemizing the maintenance and repair expenses of the common elements and any other expenses incurred. The records and the vouchers authorizing the payments shall be available for examination by the unit owners at convenient hours.
How much should HOA documents cost?
Many prospective buyers are surprised that there are costs associated with obtaining copies of HOA documents. After all, how can you determine if you are willing to agree to the rules without reading them?
Some states limit the amount an association can charge for the preparation and reproduction of HOA documents. For example, under A.R.S. § 33-1806(C), Arizona caps an HOA's disclosure fees—the amount charged for the preparation of documents—at an aggregate of $400. Does your state have a similar limitation? Explore your state laws to find out.
In most states, when a property is under contract, the seller is required to provide the buyer with the HOA's governing documents, so that the buyer has full disclosure. In that situation, the seller is typically responsible for the costs associated with producing copies of the HOA documents.
Tips on how to get copies of HOA documents
There are a few savvy strategies owners or prospective buyers can employ to avoid paying hefty fees:
- Contact your association directly. Most associations provide online access to all community documents, if you are an existing member of the community.
- Talk to your neighbors.
- Send your association a written request for inspection of the association's official records. As mentioned above, owners have the right to inspect and make copies of the association's documents.
- Search the public records of your county recorder's office. All counties have an office responsible for storing and maintaining public records such as deeds, covenants, mortgages, etc. The association's documents must be recorded with the county recorder's office in order to be enforceable.
- If you are selling your home, you are only obligated to provide the documents listed under your state's statute to the prospective buyer. To avoid paying fees for other documents which may be bundled with the required documents, you can request a list of the documents being included in the "Resale Package," and the fees associated with each document. This will force the association or its management company to disclose exactly which documents are being provided and the precise fees being charged. It will also give you the opportunity to reject the documents you are not legally obligated to disclose.
Prospective buyers: Document checklist & considerations
Before purchasing a property that is ruled by a homeowners association, it is important to obtain and review several important documents that can inform you how that particular association functions and potential challenges you may experience as a homeowner member. In addition, these documents can help you decide whether you would want to be a member of that association and whether you are willing to agree to the terms of its governing documents.
For example, most associations prohibit commercial vehicles, boats, RVs, on-street parking, basketball hoops, exterior alterations, rentals, etc. Therefore, before purchasing, you should be sure to obtain and review:
All documents provided by the developer, such as community maps, plats, plans, land surveys, permits,
Recorded Declaration of Covenants, Conditions, and Restrictions (CC&Rs), Articles of Incorporation, Bylaws and any amendments,
Rules and Regulations,
The history of lot/unit violations,
Account statement for the lot/unit starting with a zero balance to determine if there are any unpaid fines, costs, interests, attorney fees,
Notices of past due assessments (if any),
All board and membership meeting Notices and Minutes, and related documentation for the past 2 years,
Association's Insurance policies,
Copies of Judgments, Liens, or any encumbrances recorded against the property,
Financial statements, budget reports, special assessments. This will help prospective buyers determine if the association has an operating expenses and savings account, and if it actually saved funds to avoid special assessments.
For condominiums, buyers should check for building issues such as, heating and cooling equipment, roofs, demising windows and walls. Overlooking the physical condition of the building can result in unfortunate financial burdens. The key is to identify any long term repairs.
Other Association official records that relate to the operation and management of the community.
After obtaining and reviewing the documents listed above, carefully consider the following questions:
- Does your association have capital reserves for common elements repairs?
- What is the condition of the condo infrastructure?
- Can you afford the HOA fees?
- Is there a limit on how high the HOA can raise fees?
- What does the HOA fee cover?
- Does the HOA have reserve funds?
- Are there any anticipated special fees?
- How is liability assessed and allocated for common expenses of HOA members?
- Does the HOA have fire insurance?
- Am I comfortable with and able to fulfill my maintenance and repair obligations?
- Am I willing to comply with all restrictions?
- Am I comfortable with and willing to accept the enforcement process and policies?
The decision to purchase a property within an HOA requires many considerations. When you become a member of an HOA, you enter into a contractual relationship with the HOA that is legally binding and requires you to fulfill certain responsibilities and follow all rules.
The best way to avoid fines and disputes is to be fully aware of the rules and restrictions you are agreeing to by purchasing the property (remember that membership is not optional—it is automatic) and making an informed decision about whether you are willing to comply with those rules.