Homeowners associations (HOAs) rely on several governing documents, including declarations (CC&Rs), bylaws, and rules and regulations. Although these documents work together, each serves a different purpose.

HOA boards sometimes adopt rules without fully considering whether they have the authority to do so under the association’s governing documents or applicable Utah law. This can happen because adopting a rule is often procedurally simpler than amending the declaration, which may require approval from the membership.

A board’s rulemaking authority, however, is not unlimited. Rules generally cannot override or contradict the declaration. Boards must ensure that new rules are consistent with the association’s governing documents and applicable law.

 

1. What Is the Difference Between CC&Rs and HOA Rules?

CC&Rs

The declaration generally establishes the fundamental rights and responsibilities of homeowners and the association. It often addresses matters such as property use, maintenance responsibilities, assessments, architectural restrictions, and enforcement authority.

The declaration is recorded against the properties within the association and generally runs with the land, meaning its provisions may continue to apply when ownership changes.

Rules and Regulations

Rules and regulations generally address the day-to-day operation of the association and regulate matters within the board’s authority. Examples may include pool hours, parking procedures, clubhouse reservations, and trash disposal.

Unlike the declaration, which typically establishes the community’s fundamental restrictions and obligations, rules often provide more detailed requirements for the use and operation of the community. Rules are generally not recorded against individual properties and may be adopted by the board when authorized by the governing documents and applicable law.

 

2. Can HOA Rules Conflict With the CC&Rs?

Generally, a board cannot use its rulemaking authority to override or contradict the declaration. Although an HOA board may have authority to adopt rules governing the community, that authority is subject to the declaration and applicable law.

A board generally cannot use a rule to circumvent the declaration or make a change that requires a formal amendment.

For example, if the declaration expressly grants homeowners a particular property right, the board generally cannot eliminate that right through a new rule. Similarly, if the declaration establishes specific parking rights, the board generally cannot eliminate those rights simply by adopting a parking rule.

The declaration may, however, grant the board authority to adopt rules addressing certain matters in greater detail. In those circumstances, a rule may impose additional requirements as long as it remains within the authority granted by the governing documents and does not conflict with applicable law.

The key question is whether the rule reasonably regulates a matter within the board’s existing authority or instead attempts to change a right or restriction established by the declaration.

Importantly, not every restriction adopted through a rule necessarily conflicts with the declaration. For example, a declaration may provide that street parking is prohibited unless otherwise permitted by a rule adopted by the board. In that situation, the declaration expressly grants the board authority to regulate street parking through rules.

A rule permitting or restricting street parking within the scope of that authority would not necessarily conflict with the declaration. The important distinction is whether the declaration authorizes the board to regulate the particular matter or whether the proposed rule attempts to change a right or restriction established by the declaration.

 

3. What Happens When an HOA Adopts a Rule Without Proper Authority?

Adopting a rule without proper authority can create confusion and disputes within the community. Homeowners may challenge the rule, and the association may have difficulty enforcing it if the rule exceeds the board’s authority or conflicts with the governing documents.

These disputes can also result in unnecessary legal expenses for the association. Before attempting to enforce a disputed rule, the board should review the rule’s validity and determine whether it was properly adopted and falls within the board’s authority.

 

4. What Should HOA Boards Do Before Adopting New Rules?

Before adopting a new rule, HOA boards should:

• Review the governing documents. Identify the provisions that authorize the board to adopt rules and determine whether the proposed rule falls within that authority.
• Check for conflicts. Confirm that the proposed rule is consistent with the declaration, bylaws, and applicable law.
• Determine whether an amendment is necessary. Consider whether the proposed change would alter an existing right or restriction and therefore require a formal amendment rather than a board-adopted rule.
• Follow the proper procedures. Ensure that the board follows all applicable requirements for adopting and communicating the rule.
• Consult legal counsel when necessary. If the board is uncertain about its authority or whether a proposed rule conflicts with the governing documents, it should seek legal guidance before proceeding.

 

Conclusion

Although adopting rules is often simpler than amending the declaration, rules are not a shortcut for changing the association’s governing documents. A board must exercise its rulemaking authority within the limits established by the declaration and applicable law.

Before adopting a new rule, boards should consider whether they are regulating a matter already within their authority or attempting to change an existing right or restriction. Making that distinction before adopting a rule can help prevent disputes, avoid unnecessary legal expenses, and ensure that the association’s governing documents work together as intended.