Governing Documents



Civil Code 1351(j) of the Davis-Stirling Act defines "Governing documents" as follows: "the declaration and any other documents, such as bylaws, operating rules of the association, articles of incorporation, or articles of association, which govern the operation of the common interest development or association." These are the operating instructions which describe to directors, members, managers, lenders, prospective purchasers, and sometimes even judges and juries, how the Association is to address matters of administration (found primarily in the Bylaws and Articles and some policies) and substance (found primarily in the Declaration and rules, policies and guidelines). Having clear and understandable Governing Documents can be the difference between ...

... a $5.00 wax toilet ring and a $50,000 wax toilet ring ...

... a smooth, reasonable and cooperative Board meeting and a five hour debacle with angry homeowners and a Board at impasse ...

... a quick answer to who is responsible for the water line damage beneath a tree on a Lot and a long, drawn out campaign of letter writing, finger pointing and expensive legal advice ...

... a timely and appropriate response to a member's request for documents and a $500 small claims judgment against the Association ...

... a well articulated set of architectural guidelines and a bright pink house with several matching flamingoes strategically posted in the front yard ...

If your Governing Documents generate more questions than answers, you may find yourself thinking "there ought to be a better way." As general counsel to well over a hundred homeowner associations and with over twenty-five years of experience advising associations generally, we have seen a wide range of ordinary, as well as extraordinary problems which need to be addressed. Updated Governing Documents can facilitate this process. We use this experience to draft appropriate tools to help avoid the problems other associations often address inefficiently and at great expense.

Our amended documents provide the following:

Provisions which reflect the latest in legislative requirements

Clean procedures for creating, implementing and enforcing rules and regulations.

New tools for architectural enforcement.

Easy to understand text for those portions redrafted.

Deletion of outdated declarant (developer) references and provisions.

Descriptive headings and a comprehensive table of contents.

Provisions which clarify those "gray areas" where it is unclear whether the owner or association is responsible for maintenance, repair and/or replacement of building components

Provisions to deal with such subjects as insect infestations, telephone wiring, and window and exterior door maintenance.

Provisions requiring notice of sale or lease of the property.

Step-by-step due process procedures for dealing with Governing Document violations, which include enforcement options.

Allocation of responsibility for insurance deductibles.

Specifying owner responsibility for tenants.

Provisions which reflect the latest in legislative requirements and give the Board the flexibility to update parts of the CC&Rs to reflect new laws - without the necessity of a vote of all members.

Limitations on actions against directors.

Coordination of Association responsibilities with reserve study.




Understanding Your Governing Documents

What Will You Do?

The $50,000 Wax Toilet Ring