June 2023

GOVERNING DOCUMENT MAINTENANCE: Do Your Governing Documents Need a Tune Up? By Tana Bucca, Esq., EBP, Becker & Poliakoff LLP

A community association’s governing documents are the foundational documents that dictate how your association operates. These docu ments include the corporation’s Articles of Incorporation, its Master Deed (for condominiums), Declaration of Covenants, Conditions, and Restrictions (for HOAs), or a Proprietary Lease (for cooperatives), and the by-laws. Among other things, governing documents should delineate and distinguish homeowner responsibilities from association responsibilities. When you purchase a home in a common interest community, the governing documents are a useful source of information to confirm maintenance responsibilities. So, what happens if your Governing Documents conflict? It is sometimes the case that the language of a community’s governing docu ments conflict. However, in most cases, the governing documents themselves set forth the hierarchy of each document and specifically confirm what document is controlling over another in the event of a conflict. Governing documents typically provide that in the event of a conflict, the Articles of Incorporation are controlling, followed by the Master Deed (for condominiums), Declaration of Covenants, Conditions, and Restrictions (for HOAs), or Proprietary Lease (for cooperatives), and lastly the by-laws. If your documents conflict, and there is no clear hierarchy, it is advisable to adopt an amendment that confirms the governing document hierarchy. Even if the hierarchy of the governing document is clear, the maintenance responsibilities may be unclear or not specifically defined. Many governing documents confirm that everything beyond the drywall of the individual units and interior flooring is considered a part of the common property and an association responsibility. Your association may be responsible for the roof, pipes, wires, conduits, or other public utility lines running through the individual unit, which serve more than one unit. Some associations require owners to maintain plumb ing and electrical serving only their unit, while others do not.

“Even if the hierarchy of the governing document is clear, the maintenance responsibilities may be unclear or not specifically defined.”

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JUNE 2023