The Declaration

How are the elements of a community defined? What determines the components of the common areas versus homeowner-owned areas? Where is it written that certain elements are the responsibility of the homeowner and others are the responsibility of the association? These issues and others are established in what’s commonly called an association’s declaration and bylaws (“governing documents”). Attorney David J. Byrne, of Ansell Grimm & Aaron, PC in Newtown, Pennsylvania spoke with us at length and explained the nuances of these governing documents, as well as many other important common interest community topics.

Several important notes – first, Pennsylvania’s Uniform Condominium Act applies to the state’s condominiums, and in contrast, Pennsylvania’s Uniform Property Act applies to homeowner associations (HOAs). Pennsylvania utilizes the term “declaration,” not the term “covenants, conditions, and restrictions” (CC&Rs), even though CC&Rs is the term most people across the country use to identify these types of governing documents, Byrne said. Second, both of these statutes are thorough and do not leave a lot to interpretation. However, the governing documents should be compliant with those statutes, thus leaving the governing documents essential.

The declaration is recorded with the county clerk’s office. In some states, they are accessible via a governmental internet system, Byrne said. In others, they can be found using a conventional title search. The declaration should not be confused with rules and regulations. Rules and regulations are something entirely different. Most notably, boards can generally change rules and regulations without holding a vote of the association’s members. The declaration cannot be changed in this manner. A declaration by law, generally, can be amended only via 67% of an association’s allocated votes, though it depends upon the subject or purpose of the amendment.

According to Byrne, a declaration is the document that governs the community from its outset. It is created by the developer, designated as the “declarant” by law. Rules and regulations, though, are created by the board, typically over the course of time. Rules and regulations are more easily created and more easily revised, Byrne said. Occasionally, however, they are not as easily enforced. Rules and regulations work in conjunction with the declaration and are allowed by law. They are used to supplement the governing documents, Byrne explained. “A decent analogy is the United States Constitution,” he said. “The Constitution lays out the powers of the branches of government, and then the branches create things within their perceived or actual powers. Rules and regulations are similar to the acts of Congress and more like the laws it enacts. The branches will inevitably seek to address issues that could not have been imagined when the Constitution was adopted and ratified in 1787. That’s how you look at rules and regulations working in conjunction with the declaration.”

As an example, the declaration may say that no commercial vehicles shall be parked within the confines of the community without board approval. That implies that the board can theoretically approve some commercial vehicles, Byrne said. The questions are, then: What commercial vehicles will be approved? How will they be approved? And, how will the restriction be enforced? “That’s what a rule or regulation is for,” he said.

Which governing document carries the most weight? According to Byrne, it’s the initial declaration. “A declaration is considered the more fundamental document, and that is the document that is typically harder to amend,” he said. Most declaration amendments are valid and/or enforceable only if by vote or agreement of owners to which at least 67% of the allocated votes. Some declaration amendments, such as one concerning the reallocation of limited common elements, may require unanimity or some other special agreement. For instance, there are some amendments that are valid only if done by unanimous consent of the owners. With respect to some subjects or portions, a declaration may require a super majority larger than 67%. An association can amend its bylaws in the manner provided in those bylaws. Per Pennsylvania law, in the event of a conflict between the provisions of the declaration and the bylaws, provides that the declaration prevails, except to the extent the declaration is inconsistent with the applicable parts of the law.

How detailed must the restrictions be in the governing documents? And what role does vague language play in drafting the “supreme law” of the community? Vague language can make the declaration more difficult to enforce, but it can also give the people serving on a board flexibility. According to Byrne, specificity—whether it be in the applicable statute or governing documents—is always best, but not necessarily so much specificity that the board’s flexibility is limited. For example, by law, an association may levy reasonable fines against an owner for violations of the governing documents and/or rules. A very specific way to be less vague would be to match a particular violation with a particular fine amount.

Existing law provides flexibility in terms of the amount, the way in which the fine gets levied, the way in which it gets waived, and the mechanism by which fines are noticed, he said. It gives the board the ability to function.

“If you’re looking at these things as a board member, you’ll think specific language gives more ability to enforce, but vague language gives more rights to create,” Byrne said. That’s especially important as boards are charged with the responsibility of creating and revising rules and regulations over the course of time to supplement, clarify and/or carry out rules and/or the governing documents. Conventional wisdom holds that boards are looking to enforce and control things, but that is quite often not the case, Byrne said. In fact, boards are often looking for ways to avoid controlling things and are sometimes limited in their discretion if the specificity of the language in the governing documents mandates that they do something. “They don’t want to end up in litigation,” Byrne said. “Specificity sometimes makes litigation unavoidable.”

Often, he said, boards want to be flexible and are looking to the governing documents for ways to prevent a lawsuit, rather than having those documents held over their heads. As Byrne explained, “It would, often, benefit the community as a whole to have governing documents that simply enumerate association powers, with the discretion as to when and how to carry them out, but not mandate various things.”