A POA’s governing documents, also referred to as the dedicatory instruments, are composed of a variety of document types that form the foundations for the operations of the community. While each document is important, each document has a different degree of authority and control over the functions of the association. In this article, we examine the hierarchy of governing documents and the authority they have in a POA.
What Types of Documents Make Up the POAs Governing Documents?
The governing documents for POAs consist of:
- Certificate of Formation (also known as the Articles of Incorporation)
- Architectural/Builder Guidelines
- Rules and Regulations/Policies
These documents are in descending order of authority over POAs. Think of it like a pyramid, with the plat at the top having the most authority over the POA down to the policies having the least authority, yet the widest reach. But what is the purpose of each of these documents within the governance of a POA?
Purpose of the Documents
Each type of governing document serves a different role over the governance of a POA. The following breakdowns the documents with a simple definition and purpose of each document within a POA.
- Plat – The framework for the community that identifies lots, setbacks, streets, common areas and easements. The plat must be filed with the county in which the property lies.
- Declaration – An instrument filed in the real property records of a county that includes restrictive covenants governing the POA.
- Certificate of Formation – Creates the association and sets forth its purpose, creates and names the initial board of directors, etc. An argument can be made that if the Certificate of Formation is recorded before the declaration, then the Certificate of Formation controls in the event of a conflict.
- Bylaws – Provides for framework for corporate governance, how the corporation functions. Examples include: Meetings, quorum, notice, election of directors, powers and duties of Board, Officer responsibilities, etc.
- Architectural/Builder Guidelines – Requirements for outside structure of a residence, any additions or modifications made to a residence or lot, etc.
- Rules and Regulations/ Policies – Detailed procedure for enforcement of specific restrictions, fills in the gaps and provides a more topic-focused document.
In addition to POA documents, further requirements are set by federal, state and local laws. These laws may set specifics on where the governing documents are required to be filed, allow for certain actions to be taken within the community, or override existing provisions in the governing documents. In most circumstances, these laws take precedence over the governing documents in the community.
Understanding the hierarchy of a POA’s governing documents can be perhaps as mind-turning as answering the question what came first, the chicken or the egg. With the many moving parts and increased action from the Texas Legislature, managers and board members face increasing difficulty with regard to keeping the community informed on the rules that should be abided by and the process of changing or enforcing the rules. For any questions on what the law says regarding governing documents, managers and board members should reach out to their legal counsel for further clarification.
©2023 RMWBH Law
Eric Tonsul is a Shareholder in the firm’s Community Association Law section. His practice includes representation of land developers, community associations, condominium associations and other common interest communities. Eric is Board Certified in Property Owners Association Law by the Texas Board of Legal Specialization. Eric graduated from South Texas College of Law in 2000.