Your HOA’s governing documents are the foundation of everything you do as a board member. They define your authority, outline your responsibilities, establish the rules your community lives by, and provide the framework for governance.
Yet many board members in Charlotte, Matthews, Huntersville, and surrounding communities have never fully read their governing documents. They rely on memory, assumptions, or what the previous board did. This creates problems – legal exposure, invalid decisions, inconsistent enforcement, and homeowner disputes.
Whether you’re a new board member trying to understand your authority or an experienced director dealing with enforcement challenges, you need a solid understanding of your governing documents and how to work within them.
Your HOA has multiple governing documents, and they exist in a specific hierarchy. Understanding this hierarchy helps you know which document controls when there’s a conflict.
Declaration of Covenants, Conditions, and Restrictions (CC&Rs or Declaration) sits at the top. This is the master document recorded when your community was created. It runs with the land, meaning it binds current and future homeowners. The declaration typically covers property use restrictions, architectural standards, assessment authority, board powers and duties, amendment procedures, and enforcement mechanisms.
Articles of Incorporation establish your HOA as a legal entity – typically a nonprofit corporation in North Carolina or South Carolina. They include the association’s legal name, registered agent information, corporate purpose, and basic structural information.
Bylaws govern the internal operations of your corporation. They typically address board structure and election procedures, officer roles and duties, meeting requirements and notice, voting procedures and quorum requirements, and amendment processes.
Rules and Regulations are detailed policies adopted by the board under authority granted in the declaration or bylaws. These often cover parking rules, amenity usage policies, pet regulations, rental restrictions, and architectural guidelines.
When documents conflict, the hierarchy controls. Declaration trumps bylaws. Bylaws trump rules. If your declaration requires 30 days notice for meetings but your bylaws say 14 days, you must give 30 days notice.
North Carolina and South Carolina statutes also apply. State law supersedes all documents. If your documents violate state law, the law controls.
The declaration is your most important document. Let’s break down what’s typically in there and what it means for your board.
Use restrictions define what homeowners can and can’t do with their property. Common restrictions include no commercial businesses, no certain types of pets, no parking boats or RVs, no exterior modifications without approval, and no nuisance activities.
These restrictions exist to protect property values and maintain community character. When you enforce them consistently, they work. When you enforce them selectively or not at all, they become meaningless.
Assessment provisions give your board authority to levy assessments and establish how assessments can be increased, when special assessments are allowed, what happens when homeowners don’t pay, and what lien rights the association has.
This is crucial for your financial management. Without clear assessment authority in your declaration, you can’t fund your association.
Board powers and duties define what your board can and cannot do. Most declarations grant broad authority to manage the association, but there are usually limits. Some decisions might require homeowner approval. Know your boundaries.
Architectural control provisions establish the architectural review process, what requires approval, approval timeframes, and appeal procedures. Many Charlotte-area communities have detailed architectural guidelines supplementing the declaration.
Amendment procedures explain how to change the declaration – typically requiring a supermajority (67% or 75%) of homeowners. This makes amendments difficult but protects against hasty changes.
Enforcement mechanisms outline how the association can enforce rules, including inspection rights, violation notice procedures, fine authority, and legal remedies.
While the declaration establishes what the association can do, bylaws establish how it operates.
Board composition and elections sections specify how many board members you have, what positions exist, how long terms last, how elections are conducted, and how vacancies are filled.
Don’t violate your election procedures. Courts have invalidated board actions when elections weren’t conducted according to bylaws.
Meeting requirements detail how often you must meet, notice requirements for meetings, quorum requirements, and voting procedures.
These aren’t optional. If your bylaws require 14 days notice for annual meetings and you only give seven, homeowner votes taken at that meeting could be invalid.
Officer duties describe what each officer is responsible for – president, vice president, treasurer, secretary. These vary by community, so read your specific bylaws.
Amendment procedures for bylaws are usually easier than amending the declaration – often requiring a majority or two-thirds vote of the board or membership.
Fiscal year and budget procedures establish your financial calendar and budget adoption requirements.
Rules and regulations allow your board to establish detailed policies under authority granted in the declaration or bylaws.
The advantage of rules is flexibility. You can adopt, amend, or repeal rules with a board vote – no homeowner approval needed (usually). This allows you to respond to changing community needs.
Rules must be reasonable and consistent with the declaration and bylaws. You can’t create rules that contradict higher documents. If your declaration allows pets, you can create rules about leash requirements, but you can’t ban pets entirely through rules.
Common areas for rules include parking policies (where to park, visitor parking, commercial vehicles), amenity usage (pool hours, guest policies, reservation procedures), pet policies (leash requirements, waste cleanup, restricted breeds), rental restrictions (lease terms, registration requirements, tenant responsibilities), and noise and nuisance regulations.
When adopting new rules, follow proper procedures: provide notice to homeowners, allow opportunity for input, vote at a properly noticed board meeting, and distribute new rules to all homeowners.
Most Charlotte-area HOAs require homeowners to get approval before making exterior changes. This maintains architectural harmony and protects property values.
Your declaration or architectural guidelines typically specify what requires approval. Common items include exterior paint colors, landscaping changes, fences and walls, decks and patios, sheds and outbuildings, roof replacements (if changing material or color), windows and doors (if changing style), satellite dishes and solar panels, and pools and spas.
The architectural review process usually involves homeowners submitting an application with detailed plans or specifications, the architectural review committee (ARC) or board reviewing the request, approval, denial, or request for modifications, and a specified timeframe for response (often 30-45 days).
Establish clear guidelines for what’s acceptable. Vague standards like “aesthetically pleasing” create problems. Specific guidelines like “earth-tone colors from the approved palette” give homeowners clarity.
Be consistent in your approvals. If you approve white fences for some homeowners, you can’t deny them for others without clear, documented reasons.
Respond within required timeframes. Many declarations say that if the ARC doesn’t respond within a specified period (often 30 or 45 days), the request is automatically approved. Missing deadlines can approve things you didn’t intend to approve.
Document everything. Keep applications, approval letters, denial letters with reasons, and photos of completed projects. This protects you if approvals are later questioned.
Having rules means nothing if you don’t enforce them. But enforcement must be done correctly to be effective and legally defensible.
Develop a written enforcement policy. This should outline how violations are identified (inspections, complaints, board observation), notification procedures and timeframes, opportunity for hearings, fine schedules, and escalation procedures.
Be consistent. This is crucial. You can’t enforce rules against some homeowners and ignore violations by others. Selective enforcement is legally problematic and creates massive homeowner resentment.
Follow due process. Homeowners are entitled to notice of alleged violations, opportunity to respond or cure violations, hearing before fines are imposed (if your documents require it), and written notice of decisions.
Use progressive enforcement. Many communities start with a friendly reminder, then move to formal warning letters, then fines if violations continue. This shows you’re being reasonable while still maintaining standards.
Document everything. Keep copies of violation notices, photos of violations, homeowner responses, hearing notes, and final decisions. Good documentation is essential if enforcement ends up in court.
Don’t delay enforcement. If you know about violations and don’t act, you may be deemed to have waived your right to enforce. Address violations promptly.
Let me walk through some common enforcement challenges and how to handle them.
“But everyone does it”: The fact that others violate rules doesn’t excuse a violation. However, this argument highlights the importance of consistent enforcement. If you haven’t enforced a rule in years, you may have abandoned it. Consider whether you need to start fresh with notice to everyone.
Grandfathered violations: Items that existed before a rule was adopted are often grandfathered. But if the item is replaced or substantially modified, the new rule applies. Document what was grandfathered and why.
“I didn’t know about the rule”: Lack of knowledge isn’t an excuse, but give homeowners a reasonable cure period for first-time violations of non-obvious rules. This shows reasonableness while maintaining standards.
Subjective standards: Rules like “well-maintained landscaping” are harder to enforce than “grass must not exceed 6 inches in height.” Use objective standards when possible.
Friends and neighbors: Enforcing rules against people you know personally is uncomfortable. This is why having clear, written policies and professional management helps. It’s not personal – it’s policy.
Proportionality: Make sure penalties fit the violation. A $100 fine for parking a car incorrectly overnight is reasonable. A $100 daily fine for the same violation might not be.
Many Charlotte-area communities have governing documents from the 1980s or 1990s. They may contain provisions that are outdated, unenforceable, or inconsistent with current law.
Signs your documents need updating: references to laws that have changed, provisions that courts won’t enforce (like unreasonable restrictions), unclear or contradictory language, missing provisions you need (like email voting or virtual meetings), and assessment caps that prevent proper funding.
The amendment process depends on which document you’re amending. Declaration amendments typically require approval by 67% or 75% of homeowners – a high bar. Bylaws amendments might require a lower threshold. Rules can usually be changed by board vote.
Getting homeowner approval for declaration amendments is challenging. Strategies that work include clearly explaining why amendments are necessary, showing how amendments benefit homeowners, addressing concerns and opposition directly, making it easy to vote (online voting, mail-in ballots, voting at meetings), and being patient – you may need multiple attempts.
Some communities in Matthews and Huntersville have successfully updated documents by presenting amendments as protecting property values and modernizing the community.
Consider professional help. HOA attorneys can draft amendments that comply with current law and achieve your goals. The cost is worth it to get amendments right the first time.
Strict rule enforcement protects property values, but being too rigid can create resentment and conflict. Finding the right balance is an art.
Start with education. Before jumping to fines, make sure homeowners know the rules. Welcome packets, newsletters, and website resources all help.
Use friendly reminders first. For minor, first-time violations, a friendly note often gets compliance without creating enemies: “We noticed your trash cans are still at the curb. Please remember to store them in your garage per our rules.”
Be reasonable about cure periods. If someone needs to repaint their house, give them reasonable time to do it. Thirty days is more reasonable than seven days for major projects.
Consider hardship cases individually. If a homeowner is sick, elderly, or facing financial hardship, you can work with them on compliance timelines while still maintaining standards.
Explain the why. When homeowners understand that rules protect property values and community character, they’re more likely to comply.
Recognize that perfection isn’t the goal. You’re managing a community of humans, not running a military base. Occasional minor violations aren’t worth creating major conflict over.
But do enforce consistently on significant violations. Issues that affect safety, property values, or other homeowners’ enjoyment must be addressed, even when it’s uncomfortable.
Your governing documents must comply with state law. North Carolina’s Planned Community Act (Chapter 47F) and South Carolina’s Homeowners Association Act (Title 27, Chapter 31) impose requirements that your documents must follow.
Required provisions in your documents include procedures for adopting budgets and assessments, notice requirements for meetings, record inspection rights for homeowners, and assessment collection and lien procedures.
Prohibited provisions that violate state law include restrictions on displaying the American flag (with some limitations), unreasonable restrictions on political signs, restrictions on solar panels (subject to reasonable guidelines), and provisions that conflict with fair housing laws.
If your documents contain illegal provisions, those provisions are unenforceable even if they’re in your declaration. Work with an attorney to identify and remove or amend problematic provisions.
Stay current on legal changes. Laws evolve. What was legal when your documents were drafted might not be legal now. Subscribe to HOA industry publications or work with an attorney who specializes in HOA law to stay informed.
Your attorney is a crucial resource for interpreting and enforcing governing documents.
When to consult your attorney: interpreting unclear provisions, enforcing rules against non-compliant homeowners, amending governing documents, responding to homeowner lawsuits, addressing violations of state law in your documents, and handling complex architectural disputes.
Don’t wait until you’re in crisis. Periodic consultations to review documents and discuss emerging issues prevent bigger problems later.
Ask for plain-English explanations. Good attorneys can explain legal concepts in language you understand. If your attorney can’t do this, find a different attorney.
Get opinions in writing. When your attorney provides legal advice on significant issues, get it in writing. This protects the board and creates a record of your reliance on legal counsel.
CC&Rs (Declaration) are the master document that runs with the land, creating restrictions and establishing the association. They’re recorded and bind all homeowners. Bylaws govern the internal operation of your corporation – meetings, elections, officer duties. Rules and Regulations are detailed policies the board adopts under authority granted in the declaration. The hierarchy is: state law, then declaration, then bylaws, then rules. When documents conflict, higher documents control. CC&Rs are hardest to amend (usually requiring 67-75% homeowner approval), bylaws are moderately difficult (often requiring majority homeowner or supermajority board vote), and rules can typically be changed by board vote alone
Yes, but you need to proceed carefully. The fact that violations weren’t enforced in the past doesn’t invalidate the rules, but selective enforcement creates legal and fairness issues. Best approach: announce you’re beginning consistent enforcement, provide notice to all current violators with a reasonable cure period, then enforce consistently going forward. Document your decision to start enforcing and your efforts to provide fair notice. Courts understand that boards sometimes need to restart enforcement, but you must do it consistently from that point forward. If rules have been ignored for many years, consult your attorney – you may have effectively abandoned them.
ARC authority comes from your declaration and any architectural guidelines. Most ARCs can approve or deny requests based on established criteria, require modifications to plans before approval, and conduct property inspections to verify compliance. ARCs typically cannot create new architectural standards without board approval, levy fines for violations (that’s usually a board function), or approve requests that violate the declaration. ARC decisions can usually be appealed to the full board. In Charlotte-area communities, ARCs work best when they have clear, written guidelines and respond promptly to requests. Board members often serve on ARCs, but some communities have separate architectural committees.
Your closing documents should include governing documents, but many homeowners don’t read them. Solutions: post all governing documents on your website or resident portal, provide copies to new homeowners in welcome packets, include periodic reminders in newsletters about where to find documents, and respond promptly to requests for copies (North Carolina and South Carolina law gives homeowners right to inspect and copy documents). The legal standard is that homeowners are bound by recorded declarations whether they received copies or not – the recording provides constructive notice. However, being helpful about providing documents builds goodwill and reduces “I didn’t know” excuses for violations.
Yes. Your declaration runs with the land, meaning it binds all occupants, not just owners. Renters must comply with community rules. However, enforcement typically works differently: issue violations to the property owner, who is responsible for tenant compliance. Many declarations give owners responsibility to ensure their tenants follow rules. Your documents might allow fines against the owner for tenant violations, and some give associations the right to pursue lease termination for serious, repeated violations. Many Huntersville and Weddington communities require owners to provide tenant contact information and include rule compliance provisions in leases.
This is a common challenge. Strategies that work: clearly explain why amendments are needed and how they benefit homeowners, focus on non-controversial updates that clearly improve the community, break amendments into smaller pieces rather than one large package, make voting easy (online, mail-in, multiple in-person opportunities), personally contact homeowners to explain and answer questions, address opposition concerns directly and revise amendments if reasonable, and be persistent – you may need multiple attempts over time. Some communities successfully amend by starting with non-controversial updates to build trust, then tackling bigger changes. Consider hiring an attorney to ensure amendments are properly drafted. Some outdated provisions can be addressed through rules or board policies without amending the declaration.
Your enforcement authority comes from your declaration. Typical authority includes adding unpaid fines to the homeowner’s account, placing a lien on the property for unpaid fines and assessments, pursuing legal action to collect unpaid amounts, and potentially foreclosing on liens (though this is rare and requires strict compliance with legal procedures). Before imposing fines, ensure your declaration grants fine authority and you’ve followed required procedures (notice, opportunity to be heard, etc.). Many Charlotte-area boards use collection attorneys for significant delinquencies. Be aware that North Carolina and South Carolina have specific requirements for liens and foreclosures – consult your attorney before taking these steps.
This depends on the situation and your goals. Arguments for grandfathering: shows reasonableness, avoids forcing costly compliance with new standards, and reduces resistance to new rules. Arguments against: perpetuates non-conforming conditions, creates unequal treatment going forward, and may undermine the purpose of the new rule. Many boards grandfather existing conditions but require compliance when the item is replaced or substantially modified. For example, if you adopt new fence color requirements, existing fences remain but must comply when replaced. Document what’s grandfathered and why. Be consistent – you can’t grandfather for some homeowners but not others
State law supersedes governing documents. If your documents violate state law, those provisions are unenforceable. Common conflicts include restrictions on American flags (state law limits HOA authority), political signs (state law protects certain political expression), solar panels (some protections exist in NC/SC), and fair housing protections (federal and state law override discriminatory provisions). When conflicts exist, follow state law and work to amend your documents to remove illegal provisions. Consult an HOA attorney to identify conflicts and recommend amendments. Operating under illegal provisions creates liability exposure
Detailed enough to give homeowners clear guidance but flexible enough to allow reasonable variation. Good guidelines include specific acceptable materials, colors, sizes (with ranges, not just one option), styles or examples, application procedures and required information, review timelines, and approval criteria. Avoid overly restrictive guidelines that effectively prohibit common improvements. Many Fort Mill and Rock Hill communities provide approved color palettes, acceptable fence styles, and sample approved projects. Update guidelines periodically to reflect current materials and styles. Test guidelines by asking: would a reasonable homeowner understand what’s allowed? If not, add clarity.
*Cusick Company has been helping Charlotte-area HOA boards communicate effectively with their communities for over 25 years. Our professional management services include newsletter creation, website maintenance, resident portals, and handling homeowner inquiries – freeing your board to focus on governance. We understand that good communication builds strong communities. Contact us at (704) 544-7779 to learn how we can support your community engagement efforts.*
