Legal Framework / Governance · The Governing Documents in Practice

The Declaration (CC&Rs) in Practice

The recorded Declaration is the constitution of the community — but a constitution only matters in how it decides cases. This article walks four real fact-patterns a board faces and shows, for each, which Declaration provision governs, what the board actually does, and how boards get it wrong. The lesson underneath all four: the authority to restrict, assess, and lien comes from the recorded document, and from nowhere else.

The Bottom Line

The Declaration — the recorded Covenants, Conditions & Restrictions (CC&Rs) — is the document that creates the association, defines the property, sets the use restrictions, and grants the authority to assess owners and to lien a lot that does not pay. It is recorded with the county clerk, it runs with the land, and it binds every owner at closing whether they read it or not. Its companion article in this series, The Declaration as Constitution — What the Board Cannot Override, makes the conceptual case that the board sits below the Declaration and cannot rewrite it by board action. This piece is the application companion: it shows the Declaration governing four ordinary decisions. In each, the diagnostic question CIC-SC teaches is the same — “where does this come from?” If the answer is the recorded Declaration, the board is on rock. If the answer is a rule a prior board adopted, the board is on rock only if the Declaration authorized that rule and it was adopted properly. Everywhere else, the board is exposed.

How the Declaration Actually Governs

Three legal facts sit underneath every community association, and all three trace to the Declaration. Membership is automatic and mandatory — the day an owner closes inside the boundaries, they are a member, and they cannot opt out by skipping a meeting or selling the membership while keeping the home. The rules that say what color the front door may be and whether a truck may sit in the driveway overnight are written into the recorded Declaration. And the association may charge owners for shared expenses through the assessment, with the unpaid amount becoming a lien against the property that, after statutory notice and cure, can be foreclosed.

“Runs with the land” is the legal shorthand for the second and third facts: the covenants attach to the dirt, not to the person. That is why a buyer who never read the CC&Rs is still bound, and why amending those covenants is so heavily gated — an amendment changes the terms of property that others bought in reliance on the recorded text. A board cannot change a fundamental rule by board action alone. It takes a member supermajority — commonly 67% or 75% of the votes, depending on the document — and the amendment must be recorded in the county records to take effect. (That process has its own article: Amending the Governing Documents — the Power Belongs to the Members.)

The four scenarios below are the cleanest tests of how that authority works in practice. Each shows the provision that governs, the action the board should take, and the failure mode that turns a defensible decision into a lawsuit the association paid to start.

When a restriction is contested — any fence, any fine, any short-term rental — the first question is always where the authority comes from.

Scenario 1 — The Short-Term-Rental Request

An owner emails the manager: “I’m listing my house on Airbnb for the summer.” Three directors want it stopped immediately. One of them recalls a board email thread from two years ago “banning Airbnb.” The manager’s job — and the board’s — is to find the provision before reacting.

Which provision governs

The controlling text is the Declaration’s use-restriction article — typically a covenant limiting lots to “residential use” or “single-family residential purposes.” The decisive question is whether that article restricts short-term rentals by duration of occupancy, or whether it merely says “residential.” That distinction is not a technicality. It is the whole case.

What the board does

The board pulls the recorded Declaration and reads the use article. If the Declaration contains a duration-based occupancy restriction — e.g., no lease or occupancy for a term of fewer than 30 days — the board enforces it through the normal covenant-enforcement process. If the Declaration is silent or says only “residential use,” the board does not have a ban to enforce. To create one, it must propose a Declaration amendment, secure the member supermajority, and record it. Only then is there a rule.

The failure mode

The board treats a generic residential-use covenant as if it banned short-term rentals, sends a violation notice and a fine, and gets sued — and loses. The reason is settled law.

Texas

In Tarr v. Timberwood Park Owners Association (Tex. 2018), the Texas Supreme Court held that a homeowner who leased his property for short stays was still putting it to residential use — a vacationer using a home as a temporary residence is using it residentially. A generic “residential use” covenant therefore does not prohibit Airbnb-style rentals. Texas Property Code Chapter 202 (§ 202.004, restrictive covenants and the presumption of reasonableness) governs how covenants are construed and enforced, but it cannot supply a restriction the Declaration never contained. If a Texas community wants to restrict short-term rentals, the restriction must live in the recorded Declaration and be defined by duration — never by platform name. An “Airbnb ban” is evaded the moment the owner lists on a different platform.

Florida

Florida reaches the same destination by a parallel route: courts construe ambiguities in use restrictions in favor of the free use of property, so a bare “residential use” covenant generally will not be read to bar short-term leasing. Florida HOAs operate under Fla. Stat. Chapter 720; condominiums under Chapter 718. A rental restriction added by amendment is governed by § 720.306 (HOA member votes and amendments) and the corresponding condominium provisions in § 718.110/§ 718.112 — and Florida law gives added protection to owners who bought before a rental restriction was adopted, which makes the “amend, then record” discipline even more important. As in Texas, the operative move is a duration-based amendment, properly voted and recorded — not a board fiat.

Scenario 2 — The Assessment Increase, Collection, and Lien Foreclosure

An owner is six months behind on assessments and disputes that the association can do anything about it. The board wants to know exactly how far its authority runs — from raising the assessment, to collecting it, to foreclosing on the lot. Every step of that chain traces to one source.

Which provision governs

The Declaration’s assessment and continuing-lien article. This is the provision that grants the association the power to levy assessments, declares that unpaid assessments become a lien on the lot, and (in most well-drafted documents) establishes that lien as a continuing charge that runs with the land and binds successors. Statute supplies the procedure — notice, cure, and foreclosure mechanics — but the underlying power to assess and to lien is a creature of the recorded Declaration.

What the board does

To raise the assessment, the board acts within the limits the Declaration sets — any cap, any required percentage-increase ceiling, any member-approval trigger written into the document. To collect, the board follows the statutory sequence: levy, notice, a statutory opportunity to cure, and only then perfection and enforcement of the lien. Foreclosure is the last step, not the first, and it is hedged with due-process requirements.

The failure mode

The board assumes it can collect and foreclose on raw authority, skips the Declaration trace and the statutory cure period, and either over-collects beyond what the Declaration authorizes or forecloses on a defective lien. The continuing-lien grant is what makes collection possible; ignoring its terms and the statutory overlay is what makes collection actionable against the board.

Texas

The continuing-lien-for-assessments structure has deep Texas roots: Inwood North Homeowners’ Association v. Harris (Tex. 1987) upheld the enforceability of an assessment lien created by a recorded Declaration, confirming that the obligation to pay and the lien securing it are creatures of the recorded covenant that binds successive owners. The collection procedure then runs through Texas Property Code Chapter 209: § 209.0064 supplies a 45-day cure period (not 30) before certain enforcement steps, and the broader Chapter 209 framework governs notice, payment-plan rights, and the limits on foreclosure for fine-only debt. The board’s authority to raise the assessment lives in the Declaration; its authority to foreclose is conditioned on following Chapter 209 to the letter.

Florida

Florida codifies the assessment lien directly. For HOAs, Fla. Stat. § 720.3085 establishes the lien for unpaid assessments and the notice prerequisites to foreclosure; Chapter 720 generally (§ 720.303, § 720.305) governs the surrounding collection and fine procedure. For condominiums, § 718.116 creates the assessment lien and § 718.121 governs its enforcement. In both, the Declaration grants and quantifies the assessment, and the statute supplies the mandatory notice-and-cure steps before a lien may be foreclosed. A Florida board that forecloses without the statutory pre-suit notices has a defective foreclosure regardless of how clearly the Declaration grants the lien.

Scenario 3 — The Architectural / Use-Restriction Dispute

An owner builds a six-foot privacy fence. A neighbor complains. A director says “the rules require board approval for fences” and wants a fine issued. Before anything goes out, the board has to answer one question: does the rule it wants to enforce trace to a grant in the Declaration?

Which provision governs

The Declaration’s architectural-control article (or its general use-restriction article). This is the provision that either establishes the architectural standard directly or grants the board — or an architectural-review committee — the authority to adopt and enforce standards. A fence rule is enforceable only if it implements a power the Declaration actually conferred. If the rule fills a genuine gap within the Declaration’s grant, it stands; if it expands or contradicts the Declaration, it is no rule at all.

What the board does

The board traces the fence rule back to its Declaration grant before sending a single notice. It confirms the Declaration authorizes architectural review (or sets the fence standard outright), confirms the rule was adopted under that authority and properly — noticed, voted, and published — and confirms it has been applied uniformly. A rule that survives that trace is enforced through the due-process sequence: written notice, the statutory opportunity to be heard, then a decision on the record. The companion piece Rules and Regulations in Practice walks the rule-side of this analysis in depth.

The failure mode

The board enforces a fence standard that no Declaration provision authorizes — or that the Declaration contradicts — or it enforces a valid rule selectively, against this owner but not the three other six-foot fences on the street. Either defect is fatal. A rule with no Declaration grant is ultra vires; selective enforcement voids even a perfectly valid rule.

Texas

Texas enforcement of any covenant or rule runs through the open-meeting and due-process framework of Chapter 209 — § 209.0051 (open meetings) for the adoption side, and §§ 209.006 / 209.007 for the written notice and hearing the board must provide before levying a fine or pursuing enforcement, with the § 209.0064 cure period in the background. Substantively, § 202.004 gives a presumption of reasonableness to restrictive covenants — but only to covenants that exist. The board still has to show the architectural standard is anchored in the recorded Declaration.

Florida

Florida HOAs enforce use restrictions under Fla. Stat. § 720.305, which requires written notice and a 14-day opportunity for a hearing before an independent committee prior to fining or suspending. Condominiums use the parallel § 718.303 hearing-committee process. The architectural standard itself must trace to the Declaration; the statute governs how the board enforces it, not whether the restriction exists. A Florida board that fines for a fence without the 14-day committee hearing has a procedural defect on top of any authority gap.

Scenario 4 — The Forgotten Amendment

A long-tenured board has enforced a restriction for years — everyone “knows” it’s the rule. An owner finally pushes back and demands to see where it’s written. This is the scenario that catches the most experienced boards, because the restriction feels like authority. It isn’t.

Which provision governs

The recorded Declaration as it actually exists in the county records — including, critically, whether the restriction in question was ever properly amended into it. The test is not whether the board has been enforcing the restriction. The test is whether the restriction, given the burden it imposes, required a Declaration amendment, and whether that amendment was ever voted and recorded.

What the board does

The board pulls the recorded Declaration and every recorded amendment. If the restriction was adopted as a board rule but imposed a burden that required an amendment to the Declaration — and no such amendment was ever recorded — the board has no authority to enforce it. The corrected course is binary: either propose the amendment, secure the member supermajority, and record it — or abandon the restriction. There is no third option where “long use” cures the defect.

The failure mode

The board treats duration of enforcement as a substitute for authority. “It’s been the rule for years” is not a legal source. A restriction enforced for a decade with no recorded grant is exactly as unenforceable as one invented yesterday.

Field Note — The parking restriction that was never recorded

A Florida board tried to enforce a parking restriction it believed had been in the rules “for years.” When a homeowner pushed back, the board’s attorney pulled the recorded Declaration and discovered the restriction had been adopted as a board rule but never properly amended into the Declaration — where, given the use it imposed, an amendment was required. The board had no authority to enforce it. The corrected notice acknowledged the error; the board then had to either amend the Declaration through a membership vote or abandon the restriction. Takeaway: when in doubt, pull the recorded documents. “It’s been the rule for years” is not authority.

Texas and Florida

The failure mode is jurisdiction-neutral. In both states, a restriction that materially burdens use and was never recorded as a Declaration amendment is unenforceable, and the cure is the same recorded-amendment process — member supermajority plus county recording — that governs every other Declaration change. Texas runs that vote and recording under Chapter 209 and the Declaration’s own amendment article; Florida under § 720.306 (HOA) or § 718.110 (condominium) and the Declaration’s amendment provision. The statutory citations differ; the principle does not.

The Amendment Process — Why It Sits Behind Every Scenario

Three of the four scenarios above end at the same place: if the board wants the restriction and the Declaration does not supply it, the board must amend the Declaration. That is not a formality the board can route around, because the amendment requirement is what protects the people who bought property in reliance on the recorded text.

An amendment to the Declaration generally requires a member supermajority — commonly 67% or 75% of the votes, set by the document itself — and the amendment must be recorded in the county records to take effect. The board proposes; the members decide; the county recording makes it bind the land. A board cannot shortcut that with a rule, a resolution, a policy, or years of enforcement. The full mechanics live in Amending the Governing Documents — the Power Belongs to the Members, and the broader map of how the Declaration relates to the bylaws, plat, and rules is in The Governing Documents of a Community Association: A Complete Guide.

Key Takeaways

• The Declaration is the source of restrict-assess-lien authority. Use restrictions, the assessment, and the foreclosable lien all originate in the recorded CC&Rs and run with the land — binding every owner at closing.
• A generic “residential use” covenant does not ban short-term rentals. Tarr v. Timberwood Park (Tex. 2018) is the controlling discipline: to restrict short-term rentals, amend the Declaration and define the limit by duration, never by platform name.
• Collection and foreclosure trace to the continuing-lien grant. Inwood North v. Harris confirmed the recorded lien; statute (TX Ch. 209 § 209.0064; FL § 720.3085 / § 718.116) supplies the mandatory notice-and-cure procedure that conditions enforcement.
• Every rule must trace to a Declaration grant. An architectural or use rule with no grant behind it is ultra vires; a valid rule applied selectively is voided. Trace before you enforce.
• “It’s been the rule for years” is not authority. A restriction that required an amendment and never got one is unenforceable no matter how long it was enforced. The cure is amend-and-record, or abandon.
• Amendments belong to the members. Member supermajority plus county recording — the board proposes, the owners decide.
• Ask one question first: where does this come from? If the answer is the recorded Declaration, you are on rock. If it is a prior board’s rule, you are on rock only if the Declaration authorized it and it was adopted properly.

Related in This Series

• The Governing Documents of a Community Association: A Complete Guide — how the Declaration sits among the Articles, plat, bylaws, rules, and resolutions.
• The Declaration as Constitution — What the Board Cannot Override — the conceptual companion to this applied piece.
• Amending the Governing Documents — the Power Belongs to the Members — the supermajority-and-recording process behind every scenario above.
• Rules and Regulations in Practice — how a board-adopted rule must trace to its Declaration grant to be enforceable.