Legal Framework / Governance · The Governing Documents

The Declaration Is the Constitution the Board Cannot Override

The recorded Declaration is the foundational charter of a community association — it creates the association, defines the property, sets the use restrictions, and grants the power to assess and lien. It runs with the land and binds every buyer at closing whether they read it or not. And the one thing a board cannot do, no matter how unanimous the vote, is change it by board action.

The Bottom Line

The Declaration — the recorded Covenants, Conditions & Restrictions, or CC&Rs — sits near the top of the governance hierarchy for a reason. It is a recorded instrument that runs with the land. Every owner took title subject to it; the covenants were priced into every purchase. Because the Declaration binds the membership as a contract among owners, it can only be changed the way a constitution is changed: by a supermajority vote of the members — typically 67 percent or 75 percent of the votes, depending on the document — and by recording the amendment in the county real-property records. A board can adopt rules, set pool hours, and pass resolutions. A board cannot rewrite the constitution it serves under. When a board tries — banning short-term rentals the Declaration never restricted, or enforcing a parking rule that was never amended into the recorded document — it is acting beyond its authority, and the restriction is not a weak rule. It is no rule at all.

What the Declaration Actually Does

Most board members have never read their own Declaration in full. That is a problem, because the Declaration is the source of nearly everything the board is allowed to do. The recorded documents are public — anyone can pull them at the county clerk’s office, and many counties post them online for free. A board member who has not read the Declaration of their own community is operating blind. Before the next board meeting, every director should know where the Declaration is filed, when it was last amended, and what the assessment-authority and lien-authority sections say in plain language.

The Declaration does four foundational things, and each one is the legal root of an entire category of board activity:

Notice what is common to all four. None of them is a power the board granted itself. Each is a power the recorded Declaration conferred on the association — which is exactly why the board cannot enlarge, contradict, or repeal any of them by board vote. The board operates inside the four corners the Declaration drew.

Why “Runs With the Land” Is the Whole Game

The phrase that explains the Declaration’s authority is “runs with the land.” A recorded covenant attaches to the property itself, not to the person who happened to own it when the covenant was recorded. When a buyer takes title, the buyer takes it subject to the Declaration — automatically, at closing, whether or not the buyer ever read a word of it. The covenants were on record in the chain of title; the law treats the buyer as having notice.

That is why the Declaration sits above the bylaws, the rules, and the resolutions in the governance hierarchy. The recorded map or plat and the Declaration sit at the top because they are recorded instruments that bind every buyer at closing. Below them sit the articles of incorporation, then the bylaws, then — at the bottom — the rules and board resolutions. The rule that controls every dispute is simple: a document lower in the stack cannot conflict with or change a document above it. When two documents disagree, the higher one prevails, and the lower one has to be amended through its own proper process.

It is also why amending the Declaration is hard on purpose. A constitution that a simple board majority could rewrite would not be a constitution. The supermajority-member requirement protects every owner’s settled expectations: the restrictions you bought into cannot be flipped on you by five volunteers in a Tuesday-night meeting.

The Diagnostic Question: “Where Does This Come From?”

When any restriction is contested — any fence, any fine, any short-term rental — the single most useful diagnostic CIC-SC teaches is one question: where does this come from? If the answer is the recorded Declaration, you are on rock — you are enforcing a covenant that runs with the land and was priced into every purchase. If the answer is a board resolution from 2019, you are on rock only if the Declaration authorized the rule and the adoption was done properly: noticed, voted, recorded where required, and published. A rule that conflicts with or expands the Declaration — a pet ban by rule where the Declaration allows pets, a leasing restriction the Declaration never mentions — is beyond the board’s authority. It is the most common cause of overturned enforcement actions.

Hold onto that question. It is the difference between an enforcement action that survives challenge and one that becomes the lawsuit the association paid to start.

What the Board Can Change — and What Only the Members Can

The cleanest way to keep a board out of trouble is to draw the line in advance between the two kinds of governance change. One kind is the board’s to make. The other belongs to the membership, full stop.

The board proposes a Declaration amendment; the owners decide it. The board decides a rule; the owners do not have to be asked.

How a Declaration Amendment Actually Works

Amending the Declaration is a defined process, and skipping a step is fatal even when the substance is sound. The mechanics differ by state, but the spine is the same everywhere: the board proposes, the members vote at the document’s threshold, and the result is recorded to take legal effect.

Until Step 4 is complete, the amendment is not yet effective against the property. An amendment that the members approved but the association never recorded is a paper that lost a vote it actually won. Recording is not a formality — it is what makes the covenant run with the land and bind future buyers.

Texas

In Texas, residential subdivision associations are governed by Property Code Chapter 209, and restrictive covenants generally by Chapter 202. The Declaration itself controls the amendment threshold — read the amendment section before doing anything else — and that threshold is commonly a supermajority of the ownership. Texas law backstops the process: under § 202.004, a covenant is presumed reasonable, and an amendment must run through the membership vote the Declaration prescribes, then be recorded in the county real-property records to take effect. For Texas condominiums under the Uniform Condominium Act (Tex. Prop. Code Ch. 82, with § 82.108 on board powers), the declaration-amendment provisions of Chapter 82 govern, and the thresholds tend to be high precisely because a condominium declaration allocates ownership interests. The board’s role in both settings is the same: propose, notice, run the member vote at the correct threshold, and record. The board does not have a shortcut.

Florida

In Florida, HOA declaration amendments run through Fla. Stat. § 720.306, which addresses member voting and the approval thresholds for amending the governing documents; the Declaration’s own threshold controls unless the statute imposes a floor. Condominium declaration amendments run through Chapter 718, with § 718.110 governing amendments to the declaration and § 718.112 governing the bylaws and meeting procedure. As in Texas, the amendment is not effective until it is recorded in the county public records. Florida also illustrates the limit from the other direction: certain owner protections sit above the Declaration entirely, so even a properly recorded amendment cannot reach them — member-approved or not.

The Short-Term-Rental Test — The Cleanest Modern Example

Nothing shows the difference between a covenant and a wish like the short-term-rental question, and it is where boards most often overreach. A board reads a wave of Airbnb traffic in the neighborhood, points to the Declaration’s “residential use only” language, and announces a ban. Then it loses.

The Texas Supreme Court settled the analysis in 2018: a vacationer using a home as a temporary residence is still engaged in residential use. A generic residential-use covenant therefore does not prohibit short-term rentals. The renters are living in the home as a residence, even briefly — that is residential use, not commercial use. The board that tries to read a short-term-rental ban into a silent or generic-residential Declaration is expanding the Declaration by interpretation, which it has no power to do.

If a community wants to restrict short-term rentals, the restriction must satisfy two conditions, and both flow from everything above:

• It must live in the recorded Declaration. A rental restriction changes the fundamental character of how owners may use their property. That is a Declaration matter — a member supermajority vote and a recorded amendment — not a board rule.
• It must be defined by duration, never by platform. An “Airbnb ban” is evaded the moment the owner lists on a different site. A durable restriction defines the prohibited conduct — for example, leases of fewer than thirty days, or fewer than six months — so it captures the activity regardless of which app the owner uses. Restrict the duration of occupancy; do not chase the brand name.

Field Note — The Forgotten Amendment

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 something the board had never checked: the restriction had been adopted as a board rule but never properly amended into the Declaration, where — given the use it imposed on owners’ lots — an amendment was required. The board had no authority to enforce it. The corrected notice acknowledged the error. The board then faced the only two real options it ever had: 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. Longevity does not launder a restriction into the Declaration — only a recorded member-approved amendment does that. Every association should periodically reconcile what it is actually enforcing against what is actually recorded, because the gap between the two is exactly where enforcement actions go to die.

Don’t Confuse the Declaration With Its Cousins

Board members routinely use “the governing documents” as if it were one thing. It is not. Four recorded-or-near-recorded documents do four different jobs, and the differences decide who has the power to change what.

The practical consequences of those differences are sharp:

• The Articles are where corporate good standing lives. A stale registered agent is how a lawsuit gets served on a vacant address and ripens into a default judgment; a forfeited corporate privilege is how directors become personally exposed to association debts. CIC-SC recommends a ten-minute annual corporate-status check — pull the entity’s standing, verify the registered agent, confirm filings are current.
• The Plat answers boundary, easement, and setback questions the Declaration does not. When the dispute is “who owns the strip between the sidewalk and the street” or “where does the storm-drain easement run,” the plat — not the CC&Rs — is the controlling document.
• The Bylaws govern how the association operates internally, not what owners may do with their lots. Amending the bylaws is usually easier than amending the Declaration, but a bylaw still cannot contradict the Declaration above it.

The discipline is to name the right document before acting. A use-restriction question is a Declaration question. A “can we hold a meeting by video” question is a bylaws question. A “can the corporation even bring this lawsuit” question is an Articles question. A boundary question is a plat question. Reaching for the wrong document is how a board ends up enforcing something it had no power to enact.

What This Means for the Board, Practically

The Declaration’s supremacy is not an abstraction. It dictates day-to-day board behavior:

• Read your Declaration before you enforce anything. Know where it is filed, when it was last amended, and what the use-restriction, assessment, and lien sections actually say. You cannot enforce what you have not read, and you cannot defend an enforcement action you cannot trace to a recorded source.
• Run the diagnostic on every contested restriction. Where does this come from? Declaration, or rule? If it is a rule, does it implement the Declaration or expand it? Expansion is the failure mode.
• Route Declaration-level change to the members. The board proposes; the owners decide at the document’s threshold; the association records the result. A board that quietly “adopts” a use restriction by resolution has manufactured a future lawsuit.
• Reconcile enforcement against the record periodically. The forgotten-amendment problem is common and quiet. An annual pass comparing what you enforce to what is recorded surfaces the gaps before a homeowner’s lawyer does.

Key Takeaways

• The recorded Declaration is the community’s constitution: it creates the association, defines the property, sets the use restrictions, and grants assessment and lien authority.
• The Declaration runs with the land and binds every buyer at closing whether they read it or not — which is why it sits above the bylaws, rules, and resolutions.
• A board cannot amend the Declaration by board action. Amendment requires a supermajority member vote (typically 67% or 75%) and recording with the county.
• A board can change rules and resolutions by board vote — but only within the bounds the Declaration set; a rule that expands or contradicts the Declaration is no rule at all.
• A generic “residential use only” covenant does not ban short-term rentals (Texas Supreme Court, 2018). A real restriction must live in the recorded Declaration and be defined by lease duration, never by platform name.
• “It’s been the rule for years” is not authority. A restriction that was never properly amended into the Declaration cannot be enforced — pull the recorded documents when in doubt.
• Do not confuse the Declaration with the Articles (corporate existence), the Plat (boundaries and easements), or the Bylaws (internal operations) — each does a different job and follows a different amendment path.

Related in This Series

• The Eight-Tier Hierarchy of Governance Authority
• The Limits of Board Rulemaking — Rules vs. Resolutions
• Amending the Governing Documents — the Power Belongs to the Members
• Things Your Board Can No Longer Do