Board Fundamentals · Where Authority Comes From
The Eight-Tier Hierarchy of Governance Authority
Every governance question a board faces — “can we do this?” — is answered the same way: by walking down a hierarchy of authority, top to bottom, until you find the answer. This article is the map of that hierarchy. It walks all eight tiers, explains what each one does, states the one rule that resolves every conflict, and shows how to apply it before a vote rather than after a lawsuit.
The Bottom Line
Authority in a community association is not a flat field where every document carries equal weight. It is a stack, and the stack has a fixed order: federal law, then state statute, then the recorded Declaration, then the Articles of Incorporation, then the recorded plat or map, then the bylaws, then the rules and regulations, then board resolutions. Higher always wins. A bylaw cannot contradict the Declaration. A rule cannot contradict the bylaws or statute. A resolution cannot rewrite the rules. When two documents disagree, the higher tier prevails and the lower one has to be amended through its own proper process. The discipline that keeps a board out of trouble is a single diagnostic question CIC-SC teaches managers to ask before any contested action: where does this come from? A board that can trace an action up the chain to a real grant of authority is on solid ground. A board that cannot is acting beyond its powers — and that is how associations lose lawsuits they paid to start.
Why a Hierarchy at All
An association is three things at once, and each one generates a layer of binding paper. It is a creature of state law, so the statute binds it. It is a nonprofit corporation, so its corporate documents bind it. And it is a covenant regime recorded against the land, so its Declaration binds every owner whether they read it or not. Those layers do not float independently. They are ranked, and the ranking is what lets an attorney answer “is this legal?” in a defensible way instead of a hopeful one.
The ranking matters in practice because boards are constantly tempted to solve a present problem with the nearest tool — almost always a board rule or a resolution, the two lowest tiers, because those are the only instruments a board can change on its own at a single meeting. The hierarchy stops a board from using a low-tier tool to do a high-tier job. You cannot fix a Declaration problem with a rule any more than you can repeal a federal statute with a bylaw.
The Eight Tiers, Top to Bottom
Here is the full stack. Read it as a ladder of authority: the higher a tier sits, the greater its legal weight and the harder it is to change.
When two documents disagree, the higher tier wins. A rule that contradicts the Declaration is not a weak rule — it is no rule at all.
Tier 1 — Federal Law
Federal law sits above everything. Your Declaration cannot authorize what federal law forbids, no matter how clearly the Declaration is written, because the higher authority always wins. Four federal regimes show up most often in association practice. The Fair Housing Act (42 U.S.C. § 3601 et seq.) prohibits discrimination based on protected classes and requires reasonable accommodations and modifications for disabilities — including, for example, allowing an assistance animal in a community with a no-pets rule. The Housing for Older Persons Act lets an age-restricted community legally exclude households without anyone 55 or older, but only if it meets the 80% occupancy test, publishes a written age-restriction policy, and verifies resident ages on a regular cycle. Internal Revenue Code § 528 governs most associations’ federal tax treatment via Form 1120-H. And the FCC Over-the-Air Reception Devices (OTARD) rule (47 C.F.R. § 1.4000) limits how associations can restrict satellite dishes and certain antennas, regardless of what the Declaration says. We return to OTARD below because it is the cleanest worked example of the hierarchy in action.
Tier 2 — State Statute
Below federal law sits the body of state law that regulates community associations. Most states regulate associations with more than one statute — a general nonprofit-corporation law that tells the association how to exist, and a specific community-association law that tells it what it may do. CIC-SC frames these as the back of the house and the front of the house. The board complies with both. State statute can grant a board authority the Declaration is silent on, and it can take away authority the Declaration purports to grant; either way it outranks every governing document the community produced for itself. The Texas and Florida sections below name the specific statutes.
Tier 3 — Recorded Declaration (CC&Rs)
The Declaration — the Covenants, Conditions & Restrictions — is the recorded master document and the constitution of the community. It creates the association, defines the property subject to the covenants, sets out the use restrictions, and grants the association the authority to assess and lien. Because it is recorded against the land, it binds every buyer at closing whether they read it or not. It is also the highest tier the community itself can change, and changing it is deliberately hard: amendments usually require a supermajority of the membership — typically 67% or 75% — and must be recorded to take effect. A board that wants to change a fundamental rule of the community generally cannot do it by board action alone.
Tier 4 — Articles of Incorporation
The Articles are filed with the secretary of state. They bring the corporation into legal existence, identify the registered agent, and confirm the nonprofit purpose. Most boards never look at the Articles again after the day they are signed, which is a mistake: the Articles and the corporate filings behind them control whether the corporation is in good standing — a status that affects the corporation’s right to bring suit, defend suit, and in some states operate at all. A stale registered agent is how a lawsuit gets served on a vacant address and ripens into a default judgment nobody knew to fight.
Tier 5 — Recorded Plat or Map
The plat or map is recorded with the county. It shows the legal boundaries of every lot, the location of the common areas, and the easements that benefit or burden the property. The plat is what the attorney pulls when the question is “who owns the strip of land between the sidewalk and the street,” what the engineer pulls when the question is “where does the storm-drain easement run,” and what the architect pulls when the question is “how close to the property line can an owner build a fence.” It defines what the community physically is, and a rule or covenant cannot relocate a boundary the plat fixed.
Tier 6 — Bylaws
The bylaws are the association’s internal operating manual: the number of directors, the election procedures, meeting-notice requirements, quorum, officer duties, committee authority, the fiscal year, and the rules for filling a board vacancy. Bylaws are typically not recorded; they live with the association’s books. They can be amended by board action only if the Declaration explicitly says so — in most associations bylaw amendments require a member vote, though usually at a lower threshold than Declaration amendments. The bylaws govern how the association operates internally, and they cannot grant the board a substantive power the Declaration withheld.
Tier 7 — Rules and Regulations
Rules are adopted by the board under authority granted in the Declaration, and they address the day-to-day: pool hours, parking, pets, trash placement, architectural standards, noise, holiday lighting, sign placement. This is the board’s most-used governance tool — and its most lawsuit-generating one, because rules touch every owner’s daily life. The board can change rules by board action, generally without a membership vote, provided the rules stay within the bounds the Declaration set. A rule that purports to change the fundamental character of the community — banning leasing in a community whose Declaration explicitly permits it, for example — is usually unenforceable, because the board does not have authority to amend the Declaration through a rule.
Tier 8 — Board Resolutions
At the bottom of the stack sit the board’s documented decisions: a single vote on a single matter, recorded in the minutes. A well-drafted resolution states the authority for the action, makes findings of fact, articulates the action itself, and specifies the effective date. That four-part discipline — authority, findings, action, effective date — keeps the decision reviewable and protects the board against a later claim that the vote was arbitrary. A resolution is the lowest-weight instrument the board can produce, and it cannot rewrite the rules, let alone the documents above them.
The One Rule: Higher Always Wins
Everything above reduces to one operating rule: 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. This is the single most useful thing a board member can internalize. It converts a vague worry — “are we allowed to do this?” — into a procedure anyone on the board can run.
The procedure is the diagnostic question CIC-SC teaches: where does this come from? Take any contested restriction — any fence, any fine, any short-term rental — and find its source. If the source is the recorded Declaration, you are on rock. If the source is a rule a previous board adopted, you are on rock only if the Declaration authorized that rule and the adoption was done properly: noticed, voted, recorded where required, and published. A rule that contradicts or expands the Declaration is not a weak rule. It is no rule at all, and enforcing it is how associations lose lawsuits.
The Diagnostic in Five Questions
The diagnostic question expands into a short worksheet. Run any contested restriction or proposed action through these five questions before the vote. If you cannot answer the first three, the board is not ready to act.
Explicit authority versus implicit authority
Authority comes in two textures, and mature directors learn to feel the difference. Explicit authority is written down: the Declaration says the board “may adopt rules governing the use of the common areas,” so the board may set pool hours. You can point to the sentence. Implicit authority is the reasonable power that necessarily follows from an explicit grant: the power to manage the pool implies the power to hire a pool company, buy chemicals, and post a sign — none of which the Declaration lists, all of which are necessary to do the thing it does authorize.
The danger lives at the edge of implicit authority, where a board talks itself into a power that sounds reasonable but was never granted. “We can manage the common areas” does not become “we can ban a color of front door” if front doors are not common area and the Declaration is silent. The test is not “is this a good idea?” It is “does a power we actually have necessarily require this?” When the honest answer is no, the right tool is not a board rule — it is a Declaration amendment voted by the owners. Stretching implicit authority to cover a wish is the single most common way a well-meaning board acts ultra vires — beyond its powers.
Resolving a Conflict: The Satellite-Dish Worked Example
The hierarchy is easiest to see when two tiers actually collide. Consider a common fact pattern. An owner in a Texas property owners’ association installs a satellite dish on the rear roof of her home. The recorded Declaration is silent on satellite dishes. Three years earlier, the board adopted a rule prohibiting roof-mounted dishes and requiring all dishes to be ground-mounted in the rear yard and screened by landscaping. The owner argues the rule cannot be enforced because the Declaration is silent. Which authority controls?
Step 1 — Walk the hierarchy from the top.
Start at Tier 1. The FCC OTARD rule (47 C.F.R. § 1.4000) limits the restrictions associations may impose on satellite dishes meant to receive over-the-air signals. Tier 2: Texas Property Code Chapter 209 generally permits boards to adopt rules within the scope of authority the Declaration grants. The board’s rule lives at Tier 7. The owner’s “the Declaration is silent” argument is actually a Tier 3 argument. So this conflict spans Tiers 1, 3, and 7.
Step 2 — Identify which authority controls.
Higher always wins, so you stop at the highest tier that speaks to the question. Tier 1 speaks to it. The OTARD rule occupies the field on satellite-dish restrictions; it preempts state law and association rules to the extent they impair the installation, maintenance, or use of a covered dish. A flat prohibition on roof-mounted dishes generally fails the OTARD analysis. The board never reaches the question of whether its Tier 7 rule was properly adopted, because a higher tier has already answered.
Step 3 — Apply it to the facts.
Although the Declaration is silent, the real question is not whether the board has rule-making authority in general but whether this specific rule is preempted. It is. The rule is unenforceable to the extent it would prevent the owner from installing the dish where it actually receives an acceptable-quality signal. The rule may remain enforceable to the extent it imposes reasonable safety, structural, or aesthetic standards that do not impair reception. The board’s defensible position is to confirm whether the rear-yard installation is technically feasible and produces an acceptable signal: if not, the rule yields to OTARD; if so, the board may enforce reasonable installation standards but cannot bar the rear-roof location on aesthetic preference alone.
Notice what the hierarchy did. It told the board to stop arguing about whether its own rule was a good rule and instead ask whether a higher tier had already settled the question. That single move — walking up, not sideways — is the whole discipline.
Texas: Naming the Tiers
Texas does not regulate every association with a single law, so a Texas board has to know which statutes point at it.
The general corporate statute (back of the house).
The Texas Business Organizations Code, Chapter 22, is the nonprofit-corporation law that applies to nearly every association regardless of type. It governs director fiduciary duties (§ 22.221), director immunity (§ 22.235), member inspection and records rights (§ 22.351), the registered agent, officers, and the corporate housekeeping that keeps the entity in good standing. This is the statute standing behind Tier 4 — the Articles — and it is the one most boards have never read.
The specific community statute (front of the house).
Residential subdivisions — most HOAs and POAs — live under the Texas Residential Property Owners Protection Act, Property Code Chapter 209. It governs open board meetings and notice (§ 209.0051), records (§ 209.005), the notice-and-hearing process required before enforcement (§§ 209.006 and 209.007), and the 45-day cure period for curable violations (§ 209.0064). Condominiums created in 1994 or later live under the Texas Uniform Condominium Act, Property Code Chapter 82 (with § 82.108 governing board powers). Restrictive covenants generally are construed under Property Code Chapter 202, which directs courts to read covenants to give effect to their purpose and gives an association’s discretionary enforcement a presumption of reasonableness (§ 202.004). The practical posture is never “pick one.” It is comply with both the general statute (Chapter 22) and the specific one (Chapter 209 or 82).
Florida: Naming the Tiers
Florida divides the same way — a corporate layer and a community layer — with its own chapter numbers.
HOAs under Chapter 720.
Florida homeowners’ associations operate under Fla. Stat. Chapter 720. Section 720.303 governs meetings, records, and budget and reserve disclosures; § 720.305 governs fines and suspensions and requires a 14-day notice and an opportunity for a hearing before a committee of other members; and § 720.306 governs member votes and amendments — the mechanism by which the membership, not the board, changes a Tier 3 or Tier 6 document.
Condominiums under Chapter 718.
Florida condominiums operate under Fla. Stat. Chapter 718. Section 718.112 governs the bylaws, meetings, and budget procedure; § 718.303 governs fines and the independent hearing committee; and post-Surfside reforms at § 718.112(2)(g) and § 553.899 impose the Structural Integrity Reserve Study regime, which constrains a board’s ability to waive structural reserves. The Florida point that matters for this article is the same as the Texas one: these statutes sit at Tier 2, above every governing document the community wrote, and a Florida board reads its Declaration and bylaws through them.
Why the Hierarchy Protects the Board
The hierarchy is usually taught as a constraint — the list of things a board cannot do. It is just as accurate to teach it as a shield. A board that traces every action up the chain before it acts almost never commits the error that costs it the most: acting ultra vires, beyond its authority. And acting beyond authority is one of the surest ways for a director to lose the legal protections that ordinarily insulate volunteer board service — the business judgment rule, statutory director immunity, and D&O coverage all assume the board was acting within its powers. Step outside them and the protections thin out.
The hierarchy also disciplines the most common failure of a busy board: reaching for the wrong tool. When the honest answer to “where does this come from?” is “nowhere — we just think it’s a good idea,” the hierarchy hands the board the right next move. The right move is not a faster vote on a board rule. It is a Declaration amendment put to the owners, or a confirmation from counsel that a higher tier already controls. Either way, the board has converted a future lawsuit into a present procedure. That is the entire value of the discipline: it moves the hard question from after the gavel to before it.
Key Takeaways
- Authority is a stack, not a flat field. Eight tiers, fixed order: federal law, state statute, recorded Declaration, Articles, recorded plat, bylaws, rules, resolutions.
- Higher always wins. A bylaw cannot contradict the Declaration; a rule cannot contradict the bylaws or statute; a resolution cannot rewrite the rules. A rule that conflicts with a higher tier is no rule at all.
- Ask the diagnostic question first. “Where does this come from?” — then run the five-question worksheet: source, higher-document check, adoption, reasonableness, right tool.
- Resolve a conflict by walking up, not sideways. Stop at the highest tier that answers the question, as the OTARD satellite-dish example shows — federal preemption settled the dispute before the board’s own rule ever mattered.
- Comply with both statutes. The general corporate law (TX Business Organizations Code Ch. 22 / FL nonprofit law) and the specific community law (TX Prop. Code Ch. 209 or 82 / FL Ch. 720 or 718) both bind the board.
- The hierarchy is a shield. Tracing authority up the chain before acting is how a board avoids acting beyond its powers — and acting beyond its powers is how directors lose the protections that make volunteer service safe.