FLS Friday Forum: HOA Bylaws

FLS Friday Forum is a free write-in column authored by Brian R. Fellner on topics of law affecting community associations. To submit a question, email Mr. Fellner at bfellner@flslawyer.com. All posts are for informational purposes only and do not constitute legal advice. Only your individual attorney can provide assurances that this information is applicable or appropriate to your particular situation.  Nothing hereunder creates an attorney-client relationship between any reader and the author.

Is my HOA required to have Bylaws?

— Kevin in Severna Park, Maryland

This is a surprisingly common question asked by homeowners associations that have been in existence for a significant period of time. At first blush, it seems strange – wouldn’t you need to have Bylaws to set forth the rules and even potentially to create the association itself?

But the actual technical legal answer is “no.” There is no strict requirement for the existence or passage of Bylaws for an HOA. The Maryland HOA Act references them on several occasions, but never mandates their existence. (Note that this question is about HOAs only – the answer may be different for condominiums, cooperatives, or other organizations).

Digging a bit deeper, an HOA is typically created by the recordation of its Declaration or CC&Rs, and the filing of its Articles of Incorporation. Once again, technically the bylaws are not required. The Declaration ordinarily contains the use restrictions and other covenants, and the articles of incorporation are what make it a corporate entity.

But, if we have learned anything, it’s that the answer to any legal question is complicated. Both an HOA and a corporation ought to have bylaws. This is for several reasons:

• They allow for clear and enforceable rules and policies
• They usually set out the mechanism by which the corporation/HOA is governed
• The Declaration often contains broad provisions that need specification
• They are referenced in both the HOA statute and the corporate code – for instance, a corporation has the power to adopt, alter, or repeal bylaws to allow it to function

So there are very good reasons why an HOA should have Bylaws governing it, regardless of whether or not it is a legal requirement.

You might wonder: how did was an association created/governed without bylaws in the first place? Frequently this takes place when transition is not handled well; other times it can simply be that the association has existed for so long that the bylaws have not been used or referred to and are no longer around. Regardless the reason, if an HOA finds itself without a set of functional bylaws, it would be well advised to consider adopting a new set to put all owners on notice of the policies and rules of governance.

Finally, if an association does have bylaws, we previously discussed the rules regarding the place and manner in which they must be recorded to be enforceable.