Most boards hear it sooner or later from a new owner: nobody told me about the trash can rule. Often that's true. The seller didn't mention it, the agent didn't bring it up, and closing went by in a stack of signatures. Real estate law has a name for knowledge a person is treated as having even when nobody told them. It's called constructive notice, and it's a large part of why a recorded declaration of covenants binds buyers who never read a page of it.
Our plain-English guide to CC&Rs covers what those covenants usually say. How they reach a buyer who never read them, and what to do about the rules that never make it into the county land records, is a separate matter.
What constructive notice means
Cornell's Legal Information Institute defines constructive notice in its legal encyclopedia in one line: "Constructive notice is the legal fiction that someone actually received notice." A legal fiction is something the law treats as true for a practical reason, whether or not it happened.
In practice, the law treats a person as informed once the required procedures have been followed, even if that person never actually learned about the matter. Notice is presumed from the facts and circumstances. The two examples the encyclopedia gives are a recorded deed and a pending lawsuit.
Actual notice is the other kind. It's notice a person really received: a letter they opened, a packet handed to them at closing, a conversation they remember. A buyer can lack actual notice of a covenant and still be treated as having constructive notice of it.
How recording gives notice of the declaration
Recording means filing a document with the county office that keeps land records, where it becomes part of the public record for that property. In most communities, the declaration of covenants, conditions and restrictions is recorded in the county land records where the community sits. Amendments are usually recorded the same way.
Recording is the procedure that, in general, puts later buyers on notice of what was filed. A recorded deed is one of the encyclopedia's own examples, and the same reasoning generally reaches other recorded documents that affect the land, a declaration among them. When a new owner says nobody told them, the usual answer is that the county land records did, whether or not they ever pulled the document.
Notice is one piece of why covenants bind later owners. The doctrine courts use to enforce a recorded covenant against an owner who never signed it has its own post: what an equitable servitude is.
Owners and new board members can usually find the recorded declaration by searching the county land records under the community's name or a lot's legal description. Our guide on how to find out who your HOA is covers where to look when the paperwork has gone missing.
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Recording rules and their effects vary by state, and a defect in how a document was recorded can change the result. What recording does for your own community comes down to the declaration and your state's recording law.
How Florida's HOA statute defines the declaration
Florida's HOA statute builds recording into its definitions. Florida Statutes 720.301 defines the declaration of covenants as "a recorded written instrument or instruments in the nature of covenants running with the land" that subject the community's land to the jurisdiction and control of an association in which the parcel owners must be members.
A covenant that runs with the land attaches to the property itself, so it passes to whoever owns the lot next. That's the link between recording and later owners: the covenant travels with the lot, and the recorded declaration is generally what puts each buyer on notice of it.
The same section defines a Florida community's governing documents in two parts. The first part is the recorded declaration and all duly adopted and recorded amendments, supplements and recorded exhibits. The second part is the articles of incorporation and the bylaws, along with their duly adopted amendments. Articles of incorporation are the filing that creates the association as a corporation; bylaws set out how the association runs its meetings, elections and board.
Recording is built into the first part of that definition and not the second. For a Florida board, that definition treats the declaration and its amendments as recorded documents. Other states use their own definitions, so check the statute where your community sits.
Unrecorded rules, policies and guidelines
Bylaws, rules and architectural guidelines are often not recorded. A buyer searching the county land records won't find the pool hours, the trash can rule or the approved paint colors the board adopted at a meeting. Whether an unrecorded rule binds a new owner depends on the declaration and state law.
Many declarations give the board power to adopt rules and set out how to do it. A board that adopts a rule the way the declaration allows can point back to the recorded document as the source of its authority. The owner still can't find the rule in the county land records, though. The board closes that gap by giving owners actual notice and keeping proof that it did.
The first chance is the sale. A resale package is the set of documents an association provides when a home changes hands, and it's where many buyers first see the rules. Our post on what goes wrong at closing when records are a mess covers what happens when the records behind that package are incomplete.
The second chance is the welcome packet, sent after closing to the new owner on record. It repeats the current rules and tells the owner where to find them going forward.
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If the board plans to enforce an unrecorded rule against an owner who says they never saw it, the association's attorney should look at the rule, how it was adopted and what notice the owner got before the board goes further.
How a board gives owners actual notice
Constructive notice generally covers the recorded declaration. Everything else depends on the board getting documents in front of owners. A short routine does most of the work:
- Record each amendment with the county once it's adopted under the declaration's amendment procedure, and keep the recorded copy with its recording information.
- Include the declaration, each recorded amendment, the bylaws and the current rules in each resale package.
- Send the current rules to each new owner after closing, and again to all owners when a rule changes.
- Publish the rules where owners can see them at any time, with the date each one was adopted.
- Retire old versions so nobody reads a rule the board has since changed.
HOA-OS puts a visibility setting on every document the board uploads, so a rule owners are expected to follow can be open to anyone or to residents while a draft stays with the board. When the board adopts a new version of a rule, it marks the upload as replacing the old one; the old version moves behind "Show replaced documents" and the resident assistant stops using it.
Sources
- constructive notice, Legal Information Institute
- Florida Statutes 720.301, Definitions, The Florida Senate
Related Reading
- What Goes Wrong at Closing When HOA Records Are a Mess
- What Your HOA Must Provide When a Home Sells
- The New-Resident Welcome Packet That Prevents Problems
- How to Find Out Who Your HOA Is (And What to Do If You Can't)
Generally, a properly recorded declaration gives later buyers constructive notice of its covenants, and a rule the board never recorded reaches an owner through actual notice.