Whenever your association refers to its governing documents, or attempts to change its governing documents, it must respect the order of authority. In its most basic terms, the order of authority for your governing documents is: (1) state law, including statutes applicable to associations, (2) declaration, (3) bylaws, and (4) rules. For Washington Condominiums, the key statute is RCW 64.34 for condominiums created after July 1, 1990 and RCW 64.32 for Washington condominiums created before July 1, 1990.  For Washington homeowner assocations the key statute is RCW 64.38. In Oregon, the key statute for condominiums is ORS Chapter 100 and ORS Chapter 94 for homeowner associations.

In the event of a conflict between the higher ranked document and any lower ranked document, the higher rank documents controls. For example, if there is a conflict between your declaration and the bylaws or rules, the declaration controls. This is spelled out in Oregon in ORS 100.122 for condominiums. For Washington condominiums it is set forth in RCW 64.34.208. 

Why is this important? When looking to enforce your governing documents, it is important to identify any conflicts. If there are, you must resolve the conflict as described above in order to act with proper authority. Many declarations, particularly for older associations and those with declarations drafted by the developer rather than by an experienced real estate attorney, have language that conflicts with applicable state law. In those cases, blindly following your declaration can result in problems for the association. Resolving conflict in your governing documents before taking action can save your association a lot of heartache (and money).

It is also very important to keep the order of authority in mind when amending your governing documents. You must make sure you are amending the right document. For example, too often associations come to us seeking to amend their bylaws, which are easier to amend, in an attempt to “get around” an unwanted provision in their declaration, which is usually much harder to amend. In that situation, amending the bylaws would be pointless because the bylaws would be in conflict with the declaration and the declaration would trump the bylaws. Those associations have to amend their declaration. 

Know and respect the order of authority. If you are aware of conflict, contact your attorney and resolve the conflict now. Resolving conflict ahead of time will help your association avoid messy conflicts and unnecessary attorneys’ fees.