What Are CC&Rs and Are They Legally Binding?

Almost every HOA dispute traces back to one document set: the CC&Rs. Understanding what they are, and why they bind owners, is the foundation for everything else. For your specific situation, a licensed attorney in your state is the right resource. This is general information, not legal advice. Each state's statutes use their own wording, so the California sections quoted below are examples, not a rule for every state.

What are CC&Rs in an HOA?

CC&Rs (Covenants, Conditions, and Restrictions) are a community's recorded declaration, filed in the county land records, that sets up the association and the restrictions that run with the property. In California, Civil Code §4250(a) requires a declaration recorded on or after January 1, 1986 to name the association and set forth the use restrictions intended to be enforceable equitable servitudes.

California shows what a declaration typically has to contain. One recorded on or after January 1, 1986, must include a legal description of the development and "set forth the name of the association and the restrictions on the use or enjoyment of any portion of the common interest development that are intended to be enforceable equitable servitudes" (Cal. Civ. Code §4250(a)). California's HOA act applies once an interest in the development is conveyed and the declaration, among other documents, is recorded (§4200).

Alongside the CC&Rs, most communities also have bylaws (how the association operates) and rules and regulations (day-to-day specifics the board adopts). In California, the declaration prevails over the articles, bylaws, and operating rules when they conflict, and the law prevails over all of them (§4205). The full document-by-document breakdown is in HOA bylaws, CC&Rs and rules.

Are CC&Rs legally binding?

Generally, yes. CC&Rs are recorded covenants that run with the land, so later owners take title subject to them. In California, Civil Code §5975(a) makes the declaration's covenants and restrictions enforceable equitable servitudes, "unless unreasonable," that bind all owners and may be enforced by any owner or the association unless the declaration says otherwise.

Covenants that run with the land attach to the property itself, not just to whoever signed them. California's statute puts it in terms of equitable servitudes:

"The covenants and restrictions in the declaration shall be enforceable equitable servitudes, unless unreasonable, and shall inure to the benefit of and bind all owners of separate interests in the development. Unless the declaration states otherwise, these servitudes may be enforced by any owner of a separate interest or by the association, or by both." — §5975(a), Cal. Civ. Code

Two details in that text matter. Enforcement runs both ways: owners, not just the association, may enforce the declaration, and §5975(b) lets the association and owners enforce the other governing documents against each other. And the unless unreasonable qualifier means binding does not mean unlimited. Whether a particular covenant is unreasonable is a fact-specific question, and other states frame the standard in their own statutes and case law.

What can override or limit them

CC&Rs are powerful but not the only authority. They yield to:

• State statutes. California's §4205(a) says that in a conflict between the governing documents and the law, "the law shall prevail." Specific statutes can also knock out specific covenants. California's solar-rights law, for example, makes a governing-document provision "that effectively prohibits or restricts the installation or use of a solar energy system" void and unenforceable, while still allowing reasonable restrictions (Cal. Civ. Code §714). More on that in can my HOA ban solar panels.
• Federal law. The Freedom to Display the American Flag Act of 2005 says an association "may not adopt or enforce any policy, or enter into any agreement, that would restrict or prevent a member of the association from displaying the flag of the United States on residential property" the member owns or exclusively uses (Pub. L. 109-243, §3); see the federal flag article. The Fair Housing Act lists discriminatory housing practices it makes unlawful (42 U.S.C. §3604), and a covenant does not change that. How these federal laws limit HOA rules is covered in when is an HOA rule unenforceable.
• Consistent enforcement. Uneven application can raise a selective-enforcement issue.
• Their own amendment rules, covered next.

Can my HOA board change the CC&Rs without a vote?

Generally not in California. Under Civil Code §4270, apart from narrow alternative processes, an amendment takes effect only after approval by the percentage of members the declaration requires, or a majority of all members if the declaration is silent, plus written certification and county recording. Other states set their own amendment thresholds in statute and in the declaration itself.

Under §4270, a declaration "may be amended pursuant to the declaration or this act," and an amendment generally takes effect only after it is approved by "the percentage of members required by the declaration," certified in writing, and recorded in the county. If the declaration is silent on the percentage, "an amendment may be approved by a majority of all members" (§4270(b)).

Some declarations set a higher bar than that. When a California declaration requires more than 50 percent of the votes and an amendment falls short, the association or any member "may petition the superior court of the county in which the common interest development is located for an order reducing the percentage of the affirmative votes necessary for such an amendment" (§4275(a)). The court is not required to grant it.

The bigger picture

CC&Rs are the recorded rulebook that comes with buying in, and California's statute makes them enforceable equitable servitudes, but only so far as they're reasonable and consistent with the law. Whether a specific covenant is enforceable against you depends on your state's statutes and the facts, and a licensed attorney in your state is the appropriate resource. Your state's statutes are linked from our state guides.

Frequently asked questions

Did I agree to the CC&Rs even though I never signed them?

CC&Rs are recorded covenants that run with the land, so they are generally treated as binding on whoever takes title, signed or not. California's statute, for example, says the declaration's covenants "bind all owners of separate interests in the development" (§5975(a)).

Are CC&Rs always enforceable?

No. In California they are enforceable equitable servitudes unless unreasonable (§5975(a)), they give way where they conflict with the law (§4205(a)), and specific statutes such as the solar-rights law (§714) and the federal flag act void particular restrictions.

Can CC&Rs be changed?

Usually only through the amendment process the declaration and state statute set out. In California, that means approval by the percentage of members the declaration requires, or a majority of all members if it is silent, followed by certification and recording (§4270), with a court petition available when a declaration's above-50-percent threshold can't be met (§4275).

Sources

• California Civil Code §4200 — When the Davis-Stirling Act applies
• California Civil Code §4205 — Conflicts between the law and governing documents
• California Civil Code §4250 — Required contents of the declaration
• California Civil Code §4270 — Amendment of the declaration
• California Civil Code §4275 — Court petition to reduce the amendment vote
• California Civil Code §5975 — Enforcement of covenants and restrictions
• California Civil Code §714 — Solar energy systems; void restrictions
• Pub. L. 109-243 — Freedom to Display the American Flag Act of 2005 (govinfo)
• 42 U.S.C. §3604 — Fair Housing Act (govinfo)