Many day to day questions facing board members and managers are easily answered in the association’s governing documents. However, many are not. Often times, the documents only act to further complicate the question. When faced with a question that isn’t easily answered by the governing documents, or if the documents are unclear, don’t make the mistake of letting prior course of conduct or doing what seems “right” control your decision. The analysis of governing documents is more often than not an involved, complicated step-by-step process. While it does not always take a lawyer to do this, non lawyers who seek to undertake this endeavor should, at a minimum, follow these steps, realizing that there can be and typically are, many traps and pitfalls for the untrained.
 
1.    Identify the questions as specifically as possible. The narrower the better. Example: Who is responsible for maintaining the exterior stairways versus who is responsible for exterior maintenance.
 
2.    Review all community maps. Example: PDP, ODP, PUD, Plat or Condo maps. These are typically on file with the Clerk and Recorder’s office in the county where the community is located.
 
3.    Read the preamble to the Declaration. The preamble is the introductory paragraphs in the Declaration and can give guidance as to purpose and intent of the Declaration.
 
4.    Review all documents for all applicable provisions. All documents should be reviewed, not just the document the answer is most likely to be in. The following documents should be reviewed: declaration, supplemental declarations, declaration amendments, bylaws, articles of incorporation, rules, regulations, guidelines, easements, use agreements, subdivision agreement, etc. Example: The quorum requirement for annual member meetings typically is found in the bylaws, however, it may also be found in the declaration.

5.    Read the specific provisions of the documents that apply. Example: Paragraph 6.3.1. Owner Responsibility for Negligence.
 
6.    Read general provisions that may apply. Example: Paragraph 7.1. Use of Assessments.
 
7.    Read applicable definitions. These are typically found in a separate paragraph near the beginning of the document.
 
8.    Review other sources to aid in clarifying ambiguities. Examples: legal dictionaries, construction documents, encyclopedias, treatises and restatements, Westlaw (case law), insurance policies, etc.
               
9.    Apply general rules of document construction. Examples:

·      Specific language controls over general language.
·      Ambiguities are resolved based on four corners of document.
·      Each provision should be given meaning.
·      Restrictions are to be interpreted in favor of free use of property.
·      Documents should be read as a whole.
·      Captions/headings are not substantive.
·      Most recent provision has priority over prior provisions in time.
·      Plain meaning is preferred.
 
10.    Read any statutes that may be applicable. Examples: CCIOA, Revised Non-Profit Corporation Act, Condominium Act, Fair Housing Amendments Act, FCC rule.
 
Even after following this comprehensive step by step analysis the answer may not be clear and legal advice may be necessary. Remember, it is your fiduciary duty to make prudent, informed decisions. To comply with this, it may be necessary to seek advice from the association’s legal counsel.