Understanding Key Documents in Your HOA - Alaska Management Group
Written by Cliff Goughnour
The governing documents for your association contain the rules, regulations, and all other contractual terms that you and the other members are bound by. If you purchase property that is part of an association, your membership is automatic upon purchase.
For this reason, Alaska State law requires that a Resale Certificate be provided to a prospective buyer prior to closing. In this way, a new owner is aware of what they are agreeing to, and can make a clear decision on whether the association's standards and restrictions meet their own.
The only problem with this scenario, is that most prospective buyers don’t take the time to fully read these documents, know what to look for, or what the nuanced implications are. In this article, we will explain the following:
Association’s Governing Documents and their Hierarchy
All associations have these basic set of governing documents (listed in order of hierarchy) that dictate how a community may be governed:
Federal and State Law - Unless the statute differs from the association's documents.
Declaration of Covenants, Conditions & Restrictions (CC&Rs) – This is the “property” side of the association, and the backbone of the community and its structure. These contain the rights and responsibilities of each member, and the responsibilities of the HOA to its members. This also includes Information about architectural restrictions, property use restrictions, property maintenance standards, and more.
Articles of Incorporation - Includes basic information about the HOA including the name of the association, its location, and the purpose of the association and filed with the state.
Bylaws – This is the “corporate” side of your association's structure. It lays out the technical rules and procedures for things like voting, the election of directors, term limits and general authority they hold to govern the community.
Administrative Resolutions and House Rules - Details how the CC&Rs are interpreted and implemented within the community.
These documents are legally binding based on the implied contractual agreement as a homeowner member of the community. It is extremely important that any prospective buyer carefully review the terms of each of these documents because they will be contractually bound by them once they acquire ownership of the property. Violating the terms may also constitute a breach of contract. Most associations have punitive (fine assessments) authority and the ability to foreclose on unpaid assessments.
Documents Required at the Sale of a Property within a Common Interest Community
In Alaska, a prospective buyer is entitled to several key documents and disclosures prior to purchase. If these documents are not provided, the buyer has an opportunity to back out of the purchase, so it is imperative to the selling party to ensure these documents are ready early in the transaction. There are a few exceptions to this under Alaska statutes.
If the sale is of a new home, a Public Offering Statement is required. The specifics are set under A.S. 34.08.530, and must be provided to a buyer 15-days prior to executing a contract to purchase. If the buyer does not receive one within this timeframe, they have 15 days to cancel the purchase from the day a Public Offering Statement is produced to them.
If the sale is an existing association and a re-sell, what is commonly referred to as a Resale Certificate and Disclosure is required. The production of this document is required within 10-days of a written request and fee payment by any unit owner. The specifics to this can be found under A.S. 34.08.590 with the main highlights being the governing documents, assessments against the unit and regular dues amount, associations budget and fiscal standing, large projects anticipated, any code or declaration violations relating to the unit and minutes of the association.
These documents will give you a snapshot of the association's operating standards and its administration. Once a buyer receives these documents, they have an opportunity for 5-days to void their sales contract, so time is imperative. Alaska Management Group offers a resale consultation with all resale disclosures we produce and are more than grateful when a potential client uses this service. Having a strong understanding of your home purchase within a common interest community ensures your expectations are met.
Association’s Duty to Make Specific Documents Available to all of its Members
Members of homeowners' associations have the right to review and copy the association's documents -- also known as the "official records" after a written request. The right to examine the association's documents stems from the contractual provisions of the association's governing documents and state laws.
Below is a list of the documents that are considered the official records of the association:
All documents provided by the developer, such as community maps, plats, plans, land surveys, permits. These are often available at the State Recorder's office and online.
Recorded Declaration of Covenants, Conditions and Restrictions (CC&Rs), Articles of Incorporation, Bylaws and any Amendments
Rules and Regulations
All board and membership meeting Notices and Minutes, and related documentation within the last 5 years
Association's Insurance policies
Association's third-party agreements or contracts
Copies of Judgments, Liens, or any encumbrances recorded against, or on behalf of the Association. These will also be available online through the State of Alaska online database.
Recorded instruments related to all properties owned by the Association
Association documents related to membership voting, the election of officers, directors, and membership approvals, such as Notices and Minutes
All rental records of the Association, if the Association acts as a rental agent
All Association Accounting Records, included but not limited to, the past 3 years
Association Financial Reports such as general ledger, balance sheets, income and expense statements and reserve reports
All contracts for work to be performed
Other Association official records that relate to the operation and management of the community such as SOP’s
All Association insurance records
These documents are available to all members of the association via the owner Portal. Some older documents and invoices may not be readily available on the portal, but can be provided electronically if requested. Physical copies or in office assistance may result in an expense to you or the association, so we recommend contacting the manager directly if you have any questions on how to navigate the online (free) records.
Cost of Association Documents & Tips on How and Where to Obtain Copies of the Association's Documents
Many prospective buyers are surprised to know that there are costs associated with obtaining copies of HOA documents. After all, how can you determine if you are willing to agree to the rules without reading them?
The good news is that most of these documents are already available to the owners for free on their portal access.
There are still a few items that will require payment during the sale or purchase within a common interest community. These are available on our website, and include the resale disclosure, lender questionnaire and the title transfer fees.
Once you’ve obtained and reviewed the documents listed above, carefully consider the following questions:
- Does the association have a reserve fund for long term repairs?
- What are the repair conditions of the association?
- Do the association assessments (dues) fit within your budget?
- Is there a cap on how much the association can raise the assessment?
- What do the dues cover?
- Is there, or has there been a recent special assessment?
- What does the association insurance policy cover and is there a co-insurance clause?
- Can I take on the maintenance obligations of my unit?
- Can I comply with the restrictions within the community?
The decision to buy within a common interest community requires consideration. When you buy, you become a member of the association, entering into a contractual relationship with the association and its other members. This requires the association, and you, to fulfill certain responsibilities, obligations and can carry with it repercussions as well as benefits.
The best way to avoid fines and disputes is to be aware of the rules and restrictions before you buy. And the best way to ensure your interest is being best served, is to become involved in the community by attending meetings, connecting with your neighbors, and understanding the documents of the association. If you need help in any of these areas, Alaska Management Group is here to assist!
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