A new rule appears — no vote of the owners, sometimes no warning — and suddenly you’re out of compliance with something that didn’t exist last month. Can the board just do that? Not exactly. A board does have power to make rules, but that power is fenced in on every side. A rule that steps outside the fence is unenforceable, however official the letter announcing it looks.
Rules aren’t CC&Rs — know the hierarchy
Your community documents have an order of authority, and rules sit at the bottom of it. Arizona law lists them together — “the declaration, bylaws, articles of incorporation, if any, and rules” (A.R.S. § 33-1802(3)) — and each tier is bound by the ones above it:
- Federal and Arizona law — beats everything below;
- the recorded Declaration (CC&Rs) — amended only by owner vote;
- the Articles and Bylaws; and
- the board’s rules and regulations — the only tier a board can create on its own.
Four things a rule can’t do
- Exceed the authority the documents grant. A board can make rules only on the subjects the declaration and bylaws actually authorize it to regulate. If nothing in your documents gives the board power over a topic, it can’t invent that power with a rule.
- Conflict with the declaration, bylaws, or a statute. A rule that contradicts a higher document or Arizona law is unenforceable to the extent of the conflict.
- Do by “rule” what requires an amendment. A board can’t rewrite the CC&Rs through a rule. Real changes to owners’ rights and obligations run through the declaration-amendment process (§ 33-1817) — an owner vote — not a board memo.
- Override the statutory protections. The laws that begin “notwithstanding any provision in the community documents” beat any rule — a rule can’t restrict your flags and signs (§ 33-1808), your solar (§ 33-1816), or the other protected categories.
And even a valid rule has to be reasonable — and properly adopted
Being within the board’s authority isn’t the whole test. A rule generally must also be reasonable — not arbitrary, not discriminatory, and not selectively enforced. And it has to be adopted properly: by board action at an open meeting (§ 33-1804), and then actually communicated to owners. A rule sprung on you after the fact, or one you were never told about, is on shaky ground.
The one question that exposes it
When a new rule shows up, ask, in writing: “Which provision of our declaration or bylaws authorizes this rule, and when and how was it adopted?” A board acting within its authority can answer that easily. A board that can’t point to its source — or that’s trying to accomplish a CC&R change through a rule — is telling you the rule may not be valid.
Your move
- Get the rule and its authority in writing, plus when and how it was adopted.
- Compare it to your declaration and bylaws. Does the board have authority over this subject? Does the rule conflict with a higher document or a statute? Use the governance self-audit.
- If it’s really a CC&R change, it needs the amendment process and an owner vote — not a board rule.
- Escalate an overreaching or improperly adopted rule through an ADRE petition.