The Declaration and Why It Binds a Buyer Who Never Signed It

A buyer signs a purchase agreement, a deed and a stack of loan papers. None of them is the declaration. Yet from the moment the deed records, that buyer owes assessments, must submit plans before changing a window, and can be fined for parking in the wrong place. The reason is a doctrine older than any of these communities: a properly recorded covenant runs with the land.

Recording is the act that creates the community

Statutes describe creation as a recording event. A representative provision states that the act applies and a common interest development is created whenever a separate interest coupled with an interest in the common area or membership in the association is conveyed, provided a declaration has been recorded, along with a condominium plan if one exists and a final or parcel map where the subdivision laws require it.

The declaration itself has required contents: a legal description of the development, a statement of the type of project, the name of the association, and the restrictions on use or enjoyment that are intended to be enforceable equitable servitudes. That last phrase is doing the legal work. It is the declarant announcing that these are not personal promises but burdens on the land.

Because the recording happens before the first sale, every later conveyance is made subject to it. There is no moment at which an owner could have taken free of the restrictions, and no signature is required to attach them.

Equitable servitudes and constructive notice

Covenants that touch and concern the land, that were intended to run, and of which a purchaser has notice, bind successors. Recording supplies the notice. The land records are a public system, and a buyer is charged with knowledge of what a search would have revealed whether or not one was performed.

Modern statutes shortcut the older common law analysis by declaring the result. A typical provision states that the covenants and restrictions in the declaration are enforceable equitable servitudes, unless unreasonable, and inure to the benefit of and bind all owners of separate interests in the development.

Two limits sit above even the declaration. State statute overrides a conflicting provision, and a growing list of statutes voids specific restrictions outright: bans on solar devices, on displaying the national flag, on satellite antennas within an owner's exclusive area, and on electric vehicle charging equipment. Federal fair housing law does the same for restrictions that discriminate on a protected basis, and a covenant of that kind is unenforceable no matter how long it has been recorded.

The unreasonableness qualifier is narrower than owners hope. Courts generally review a recorded covenant for reasonableness as applied to the community as a whole, not to the individual complaining about it, and they uphold restrictions that a court would strike down if the board had adopted them as a rule. That deference is the single most important consequence of a restriction living in the declaration rather than elsewhere.

The articles that do the work

Declarations follow a recognizable pattern regardless of the state. An opening article defines the property, the units or lots, and the common areas, and it is here that the boundary between what an owner maintains and what the association maintains is drawn. Disputes about a leaking window or a cracked patio slab are usually resolved by reading this article rather than by arguing about fairness.

A second article allocates interests: the share of common expenses each unit bears, the votes each unit casts, and in a condominium the percentage of undivided interest in the common elements. Those allocations are difficult to change, because most statutes require the consent of every affected owner and often of their lenders before a share can be altered.

The remaining articles cover use restrictions, architectural control, assessments and enforcement, insurance and casualty, and amendment. A declaration that omits any of these leaves the association relying on the statute's default rules, which are frequently less favorable to it than a drafted provision would have been.

Reading the documents in order

Disputes are frequently resolved by rank rather than by argument. State statute overrides everything, including a declaration provision that conflicts with a mandatory statutory rule. Below that sits the declaration, then the articles, then the bylaws, then the board's rules.

The practical use is defensive. An owner facing a rule can ask whether the declaration authorizes it. A board that adopts a rule restricting something the declaration expressly permits has exceeded its authority, and the rule fails without any inquiry into whether it was a good idea. That is a different and stronger argument than saying the rule is unfair.

The hierarchy also explains why boards prefer amendments to rules for anything contentious. A restriction moved into the declaration by a proper vote gains the deference described above, which is why leasing restrictions in particular are usually pursued as amendments, a subject taken up in the article on leasing caps and owners who bought before them.

Finding the operative text and what to look for

Start with the county recorder rather than the management portal. Search the subdivision or condominium name, locate the original declaration, then run forward through the index for amendments. Associations must also make governing documents available to members, a right covered in the article on inspecting association records.

Four provisions repay attention before any dispute arises. The assessment article states how dues are set and what happens on default, which drives the lien priority questions in the article on where an assessment lien sits against a mortgage. The architectural article states what needs approval and how long the committee has, examined in the article on what happens when a review committee misses its deadline. The enforcement article states what notice precedes a fine. And the amendment article states the percentage required to change anything, which is where most attempts to fix a bad provision come to a halt.