HOA Bylaws vs Covenants: A Complete Guide for Board Members

HOA bylaws and the declaration of covenants (also called a declaration of condominium for Georgia’s condominium communities) are two of the most important documents governing daily operations in Georgia’s community associations. However, these governing documents serve two very different purposes. Understanding their differences is crucial for effective board governance.  HOA governing documents create the framework for an association’s governing authority to help ensure consistency, property value protection, and smooth daily operations.

Understanding What is Governed By HOA Bylaws vs Covenants in Georgia

HOA bylaws are essentially the internal operating manual for how an HOA operates. Owners can think of them as the constitution that establishes how your HOA functions as a corporate entity.  HOAs should be incorporated in Georgia as nonprofit corporations, and bylaws are required by law to set forth association powers and authority, the board and officer structure, and meeting procedures, among other corporate operations.

The declaration of covenants or declaration of condominium, often referred to either as the declaration or the covenants for short, regulates owners’ use and maintenance of their property and establishes the obligation to pay assessments, among other things. While both are important, bylaws and covenants serve very different purposes.

What HOA Bylaws Cover

HOA bylaws set forth the essential structure for HOA decision-making and establish clear procedures that association members and the board of directors must follow. Required by the Georgia Nonprofit Corporation Code, association bylaws should   cover critical operational functions, such as:

• Association membership qualifications
• Member voting procedures 
• Notice procedures 
• Member and director meeting requirements
• Quorum requirements and proxy procedures
• Number and eligibility for directors and officers
• Term of office for directors
• Nomination and elections of directors
• Removal and vacancies for directors
• Duties of the association
• Authority for committees

In some instances, the Georgia Nonprofit Code may also provide operational guidance, along with an association’s bylaws.

What HOA Covenants Cover

The declaration of covenants or declaration of condominium establishes both individual owner and association obligations in the community.  Critically, the declaration establishes the obligation of owners to pay assessments and the obligation of the association to collect the assessments to fund association operations. The declaration also assigns maintenance responsibilities for common areas and individual lots or units and controls what owners may do in the community, impacting the exterior appearance of their property.

For example, the covenants typically govern what owners can and cannot do with their property, covering  areas such as:

• Maintenance requirements
• Architectural restrictions governing exterior home modifications, additions, and  changes
• Pets, including number, size, and type restrictions
• Vehicle restrictions and parking requirements
• Landscaping requirements
• Noise and nuisance limitations on activities
• Property use limitations, for example, restricting commercial use of lots and units
• Leasing restrictions

These types of use restrictions serve as the legal foundation for maintaining community standards, protecting property values, and ensuring neighborhood consistency. Because declarations are recorded in the county land records and bind title to each owner’s property, they automatically transfer to new owners when properties are sold.  Covenants carry significant legal weight through both administrative and judicial enforcement processes.

Key Differences Between Bylaws and Covenants in Georgia

With bylaws outlining how the HOA operates and covenants establishing restrictions for how lots and units can be used and maintained, there are numerous differences between the two documents. Nonetheless, understanding these three critical differences will help you apply the right document to the right situation:

Internal Operations vs Property Restrictions

Bylaws govern the internal mechanics of your HOA, such as administrative procedures, board and member meetings, elections, and officer responsibilities. If you have a question about when board meetings are held or how many directors your HOA can have, you’ll find answers in the bylaws.

Covenants regulate what happens on and with your property, like appearance standards, use restrictions, and modification requirements. If an owner wants to install a fence or paint their house a new color, the covenants should provide the owner guidance on the process they must follow to get association approval for any modifications to their property…

When owners violate the requirements and restrictions of the declaration, boards must take action for covenant enforcement. Most declarations empower HOAs with the authority to ensure homeowners comply with community standards and use restrictions. Enforcement can include active monitoring, violation notices, suspension of voting and use rights, fines, self-help, and legal action if necessary. 

Amendments to Bylaws and Covenants 

Bylaw amendments may be easier to achieve if the bylaws are not recorded in the land records.  If the bylaws are not recorded instruments, the amendment procedure may allow a vote of the board to make changes or a vote of a majority of the members.  However, many bylaws require the same amendment procedure as the covenants and require the approval of two-thirds of the members. Amendments allow communities to adapt their governance procedures as needs change.

Covenant amendments in Georgia typically must be approved by two-thirds of the owners if the community is an HOA subject to the Property Owners’ Association Act or the Condominium Act.  Some common law HOA declarations require the approval of 75% of the owners.  It is important to review the amendment process of your HOA’s declaration to know the required member threshold to approve changes.  

Common Misunderstandings

Even with these distinct differences, misunderstandings about HOA governing documents often happen, with many board members and homeowners making costly assumptions about their HOA’s documents. Here are examples of some of the most common misconceptions to help you avoid mistakes:

Bylaws Don’t Control Property Use

One of the biggest misconceptions is that bylaws contain property use restrictions. If an owner requests approval for a home improvement project or has questions about pets, parking, or landscaping, the board should reference the declaration of covenants, not the bylaws. Remember: bylaws establish HOA operations, while covenants set forth property restrictions.

Covenants Are Legally Binding, Not Optional Guidelines

Some owners assume covenants are flexible guidelines that can be applied inconsistently or waived informally. This is a serious mistake. Covenants are contractual obligations tied to each property deed and carry significant legal weight. Owners failing to abide by them or inconsistent HOA enforcement can undermine the HOA’s authority, create liability for the association, and erode community trust.

Making Changes to Bylaws and Covenants

Amendment procedures for bylaws and covenants are determined by the documents themselves. While the amendment process for a community’s bylaws and covenants may be the same, that is not always the case.  Understanding the differences can help communities correctly update their governing documents when needed:

Amending HOA Bylaws

Amending HOA bylaws is generally a straightforward process that allows communities to adapt their governance as needs change:

1. Identify changes: The board determines needed updates, and legal counsel drafts proposed amendments consistent with the applicable law.
2. Notify homeowners: If owners must approve the changes, boards may want to provide advance notice of the proposed changes and allow time for review, helping to ensure support and ultimate owner approval.
3. Discussion period: Invite member input, questions, and suggested revisions, when appropriate.
4. Vote: If only the board must approve the amendment, the board can vote at a meeting, record the vote in its minutes, and fully execute the amendment.  If owners must approve the amendment, consult the association’s attorney on the percentage of owners that must approve the amendment and the options for owner voting.  For example, a ballot outside a meeting, written consent, or a vote at a member meeting.  Ballots used without a meeting and written consents must meet statutory requirements and any requirements in the association’s bylaws.  
5. File updates: If the original bylaws were recorded in the county land records with the association’s declaration, submit amended bylaws to the appropriate state agencies
6. Distribute and implement: Provide updated copies to members and ensure the board follows new procedures

Amending the Declaration

Changing the declaration can be a more complex process due to its impact on property rights:

1. Begin with legal review: Engage an attorney to ensure the desired changes are enforceable and drafted in accordance with applicable laws.
2. Notify homeowners: Once the board is happy with the proposed amendment, the board can share the full text of the proposed changes for owners’ review.
3. Allow comment period: Especially with extensive or significant changes, the board will be well served to give owners time to review, comment on, and discuss the proposals to help ensure owners’ ultimate approval of the amendment.
4. Vote: Consult the association’s attorney on the options for owner voting and the percentage of owners that must approve the amendment, typically at least two-thirds of the owners; however, some documents may require more than two-thirds approval.  For the vote itself, the board may be able to hold the vote by a ballot outside a meeting, written consent, or a vote at a member meeting.  Ballots used without a meeting and written consents must meet statutory requirements and any requirements in the association’s bylaws. 

File with the county: The association’s attorney will need to fully execute and record the amendments in the county land records to be effective. Once recorded, the amended covenants apply to all current and future property owners in the community and carry the same legal weight as the original restrictions.

When to Seek Professional Help

If your board is facing disputes over governing document interpretation, persistent covenant violations, or would like to pursue amendments to your governing documents, it’s likely time to get professional assistance. Consider seeking legal help when dealing with:

•  Interpretation of issues with ambiguous document language
• Persistent covenant violations requiring escalated enforcement
• Amendment processes 
• Disputes between the board and homeowners over document application
• Questions about legal compliance or potential liability

Professional guidance ensures your association protects its interests while maintaining fair and consistent governance. Call 1-770-863-8900 to talk to a NowackHoward team member today for more information. 

Frequently Asked Questions – FAQs

What is the difference between HOA bylaws and covenants (CC&Rs)? 

The difference is that covenants govern what you can do with your property (landscaping, modifications, pets), while bylaws govern how the HOA operates internally (meetings, elections, board procedures). Think of covenants as external rules and bylaws as internal procedures.

Can an HOA exist without bylaws? 

No, HOAs cannot exist without bylaws. HOAs are legally structured as nonprofit corporations and are required by state law to have bylaws governing their operations. Bylaws are essential for legal compliance, proper governance, and establishing clear procedures for decision-making.

Are bylaws legally enforceable? 

Yes, HOA bylaws are legally binding and enforceable, though they primarily govern the HOA’s internal operations rather than individual homeowner behavior. Bylaw violations can lead to board member removal, legal challenges, and potential liability for improper governance.

Are HOA CC&Rs legally binding in Georgia? 

HOA covenants are absolutely legally binding. CC&Rs are legally binding documents recorded with county offices and attached to property deeds. Covenant violations can result in fines, forced compliance, liens, and even foreclosure, making them enforceable through both administrative and judicial processes.