§421J-2 Definitions. As used in this chapter, unless otherwise indicated by the context:
"Assessment" means funds collected by an association from association members to operate and manage the association, maintain property within the planned community for the common use or benefit of association members, or provide services to association members. The term also means expenditures made by, or financial liabilities of, the association for operation of the property and includes any allocations to reserves.
"Association" means a nonprofit, incorporated, or unincorporated organization:
(1) Upon which responsibilities are imposed and to which authority is granted in a declaration that governs a planned community; or
(2) That is a planned community association as defined under section 607-14.
"Association documents" means the articles of incorporation or other document creating the association, if any, the bylaws of the association, the declaration or similar organizational documents and any exhibits thereto, any rules related to use of common areas, architectural control, maintenance of units, restrictions on the use of units, or payment of money as a regular assessment or otherwise in connection with the provisions, maintenance, or services for the benefit of some or all of the units, the owners, or occupants of the units or the common areas, as well as any amendments made to the foregoing documents.
"Board of directors" or "board" means the executive board or other body, regardless of name, designated in the association documents to act on behalf of the association.
"Common area" means real property within a planned community which is owned or leased by the association or is otherwise available for the use of its members or designated as common area in or pursuant to the declaration.
"Declaration" means any recorded association document, however denominated, that imposes obligations on the owners of the units with respect to maintenance or operational responsibilities for the common area, architectural control, maintenance of units, or restrictions on the use of units. A declaration includes any amendment or supplement to the instruments described in this definition.
"Member" means the person or persons owning a unit or having the right of occupancy of a unit under a recorded lease having a term of twenty or more years from its commencement date; or anyone included in the definition of a member under the association documents, including the developer, whether or not the developer owns a unit.
"Person" means an individual, firm, corporation, partnership, association, trust or other legal entity, or any combination thereof.
"Planned community" means one of the following:
(1) Real property, other than a condominium or a cooperative housing corporation or a time share plan, that is subject to a planned community association as defined under section 607-14; or
(2) A common interest community, other than a condominium or a cooperative housing corporation or a time share plan, which includes all of the following characteristics:
(A) Real property subject to a recorded declaration placing restrictions and obligations on the owners of the real property that are enforced or enforceable by a separate entity, the association, established for that purpose whether or not mentioned in the declaration, and:
(i) That owns and maintains certain property within the planned community for the common use or benefit, or both, of the owners of units within the planned community;
(ii) That is obligated to maintain certain property it does not own within the planned community for the common use or benefit, or both, of the owners of units within the planned community; or
(iii) That is obligated to provide services to any such owners or units;
(B) Individual owners own separate units that are part of a planned community at least some of which are improved by or are to be improved by residential dwellings;
(C) Owners have automatic and non-severable membership in an association by virtue of ownership of units within the planned community; and
(D) Owners, other than a master developer or declarant, are obligated by any association document to pay mandatory assessments by virtue of ownership of a unit within the planned community.
"Recorded" means recorded or filed in the bureau of conveyances of the State or in the office of the assistant registrar of the land court of the State, as appropriate.
"Unit" means a physical portion of the planned community designated for separate ownership or occupancy. [L 1997, c 132, pt of §1; am L 2001, c 68, §1; am L 2008, c 70, §3; am L 2012, c 182, §2(2)]
Case Notes
Where charter was not recorded, and because homeowner association's first amended declaration could not reasonably be interpreted as creating the requisite authority in the association to impose a mandatory payment of money for maintenance or services, the association was not an "association" under the plain meaning of this section; thus, association was not entitled to fees and costs pursuant to §421J-10. 114 H. 361, 162 P.3d 1277 (2007).
Where homeowners' association did not qualify as an association because it was not granted authority in a declaration satisfying the statutory definition of "association" in this section, trial court erred in awarding attorney's fees and costs pursuant to §421J-10. 112 H. 356 (App.), 145 P.3d 899 (2006).
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