Condo Media - January 2012 - 23

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assurances are made in that regard; and (B) a statement as to whether, if any development right is exercised in any portion of the real estate subject to that development right, that development right must be exercised in all or in any other portion of that real estate. (10) Any other conditions or limitations on the rights described in subdivision (8) of this subsection. (11) An allocation to each unit of the allocated interests pursuant to section 2-107 of this title. (12) Any restrictions: (A) on alienation of the units, including any restrictions on leasing which exceed the restrictions on leasing units which executive boards may impose pursuant to section 3-102(c)(2) of this title; and (B) on the amount for which a unit may be sold or on the amount that may be received by a unit owner on sale, condemnation or casualty loss to the unit or to the common interest community, or on termination of the common interest community. (13) The volume and page of recorded easements and licenses appurtenant to or included in the common interest community or to which any portion of the common interest community is or may be subject by a reservation in the declaration. (14) All matters required by sections 2-106, 2-107, 2-108, 2-109, 2-110, 2-111, 2-112, 2-113, 2-114, 2-116 and 3-103(d) of this title. (b) The declaration may contain any other matters, which the declarant deems appropriate, including any restrictions on the uses of a unit or the number or other qualifications of persons who may occupy units. VCIOA § 3-106 as amended by Act 155 states that: (a) The bylaws of the association shall: (1) provide the number of members of the executive board and the titles of the officers of the association; (2) provide for election by the executive board or, if the declaration requires, by the unit owners, of a

president, treasurer, secretary, and any other officers the bylaws specify; (3) specify the qualifications, powers and duties, terms of office, and manner of electing and removing executive board members and officers and filling vacancies; (4) specify the powers that the executive board or officers may delegate to other persons or to a managing agent; (5) specify the officers who may prepare, execute, certify, and record amendments to the declaration on behalf of the association; (6) establish the frequency of association meetings, which in no case shall be less than one per year; (7) establish the number of voters constituting a quorum, which shall not be less than 20 percent of the persons entitled to vote for the executive board. Proxy votes may be included for a quorum; (8) specify a method for the unit owners to amend the bylaws; (9) contain any other provisions necessary to satisfy requirements of this title or the declaration concerning meetings, voting, quorums, and other activities of the association; and (10) provide for any matter required by the laws of this state other than this title that is required to appear in the bylaws of organizations of the same type as the association. (b) Subject to the declaration and this title, the bylaws may provide for any other necessary or appropriate matters, including matters that could be adopted as rules. Neither § 2-105 nor § 3-106 is listed in § 2-104 as applicable to pre-1/1/99 common interest communities so that pre-1/1/99 declarations and bylaws do not have to be amended to include these provisions. Both § 2-105 and § 3-106 appear in the original VCIOA and post-1/1/99 declarations that were adopted under VCIOA should already include the required provisions. Although Act 155 makes some wording changes to § 2-105 and § 3-106, the only substantive change to § 2-105 is the addition of § 2-105(15) that

requires the declaration to contain “[a]ny authorization pursuant to which the association may establish and enforce construction and design criteria and aesthetic standards as provided in sections 3-103 and 3-106 of this title,” and the only substantive changed to § 3-106 is the addition of § 3-106(9). Arguably, § 3-106(9) can be read to require amendments to bylaws of common interest communities formed on or after 1/1/99, at least to the extent of bylaw provisions relating to “meetings, voting, quorums, and other activities of the association,” to bring those sections into conformance with VCIOA. Others may argue if Act 155 amendments are self-effectuating, changes are already “contained” in the bylaws and no amendments are necessary.

R e g i o n a l N e w s

Practical Considerations
Whether or not Act 155 requires amendments to existing declarations or bylaws of post-1/1/99 common interest communities, if a provision of a declaration or bylaws to which Act 155 is applicable appears to be at variance with a provision of the Act, the association will be faced with the challenge of determining how to conduct business, often in circumstances where legal assistance is not immediately available to it. Will the association board and the unit owners be required to conduct business with the Act and the declaration and bylaws open on the table side-by-side, and determine on a case-by-case basis (often without legal representation) which one controls? Does the board undertake its own legal analysis to determine in each case whether the Act trumps the declaration or bylaws? How will the board respond to a point of order raised at a meeting when the board announces it is acting contrary to the long-standing association declaration or bylaws because “the law requires us to go against our own condominium documents?” Good association governance and legal counsel would suggest recom-

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Condo Media - January 2012

Table of Contents for the Digital Edition of Condo Media - January 2012
