§421J-2  Definitions.  As used in this
chapter, unless otherwise indicated by the context:



"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]



 



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.



  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.