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

"Association" means a nonprofit,incorporated, or unincorporated organization:

(1)  Upon which responsibilities are imposed and towhich authority is granted in a declaration that governs a planned community;or

(2)  That is a planned community association asdefined under section 607-14.

"Association documents" means thearticles of incorporation or other document creating the association, if any,the bylaws of the association, the declaration or similar organizationaldocuments 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 theprovisions, maintenance, or services for the benefit of some or all of theunits, the owners, or occupants of the units or the common areas, as well asany 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 propertywithin a planned community which is owned or leased by the association or isotherwise available for the use of its members or designated as common area inor pursuant to the declaration.

"Declaration" means any recordedassociation document, however denominated, that imposes obligations on theowners of the units with respect to maintenance or operational responsibilitiesfor the common area, architectural control, maintenance of units, orrestrictions on the use of units.  A declaration includes any amendment orsupplement to the instruments described in this definition.

"Member" means the person or personsowning a unit or having the right of occupancy of a unit under a recorded leasehaving a term of twenty or more years from its commencement date; or anyoneincluded 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 anycombination thereof.

"Planned community" means one of thefollowing:

(1)  Real property, other than a condominium or acooperative housing corporation or a time share plan, that is subject to aplanned community association as defined under section 607-14; or

(2)  A common interest community, other than acondominium or a cooperative housing corporation or a time share plan, whichincludes all of the following characteristics:

(A)  Real property subject to a recordeddeclaration placing restrictions and obligations on the owners of the realproperty that are enforced or enforceable by a separate entity, theassociation, established for that purpose whether or not mentioned in thedeclaration, and:

(i)  That owns and maintains certain propertywithin the planned community for the common use or benefit, or both, of the ownersof units within the planned community;

(ii)  That is obligated to maintain certainproperty it does not own within the planned community for the common use orbenefit, or both, of the owners of units within the planned community; or

(iii)  That is obligated to provide services toany such owners or units;

(B)  Individual owners own separate units thatare part of a planned community at least some of which are improved by or areto be improved by residential dwellings;

(C)  Owners have automatic and non-severablemembership in an association by virtue of ownership of units within the plannedcommunity; and

(D)  Owners, other than a master developer ordeclarant, are obligated by any association document to pay mandatoryassessments by virtue of ownership of a unit within the planned community.

"Recorded" means recorded or filed inthe bureau of conveyances of the State or in the office of the assistantregistrar of the land court of the State, as appropriate.

"Unit" means a physical portion of theplanned community designated for separate ownership or occupancy. [L 1997, c132, pt of §1; am L 2001, c 68, §1; am L 2008, c 70, §3]

 

Case Notes

 

  Where charter was not recorded, and because homeownerassociation's first amended declaration could not reasonably be interpreted ascreating the requisite authority in the association to impose a mandatorypayment of money for maintenance or services, the association was not an"association" under the plain meaning of this section; thus, associationwas not entitled to fees and costs pursuant to §421J-10.  114 H. 361, 162 P.3d1277.

  Where homeowners' association did not qualify as anassociation because it was not granted authority in a declaration satisfyingthe statutory definition of "association" in this section, trialcourt erred in awarding attorney's fees and costs pursuant to §421J-10.  112 H.356 (App.), 145 P.3d 899.