H. B. 3109
(By Delegates Morgan, Crosier, Shaver, Hartman,
Iaquinta and Talbott)
[Introduced February 11, 2011; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §36B-3-102 of the Code of West Virginia, 1931, as amended, permitting unit owners’ associations to institute legal action against a unit owner to collect dues or assessments that are overdue or in arrears to the association; and setting forth the types of legal actions permitted.
Be it enacted by the Legislature of West Virginia:
That §36B-3-102 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 3. MANAGEMENT OF THE COMMON INTEREST COMMUNITY.
§36B-3-102. Powers of unit owners' association.
(a) Except as provided in subsection (b), and subject to the provisions of the declaration, the association, even if unincorporated, may:
(1) Adopt and amend bylaws and rules and regulations;
(2) Adopt and amend budgets for revenues, expenditures, and reserves and collect assessments for common expenses from unit owners;
(3) Hire and discharge managing agents and other employees, agents, and independent contractors;
(4) Institute, defend, or intervene in litigation or administrative proceedings in its own name on behalf of itself or two or more unit owners on matters affecting the common interest community;
(5) Make contracts and incur liabilities;
(6) Regulate the use, maintenance, repair, replacement, and modification of common elements;
(7) Cause additional improvements to be made as a part of the common elements;
(8) Acquire, hold, encumber, and convey in its own name any right, title, or interest to real estate or personal property, but: (i) Common elements in a condominium or planned community may be conveyed or subjected to a security interest only pursuant to section 3-112 one hundred twelve of this article and (ii) part of a cooperative may be conveyed, or all or part of a cooperative may be subjected to a security interest, only pursuant to section 3-112 one hundred twelve of this article;
(9) Grant easements, leases, licenses, and concessions through or over the common elements;
(10) Impose and receive any payments, fees, or charges for the use, rental, or operation of the common elements, other than limited common elements described in sections 2-102(2) and (4) subsections (1) and (4), section one hundred two, article two of this chapter, and for services provided to unit owners;
(11) Impose charges for late payment of assessments and, after notice and an opportunity to be heard, levy reasonable fines for violations of the declaration, bylaws, rules, and regulations of the association;
(12) Impose reasonable charges for the preparation and recordation of amendments to the declaration, resale certificates required by section 4-109 section one hundred nine, article four of this chapter, or statements of unpaid assessments;
(13) Provide for the indemnification of its officers and executive board and maintain directors' and officers' liability insurance;
(14) Assign its right to future income, including the right to receive common expense assessments, but only to the extent the declaration expressly so provides;
(15) Exercise any other powers conferred by the declaration or bylaws;
(16) Exercise all other powers that may be exercised in this state by legal entities of the same type as the association; and
(17) Institute litigation or administrative proceedings in its own name against a unit owner for the collection of dues or assessments that are overdue or in arrears, including, but not limited to, monetary damages, placing liens on real and personal property that prohibit the sale of that property until all late fees and assessments are paid in full, garnishee wages of the delinquent unit owner and requesting the court to deny services and amenities that would otherwise be provided to those delinquent unit owners; and
(17) (18) Exercise any other powers necessary and proper for the governance and operation of the association.
(b) The declaration may not impose limitations on the power of the association to deal with the declarant which are more restrictive than the limitations imposed on the power of the association to deal with other persons.
NOTE: The purpose of this bill is to permit unit owners’ associations to institute legal action against a unit owner to collect dues or assessments that are overdue or in arrears to the association. The bill also sets forth the types of legal actions permitted.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.