Senate Bill No. 589
(By Senator Snyder)
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[Introduced February 17, 2003; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact section one hundred three, article two,
chapter thirty-six-b of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, relating to
common interest communities; and providing that the provisions
of said section relating to common interest communities and
condominiums have no application to restrictive covenants
which contain provisions allowing amendment when the
provisions for amendment are duly followed.
Be it enacted by the Legislature of West Virginia:
That section one hundred three, article two, chapter
thirty-six-b of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be amended and reenacted to read as
follows:
ARTICLE 2. CREATION, ALTERATION AND TERMINATION OF COMMON
INTEREST COMMUNITIES.
§36B-2-103. Construction and validity of declaration and bylaws.
(a) All provisions of the declaration and bylaws are
severable.
(b) The rule against perpetuities does not apply to defeat any
provision of the declaration, bylaws, rules or regulations adopted
pursuant to section 3-102(a)(1).
(c) In the event of a conflict between the provisions of the
declaration and the bylaws, the declaration prevails except to the
extent the declaration is inconsistent with this chapter.
(d) Title to a unit and common elements is not rendered
unmarketable or otherwise affected by reason of an insubstantial
failure of the declaration to comply with this chapter. Whether a
substantial failure impairs marketability is not affected by this
chapter.
(e) A declaration or the bylaws may not change or alter a
restrictive covenant in a deed to any real estate that is or that
becomes subject to the provisions of this chapter. The restrictive
covenants that are in effect at the time real estate is purchased
that is or that becomes subject to the provisions of this chapter
may not be changed or altered as to the purchaser of that real
estate or as to any assign, heir or beneficiary of the original
purchaser unless that original purchaser, assign, heir or
beneficiary agrees in writing to a change of a restrictive
covenant. This subdivision does not apply to the change of
restrictive covenants of homeowner fees if the fees do not exceed
the sum of one hundred dollars a year.
The provisions of this
section have no application to restrictive covenants which contain
provisions authorizing amendment when those provisions for amendment are duly followed.
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(NOTE: The purpose of this bill is to
provide that the
provisions of section one hundred three relating to common interest
communities and condominiums have no application to restrictive
covenants which contain provisions allowing amendment when the
provisions for amendment are duly followed. Current code disallows
altering restrictive covenants in a declaration or in the bylaws of
a common interest community under any circumstances.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.)