Another Reason Not to Opt into the Tennessee Condominium Act…
February 14, 2015
As has been discussed before, the Tennessee Condominium Act is an odd statute. It both does and does not apply to all condominium developments in Tennessee. If a condominium development was created (i.e., its master deed or declaration properly recorded) after January 1, 2009, then such development is governed by the entirety of the Tennessee Condominium Act. However, most condominium developments in Tennessee were created prior to January 1, 2009. As such, the Tennessee Condominium Act only partially applies to them, and then only as to events that occur after January 1, 2009, see Tenn. Code § 66-27-202(a). That being said, the Tennessee Condominium Act provides that an existing condominium development may opt into the new statute, see Tenn. Code § 66-27-202(c). But, would a condominium development want to?
Our answer is “no”.
Here is an example of why.
The Tennessee Condominium Act provides at Tenn. Code § 66-27-211 that:
In addition to any other remedy provided by the declaration, any right or obligation declared by this part and parts 3-5 of this chapter is enforceable by judicial proceeding. If any person subject to this part and parts 3-5 of this chapter fails to comply with this part and parts 3-5 of this chapter or any provision of the declaration or bylaws, any person or class of persons adversely affected by the failure to comply has a claim for appropriate relief. The court, in an appropriate case involving willful failure to comply with this part and parts 3-5 of this chapter, or any provision of the declaration or bylaws, may award reasonable attorney’s fees.
Facially, this seems to be a good provision. It provides that the master deed/declaration, bylaws, and Tennessee Condominium Act may be judicially enforced and with attorney’s fees awarded. That is true. However, “person” is defined by the Tennessee Condominium Act, at Tenn. Code § 66-27-293(18), to include corporations. This means that this enforcement provision may be used against the association if it is not complying with the master deed/declaration, bylaws, and Tennessee Condominium Act. So, a condominium bound completely by the Tennessee Condominium Act has given a statutory attorney’s fees provision to its members. Given the increase in litigation between members and associations, this is not a good thing.
When condominiums contemplate whether to opt into the Tennessee Condominium Act, this is something they should consider.
Tags: association, board of directors, bylaws, CCRs, condominium, condominium association, condominium unit, Declaration of Covenants Conditions and Restrictions, HOA, homeowner, homeowner association, homeowners, homeowners association, Horizontal Property Act, laws, Master Deed, Tenn. Code 66-27-201, Tennessee, Tennessee Condominium Act, tn