What Are Condominium and Homeowners Associations?
March 19, 2013

Welcome to the Tennessee Condominium and Homeowners Association Blog. It is the intent of this blog to address the common issues and concerns of Tennessee condominium and homeowners associations. This blog is hosted by the law firm of Dinkelspiel, Rasmussen & Mink, PLLC. We are a law firm located in Memphis, Tennessee, that represents several hundred condominium and homeowners associations across a geographic area spanning from eastern Arkansas to Nashville to northern Alabama. However, the vast majority of the associations that we represent are located in Shelby County and Fayette County, Tennessee. The attorneys, Robert Dinkelspiel, Wayne Mink, and Peter Baskind, in our firm have extensive experience in legal matters impacting condominium and homeowners associations. In addition, our firm has experienced trial attorneys versed in representing associations.

What are condominium and homeowners associations? Simply put, they are generally Tennessee non-profit corporations that oversee the common areas and common elements of a real property development. Occasionally, there are unincorporated associations, but they do not have the powers and authorities that incorporated associations have. Consequently, for the purposes of this blog, the term “association” will refer to incorporated associations.

Incorporated means that the association has filed a charter (the “Charter”) with the Tennessee Secretary of State and has filed all necessary annual reports with the state. Because an association is a non-profit corporation incorporated under Tennessee law, it is governed by the Tennessee Nonprofit Corporation Act, Tenn. Code § 48-51-101, et seq. (the “Act”). It is important to note that simply because an association is a nonprofit corporation does not make it a charity. For example, payments to the association are not tax-deductible. Tax-deductible charities may, in fact, be non-profit corporations, but they must also qualify for such tax-deductible status under federal law.

Beyond the Act, the association is governed by its Charter and Bylaws. The Charter is what forms the Association. It is a rather simple document that sets forth the association’s name, principal office, registered agent, and membership. It is formally filed with the Tennessee Secretary of State to create the corporation and then recorded in the Register’s Office in the county in which the association is located. The Bylaws are a more complicated document. The Bylaws set out how the association is governed. It provides how the association elects its Board of Directors, how officers are selected, when membership meetings are held, how membership meeting are held, and what the powers of the Board of Directors are, amongst other things. The Bylaws, then, are an exceedingly important document for any association.

As stated above, there are two different types of associations in Tennessee: condominium associations and homeowners associations. In the next post, we will address the basic differences between these two types of entities.

 

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6 thoughts on “What Are Condominium and Homeowners Associations?”

  • annette franklin says:

    can homeowners attend board meetings to learn what is going on behind closed doors?
    should the homeowners expect the minutes from these meetings
    Why are homeowners asked to leave these meetings?

    • drmlawyers@gmail.com says:

      Board meetings may be closed to members, especially if the Board is discussing delinquent accounts and ongoing litigation. There is no requirement that Board meetings be open to members. Further, holding open Board meetings, in certain instances, would jeopardize attorney-client confidentiality if the Association’s attorney were discussing on-going litigation with the Board.

  • annette franklin says:

    is it costly to change any thing in the bylaws

  • Aaron says:

    Does it matter who owns the common area in determining whether a development is a Condominium or something else? I have always understood that in a Condominium, ownership is vested in the unit owners directly. That is, they OWN it in common, not just have the right to use it in common. If the common area is owned by the association, then I understood that it is not a Condominium. Is this a correct way to distinguish between Condominiums and developments that are something else?

    • Brandon McNary says:

      The way you distinguish between a condominium and a planned development is based off of what is owned pursuant to the Master Deed, etc. Your question gets into some more complex legal questions which are more difficult to explain via a blog. If you have further questions, please feel free to contact us at your convenience.

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