57-8a-216. Association bylaws -- Recording required -- Bylaw requirement

(1) (a) No later than the date of the first lot sale, an association shall file its bylaws for recording in the office of the recorder of each county in which any part of the real estate included within the association is located.
      (b) If an association fails to file bylaws for recording within the time specified in Subsection (1)(a), the board may file the bylaws for recording as provided in Subsection (1)(a).

(2) Unless otherwise provided in the declaration, an association's bylaws shall state:
      (a) the number of board members;
      (b) the title of each of the association's officers;
      (c) the manner and method of officer election by the board or, if the declaration requires, by the lot owners;
      (d) (i) the board member's and officer's:
                  (A) qualifications;
                  (B) powers and duties; and
                  (C) terms of office;
            (ii) the method for removing a board member or officer; and
            (iii) the method for filling a board member or officer vacancy;
      (e) the powers that the board or officers may delegate to other persons or to a managing agent;
      (f) the officers who may prepare, execute, certify, and record amendments to the declaration on behalf of the association;
      (g) a method for the board or lot owners to amend the bylaws, consistent with Section 16-6a-1010; and
      (h) subject to the provisions of the declaration and unless the declaration or this chapter requires that a provision appear in a declaration, any other matter that is necessary or appropriate for conducting the affairs of the association, including:
            (i) meetings;
            (ii) voting requirements; and
            (iii) quorum requirements.

(3) An association shall file any amended bylaws for recording in the same manner as the association is required to file the initial bylaws for recording under Subsection (1).fn1


Enacted 2011, ch. 355, eff. May 10, 2011


 

FN1.  Do subsections (1) and (3) require all associations to record their bylaws (including amendments)?

Subsection (1)(a) applies to associations where the first lot was sold on or after May 10, 2011.  It states the initial bylaws must be recorded before the first lot is sold.  Since this section was made effective May 10, 2011, it is impossible for an association to comply with this requirement in projects where the first lot was sold before May 10, 2011, thus subsection (1)(a) does not apply to such pre May 10, 2010, associations.

Subsection (1)(b) is unclear as to whether it is now talking about all associations, or just associations where the first lot was sold on or after May 10, 2011.  Presumably, it is referring to post May 10, 2010, associations since a pre May 10, 2010, association could not "fail" to do something it was never required to do.  At any rate, subsection (1)(b) merely grants permission for a board to record bylaws, which is already permitted under most CC&Rs, so its ambiguity should not cause much of a problem.  

Subsection (3) requires "an association" to record any amended bylaws "in the same manner as "the" (not "an") association is required to file the initial bylaws for recording under Subsection (1)."  If an association is not required to record its initial bylaws under subsection (1) because the first lot was sold before May 10, 2011, is that association required to record any amended bylaws?  No, because it is not possible for an association to record any amended bylaws in the same manner as that association is required to file the initial bylaws for recording under subsection (1), if that association is not required in the first place to file the initial bylaws for recording under subsection (1).

However, it is the recommended best practice that all associations record their bylaws.


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