Tag Archives: laws

The Difference Between Non-Profit and Tax Exempt

In representing condominium and homeowners associations, I often have to correct misinformation about the nature of such entities.  Recently, I have seen many members and Boards mention that their associations are 501(c)(3)’s.  They are not.

This is a common misconception regarding the nature of condominium and homeowners associations.  In Tennessee mandatory condominium and homeowners associations are created as non-profit corporations under the provisions of the Tennessee Nonprofit Corporation Act, Tenn. Code § 48-51-101, et seq. (the “Act”).  As non-profit corporations, the associations are merely corporations that do not have a profit motive.   The associations are more properly defined, under the Act, as mutual benefit non-profit corporations.  They are mutual benefit in that the purpose of the association is to provide benefits for all the members of the corporation.  For example, the maintenance of the common areas and common elements mutually benefit all members.  In regular corporations, the purpose of the entity is some business purpose ultimately geared towards making a profit.  Thus, the distinction solely has to do with whether the entity is intended to make a profit.

When an entity states that it is a “501(c)(3)” entity, it is referring to 26 U.S.C. § 501(c)(3), which is a provision of the Internal Revenue Code.  This section of the Internal Revenue Code addresses certain tax-exempt entities.  Donations to these tax-exempt entities are tax deductible.  For example,  when you make a donation to the American Red Cross or the Salvation Army, that donation is deductible on your taxes because, while those entities are non-profit they have also qualified under the provisions of 26 U.S.C. § 501(c)(3).  Applying for federal tax-exempt status can be an arduous process.

To my knowledge, no condominium or homeowners association in the State of Tennessee has successfully applied for such a classification.  Thus, while associations are non-profit, they are not tax exempt.  This means that the payment of assessments is not tax deductible.  I can understand the confusion, but it is important to note that associations are not federally tax exempt entities under 26 U.S.C. § 501(c)(3).

Associations and Communications Technology

Following up on our last post on HB2060/SB2198, the House version of the bill has been taken off of notice for the legislative calendar, while the Senate version, as of February 19th, was assigned to a subcommittee.

Let’s switch from the legislative update to an interesting development near Nashville.  A lawsuit has been filed in the U.S. District Court of the Middle District of Tennessee, Nashville Division, involving a Tennessee homeowners association.  As noted before, it is rare to see associations in federal court.  Associations normally are not in federal court for jurisdictional reasons.  This case, styled:  DeCuyper v. Flinn, et al., Case No. 3:13-cv-00850, involves the alleged violation of the federal Electronic Communications Privacy Act, 18 U.S.C. § 2510, et seq. (the “Act”), amongst other matters.  Since the interpretation of a federal statute is at issue, federal jurisdiction is proper.

The heart of this case appears to involve a failed attempt to amend an association’s CCRs.  At the meeting of the Association at which the amendment was discussed and voted upon, matters appear to have gotten out of hand.  Without delving too much into the facts, what stands out of interest in this case is the allegation that the Board intercepted, blocked, obstructed, or otherwise disclosed emails of the Plaintiff.  Under the Act, such violations can be punishable by imprisonment, severe fines, civil liability for damages, punitive damages, and attorney’s fees.  Apparently, the Association provided its members access to a central email server system and allowed each member an email address.  These email addresses could be used by members to send and receive messages.  The allegations in the lawsuit are that the Board violated the Act.

In our representation of associations, we are seeing associations become more and more tech-savvy.  Associations have websites, social media accounts, and online forums.  Some associations, such as the one involved in the litigation discussed above, provide email addresses to their members.  The concern here is that there are federal and state laws regarding the treatment of such communication.  Associations certainly should embrace technology, but they should exercise care with regard to how such technology is used.

2014 Tennessee Legislative Update — HB2060/SB2198

We switch from a federal case on takings law to a bill that was filed in the Tennessee General Assembly on January 23, 2014:  http://wapp.capitol.tn.gov/apps/BillInfo/Default.aspx?BillNumber=SB2198.  HB 2060/SB 2198, as proposed, would prohibit homeowners associations and condominium associations from:

(1) Prohibiting any person from parking on any public street located within any county or municipality of this state unless expressly authorized by the legislative body of the county or municipality;
(2) Penalizing or fining any persons in an amount exceeding the required monthly amount of dues owed by persons owning separate lots or units within the respective homeowners’ association; and
(3) Attaching an assessment lien on any real property in this state unless the homeowners’ association or its designee demonstrates to a court by clear and convincing evidence that a person owning a separate lot or unit within the homeowners’ association is past due on required monthly payments owed to the homeowners’ association.

Unless expressly authorized by the legislative body of the county or municipality, this bill prohibits any governing document of a homeowners’ association from including a limitation or prohibition against the display of any political sign on privately owned property within the boundaries of the respective homeowners’ association.

The requirements of this bill would apply retroactively unless prohibited by Article XI, Section 2 of the Constitution of Tennessee, Article 1, Section 10 of the Constitution of the United States, or some other provision of either the state or federal constitution.

Functionally, we are not concerned about items (1) and (2).  An association has no control over a public street.  Thus, it cannot prohibit individuals from parking on public streets.  This has always been our opinion.  Charging late fees in amounts exceeding the assessments is likely usurious and therefore impermissible.

Item (3) is horribly thought out.

One of the primary tools for associations to collect delinquent assessments is the ability to file liens.  Properly written CCRs and master deeds contractually provide for a lien for delinquent assessments.  The Tennessee Condominium Act of 2008 provides in Tenn. Code § 66-27-415 that condominiums have a secured lien on units for delinquent assessments.  Hundreds of CCRs, master deeds, and declarations have been recorded including such liens.  Thousands of liens have been recorded by Associations throughout this state.  Yet, this bill, if passed, would nullify each of these liens, retroactively, unless each and every association can demonstrate to a court, by clear and convincing evidence, that the person owning the lot or unit is actually delinquent.  This provision is not going to reduce the recordation of liens in Tennessee.  It will only result in the increase in filed lawsuits as associations in Tennessee become required to collect delinquent assessments through the judicial system.  Once the Associations obtain their due judgment, then they will record judgment liens.

At this point the bill is in subcommittee.  Hopefully, it will die there.

Reporting Crimes and Sex Offender Restrictions

Liability for associations is a common concern for Boards of Directors.  Some associations in Tennessee, in an attempt to mitigate liability, have inserted provisions in their CCRs or master deed that prohibit sex offenders from residing in the development.  Setting aside whether such provisions are enforceable in Tennessee, there is a question as to whether such provisions are wise from an enforcement standpoint.

Generally, such provisions state that individuals listed on the state’s sex offender database are prohibited from residing in the development.  The question then becomes, what is the Association doing to follow up on this matter?  Is the Association running background checks on every person residing in the development on a periodic basis?  If not, why not?  For example, someone could move into the development and not be on the registry.  Over the years, they could commit a crime and be placed on it.  Or, a non-owner who resides at the property (an adult child or significant other) could be on the registry.  If the Association does not conduct periodic investigations of its residents, then is it exercising its fiduciary duties under the CCRs or Master Deed?

We recommend that Associations remove such sex offender restrictions from their CCRs or Master Deeds.  This may seem counterintuitive.  However, Associations seldom investigate their members, and if they do not and someone is injured then the Association may bear some liability.  For example, if an association were to have such a provision and it were not to investigate and a sex offender were to move in and such individual were to commit a crime in the development, a plaintiff’s attorney would certainly investigate the potential liability of the Association.

On the other hand, you have what occurred recently in Clarendon County, South Carolina to James E. King.  Mr. King owns a unit in the Santee Resort condominiums.  The Santee Resort Board obtained information from the South Carolina Sex Offender registry regarding a William James King who is a registered sex offender.  The Board put together a flyer with William James King’s name, photo, and sex offender status and circulated it in the Santee Resort community claiming that William James King was one and the same as James E. King.  The Board was horribly wrong.  Not only did they have the wrong man, but James E. King does not have a criminal record.

James E. King sued the Santee Resort condominiums and obtained a jury verdict in the amount of $890,000.00.

On the one hand, failing to investigate may lead to liability.  On the other, actually investigating may lead to liability.

There are numerous lessons in this case.  First, an Association should only publish notices regarding its meetings.  Second, the Board of Directors should consider its governing documents and determine whether provisions of such documents may cause potential liability issues the Association.  Third, the Board of Directors should review its insurance, annually, to insure that the Association is properly covered.

Finally, we wish all of you happy and prosperous New Year!

Tennessee Associations and Real Estate Taxes

How common areas and general common elements are treated for real estate tax purposes is often a concern for Tennessee associations.   It should be noted that common areas are found in homeowners associations, and general common elements are found in condominium associations.  Common areas are typically conveyed to the association.  Consequently, the association owns the common areas.  Each lot owner in the development will likely have certain easement rights or rights to use the common areas as provided in the CCRs.  General common elements are different.  General common elements in a condominium development are owned in common by all of the unit owners in the condominium development.  As such, each unit owner has an undivided ownership interest in the general common elements.  This ownership interest cannot be severed from the unit owner’s title in the unit.  The association in a condominium development does not own the general common elements.  Rather, it is responsible for the maintenance of the general common elements.

Thus, the distinction is that common areas are owned by the Association and general common elements are owned in common by the unit owners.

Real estate taxes for common areas are usually de minimus.  Any such real estate taxes should be paid by the Association.

Real estate taxes for general common elements are theoretically taxed to the unit owners in a condominium development.  As noted above, each unit owner owns an undivided interest in the general common elements that cannot be legally separated from his or her unit.  In fact, both the Horizontal Property Act (see, Tenn. Code § 66-27-120) and the Condominium Act of 2008 (see, Tenn. Code § 66-27-205) provide that units must be separately taxed.  Thus, all taxes on general common elements are paid for by the unit owners.  Thus, a condominium development should not be assessed real taxes.  For a condominium development to assessed real estate taxes leads to a double taxation issue as those taxes are already included in the assessed valuation of the individual unit.  Simply put, a condominium association in Tennessee should not pay real estate taxes.

Tennessee Condominiums, Lender Foreclosures, and the Six Month Reachback

As has been previously mentioned, the Tennessee Condominium Act of 2008, Tenn. Code § 66-27-101, et seq. (the “Act”), applies in certain instances to all condominiums in Tennessee (even those created prior to January 1, 2009), but only with respect to events and circumstances that occur after January 1, 2009.  See Tenn. Code § 66-27-202(a).

One of the provisions that applies to all condominiums in Tennessee is found in Tenn. Code § 66-27-415(b)(2)(A).  The statutory framework provides in its entirety from Tenn. Code § 66-27-415(b) that:

(1)     A lien [being the association’s lien for delinquent assessments] under this section is prior to all other liens and encumbrances on a unit, except:

(A)    Liens and encumbrances recorded before the recordation of the declaration;

(B)     A first mortgage or deed of trust on the unit recorded before the date on which the assessment sought to be enforced became delinquent;

(C)     Liens for real estate taxes and other governmental assessments or charges against the unit.

(2)     (A) The lien is also prior to the mortgages and deeds of trust described in subdivision (b)(1)(B) to the extent of the common expense assessments based on the periodic budget adopted by the association pursuant to § 66-27-414(a) that would have become due in the absence of acceleration during the six (6) months immediately preceding institution of an action to enforce the lien.

What this statute is addressing is the priority of the lien of a condominium association versus the priority of the lien of other liens, such as real estate taxes and recorded deeds of trusts and mortgages.  Generally, what it provides is that the lien of the Association has priority over all other liens except those recorded before it, a first mortgage or deed of trust recorded prior to the date on which the assessment became delinquent, and real estate taxes.   These provisions are logical and reasonable.

What is interesting is the language in Tenn. Code § 66-27-415(b)(2)(A).  This provision gives condominium associations a super lien for six (6) months of regular assessments in certain specific situations.  Effectively, this provision provides that the lien of the condominium association for assessments primes first mortgages and deeds of trust for six (6) months of regular assessments.  But, this lien would not come into effect, pursuant to the terms of the master deed or declaration unless there was a default in the payment of assessments.  Further, it would not be an issue as to the holder of the mortgage or deed of trust unless such holder had foreclosed on the property.  Thus, this provision provides condominium associations (and note, it is condominium associations and not homeowners associations governing PUDs) a six (6) month reach back for assessments in the event of a foreclosure by a lender.  The six (6) month reach back is for regular assessments only.  Thus, if a lender forecloses on a condominium unit in Tennessee, the lender is responsible for all on-going assessments prorated from the date of foreclosure and six (6) months of regular assessments prior to the foreclosure.

Given that lender foreclosures have hurt Tennessee condominiums ability to collect delinquent assessments, the six (6) month reach back provided by this statute should not be overlooked.  We have used this statute to benefit of condominium associations we represent.

Amending Association Documents

Often we are asked about amendments to CCRs, master deeds, or bylaws.  An amendment to a master deed, CCRs, or bylaws is fairly simple.  It is a document that alters or otherwise changes a provision in the existing document.  The amendment may add, delete, or substitute language or exhibits in a master deed, CCRs, or bylaws.  The idea being that the end result is a better document.  Further, the amendment relates back to the original document for priority purposes.

There is no set method for amending a master deed, CCRs, or bylaws.  This is because each document is different.  The requirements in one master deed regarding amendment may not be the same as those found in another.  As we have said before, in Tennessee the documents are important.  That being said, it is safe to say that an amendment will require the vote of a super-majority of the Association.  Since a vote of the Association is required, a meeting of the Association will likely be required.  A meeting is required because the vote must be held at a meeting of the Association because the Association is a corporate entity and acts by and through its members at duly-held meetings.  Thus, the notice and quorum provisions of the bylaws of the Association come into play.  Generally stated, the amendment process requires notice of a meeting at which the amendment will be discussed and voted upon, a duly-held meeting, and an affirmative vote authorizing the amendment by some super majority of the membership of the Association.  When you think about this process, it becomes logistically complicated.

Further, an amendment is a legal document.  Amendments are recorded in the local county Register’s Office.  As such they track with the title to the property they encumber.  They become a part of the title to your lot or condominium unit.  As such they are important because they impact your use and enjoyment of your property.  Unfortunately, all too often we have seen amendments that have been improperly drafted or not prepared by legal professionals.  In the long run these documents can seriously hinder the ability of an Association to function.  For example, we have seen “homegrown” amendments that have inadvertently deleted the bylaws (thus causing the Association to rely upon the Tennessee Non-Profit Corporation Act, Tenn. Code § 48-51-101, et seq.), that have created conflicting insurance provisions, and that have deleted enforcement provisions, amongst other things.

Typically, we recommend that an association considering an amendment have its documents reviewed.  We prepare an opinion letter that reviews the governing documents of the Association.  That letter then explains how the individual Association may amend its documents, walks the Association through the process, and explains how certain logistical hurdles may be overcome.  Finally, we request a meeting with the Board of Directors to discuss the opinion letter.  The amendment process moves forward from there.

Amendments are important legal documents.  If your Association is considering an amendment, please be sure to contact a qualified legal professional.