Anybody want to try helping a newby manager?

I just found this article while browsing the internet---

"Some states do allow non-profit LLcs
It is my understanding that some states allow non-profit LLCs. I'm an attorney in Missouri, and a friend at the local Secretary of State office made a passing comment one day that he was seeing more and more non-profit LLC filings, which was the first I had heard of them.
I personally am still researching the issue, but I find the idea of a non-profit LLC very enticing. One distinction here in Missouri is that the non-profit corporations statute in Missouri requires 3 directors, while the Missouri LLC statute allows for single-member LLCs. As such, I think you could actually create a non-profit LLC with only one director and avoid the 3-director rule under corporations.
As LLCs are much less formal and have less meeting structure and such, a non-profit LLC would be a good thing for those looking to form a non-profit without some of the structures required of corporations. I have no knowledge of how the IRS handles non-profit LLCs, though, in regards to filing for 501(c)(3) status."

I wonder if Utah allows that? That would explain our Situation, wouldn't it?

Questions for an attorney versed in real estate law.

Here are some links that might help:

IRS web site about LLC

Utah Division of Corporations

Per the IRS site:

"A Limited Liability Company (LLC) is a business structure allowed by state statute. LLCs are popular because, similar to a corporation, owners have limited personal liability for the debts and actions of the LLC. Other features of LLCs are more like a partnership, providing management flexibility and the benefit of pass-through taxation.

Owners of an LLC are called members. Since most states do not restrict ownership, members may include individuals, corporations, other LLCs and foreign entities. There is no maximum number of members. Most states also permit “single member” LLCs, those having only one owner."

IMO, when the Builder transferred the Association to the members, the membership created it's own Association then had the builder, for the sum of $10 convey the entire plat to the HOA.

Tim

Changing Your Business Structure
Changes in Organization or Ownership
If you already have an Employer Identification Number (EIN), you may need to get a new one if either the organization or ownership of your business changes. If you incorporate a sole proprietorship or form a partnership, you must get a new EIN.
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*I got a new EIN when I took over, Does that cover my hide from past presidents mistakes in the event that we get audited or something?

Tim- "IMO, when the Builder transferred the Association to the members, the membership created it's own Association then had the builder, for the sum of $10 convey the entire plat to the HOA."

Tim, if something like that did happen, how would I confirm it?

*I could talk with the contractor

*I could talk with the first president who set up the new Entity

Do I have any other options?

Also, assuming that happened, Shouldn't there have been papers filed like "articles of organization" etc.. with the new entity?

Here is some information on Limited Liability Company for Utah if you go a little deeper from the link Tim provided above:
http://corporations.utah.gov/business/llc.html

The issue also is which LLC are you filed as because there are a few options some of which are: Domestic, Professional, Low-Profit, etc.

If you hover over the “Business Entities” tab a drop down box opens. Again move down over Limited Liability Company and the different options will be within another box. If you click for example “Domestic” at the bottom it will have Forms and Guide Sheets. Take a look at these and see if anything looks familiar when you compare to what you potentially have on hand or have viewed on-line for your HOA.

Janet I was looking at this site earlier, it's good to know I was on the right track. Our LLC is Domestic
I think what I am trying to figure out is If the contractor who had the old entity properly transferred the business to the first manager when he(1st manager) created a new entity. This site says that:

The Articles of Transfer must include the following information:
a. the name of the company;
b. the filing date of original articles of organization;
c. the jurisdiction to which the company shall be transferred;
d. the future effective date of the transfer if it is not to be effective upon filing;
e. that the transfer has been approved by the members;
f. that the existence of the company as a domestic company of Utah shall cease when the articles of transfer
become effective;
g. the agreement of the company that it may be served with process in Utah for any proceeding for
enforcement of any obligation of the company arising while it was a company under the laws of Utah;
h. if the company does not apply for authority to transact business in

I would think that it potentially would be the application. You probably should have a copy of this anyway if you do not currently have on hand.

I got It- Articles of Organization of XXCondosLLC The question is... does this new entity have to abide by our governing documents (CC&r's) as well as the Utah laws for Limited Liability Companies?

You will not have Articles of Transfer ... that would only pertain to transfering the company to another state besides Utah.

On another note, I ran across an article that said
"In non-condominium associations, it is the association that owns whatever is common, All owners are members of that association. Depending on what state you live in there are many different names for a homeowners association. States with Common Interest Acts often call them planned communities. They are also called owners associations, property owners associations, PLANNED UNIT DEVELOPMENTS, and sometimes community associations....

Whatever you call them, because the association owns whatever is common and all of the owners are members over the association, it is NOT a condominium."

Our original D of C's say that we are a Planned unit Development subdivision.

He potentially was approved through the local government as a PUD as he was building townhomes. I was trying to find the definition in Utah code, and have not found yet. Here is definition from another state and which potentially would be similar to yours:

Residential structures in a PUD might be free-standing homes or may consist of two or more townhomes separated by party walls. With townhouse construction, owners might own a traditional looking lot with fenced front and back yards or they may own a "footprint" lot, i.e., the dirt upon which the structure sits and nothing more.

Maintenance responsibilities in PUDs can vary considerably. In some, owners are responsible for everything on their lots--all structures and all landscaping. In others, the association takes care of the landscaping. In some, usually those with townhouse construction, the association is responsible for exterior structure maintenance such as painting and roofs. The variations depend on how the developer drafted the CC&Rs.

Your Declaration should describe what is common area or community property. This would be the areas that the HOA is responsible for maintaining. Everything else would be maintained by each individual homeowner.

I have an extra copy of my HOA documents in a binder with tabs dividing (i.e. Article of Incorporation, By-Laws, Declaration, State Statutes, etc). I then thoroughly read through them with different colored highlighters. You could get away with just one color and highlight items that are the HOA responsibility. In the future if you need to reference, then those items for HOA will stand out and makes it quicker to reference.

Yup your right it says right there in plain English, I should have known. Thanks for the tip, I think I'll break out the highlighters now!

Original Entity created by contractor reason for organization: act as contractor, repairing, construction etc..To engage in general speculative home building, sell,etc.. to act as principal agent/broker, maintain and operate real preoperty etc...and to engage in any other lawful business activities to which it is organized.................................................

Filed with COUNTY for- XX TOWNHOUSES LLC (Our contractor)- Our Declaration of covenants/amendments made, Warranty Deeds, and Trust Deeds

Filed with Division of Corporations and Commercial Code for- XX TOWNHOUSES LLC (Our contractor)- Annual Reports, Articles of organization of XX TOWNHOUSES LLC
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New entity created to manage HOA..reason- The company shall have unlimited power to perform any and all lawful acts pertaining to management etc... Organized under the Utah Limited Liability Act..........................................................

Filed with COUNTY for- XX CONDOS LLC (The entity created when our first manager took over from contractor) - NOTHING

Filed with DIVISION of CORP..- XX Condos LLC (New entity ") -Annual reports, Articles of organization of XX CONDOS LLC

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1- The previous manager said that "Papers have been filed" concerning unpaid dues of two owners. One owner up and abandoned the lot it was listed under foreclosures. (Our Declaration says you can not do that for any reason) The other owner was apparently "taken to court" according to the previous manager.

Am I searching In the wrong place for conformation of these things? Do I need to call the county and ask if they have any additional filings that may not be showing up in the online search?

2- Our Declaration of covenants was filed with the old entity, and there is no record confirming a sale of the plat or anything. The new entity has 0 filings with the County.

Does this mean that there has been an error and the new entity is not lawfully bound by our Declaration of Covenants? Only its own articles of organization and the Utah code?

Janet you are awesome by the way! Yes, the first manager changed the name, then moved about 2-3 months later..my brother bought his place and they had him sign that he would obey the original Declaration nothing had been changed in his copies.