Are CC&R's Void if requisite Bylaws were never signed?

HISTORY:

HOA converts an apt building to condo, records plat, declaration and Bylaws in 1982. Utah Code requires recording of a declaration, Bylaws and plat. The Bylaws are not signed by anyone, no known executed copy exists; The recorded survey is defective by inaccurately defining ceiling height and common area between floors resulting in a lawsuit that costs homeowners $500,000.

Question:

Without Bylaws, is the Declaration, and the entire HOA void? See Utah code below which uses language "shall" re recording bylaws which "shall be duly executed and acknowledged by all of the owners and any lessees of the land which is made subject to this chapter." (57-8-10(8)a...

Utah Code
Title 57 Real Estate
Chapter 8 Condominium Ownership Act
Section 15 Bylaws.

57-8-15. Bylaws.
The administration of every property shall be governed by bylaws, which may either be embodied in the declaration or in a separate instrument, a true copy of which shall be appended to and recorded with the declaration. No modification or amendment of the declaration or bylaws shall be valid unless the same is set forth in an amendment and such amendment is recorded.

Enacted by Chapter 111, 1963 General Session

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57-8-10. Contents of declaration.

(8) (a) The declaration, bylaws, and condominium plat shall be duly executed and acknowledged by all of the owners and any lessees of the land which is made subject to this chapter.
(b) As used in Subsection (8)(a), "owners and lessees" does not include, in their respective capacities, any mortgagee, any trustee or beneficiary under a deed of trust, any other lien holder, any person having an equitable interest under any contract for the sale or lease of a condominium unit, or any lessee whose leasehold interest does not extend to any portion of the common areas and facilities.

You need to read Bylaws ~with~ 57-8-10.

Combined, the bylaws "shall be recorded with declaration & plat, and (57-8-10) "shall be duly executed and acknowledged by all of the owners and any lessees of the land which is made subject to this chapter"

Without executed bylaws there's no evidence the owners authorized the bylaws, which certainly came before the declaration. Furthermore, absent recorded, executed bylaws, the documentation does not meet the plain requirement stated in the Utah Condo Act.

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57-8-10 Contents of declaration.

(8) (a) The declaration, bylaws, and condominium plat shall be duly executed and acknowledged by all of the owners and any lessees of the land which is made subject to this chapter.

SteveB13,

since you know all the answers already, why bother us with this post?

The covenants and restrictions were filed at the 'Registrar of Deeds' when the original platt was filed

The bylaws are required for the OPERATION of the HOA whether Inc. or not

Get over it ... you are a member of the HOA

@John -- its called devils advocate (pls wiki for details). The answer lies in case law which as you may know is often conflicting and difficult to locate. If by chance "bothering" the kind people on this site, someone may have already run across case law addressing this type issue it saves me lots of time and may help others similarly situated.

---------since you know all the answers already, why bother us with this post?

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Actually they were recorded with the county recorder....

-----The covenants and restrictions were filed at the 'Registrar of Deeds' when the original platt was filed

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You missed the forest for the trees. The question is not the "purpose" of the bylaws, but rather can you have you a valid organization absent requisite documentation and authorization?

---- The bylaws are required for the OPERATION of the HOA whether Inc. or not

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What's your basis for this statement? Do you have any evidence you can ignore code that demands you "shall" have 3 specific instruments and still organize a valid HOA? Or is that your uninformed, WAG?

Get over it ... you are a member of the HOA

it was executed when it was filed
you acknowledged it when you purchased your unit

i suggest you look up 'due dilligence'

>>>CAVEAT EMPTOR<<<

Steve,

The members of the assn do NOT have to authorize the bylaws, only acknowledge them. That means they only have to recognize that they exist. Have you checked with the Co Recorder to ascertain as to whether or not the bylaws were recorded? Just because your copy may not be signed or have a recording number on it does not mean the original was not signed and recorded. However, if they were not recorded all the board needs to do is to have them recorded. This could have just been an oversight. IMO, even if the bylaws were not signed and recorded does not render the CCRs void. If you take a look at your deed I'm sure it says "subject to covenants, conditions, restrictions,etc."

If you're looking for a legal reason to negate the HOA this is not it!

Steve have you looked at the ones on file? What you are asking for is a legal opinion, that's not what we do here. I suggest you contact an attorney and pay them a lot of money to get the same response you've gotten here. More than likely if they were not properly signed unless someone could prove some type of malfeasance; the current Board would probably be allowed to simply file them now to correct the problem.

@Mary:

Actually that's not true. You're confusing constructive notice with acknowledgment at the time the HOA was formed. Two very different things.

---The members of the assn do NOT have to authorize the bylaws, only acknowledge them.

At the time the association was formed, the unsigned bylaws required acknowledgment by way of meeting on a specific date (see above post for language)

Steve,

Actually, only what is stated in the two statutes I've copies below are applicable. It doesn't matter what your gov docs say, state law prevails. And, also note that the statement on the bylaws says there was a meeting, but that is NOT a requirement of state law. That is only a statement that the board put on the signature line of the bylaws. I see no reason why the board cannot take these bylaws and record them to comply with the requirement in state law. The members must only acknowledge the bylaws (meaning know that they are a part of the gov. docs.), they do not have to approve them. So, there is really no need for the members to even be involved. It's quite a simple solution to the problem!

"57-8-10(8)(a)Contents of Declaration
The declaration, bylaws, and condominium plat shall be duly executed and acknowledged by all of the
owners and any lessees of the land which is made subject to this
chapter.

"57-8-15. Bylaws.
The administration of every property shall be governed by bylaws, which may either be embodied in the
declaration or in a separate instrument, a true copy of which shall be appended to and recorded with the
declaration. No modification or amendment of the declaration or bylaws shall be valid unless the same is set forth in an amendment and such amendment is recorded."

Have you bothered to take a look at the deed to your property? I feel certain in saying it contains a statement saying, "subject to the covenants, conditions, restrictions", or something to that effect. The CCRs run with the land, meaning they pass on to future owners of the property. And, contrary to what you may think, a property owner does not have to accept them, sign for them or even know that they exist. The fact that you purchased the deed restricted property means you have accepted the restrictions outlined in the CCRs. So, to even suggest that the CCRs may not be valid simply because the Bylaws were not recorded, is, IMO, plain ridiculous. Oh, and also take a look at your Title Insurance. That should also mention the CCRs and whether or not there is an HOA.

But, as Glen has pointed out, we do not offer legal advice here. We only have our opinions to offer, based upon many years of dealing with HOAs. If you are looking for legal advice, I suggest you consult an attorney.

Steve,

Where did you get this info: " should the association be voided in a court of law due to defective foundation documents, that restrictive language will point to restrictions that no longer exist and are thereafter unenforceable."? I haven't read the whole UT condo act but didn't see anything like this in the sections I did read. However if there has not been a court case to decide whether or not your CCRs are enforceable this is a moot point.

IF the bylaws have not been recorded, and that is a state law requiirement, then you could argue they have not been executed. However, that could be remedied very easily if the BOD would just record them. What is the big deal about them doing this now?