Condo Media - January 2012 - 21

VERMONT

by A. Jay Kenlan, Esq.

C A I

To Amend, or Not to Amend?
The Debate Surrounding Statute Amendments
n April 4, 1997, Vermont Gov. Howard Dean signed into law Act 104, the Vermont Common Interest Ownership Act (VCIOA), to supersede Chapter 15 of Title 27 of the Vermont statutes, the old Vermont Condominium Act (the “old Act”), which had been in effect since 1967. VCIOA was, in turn, based on the Uniform Common Interest Ownership Act (UCIOA) that had been developed by the National Conference of Commissioners on Uniform State Laws (ULC). VCIOA became effective on Jan. 1, 1999, and all common interest communities formed on or after Jan. 1, 1999 must be formed in accordance with and comply with the provisions of VCIOA. Common interest communities formed prior to Jan. 1, 1999 continue to be governed, for the most part, by the Act. Act 155 was introduced in the Vermont legislature on Feb. 10, 2010 as H.689 “to implement model updates to the Uniform Common Interest Ownership Act” and was signed into law by Gov. Jim Douglas on June 3, 2010. Act 155 becomes effective on Jan. 1, 2012. Ever since Vermont’s common interest community associations and the Vermont real estate bar became aware of the passage of Act 155, associations and practitioners have been wrestling not only with the substance of the changes to VCIOA that resulted, but with the “process” steps that may (or may not) be necessary to comply with the Act’s requirements. One of the more significant process issues that must be addressed at the outset is whether or not it is necessary to amend existing common interest

R e g i o n a l

community declarations and bylaws to conform to the Act changes.

Pre-Jan. 1, 1999 Communities
Under § 1-204 of VCIOA, common interest communities created prior to Jan. 1, 1999 continue to be governed by the old condominium Act, however, unless exempt under § 1-203 (“Exception for small projects and limited expense liability planned communities”), pre-Jan. 1, 1999 common interest communities are also made expressly subject to the following sections of VCIOA: “1-103, 1-105, 1106, 1-107, 2-103, 2-104, 2-121, 3-102(a)(1) through (6) and (11) through (16), 3-111, 3-116, 3-118, 4-109 and 4-117 to the extent necessary to construe the applicable sections” (see Fig. 1 for the subjects of the sections). Under § 1-204 of Act 155 that becomes effective on Jan. 1, 2012, the Sections of VCIOA that will apply to common interest communities created prior to Jan. 1, 1999 can be seen in Fig. 1. Both the old and new versions of § 1-204 state that the VCIOA sections identified in § 1-204(a)(1) and (a)(2) “do not invalidate existing provisions of the declarations, bylaws, plats or plans of those common interest communities.” The Comments to § 1-204 confirm and clarify that, as stated in § 1204(a)(1) and (a)(2), to the extent the common interest community documents for pre-1/1/99 common interest communities address issues covered by the designated VCIOA sections, the pre-1/1/99 common interest community documents would control

in the event of a conflict. However, in practice, a number of common interest community practitioners appear to view the VCIOA sections listed in § 1204 as mandatory and controlling notwithstanding any contrary or conflicting language in the pre-1/1/99 common interest community documents. Given the fact that the language used in the declaration and bylaws of a particular common interest community, in particular pre-1/1/99 common interest communities, will be somewhat unique (and some are more “unique” than other), it is unclear how, on a case by case basis, managers, associations or their attorneys will be able to determine with any degree of certainty whether the sections applicable to pre-1/1/99 common interest communities under § 1-204 are in conflict with “existing provisions of the declarations, bylaws, plats or plans of those common interest communities.” Accordingly, notwithstanding § 1-204’s deference to pre-1/1/99 declaration and by-laws, the prudent approach may be to assume that the sections of VCIOA listed in § 1204(a)(1) and (a)(2) apply until a court tells us otherwise. Nor is it clear how Act 155 would apply retroactively to “events and circumstances” occurring between Dec. 31, 1998 and Dec. 31, 2010, respectively, and Jan. 1, 2012. Laws can be applied retroactively in some circumstances, however, it is hard to imagine how, if an action was taken by a pre1/1/99 common interest community in 2000 that was legally effective under then-existing law, a statute passed in 2010 and effective in 2012 could affect the validity of the earlier action or decision.

N e w s

CONDO MEDIA • JANUARY 2012

Condo Media - January 2012

Table of Contents for the Digital Edition of Condo Media - January 2012