Senate Bill No. 60
(By Senator Wagner)
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[Introduced January 21, 1994; referred to the Committee
on Interstate Cooperation; and then to the Committee
on the Judiciary.]
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A BILL to amend chapter thirty-six of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article eleven, relating
to adopting the uniform unincorporated nonprofit association
act; definitions; supplementing general principles of law
and equity; territorial application; real and personal
property, nonprofit association as legatee, devisee or
beneficiary; statement of authority as to real property;
liability in tort and contract; capacity to assert and
defend; standing; effect of judgment on order; disposition
of personal property of inactive nonprofit association;
appointment of agent to receive service of process; claim
not abated by change of members or officers; venue;
uniformity of application and construction; short title;
transition concerning real and personal property; and
savings clause.
Be it enacted by the Legislature of West Virginia:
That chapter thirty-six of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new article, designated article eleven, to read
as follows:
ARTICLE 11. UNIFORM UNINCORPORATED NONPROFIT ASSOCIATION ACT.
§36-11-1. Definitions.
In this article:
(1) "Member" means a person who, under the rules or
practices of a nonprofit association, may participate in the
selection of persons authorized to manage the affairs of the
nonprofit association or in the development of policy of the
nonprofit association.
(2) "Nonprofit association" means an unincorporated
organization consisting of two or more members joined by mutual
consent for a common, nonprofit purpose. However, joint tenancy,
tenancy in common, or tenancy by the entireties does not by
itself establish a nonprofit association, even if the coowners
share use of the property for a nonprofit purpose.
(3) "Person" means an individual, corporation, business
trust, estate, trust, partnership, association, joint venture,
government, governmental subdivision, agency or instrumentality
or any other legal or commercial entity.
(4) "State" means a state of the United States, the District
of Columbia, the Commonwealth of Puerto Rico, or any territory or
insular possession subject to the jurisdiction of the UnitedStates.
§36-11-2. Supplementary general principles of law and equity.
Principles of law and equity supplement this article unless
displaced by a particular provision of it.
§36-11-3. Territorial application.
Real and personal property in this state may be acquired,
held, encumbered and transferred by a nonprofit association,
whether or not the nonprofit association or a member has any
other relationship to this state.
§36-11-4. Real and personal property; nonprofit association as
legatee, devisee or beneficiary.
(a) A nonprofit association in its name may acquire, hold,
encumber or transfer an estate or interest in real or personal
property.
(b) A nonprofit association may be a legatee, devisee or
beneficiary of a trust or contract.
§36-11-5. Statement of authority as to real property.
(a) A nonprofit association may execute and record a
statement of authority to transfer an estate or interest in real
property in the name of the nonprofit association.
(b) An estate or interest in real property in the name of a
nonprofit association may be transferred by a person so
authorized in a statement of authority recorded in the office in
the county in which a transfer of the property would be recorded.
(c) A statement of authority must set forth:
(1) The name of the nonprofit association;
(2) The address in this state, including the street address,
if any, of the nonprofit association, or, if the nonprofit
association does not have an address in this state, its address
out of state;
(3) The name or title of a person authorized to transfer an
estate or interest in real property held in the name of the
nonprofit association; and
(4) The action, procedure, or vote of the nonprofit
association which authorizes the person to transfer the real
property of the nonprofit association and which authorizes the
person to execute the statement of authority.
(d) A statement of authority must be executed in the same
manner as a deed by a person who is not the person authorized to
transfer the estate or interest.
(e) A filing officer may collect a fee for recording a
statement of authority in the amount authorized for recording a
transfer of real property.
(f) An amendment, including a cancellation, of a statement
of authority must meet the requirements for execution and
recording of an original statement. Unless canceled earlier, a
recorded statement of authority or its most recent amendment is
canceled by operation of law five years after the date of the
most recent recording.
(g) If the record title to real property is in the name of
a nonprofit association and the statement of authority is
recorded in the office of the county in which a transfer of realproperty would be recorded, the authority of the person named in
a statement of authority is conclusive in favor of a person who
gives value without notice that the person lacks authority.
§36-11-6. Liability in tort and contract.
(a) A nonprofit association is a legal entity separate from
its members for the purposes of determining and enforcing rights,
duties, and liabilities in contract and tort.
(b) A person is not liable for a breach of a nonprofit
association's contract merely because the person is a member, is
authorized to participate in the management of the affairs of the
nonprofit association, or is a person considered to be a member
by the nonprofit association.
(c) A person is not liable for a tortious act or omission
for which a nonprofit association is liable merely because the
person is a member, is authorized to participate in the
management of the affairs of the nonprofit association, or is a
person considered as a member by the nonprofit association.
(d) A tortious act or omission of a member or other person
for which a nonprofit association is liable is not imputed to a
person merely because the person is a member of the nonprofit
association, is authorized to participate in the management of
the affairs of the nonprofit association, or is a person
considered as a member by the nonprofit association.
(e) A member of, or a person considered to be a member by,
a nonprofit association may assert a claim against the nonprofit
association. A nonprofit association may assert a claim againsta member or a person considered to be a member by the nonprofit
association.
§36-11-7. Capacity to assert and defend; standing.
(a) A nonprofit association, in its name, may institute,
defend, intervene, or participate in a judicial, administrative,
or other governmental proceeding or in an arbitration, mediation,
or any other form of alternative dispute resolution.
(b) A nonprofit association may assert a claim in its name
on behalf of its members if one or more members of the nonprofit
association have standing to assert a claim in their right, the
interests the nonprofit association seeks to protect are germane
to its purposes, and neither the claim asserted nor the relief
requested requires the participation of a member.
§36-11-8. Effect of judgment or order.
A judgment or order against a nonprofit association is not
be itself a judgment or order against a member or a person
considered to be a member by the nonprofit association.
§36-11-9. Disposition of personal property of inactive nonprofit
association.
If a nonprofit association has been inactive for three years
or longer, a person in possession or control of personal property
of the nonprofit association may transfer the property:
(1) If a document of a nonprofit association specifies a
person to whom transfer is to be made under these circumstances,
to that person; or
(2) if no person is so specified, to a nonprofit associationor nonprofit corporation pursuing broadly similar purposes, or to
a government or governmental subdivision, agency, or
instrumentality.
§36-11-10. Appointment of agent to receive service of process.
(a) A nonprofit association may file in the office of the
secretary of state a statement appointing an agent authorized to
receive service of process.
(b) A statement appointing an agent must set forth:
(1) The name of the nonprofit association;
(2) The address in this state, including the street address,
if any, of the nonprofit association, or, if the nonprofit
association does not have an address in this state, its address
out of state; and
(3) The name of the person in this state authorized to
receive service of process and the person's address, including
the street address, in this state.
(c) A statement appointing an agent must be signed and
acknowledged by a person authorized to manage the affairs of a
nonprofit association. The statement must also be signed and
acknowledged by the person appointed agent, who thereby accepts
the appointment. The appointed agent may resign by filing a
resignation in the office of the secretary of state and giving
notice to the nonprofit association.
(d) A filing officer may collect a fee for filing a
statement appointing an agent to receive service of process, an
amendment, or a resignation in the amount charged for filingsimilar documents.
(e) An amendment to a statement appointing an agent to
receive service of process must meet the requirements for
execution of an original statement.
§36-11-11. Claim not abated by change of members or officers.
A claim for relief against a nonprofit association does not
abate merely because of a change in its members, persons
authorized to manage the affairs of the nonprofit association, or
persons considered by the nonprofit association to be members.
§36-11-12. Venue.
For purposes of venue, a nonprofit association is a resident
of a county in which it has an office.
§36-11-13. Uniformity of application and construction.
This article shall be applied and construed to effectuate
its general purpose to make uniform the law with respect to the
subject of this article among states enacting it.
§36-11-14. Short title.
This article may be cited as the "Uniform Unincorporated
Nonprofit Association Act."
§36-11-15. Transition concerning real and personal property.
(a) If, before the effective date of this article, an estate
or interest in real or personal property was purportedly
transferred to a nonprofit association, on the effective date of
this article the estate or interest vests in the nonprofit
association unless the parties have treated the transfer as
ineffective.
(b) If, before the effective date of this article, the
transfer vested the estate or interest in another person to hold
the estate or interest as a fiduciary for the benefit of the
nonprofit association, its members, or both, on or after the
effective date of this article the fiduciary may transfer the
estate or interest to the nonprofit association in its name, or
the nonprofit association, by appropriate proceedings, may
require that the estate or interest be transferred to it in its
name.
§36-11-16. Savings clause.
This article does not affect an action or proceeding
commenced or right accrued before this article takes effect.
NOTE: The purpose of this bill is to adopt the Uniform
Unincorporated Nonprofit Association Act. This act basically
reforms common law by allowing such associations to acquire, hold
and transfer real and personal property; by allowing such
associations to sue and be sued and by providing protection from
personal liability in contract and tort actions for the officers
and members of the associations.
This article is new; therefore, strike-throughs and
underscoring have been omitted.
This bill is recommended for passage by the Commission on
Interstate Cooperation.