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    Wisconsin Lawyer
    October 01, 1997

    Wisconsin Lawyer October 1997: At Issue

     


    Vol. 70, No. 10, October 1997

    At Issue


    Recently Passed Legislation

    Uniform Unincorporated Nonprofit Association Act: Security and Legality

    Citizens taking voluntary action in their communities need to be secure in their efforts. This Act serves that purpose.

    By Rep. David Cullen

    Thousands of associations of people in the United States fall into the category of unincorporated nonprofit associations. Ranging from local neighborhood associations to

    The UUNAA provides five major benefits to nonprofit associations, among them conferring legal entity status upon the association separate from its members and limiting members' liability in tort and contract.
    national associations with large memberships, they all are associations that for one reason or another cannot or have not chosen to become not-for-profit corporations.

    Common law traditionally has not recognized unincorporated nonprofits as separate legal entities. They cannot own or hold real property. Such associations cannot sue or be sued as associations. Individual members may acquire liability simply because of membership in the association, no matter how casual. Acting as officers and directors may provide individuals with serious liability exposure, and finding insurance may be nearly impossible.

    These drawbacks discourage voluntary participation in the activities of such associations; yet such associations are essential to the well-being of every community, large or small, in the United States.

    I believe we have found a remedy to these unnecessary barriers to participation. I am in the process of introducing into the state Legislature the Uniform Unincorporated Nonprofit Association Act (UUNAA). This bill mirrors the measure promulgated by the Uniform Law Commissioners in 1992. Currently, nine states have adopted the UUNAA, and it has been introduced in three others in 1997 alone.

    UUNAA defines unincorporated nonprofit associations broadly as unincorporated organizations "consisting of [two] or more members joined by mutual consent for a common, nonprofit purpose." Members may be individuals, corporations, other associations or governmental agencies. The Act does five things for these associations and their members:

    1. provides them with the legal capacity to receive, hold and transfer personal and real property;
    2. limits the liability of association members and functionaries for tort and contract;
    3. provides them standing to sue and be sued as associations;
    4. provides a procedure for disposing of an inactive association's property; and
    5. permits designation of an agent for service of process.

    It does all of these things without requiring any association to conform to a registration statute, to pay fees to the state to qualify for the benefits of UUNAA or to submit to any mandated form of organization and method of governance.

    UUNAA permits a nonprofit association to acquire, hold, encumber or transfer interests in real or personal property in its own name. An association can receive property from an estate. To facilitate holding and transferring real property, an association may, but is not required, to file a statement of authority in the real property records. Any person dealing with the individual named in the statement of authority and who gives value without notice that conferred authority is invalid, may regard the authority conferred as conclusive.

    UUNAA provides that any association subject to it is a separate legal entity, separate from its members. A person is not vicariously liable for the association's torts or contracts merely by virtue of being a member, being considered a member or participating in any way in managing the association. Members may sue a nonprofit association and may be sued by it.

    Concomitantly, the association has standing to institute, defend, intervene or participate in any proceeding, judicial or otherwise, that involves it. It may assert a claim on behalf of members if one or more members have standing to assert the claim in their own rights. A judgment against an association is not by itself a judgment against any member.

    UUNAA provides for disposal of the personal property of an inactive association, first, to anyone entitled to that property in association documents. If there is no such document, then a cy-pres rule applies: the property must be transferred to another association pursuing broadly similar purposes. These transfers apply to associations that have been defunct for at least three years.

    Rep. David Cullen (Dem.), Marquette 1984, has represented the 13th Assembly District since winning a special election in May 1990. He thanks the staff of the National Conference of Commissioners on Uniform State Laws for helping to prepare this article.

    Lastly, UUNAA permits, but does not require, a nonprofit association to appoint an agent for service of process. This facilitates the association's legal rights accorded it in other UUNAA sections.

    These are some of the benefits of UUNAA to the many millions of people who aggregate into associations for everything from sport to neighborhood improvement. Citizens taking voluntary action in their communities need to be secure in their efforts. This Act serves that purpose.

    I always welcome input and opinions from others. If you have any questions or comments regarding this proposal, please call me at (608) 267-9836.



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