Legal Question in Real Estate Law in Virginia
Articles of incorporation
A HOA that I will call XYZ created a document called the ARTICLES OF INCORPORATION of XYZ HOA, INC.
XYZ HOA, declarant, sets forth the following to form a corporation hereby incorporated as a non-stock corporation pursuant to Chapter 2 of Title 13.1 of the Code of Virginia and to that end set forth the following: ARTICLES I-IX
At the end of the ARTICLES, the incorporator (one or more of the Board of Directors) signs these ARTICLES OF INCORPORATION and has the Commonwealth of Virginia, State Corporate Commission certify that the certificate of incorporation was issued and added to record in this office and that said-corporation is authorized to transact its business subject to all Virginia laws applicable to the corporation and its business. The document is attested and signed by the Clerk of the State Corporate Commission. Now the ARTICLES OF INCORPORATION are legal documents, correct?
My HOA created ARTICLES OF INCORPORATION that have NOT been certified. The current Board of Directors of this HOA is using uncertified ARTICLES OF INCORPORATION in place of the Bylaws that they were trying to replace. Is this legal if the ARTICLES OF INCORPORATION that have NOT been certified?
1 Answer from Attorneys
Re: Articles of incorporation
I do not believe that the issue is whether they are certified or not.
However, the Articles of Incorporation are the official act (legal documents) by which a corporation or association is created. So they have to be filed with the State Corporation Commission, because it is the act of filing them officially with the SCC that creates the corporation or association.
So it does not matter if the copy you are looking at has any kind of stamp or mark on it from the SCC.
It DOES matter if the version you are looking at is on file with the SCC, as the CURRENT version (not amended) for the corporation.
Most Articles of Incorporation are very broad and do not contain any restrictions. But any restrictions or procedures that are specified in the official Articles must be followed.
The ByLaws of the corporation are created UNDER the Articles of Incorporation, and these are usually NOT filed with the SCC. So a certified copy would not be likely.
The Bylaws must be validly issued by the proper authorities in the corporation, that is approved by the Board of Directors and signed by the Chairman of the Board of Directors.
The Bylaws are generally more specific and detailed than the Articles of Incorporation.
Therefore, the corporation or association MUST follow the more detailed procedures of its own Bylaws. They cannot ignore the Bylaws and follow only the Articles of Incorporation.
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