An association is a formal organization of people who have joined for a common purpose. An association is a group of people acting together for the promotion of some common enterprise without a charter, but upon the methods and forms used by incorporated bodies. However, an unincorporated association has no entity status beyond the status of those persons who comprise the association. Therefore, generally an unincorporated association lacks the legal capacity to sue or be sued in the name of the association.[i]
The members of an unincorporated association individually can be held civilly liable. However, an individual is not liable for the debts of the association merely because of his/her status as a member of the association.[ii] Rather, principles of the law of agency are applied to the particular facts on a case by case basis to decide whether the individual is liable.[iii]
However, a person cannot be precluded from pursuing his/her common law right to proceed against individual members of an association, even if there is a statute that permits an association to be sued in its assumed name.[iv] Therefore, members of an association can be held liable in tort and in contract.
Some statutes provide an easy way for a plaintiff to sue the individuals as a group without adding or detracting from the personal liability of the individual members of an association. The statute relieves a plaintiff from the task of having to name and personally serve process on each and every member of the association.
However, by suing an unincorporated association in this manner, a plaintiff limits his/her remedy. The collection of any judgment obtained against such association must be satisfied out of the association’s property alone and the property of its members will be immune from seizure.[v]
[i] Exec. Bd. of the Mo. Baptist Convention v. Carnahan, 170 S.W.3d 437 (Mo. Ct. App. 2005)
[ii] Karl Rove & Co. v. Thornburgh, 39 F.3d 1273 (5th Cir. Tex. 1994)
[iv] Shortlidge v. Gutoski, 125 N.H. 510 (N.H. 1984)