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H.B. 115

             1     

CONDOMINIUM PRIVACY

             2     
2000 GENERAL SESSION

             3     
STATE OF UTAH

             4     
Sponsor: Bryan D. Holladay

             5      AN ACT RELATING TO THE CONDOMINIUM OWNERSHIP ACT; REQUIRING NOTICE
             6      TO CONDOMINIUM OCCUPANT PRIOR TO ENTRY BY MANAGEMENT; EXPANDING
             7      THE DEFINITION OF CRIMINAL TRESPASS; AND MAKING TECHNICAL CHANGES.
             8      This act affects sections of Utah Code Annotated 1953 as follows:
             9      AMENDS:
             10          57-8-7, as last amended by Chapter 173, Laws of Utah 1975
             11          57-8-8, as enacted by Chapter 111, Laws of Utah 1963
             12          57-8-10, as last amended by Chapter 12, Laws of Utah 1992
             13          76-6-206, as last amended by Chapter 142, Laws of Utah 1996
             14      Be it enacted by the Legislature of the state of Utah:
             15          Section 1. Section 57-8-7 is amended to read:
             16           57-8-7. Common areas and facilities.
             17          (1) As used in this section:
             18          (a) "emergency repairs" means any repairs which if not made in a timely manner will likely
             19      result in immediate and substantial damage to the common areas and facilities or to another unit
             20      or units; and
             21          (b) "reasonable notice" means written notice which is hand delivered to the unit at least
             22      h [ 48 ] 24 h hours prior to the proposed entry.
             23          [(1)] (2) Each unit owner shall be entitled to an undivided interest in the common areas and
             24      facilities in the percentages or fractions expressed in the declaration. The declaration may allocate
             25      to each unit an undivided interest in the common areas and facilities proportionate to either the size
             26      or par value of [such] the unit. Otherwise, the declaration shall allocate to each unit an equal
             27      undivided interest in the common areas and facilities, subject to the following exception: each


             28      convertible space depicted on the record of survey map shall be allocated an undivided interest in
             29      the common areas and facilities proportionate to the size of [such] the space vis-a-vis the aggregate
             30      size of all units so depicted, while the remaining undivided interest in the common areas and
             31      facilities shall be allocated equally among the other units so depicted. The undivided interest in
             32      the common areas and facilities allocated in accordance with this Subsection (2) shall add up to
             33      one if stated as fractions or to 100% if stated as percentages. If an equal undivided interest in the
             34      common areas and facilities is allocated to each unit, the declaration may simply state that fact and
             35      need not express the fraction or percentage so allocated. Otherwise, the undivided interest allocated
             36      to each unit shall be reflected by a table in the declaration, or by an exhibit or schedule
             37      accompanying the declaration and recorded simultaneously with it, containing columns. The first
             38      column shall identify the units, listing them serially or grouping them together in the case of units
             39      to which identical undivided interests are allocated. Corresponding figures in the second and third
             40      columns shall set forth the respective sizes or par values of those units and the fraction or
             41      percentage of undivided interest in the common areas and facilities allocated thereto.
             42          [(2)] (3) Except as otherwise expressly provided by this act, the undivided interest of each
             43      unit owner in the common areas and facilities as expressed in the declaration shall have a
             44      permanent character and shall not be altered without the consent of all of the unit owners expressed
             45      in an amended declaration duly recorded. The undivided interest in the common areas and facilities
             46      shall not be separated from the unit to which it appertains and shall be [deemed] considered to be
             47      conveyed or encumbered or released from liens with the unit even though such interest is not
             48      expressly mentioned or described in the conveyance or other instrument. A time period unit may
             49      not be further divided into shorter time periods by a conveyance or disclaimer.
             50          [(3)] (4) The common areas and facilities shall remain undivided and no unit owner or any
             51      other person shall bring any action for partition or division of any part thereof, unless the property
             52      has been removed from the provisions of this act as provided in Sections 57-8-22 and 57-8-31 .
             53      Any covenants to the contrary shall be null and void.
             54          [(4)] (5) Each unit owner may use the common areas and facilities in accordance with the
             55      purpose for which they were intended without hindering or encroaching upon the lawful rights of
             56      the other unit owners.
             57          [(5)] (6) The necessary work of maintenance, repair, and replacement of the common areas
             58      and facilities and the making of any additions or improvements thereon shall be carried out only


             59      as provided in this act or in the declaration or bylaws.
             60          [(6)] (7) The manager or management committee shall have the [irrevocable] right to have
             61      access to each unit h :
             61a          (a ) h from time to time during reasonable hours and after reasonable notice to the
             62      occupant of the unit being entered, as may be necessary for the maintenance, repair, or replacement
             63      of any of the common areas and facilities h ; h or
             63a           h (b) h for making emergency repairs necessary to prevent
             64      damage to the common areas and facilities or to another unit or units h , PROVIDED THAT A
             64a      REASONABLE EFFORT IS MADE TO PROVIDE NOTICE TO THE OCCUPANT OF THE UNIT PRIOR TO
             64b      ENTRY h .
             65          Section 2. Section 57-8-8 is amended to read:
             66           57-8-8. Compliance with covenants, bylaws and/or house rules and administrative
             67      provisions.
             68          [Each] Subject to reasonable compliance therewith by the manager and the management
             69      committee, each unit owner shall reasonably comply [strictly] with the covenants, conditions, and
             70      restrictions as set forth in the declaration or in the deed to his unit, and with the bylaws and/or
             71      house rules and with the administrative rules and regulations drafted pursuant thereto, as either of
             72      the same may be lawfully amended from time to time, and failure to comply shall be ground for
             73      an action to recover sums due for damages or injunctive relief or both, maintainable by the
             74      manager or management committee on behalf of the unit owners, or in a proper case, by an
             75      aggrieved unit owner.
             76          Section 3. Section 57-8-10 is amended to read:
             77           57-8-10. Contents of declaration.
             78          (1) Prior to the conveyance of any unit in a condominium project, a declaration shall be
             79      recorded that contains the covenants, conditions, and restrictions relating to the project that shall
             80      be enforceable equitable servitudes, where reasonable, and which shall run with the land. Unless
             81      otherwise provided, these servitudes may be enforced by any unit owner and his successors in
             82      interest.
             83          (2) (a) For every condominium project:
             84          (i) The declaration shall include a description of the land or interests in real property
             85      included within the project.
             86          (ii) The declaration shall contain a description of any buildings, which states the number
             87      of storeys and basements, the number of units, the principal materials of which the building is or
             88      is to be constructed, and a description of all other significant improvements contained or to be
             89      contained in the project.


             90          (iii) The declaration shall contain the unit number of each unit, the square footage of each
             91      unit, and any other description or information necessary to properly identify each unit.
             92          (iv) The declaration shall describe the common areas and facilities of the project.
             93          (v) The declaration shall describe any limited common areas and facilities and shall state
             94      to which units the use of the common areas and facilities is reserved.
             95          (b) Any shutters, awnings, window boxes, doorsteps, porches, balconies, patios, or other
             96      apparatus intended to serve a single unit, but located outside the boundaries of the unit, shall
             97      constitute a limited common area and facility appertaining to that unit exclusively, whether or not
             98      the declaration makes such a provision.
             99          (c) The record of survey map recorded with the declaration may provide or supplement the
             100      information required under Subsections (2)(a) and (b).
             101          (d) (i) The declaration shall include the percentage or fraction of undivided interest in the
             102      common areas and facilities appurtenant to each unit and its owner for all purposes, including
             103      voting, derived and allocated in accordance with Subsection 57-8-7 [(1)](2).
             104          (ii) If any use restrictions are to apply, the declaration shall state the purposes for which
             105      the units are intended and restricted as to use.
             106          (iii) (A) The declaration shall include the name of a person to receive service of process
             107      on behalf of the project, in the cases provided by this chapter, together with the residence or place
             108      of business of that person.
             109          (B) The person described in Subsection (2)(d)(iii)(A) shall be a resident of, or shall
             110      maintain a place of business within, this state.
             111          (iv) The declaration shall describe the method by which it may be amended consistent with
             112      this chapter.
             113          (v) Any further matters in connection with the property may be included in the declaration,
             114      which the person or persons executing the declaration may consider desirable consistent with this
             115      chapter.
             116          (vi) The declaration shall contain a statement of intention that this chapter applies to the
             117      property.
             118          (3) (a) If the condominium project contains any convertible land:
             119          (i) The declaration shall contain a legal description by metes and bounds of each area of
             120      convertible land within the condominium project.


             121          (ii) The declaration shall state the maximum number of units that may be created within
             122      each area of convertible land.
             123          (iii) (A) The declaration shall state, with respect to each area of convertible land, the
             124      maximum percentage of the aggregate land and floor area of all units that may be created and the
             125      use of which will not or may not be restricted exclusively to residential purposes.
             126          (B) The statements described in Subsection (3)(a)(iii)(A) need not be supplied if none of
             127      the units on other portions of the land within the project are restricted exclusively to residential
             128      use.
             129          (iv) The declaration shall state the extent to which any structure erected on any convertible
             130      land will be compatible with structures on other portions of the land within the condominium
             131      project in terms of quality of construction, the principal materials to be used, and architectural
             132      style.
             133          (v) The declaration shall describe all other improvements that may be made on each area
             134      of convertible land within the condominium project.
             135          (vi) The declaration shall state that any units created within each area of convertible land
             136      will be substantially identical to the units on other portions of the land within the project or it shall
             137      describe in detail what other type of units may be created.
             138          (vii) The declaration shall describe the declarant's reserved right, if any, to create limited
             139      common areas and facilities within any convertible land in terms of the types, sizes, and maximum
             140      number of the limited common areas within each convertible land.
             141          (b) The record of survey map recorded with the declaration may provide or supplement
             142      the information required under Subsection (3)(a).
             143          (4) If the condominium is an expandable condominium project:
             144          (a) (i) (A) The declaration shall contain an explicit reservation of an option to expand the
             145      project.
             146          (B) The declaration shall include a statement of any limitations on the option to expand,
             147      including a statement as to whether the consent of any unit owners shall be required and, a
             148      statement as to the method by which consent shall be ascertained, or a statement that there are no
             149      such limitations.
             150          (ii) The declaration shall include a time limit, not exceeding seven years from the date of
             151      the recording of the declaration, upon which the option to expand the condominium project shall


             152      expire, together with a statement of any circumstances which will terminate the option prior to
             153      expiration of the specified time limits.
             154          (iii) The declaration shall contain a legal description by metes and bounds of all land that
             155      may be added to the condominium project, which is known as additional land.
             156          (iv) The declaration shall state:
             157          (A) if any of the additional land is added to the condominium project, whether all of it or
             158      any particular portion of it must be added;
             159          (B) any limitations as to what portions may be added; or
             160          (C) a statement that there are no such limitations.
             161          (v) The declaration shall include a statement as to whether portions of the additional land
             162      may be added to the condominium project at different times, together with any limitations fixing
             163      the boundaries of those portions by legal descriptions setting forth the metes and bounds of these
             164      lands and regulating the order in which they may be added to the condominium project.
             165          (vi) The declaration shall include a statement of any limitations as to the locations of any
             166      improvements that may be made on any portions of the additional land added to the condominium
             167      project, or a statement that no assurances are made in that regard.
             168          (vii) The declaration shall state the maximum number of units that may be created on the
             169      additional land. If portions of the additional land may be added to the condominium project and
             170      the boundaries of those portions are fixed in accordance with Subsection (4)(a)(v), the declaration
             171      shall also state the maximum number of units that may be created on each portion added to the
             172      condominium project. If portions of the additional land may be added to the condominium project
             173      and the boundaries of those portions are not fixed in accordance with Subsection (4)(a)(v), then
             174      the declaration shall also state the maximum number of units per acre that may be created on any
             175      portion added to the condominium project.
             176          (viii) With respect to the additional land and to any portion of it that may be added to the
             177      condominium project, the declaration shall state the maximum percentage of the aggregate land
             178      and floor area of all units that may be created on it, the use of which will not or may not be
             179      restricted exclusively to residential purposes. However, these statements need not be supplied if
             180      none of the units on the land originally within the project are restricted exclusively to residential
             181      use.
             182          (ix) The declaration shall state the extent to which any structures erected on any portion


             183      of the additional land added to the condominium project will be compatible with structures on the
             184      land originally within the project in terms of quality of construction, the principal materials to be
             185      used, and architectural style. The declaration may also state that no assurances are made in those
             186      regards.
             187          (x) The declaration shall describe all other improvements that will be made on any portion
             188      of the additional land added to the condominium project, or it shall contain a statement of any
             189      limitations as to what other improvements may be made on it. The declaration may also state that
             190      no assurances are made in that regard.
             191          (xi) The declaration shall contain a statement that any units created on any portion of the
             192      additional land added to the condominium project will be substantially identical to the units on the
             193      land originally within the project, or a statement of any limitations as to what types of units may
             194      be created on it. The declaration may also contain a statement that no assurances are made in that
             195      regard.
             196          (xii) The declaration shall describe the declarant's reserved right, if any, to create limited
             197      common areas and facilities within any portion of the additional land added to the condominium
             198      project, in terms of the types, sizes, and maximum number of limited common areas within each
             199      portion. The declaration may also state that no assurances are made in those regards.
             200          (b) The record of survey map recorded with the declaration may provide or supplement
             201      the information required under Subsections (4)(a)(iii) through (a)(vi) and (a)(ix) through (a)(xii).
             202          (5) If the condominium project is a contractible condominium:
             203          (a) (i) The declaration shall contain an explicit reservation of an option to contract the
             204      condominium project.
             205          (ii) The declaration shall contain a statement of any limitations on the option to contract,
             206      including a statement as to whether the consent of any unit owners shall be required, and if so, a
             207      statement as to the method by which this consent shall be ascertained. The declaration may also
             208      contain a statement that there are no such limitations.
             209          (iii) The declaration shall state the time limit, not exceeding seven years from the
             210      recording of the declaration, upon which the option to contract the condominium project shall
             211      expire, together with a statement of any circumstances which will terminate this option prior to
             212      expiration of the specified time limit.
             213          (b) (i) The declaration shall include a legal description by metes and bounds of all land that


             214      may be withdrawn from the condominium project, which is known as withdrawable land.
             215          (ii) The declaration shall include a statement as to whether portions of the withdrawable
             216      land may be withdrawn from the condominium project at different times, together with any
             217      limitations fixing the boundaries of those portions by legal descriptions setting forth the metes and
             218      bounds and regulating the order in which they may be withdrawn from the condominium project.
             219          (iii) The declaration shall include a legal description by metes and bounds of all of the land
             220      within the condominium project to which the option to contract the project does not extend.
             221          (c) The record of survey map recorded with the declaration may provide or supplement the
             222      information required under Subsection (5)(b).
             223          (6) (a) If the condominium project is a leasehold condominium, then with respect to any
             224      ground lease or other leases the expiration or termination of which will or may terminate or
             225      contract the condominium project:
             226          (i) The declaration shall include recording information enabling the location of each lease
             227      in the official records of the county recorder.
             228          (ii) The declaration shall include the date upon which each lease is due to expire.
             229          (iii) The declaration shall state whether any land or improvements will be owned by the
             230      unit owners in fee simple. If there is to be fee simple ownership, the declaration shall include:
             231          (A) a description of the land or improvements, including without limitation, a legal
             232      description by metes and bounds of the land; or
             233          (B) a statement of any rights the unit owners have to remove these improvements within
             234      a reasonable time after the expiration or termination of the lease or leases involved, or a statement
             235      that they shall have no such rights.
             236          (iv) The declaration shall include a statement of the rights the unit owners have to extend
             237      or renew any of the leases or to redeem or purchase any of the reversions, or a statement that they
             238      have no such rights.
             239          (b) After the recording of the declaration, no lessor who executed the declaration, and no
             240      successor in interest to this lessor, has any right or power to terminate any part of the leasehold
             241      interest of any unit owner who:
             242          (i) makes timely payment of his share of the rent to the persons designated in the
             243      declaration for the receipt of the rent; and
             244          (ii) otherwise complies with all covenants which would entitle the lessor to terminate the


             245      lease if they were violated.
             246          (7) (a) If the condominium project contains time period units, the declaration shall also
             247      contain the location of each condominium unit in the calendar year. This information shall be set
             248      out in a fourth column of the exhibit or schedule referred to in Subsection 57-8-7 [(1)](2), if the
             249      exhibit or schedule accompanies the declaration.
             250          (b) The declaration shall also put timeshare owners on notice that tax notices will be sent
             251      to the management committee, not each timeshare owner.
             252          (c) The time period units created with respect to any given physical unit shall be such that
             253      the aggregate of the durations involved constitute a full calendar year.
             254          (8) (a) The declaration, bylaws, and record of survey map shall be duly executed and
             255      acknowledged by all of the owners and any lessees of the land which is made subject to this
             256      chapter.
             257          (b) As used in Subsection (8)(a), "owners and lessees" does not include, in their respective
             258      capacities, any mortgagee, any trustee or beneficiary under a deed of trust, any other lien holder,
             259      any person having an equitable interest under any contract for the sale or lease of a condominium
             260      unit, or any lessee whose leasehold interest does not extend to any portion of the common areas
             261      and facilities.
             262          Section 4. Section 76-6-206 is amended to read:
             263           76-6-206. Criminal trespass.
             264          (1) For purposes of this section "enter" means intrusion of the entire body.
             265          (2) A person is guilty of criminal trespass if, under circumstances not amounting to
             266      burglary as defined in Section 76-6-202 , 76-6-203 , or 76-6-204 :
             267          (a) he enters or remains unlawfully on property and:
             268          (i) intends to cause annoyance or injury to any person or damage to any property, including
             269      the use of graffiti as defined in Section 76-6-107 ;
             270          (ii) intends to commit any crime, other than theft or a felony; or
             271          (iii) is reckless as to whether his presence will cause fear for the safety of another; [or]
             272          (b) knowing his entry or presence is unlawful, he enters or remains on property as to which
             273      notice against entering is given by:
             274          (i) personal communication to the actor by the owner or someone with apparent authority
             275      to act for the owner;


             276          (ii) fencing or other enclosure obviously designed to exclude intruders; or
             277          (iii) posting of signs reasonably likely to come to the attention of intruders[.]; or
             278          (c) he enters a condominium unit in violation of Subsection 57-8-7 (7).
             279          (3) (a) A violation of Subsection (2)(a) is a class C misdemeanor unless it was committed
             280      in a dwelling, in which event it is a class B misdemeanor.
             281          (b) A violation of Subsection (2)(b) is an infraction.
             282          (4) It is a defense to prosecution under this section that the:
             283          (a) property was open to the public when the actor entered or remained; and
             284          (b) actor's conduct did not substantially interfere with the owner's use of the property.




Legislative Review Note
    as of 1-28-00 11:20 AM


A limited legal review of this legislation raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel


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