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H.B. 115 Enrolled

                 

CONDOMINIUM PRIVACY

                 
2000 GENERAL SESSION

                 
STATE OF UTAH

                 
Sponsor: Bryan D. Holladay

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


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

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                  and facilities and the making of any additions or improvements thereon shall be carried out only as
                  provided in this act or in the declaration or bylaws.
                      [(6)] (7) The manager or management committee shall have the [irrevocable] right to have
                  access to each unit:
                      (a) from time to time during reasonable hours and after reasonable notice to the occupant of
                  the unit being entered, as may be necessary for the maintenance, repair, or replacement of any of the
                  common areas and facilities; or
                      (b) for making emergency repairs necessary to prevent damage to the common areas and
                  facilities or to another unit or units, provided that a reasonable effort is made to provide notice to the
                  occupant of the unit prior to entry.
                      Section 2. Section 57-8-8 is amended to read:
                       57-8-8. Compliance with covenants, bylaws and/or house rules and administrative
                  provisions.
                      [Each] Subject to reasonable compliance therewith by the manager and the management
                  committee, each unit owner shall reasonably comply [strictly] with the covenants, conditions, and
                  restrictions as set forth in the declaration or in the deed to his unit, and with the bylaws and/or house
                  rules and with the administrative rules and regulations drafted pursuant thereto, as either of the same
                  may be lawfully amended from time to time, and failure to comply shall be ground for an action to
                  recover sums due for damages or injunctive relief or both, maintainable by the manager or
                  management committee on behalf of the unit owners, or in a proper case, by an aggrieved unit owner.
                      Section 3. Section 57-8-10 is amended to read:
                       57-8-10. Contents of declaration.
                      (1) Prior to the conveyance of any unit in a condominium project, a declaration shall be
                  recorded that contains the covenants, conditions, and restrictions relating to the project that shall be
                  enforceable equitable servitudes, where reasonable, and which shall run with the land. Unless
                  otherwise provided, these servitudes may be enforced by any unit owner and his successors in
                  interest.
                      (2) (a) For every condominium project:

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                      (i) The declaration shall include a description of the land or interests in real property included
                  within the project.
                      (ii) The declaration shall contain a description of any buildings, which states the number of
                  storeys and basements, the number of units, the principal materials of which the building is or is to
                  be constructed, and a description of all other significant improvements contained or to be contained
                  in the project.
                      (iii) The declaration shall contain the unit number of each unit, the square footage of each
                  unit, and any other description or information necessary to properly identify each unit.
                      (iv) The declaration shall describe the common areas and facilities of the project.
                      (v) The declaration shall describe any limited common areas and facilities and shall state to
                  which units the use of the common areas and facilities is reserved.
                      (b) Any shutters, awnings, window boxes, doorsteps, porches, balconies, patios, or other
                  apparatus intended to serve a single unit, but located outside the boundaries of the unit, shall
                  constitute a limited common area and facility appertaining to that unit exclusively, whether or not the
                  declaration makes such a provision.
                      (c) The record of survey map recorded with the declaration may provide or supplement the
                  information required under Subsections (2)(a) and (b).
                      (d) (i) The declaration shall include the percentage or fraction of undivided interest in the
                  common areas and facilities appurtenant to each unit and its owner for all purposes, including voting,
                  derived and allocated in accordance with Subsection 57-8-7 [(1)](2).
                      (ii) If any use restrictions are to apply, the declaration shall state the purposes for which the
                  units are intended and restricted as to use.
                      (iii) (A) The declaration shall include the name of a person to receive service of process on
                  behalf of the project, in the cases provided by this chapter, together with the residence or place of
                  business of that person.
                      (B) The person described in Subsection (2)(d)(iii)(A) shall be a resident of, or shall maintain
                  a place of business within, this state.
                      (iv) The declaration shall describe the method by which it may be amended consistent with

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                  this chapter.
                      (v) Any further matters in connection with the property may be included in the declaration,
                  which the person or persons executing the declaration may consider desirable consistent with this
                  chapter.
                      (vi) The declaration shall contain a statement of intention that this chapter applies to the
                  property.
                      (3) (a) If the condominium project contains any convertible land:
                      (i) The declaration shall contain a legal description by metes and bounds of each area of
                  convertible land within the condominium project.
                      (ii) The declaration shall state the maximum number of units that may be created within each
                  area of convertible land.
                      (iii) (A) The declaration shall state, with respect to each area of convertible land, the
                  maximum percentage of the aggregate land and floor area of all units that may be created and the use
                  of which will not or may not be restricted exclusively to residential purposes.
                      (B) The statements described in Subsection (3)(a)(iii)(A) need not be supplied if none of the
                  units on other portions of the land within the project are restricted exclusively to residential use.
                      (iv) The declaration shall state the extent to which any structure erected on any convertible
                  land will be compatible with structures on other portions of the land within the condominium project
                  in terms of quality of construction, the principal materials to be used, and architectural style.
                      (v) The declaration shall describe all other improvements that may be made on each area of
                  convertible land within the condominium project.
                      (vi) The declaration shall state that any units created within each area of convertible land will
                  be substantially identical to the units on other portions of the land within the project or it shall
                  describe in detail what other type of units may be created.
                      (vii) The declaration shall describe the declarant's reserved right, if any, to create limited
                  common areas and facilities within any convertible land in terms of the types, sizes, and maximum
                  number of the limited common areas within each convertible land.
                      (b) The record of survey map recorded with the declaration may provide or supplement the

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                  information required under Subsection (3)(a).
                      (4) If the condominium is an expandable condominium project:
                      (a) (i) (A) The declaration shall contain an explicit reservation of an option to expand the
                  project.
                      (B) The declaration shall include a statement of any limitations on the option to expand,
                  including a statement as to whether the consent of any unit owners shall be required and, a statement
                  as to the method by which consent shall be ascertained, or a statement that there are no such
                  limitations.
                      (ii) The declaration shall include a time limit, not exceeding seven years from the date of the
                  recording of the declaration, upon which the option to expand the condominium project shall expire,
                  together with a statement of any circumstances which will terminate the option prior to expiration
                  of the specified time limits.
                      (iii) The declaration shall contain a legal description by metes and bounds of all land that may
                  be added to the condominium project, which is known as additional land.
                      (iv) The declaration shall state:
                      (A) if any of the additional land is added to the condominium project, whether all of it or any
                  particular portion of it must be added;
                      (B) any limitations as to what portions may be added; or
                      (C) a statement that there are no such limitations.
                      (v) The declaration shall include a statement as to whether portions of the additional land may
                  be added to the condominium project at different times, together with any limitations fixing the
                  boundaries of those portions by legal descriptions setting forth the metes and bounds of these lands
                  and regulating the order in which they may be added to the condominium project.
                      (vi) The declaration shall include a statement of any limitations as to the locations of any
                  improvements that may be made on any portions of the additional land added to the condominium
                  project, or a statement that no assurances are made in that regard.
                      (vii) The declaration shall state the maximum number of units that may be created on the
                  additional land. If portions of the additional land may be added to the condominium project and the

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                  boundaries of those portions are fixed in accordance with Subsection (4)(a)(v), the declaration shall
                  also state the maximum number of units that may be created on each portion added to the
                  condominium project. If portions of the additional land may be added to the condominium project
                  and the boundaries of those portions are not fixed in accordance with Subsection (4)(a)(v), then the
                  declaration shall also state the maximum number of units per acre that may be created on any portion
                  added to the condominium project.
                      (viii) With respect to the additional land and to any portion of it that may be added to the
                  condominium project, the declaration shall state the maximum percentage of the aggregate land and
                  floor area of all units that may be created on it, the use of which will not or may not be restricted
                  exclusively to residential purposes. However, these statements need not be supplied if none of the
                  units on the land originally within the project are restricted exclusively to residential use.
                      (ix) The declaration shall state the extent to which any structures erected on any portion of
                  the additional land added to the condominium project will be compatible with structures on the land
                  originally within the project in terms of quality of construction, the principal materials to be used, and
                  architectural style. The declaration may also state that no assurances are made in those regards.
                      (x) The declaration shall describe all other improvements that will be made on any portion
                  of the additional land added to the condominium project, or it shall contain a statement of any
                  limitations as to what other improvements may be made on it. The declaration may also state that
                  no assurances are made in that regard.
                      (xi) The declaration shall contain a statement that any units created on any portion of the
                  additional land added to the condominium project will be substantially identical to the units on the
                  land originally within the project, or a statement of any limitations as to what types of units may be
                  created on it. The declaration may also contain a statement that no assurances are made in that
                  regard.
                      (xii) The declaration shall describe the declarant's reserved right, if any, to create limited
                  common areas and facilities within any portion of the additional land added to the condominium
                  project, in terms of the types, sizes, and maximum number of limited common areas within each
                  portion. The declaration may also state that no assurances are made in those regards.

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                      (b) The record of survey map recorded with the declaration may provide or supplement the
                  information required under Subsections (4)(a)(iii) through (a)(vi) and (a)(ix) through (a)(xii).
                      (5) If the condominium project is a contractible condominium:
                      (a) (i) The declaration shall contain an explicit reservation of an option to contract the
                  condominium project.
                      (ii) The declaration shall contain a statement of any limitations on the option to contract,
                  including a statement as to whether the consent of any unit owners shall be required, and if so, a
                  statement as to the method by which this consent shall be ascertained. The declaration may also
                  contain a statement that there are no such limitations.
                      (iii) The declaration shall state the time limit, not exceeding seven years from the recording
                  of the declaration, upon which the option to contract the condominium project shall expire, together
                  with a statement of any circumstances which will terminate this option prior to expiration of the
                  specified time limit.
                      (b) (i) The declaration shall include a legal description by metes and bounds of all land that
                  may be withdrawn from the condominium project, which is known as withdrawable land.
                      (ii) The declaration shall include a statement as to whether portions of the withdrawable land
                  may be withdrawn from the condominium project at different times, together with any limitations
                  fixing the boundaries of those portions by legal descriptions setting forth the metes and bounds and
                  regulating the order in which they may be withdrawn from the condominium project.
                      (iii) The declaration shall include a legal description by metes and bounds of all of the land
                  within the condominium project to which the option to contract the project does not extend.
                      (c) The record of survey map recorded with the declaration may provide or supplement the
                  information required under Subsection (5)(b).
                      (6) (a) If the condominium project is a leasehold condominium, then with respect to any
                  ground lease or other leases the expiration or termination of which will or may terminate or contract
                  the condominium project:
                      (i) The declaration shall include recording information enabling the location of each lease in
                  the official records of the county recorder.

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                      (ii) The declaration shall include the date upon which each lease is due to expire.
                      (iii) The declaration shall state whether any land or improvements will be owned by the unit
                  owners in fee simple. If there is to be fee simple ownership, the declaration shall include:
                      (A) a description of the land or improvements, including without limitation, a legal
                  description by metes and bounds of the land; or
                      (B) a statement of any rights the unit owners have to remove these improvements within a
                  reasonable time after the expiration or termination of the lease or leases involved, or a statement that
                  they shall have no such rights.
                      (iv) The declaration shall include a statement of the rights the unit owners have to extend or
                  renew any of the leases or to redeem or purchase any of the reversions, or a statement that they have
                  no such rights.
                      (b) After the recording of the declaration, no lessor who executed the declaration, and no
                  successor in interest to this lessor, has any right or power to terminate any part of the leasehold
                  interest of any unit owner who:
                      (i) makes timely payment of his share of the rent to the persons designated in the declaration
                  for the receipt of the rent; and
                      (ii) otherwise complies with all covenants which would entitle the lessor to terminate the
                  lease if they were violated.
                      (7) (a) If the condominium project contains time period units, the declaration shall also
                  contain the location of each condominium unit in the calendar year. This information shall be set out
                  in a fourth column of the exhibit or schedule referred to in Subsection 57-8-7 [(1)](2), if the exhibit
                  or schedule accompanies the declaration.
                      (b) The declaration shall also put timeshare owners on notice that tax notices will be sent to
                  the management committee, not each timeshare owner.
                      (c) The time period units created with respect to any given physical unit shall be such that
                  the aggregate of the durations involved constitute a full calendar year.
                      (8) (a) The declaration, bylaws, and record of survey map shall be duly executed and
                  acknowledged by all of the owners and any lessees of the land which is made subject to this chapter.

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                      (b) As used in Subsection (8)(a), "owners and lessees" does not include, in their respective
                  capacities, any mortgagee, any trustee or beneficiary under a deed of trust, any other lien holder, any
                  person having an equitable interest under any contract for the sale or lease of a condominium unit,
                  or any lessee whose leasehold interest does not extend to any portion of the common areas and
                  facilities.
                      Section 4. Section 76-6-206 is amended to read:
                       76-6-206. Criminal trespass.
                      (1) For purposes of this section "enter" means intrusion of the entire body.
                      (2) A person is guilty of criminal trespass if, under circumstances not amounting to burglary
                  as defined in Section 76-6-202 , 76-6-203 , or 76-6-204 :
                      (a) he enters or remains unlawfully on property and:
                      (i) intends to cause annoyance or injury to any person or damage to any property, including
                  the use of graffiti as defined in Section 76-6-107 ;
                      (ii) intends to commit any crime, other than theft or a felony; or
                      (iii) is reckless as to whether his presence will cause fear for the safety of another; [or]
                      (b) knowing his entry or presence is unlawful, he enters or remains on property as to which
                  notice against entering is given by:
                      (i) personal communication to the actor by the owner or someone with apparent authority
                  to act for the owner;
                      (ii) fencing or other enclosure obviously designed to exclude intruders; or
                      (iii) posting of signs reasonably likely to come to the attention of intruders[.]; or
                      (c) he enters a condominium unit in violation of Subsection 57-8-7 (7).
                      (3) (a) A violation of Subsection (2)(a) is a class C misdemeanor unless it was committed in
                  a dwelling, in which event it is a class B misdemeanor.
                      (b) A violation of Subsection (2)(b) is an infraction.
                      (4) It is a defense to prosecution under this section that the:
                      (a) property was open to the public when the actor entered or remained; and
                      (b) actor's conduct did not substantially interfere with the owner's use of the property.

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