Prop. Code- Section 81

Question 1

Define “apartment”

Answer 1

What Section 82 calls a “Unit”

Chapter 81 defines it as: An enclosed space (residential or commercial), consisting of one or more rooms that has a direct exit to a thoroughfare or to common space leading to a thoroughfare.

Question 2

May a condominium alter or destroy a unit or limited common elements?

Answer 2

Not without the consent of:

1) All owners affected; and
1) First lien mortgage holders of all owners affected

Question 3

What are the boundaries of an apartment unit?

Answer 3

1) Interior surfaces of the perimeter walls, floors, and ceilings; and
2) Exterior surfaces of the balconies and terraces.

The physical boundaries of a unit are conclusively presumed to be the proper boundaries, regardless of settling, rising, or lateral movement or boundaries shown on a plat.

Question 4

May an owner partition its interest in common elements from the unit or convey it separately?

Answer 4

No.

Question 5

What does it take to terminate a Chapter 81 condominium?

Answer 5

1) Unanimous agreement of the owners; or
2) If the Declaration provides for termination, agreement of at least 67% of the owners.

++++++++Note++++
Compare this to the requirements of Termination under Chapter 82.068 (not applicable to Pre-TUCA).

It is harder to terminate a post-TUCA condo.

(a) Unless the declaration provides otherwise and except for a taking of all the units by condemnation, a condominium may be terminated only by the agreement of 100 percent of the votes in the association and each
holder of a deed of trust or vendor’s lien on a unit. The
declaration may not allow a termination by less than 80 percent of the votes in the association if any unit is restricted exclusively to residential uses.

Question 6

May an Association amend its Declaration to allow for termination with a reduced vote requirement?

Answer 6

No

Question 7

Who owns the common property upon termination?

Answer 7

Each unit owner owns an undivided interest in the common property that corresponds to the undivided interest previously owned by the owners in the common elements.

Question 8

What is the minimum vote requirement prior to a Chapter 81 condominium may amend its declaration?

Answer 8

No Declaration may be amended without approval of at least 67% of the owners of the condominium.

Question 9

Is a provision in a declaration which requires private club membership valid?

Answer 9

It is but expires.

It is not valid after the 10th anniversary of the recording of the declaration.

Question 10

May a provision in a declaration requiring private club membership be renewed by the membership?

Answer 10

Yes. It may be renewed by at least 67% of the owners after the 9th anniversary of the recordation date. The renewal provision must be recorded as a dedicatory instrument.

So- There is only a one year window to renew the provision. It must be renewed in the 9th year.

Question 11

Define “Council of Owners”

Answer 11

All owners of units/apartments in a condominium

Question 12

May the Council of Owners adeopt and amend bylaws?

Answer 12

Yes. The bylaws govern the administration of buildings within a condominium.

Question 13

May the Council of Owners adopt institute litigation on behalf of anyone? If so, who?

Answer 13

Yes. They may institute litigation on behalf of:

Two or more owners concerning a matter related to the common elements or two or more uni

+++NOTE+++
Also see 82.161, applicable to Pre-TUCA condos:

a) If a declaration or other person subect to this chapter violates this chapter, or the dedicatory instruments, any person or class of persons adversely affected by the violation has a claim for appropriate relief.
b) The previlaing party in an action to enforce the dedicatory instruments is entitle to reasonable attorney’s fees and costs of litigation from the nonprevailing party.

Question 14

May a unit owner bring an action on his own behalf?

Answer 14

Yes.

Question 15

Is an owner responsible for their pro-rata share of the common expenses?

Answer 15

Yes.

Question 16

May an owner exempt themselves from the obligations for the common expenses by waive use of the common elements or abandoning use of the condominium?

Answer 16

No.

Question 17

If a building is damaged against which it is insured, must the proceeds of the insurance policy be used to reconstruct the building?

What is the general rule and the exception?

Answer 17

Yes.

Exception-
If more than 2/3 of a building in a condominium requires construction and is insured, the owners may elect not to reconstruct the building.

Question 18

What happens to the insurance proceeds if the owners elect not to reconstruct a building?

Answer 18

Unless the owners unanimously agree otherwise, the insurance procees are paid to the individual unit owners or their mortgagees as their interests may appear in the declaration.

Question 19

What if a building is damaged, must be reconstructed, but insurance proceeds are insufficient to pay for the cost of construction?

Answer 19

The unit owners directly affected by the damage shall pay the difference between the insurance proceeds and costs of construction unless the bylaws provide otherwise.

Each affected apartment owner shall contribute an amount for reconstruction that is proportionate to their interest in the condominium regime.

Question 20

What happens if more than one but less than a majority of affected unit owners refuse to make payment to make up the difference in the insurance proceeds to repair damage?

Answer 20

The majority of the affected unit owners may make a resolution stating:

1) Circumstances of the case; and
2) Cost of the work.

After the resolution is made, they may repair the damage at the expense of all apartment owners benefited by the reconstruction.

Question 21

Must a unit owner or purchaser pay outstanding assessments upon conveyance of a unit?

Answer 21

Yes.

Question 22

An assessment lien takes priority over all other charges against the property, with the exception of:

Answer 22

1) Property tax liens;

2) Mortgage on the unit.