June 29, 2007
By: George Coppolo, Chief Attorney
You asked how the Common Interest Ownership Act deals with development rights.
The Common Interest Ownership Act (CIOA) governs the creation, alteration, management, termination, and sale of condominiums and other common interest communities formed in Connecticut after January 1, 1984 (CGS § 47-200 et seq. ). CIOA allows people who create condominiums (declarants) to reserve certain rights concerning adding or withdrawing land, creating units and common elements, or subdividing or converting units into common elements. It requires them to include in the declaration (the document that creates the condominium) a description of any development rights together with a legally sufficient description of the real property to which each of those rights applies. The declaration must also include a time limit within which the declarant must exercise each development right and any other conditions or limitations under which the development rights may be exercised or will lapse.
CIOA also specifies what a declarant must do in order to exercise a development right. For example, the declarant must (1) prepare, execute, and record an amendment to the declaration and (2) record new surveys and plans necessary to conform to CIOA's statutory requirements.
CIOA specifies that a development right lapses if a declarant (1) fails to exercise it within the time limit described in the declaration and in accordance with any conditions or limitations described in the declaration, or (2) records an instrument surrendering it.
CIOA defines “development rights” as any right or combination of rights reserved by a declarant in the declaration to:
1. add real property to a common interest community;
2. create units, common elements, or limited common elements within a common interest community;
3. subdivide units or convert units into common elements; or
4. withdraw real property from a common interest community (CGS 47-202(14)).
The “declarant” is any person or group acting in concert who as part of a common promotional plan, offers to dispose of his when interest in a unit not previously disposed of or (2) reserves or succeeds to any special declarant right including the right to exercise any development right (CGS § 47-202(12)). A “declaration” is any instrument, however denominated, that creates a condominium, including any amendments to those instruments (CGS § 47-202(13)).
DEVELOPMENT RIGHTS MUST BE DESCRIBED IN DECLARATION
CIOA requires that the declaration include a description of any development rights together with a legally sufficient description of the real property to which each of those rights applies, a time limit within which each of those rights must be exercised, and any other conditions or limitations under which the development rights may be exercised or will lapse (CGS § 47-202(8) and (10)).
EXERCISE OF DEVELOPMENT RIGHTS
CIOA requires that to exercise any development right reserved under the declaration, the declarant must (1) prepare, execute, and record an amendment to the declaration and (2) record either new surveys and
plans necessary to conform to CIOA's statutory requirements, or new certifications of surveys and plans previously recorded if those surveys and plans otherwise conform to CIOA's requirements (CGS § 47-229).
The amendment to the declaration must assign an identifying number to each new unit created, and except in the case of subdivision or conversion of units, reallocate the allocated interests among all units. The amendment must describe any common elements and any limited common elements created by the amendment and, in the case of limited common elements, designate the unit to which each is allocated (CGS §47-229(b)).
CIOA requires that each survey must show or project, among other things:
1. the name and a survey or general schematic map of the entire common interest community;
2. the location and dimensions of all real property not subject to development rights, or subject only to the development right to withdraw, and the location and dimensions of all existing improvements within that real property;
3. a legally sufficient description of any real property subject to development rights, labeled to identify the rights applicable to each parcel;
4. the distance between noncontiguous parcels of real property comprising the common interest community; and
5. in the case of real property not subject to development rights, all other matters customarily shown on land surveys (CGS 47-228(b)).
DEVELOPMENT RIGHTS TO SUBDIVIDE OR CONVERT A UNIT INTO ADDITIONAL UNITS, COMMON ELEMENTS, OR BOTH
Whenever a declarant exercises a development right to subdivide or convert a unit previously created into additional units, common elements, or both:
1. if the declarant converts the unit entirely to common elements, the amendment to the declaration must reallocate all the allocated interests of that unit among the other units as if that unit had been taken by eminent domain; and
2. if the declarant subdivides the unit into two or more units, whether or not any part of the unit is converted into common elements, the amendment to the declaration must reallocate all the allocated interests of the unit among the units created by the subdivision in any reasonable manner prescribed by the declarant (CGS § 47-229(c)).
FAILURE TO EXERCISE DEVELOPMENT WITHIN THE TIME SPECIFIED IN THE DECLARATION
A development right lapses if (1) a declant fails to exercise it within the time limit described in the declaration and in accordance with any conditions or limitations described in the declaration, or (2) records an instrument surrendering it (CGS § 47-229(e)).