Section 356-B:34-a Division of Condominium.
Notwithstanding the provisions of RSA 356-B:34, a condominium shall be deemed to have been terminated if it is terminated in accordance with the following provisions:
I. A condominium containing 50 or more residential units may be terminated and divided into separate and smaller condominiums by amendment to the condominium instruments pursuant to a written agreement consented to by the unit owners to which 4/5 of the votes in the existing unit owners association and 4/5 of the votes in each resulting unit owners association appertain, as such votes are allocated in accordance with RSA 356-B:39 and the condominium instruments of the existing condominium, and with any consent of mortgagees holding interests in the condominium units as may be required under the condominium instruments of the existing condominium for any action of the unit owners association to terminate the condominium or to subdivide the common areas thereof.
II. Agreement of the required number of unit owners to divide the condominium shall be evidenced by their execution of an agreement or by execution by the president and treasurer of the existing unit owners association accompanied by a certification by the clerk or secretary of the association that the requisite number of unit owners has executed the agreement or has voted in favor thereof either at a meeting duly called for such purpose or by written consent in lieu of such a meeting and the same shall become effective only when such agreement and an effectuating amendment to the condominium instruments in accordance with paragraph III is placed on record at the registry of deeds.
III. An amendment to the condominium instruments adopted pursuant to this section shall establish a separate declaration of condominium with respect to each condominium resulting from the division and shall:
(a) Conform to all applicable provisions of RSA 356-B.
(b) Reallocate the interests in the common areas in accordance with the agreement of unit owners.
(c) Establish easements or other rights of entry, access, egress, usage, or sharing of utilities or other common facilities in accordance with the agreement of unit owners.
(d) Provide for the division of the assets and liabilities of the existing condominium in accordance with the agreement of the unit owners.
(e) Describe any rights to common profits or liability for common expenses which may be shared among any condominiums resulting from the division.
(f) Permit the election by unit owners whose units shall be within such resulting condominiums of representatives of the unit owners associations resulting from the division who shall be authorized to execute condominium instruments for such resulting condominiums.
(g) Contain any and all other provisions necessary or desirable for the equitable division of the condominium.
(h) Be signed by the president and treasurer of the existing unit owners association.
IV. (a) An amendment to the condominium instruments adopted pursuant to this section shall be deemed a material change requiring submission to the consumer protection bureau, office of the attorney general, of an application for approval of the division by or on behalf of the unit owners association, executed by the president or treasurer of the existing unit owners association, which shall provide the following information on a form to be prescribed by the attorney general:
(1) The required consent that was obtained.
(2) The date upon which the required consent was obtained.
(3) The number of units in the existing condominium.
(4) The number of units that are substantially completed in the existing condominium.
(5) The number of units in each resulting condominium specifying the number which are substantially complete or not.
(6) A delineation of any expandable or withdrawable land in the existing or resulting condominiums.
(7) The agreement of the unit owners executed in accordance with this section.
(8) The amendment required by this section, including all necessary condominium instruments executed by the authorized representatives of the resulting unit owners associations.
(9) A certification by the president or treasurer of the existing unit owners association that all required approvals or other actions, including municipal planning board or zoning board approvals, exceptions or variances, and all approvals required under this section, have been obtained.
(10) A certification by the president or treasurer of the existing unit owners association that notice has been provided to the unit owners of the filing of the application for approval, and that any unit owner may submit comments to the attorney general regarding the application.
(11) A certification by the president or treasurer of the existing unit owners association that mortgagees have consented to the division, if and to the extent required by this section.
(b) A fee of $1000 shall be submitted to the attorney general at the time of the filing of the application.
V. (a) The attorney general shall review the application for approval submitted pursuant to this section and shall approve the application upon determination that:
(1) The amendment conforms to the requirements of this section.
(2) The condominium instruments submitted with respect to each resulting condominium conform to the provisions of RSA 356-B.
(3) There is a rational basis for the proposed division.
(4) The proposed division is in furtherance of a lawful purpose.
(5) The amendment and condominium instruments are not unfair or inequitable to unit owners.
(b) The attorney general may require submittal of such additional information as may be reasonably necessary to make such determinations.
(c) Within 120 days after receipt of the complete application and statutory fee submitted pursuant to this section, the attorney general shall notify the submitting party that the division of the condominium is approved or shall state in writing the reasons for objection. Any such non-approval shall not prevent the resubmission of the application. Failure by the attorney general to notify the applicant within this period shall be deemed approval, and the applicant may record a certificate so attesting.
(d) No amendment adopted pursuant to this section shall be placed on record until approved by the attorney general.
VI. Nothing in this section shall limit or derogate the statutory authority of any municipality over subdivisions, zoning, land use, or planning.
VII. Nothing in this section shall be construed to limit the ability of a unit owners association to adopt a provision in its condominium instruments expressly waiving the right to avail itself of the procedures set forth in this section to terminate the condominium and divide it into separate and smaller condominiums.
VIII. This section shall apply to all condominiums within the state declared after the effective date of this section.
Source. 2002, 167:2, eff. May 15, 2002.