57-8-10 - Contents of declaration.
57-8-10. Contents of declaration.
(1) Prior to the conveyance of any unit in a condominium project, a declaration shall berecorded that contains the covenants, conditions, and restrictions relating to the project that shallbe enforceable equitable servitudes, where reasonable, and which shall run with the land. Unlessotherwise provided, these servitudes may be enforced by any unit owner and his successors ininterest.
(2) (a) For every condominium project:
(i) The declaration shall include a description of the land or interests in real propertyincluded within the project.
(ii) The declaration shall contain a description of any buildings, which states the numberof storeys and basements, the number of units, the principal materials of which the building is oris to be constructed, and a description of all other significant improvements contained or to becontained in the project.
(iii) The declaration shall contain the unit number of each unit, the square footage ofeach 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 stateto which units the use of the common areas and facilities is reserved.
(b) Any shutters, awnings, window boxes, doorsteps, porches, balconies, patios, or otherapparatus intended to serve a single unit, but located outside the boundaries of the unit, shallconstitute a limited common area and facility appertaining to that unit exclusively, whether or notthe declaration makes such a provision.
(c) The condominium plat recorded with the declaration may provide or supplement theinformation required under Subsections (2)(a) and (b).
(d) (i) The declaration shall include the percentage or fraction of undivided interest in thecommon areas and facilities appurtenant to each unit and its owner for all purposes, includingvoting, derived and allocated in accordance with Subsection 57-8-7(2).
(ii) If any use restrictions are to apply, the declaration shall state the purposes for whichthe units are intended and restricted as to use.
(iii) (A) The declaration shall include the name of a person to receive service of processon behalf of the project, in the cases provided by this chapter, together with the residence orplace of business of that person.
(B) The person described in Subsection (2)(d)(iii)(A) shall be a resident of, or shallmaintain a place of business within, this state.
(iv) The declaration shall describe the method by which it may be amended consistentwith this chapter.
(v) Any further matters in connection with the property may be included in thedeclaration, which the person or persons executing the declaration may consider desirableconsistent with this chapter.
(vi) The declaration shall contain a statement of intention that this chapter applies to theproperty.
(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 ofconvertible 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, themaximum percentage of the aggregate land and floor area of all units that may be created and theuse 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 ofthe units on other portions of the land within the project are restricted exclusively to residentialuse.
(iv) The declaration shall state the extent to which any structure erected on anyconvertible land will be compatible with structures on other portions of the land within thecondominium project in terms of quality of construction, the principal materials to be used, andarchitectural style.
(v) The declaration shall describe all other improvements that may be made on each areaof convertible land within the condominium project.
(vi) The declaration shall state that any units created within each area of convertible landwill be substantially identical to the units on other portions of the land within the project or itshall 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 limitedcommon areas and facilities within any convertible land in terms of the types, sizes, andmaximum number of the limited common areas within each convertible land.
(b) The condominium plat recorded with the declaration may provide or supplement theinformation 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 theproject.
(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, astatement as to the method by which consent shall be ascertained, or a statement that there are nosuch limitations.
(ii) The declaration shall include a time limit, not exceeding seven years from the date ofthe recording of the declaration, upon which the option to expand the condominium project shallexpire, together with a statement of any circumstances which will terminate the option prior toexpiration of the specified time limits.
(iii) The declaration shall contain a legal description by metes and bounds of all land thatmay 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 orany 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 landmay be added to the condominium project at different times, together with any limitations fixingthe boundaries of those portions by legal descriptions setting forth the metes and bounds of theselands 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 anyimprovements 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 theadditional land. If portions of the additional land may be added to the condominium project andthe boundaries of those portions are fixed in accordance with Subsection (4)(a)(v), thedeclaration shall also state the maximum number of units that may be created on each portionadded to the condominium project. If portions of the additional land may be added to thecondominium project and the boundaries of those portions are not fixed in accordance withSubsection (4)(a)(v), then the declaration shall also state the maximum number of units per acrethat 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 thecondominium project, the declaration shall state the maximum percentage of the aggregate landand floor area of all units that may be created on it, the use of which will not or may not berestricted exclusively to residential purposes. However, these statements need not be supplied ifnone of the units on the land originally within the project are restricted exclusively to residentialuse.
(ix) The declaration shall state the extent to which any structures erected on any portionof the additional land added to the condominium project will be compatible with structures onthe land originally within the project in terms of quality of construction, the principal materials tobe used, and architectural style. The declaration may also state that no assurances are made inthose regards.
(x) The declaration shall describe all other improvements that will be made on anyportion of the additional land added to the condominium project, or it shall contain a statement ofany limitations as to what other improvements may be made on it. The declaration may also statethat no assurances are made in that regard.
(xi) The declaration shall contain a statement that any units created on any portion of theadditional land added to the condominium project will be substantially identical to the units onthe land originally within the project, or a statement of any limitations as to what types of unitsmay be created on it. The declaration may also contain a statement that no assurances are madein that regard.
(xii) The declaration shall describe the declarant's reserved right, if any, to create limitedcommon areas and facilities within any portion of the additional land added to the condominiumproject, in terms of the types, sizes, and maximum number of limited common areas within eachportion. The declaration may also state that no assurances are made in those regards.
(b) The condominium plat recorded with the declaration may provide or supplement theinformation 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 thecondominium 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, astatement as to the method by which this consent shall be ascertained. The declaration may alsocontain a statement that there are no such limitations.
(iii) The declaration shall state the time limit, not exceeding seven years from therecording of the declaration, upon which the option to contract the condominium project shallexpire, 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 landthat 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 withdrawableland may be withdrawn from the condominium project at different times, together with anylimitations fixing the boundaries of those portions by legal descriptions setting forth the metesand bounds and regulating the order in which they may be withdrawn from the condominiumproject.
(iii) The declaration shall include a legal description by metes and bounds of all of theland within the condominium project to which the option to contract the project does not extend.
(c) The condominium plat recorded with the declaration may provide or supplement theinformation required under Subsection (5)(b).
(6) (a) If the condominium project is a leasehold condominium, then with respect to anyground lease or other leases the expiration or termination of which will or may terminate orcontract the condominium project:
(i) The declaration shall include recording information enabling the location of eachlease in the official records of the county recorder.
(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 theunit 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 legaldescription by metes and bounds of the land; or
(B) a statement of any rights the unit owners have to remove these improvements withina reasonable time after the expiration or termination of the lease or leases involved, or astatement that they shall have no such rights.
(iv) The declaration shall include a statement of the rights the unit owners have to extendor renew any of the leases or to redeem or purchase any of the reversions, or a statement that theyhave no such rights.
(b) After the recording of the declaration, no lessor who executed the declaration, and nosuccessor in interest to this lessor, has any right or power to terminate any part of the leaseholdinterest of any unit owner who:
(i) makes timely payment of his share of the rent to the persons designated in thedeclaration for the receipt of the rent; and
(ii) otherwise complies with all covenants which would entitle the lessor to terminate thelease if they were violated.
(7) (a) If the condominium project contains time period units, the declaration shall alsocontain the location of each condominium unit in the calendar year. This information shall be setout in a fourth column of the exhibit or schedule referred to in Subsection 57-8-7(2), if theexhibit or schedule accompanies the declaration.
(b) The declaration shall also put timeshare owners on notice that tax notices will be sentto the management committee, not each timeshare owner.
(c) The time period units created with respect to any given physical unit shall be suchthat the aggregate of the durations involved constitute a full calendar year.
(8) (a) The declaration, bylaws, and condominium plat shall be duly executed andacknowledged by all of the owners and any lessees of the land which is made subject to this
chapter.
(b) As used in Subsection (8)(a), "owners and lessees" does not include, in theirrespective capacities, any mortgagee, any trustee or beneficiary under a deed of trust, any otherlien holder, any person having an equitable interest under any contract for the sale or lease of acondominium unit, or any lessee whose leasehold interest does not extend to any portion of thecommon areas and facilities.
(9) (a) As used in this section, "rentals" or "rental unit" means:
(i) a unit owned by an individual not described in Subsection (9)(a)(ii) that is occupiedby someone while no unit owner occupies the unit as the unit owner's primary residence; and
(ii) a unit owned by an entity or trust, regardless of who occupies the unit.
(b) (i) Subject to Subsections (9)(c), (f), and (g), an association of unit owners may:
(A) create restrictions on the number and term of rentals in a condominium project; or
(B) prohibit rentals in the condominium project.
(ii) An association of unit owners that creates a rental restriction or prohibition inaccordance with Subsection (9)(b)(i) shall create the rental restriction or prohibition in adeclaration or by amending the declaration.
(c) If an association of unit owners prohibits or imposes restrictions on the number andterm of rentals, the restrictions shall include:
(i) a provision that requires a condominium project to exempt from the rental restrictionsthe following unit owner and the unit owner's unit:
(A) a unit owner in the military for the period of the unit owner's deployment;
(B) a unit occupied by a unit owner's parent, child, or sibling;
(C) a unit owner whose employer has relocated the unit owner for no less than two years;or
(D) a unit owned by a trust or other entity created for estate planning purposes if the trustor other estate planning entity was created for the estate of:
(I) a current resident of the unit; or
(II) the parent, child, or sibling of the current resident of the unit;
(ii) a provision allowing a unit owner who has a rental in the condominium projectbefore the time the rental restriction described in Subsection (9)(b)(i) is recorded with the countyrecorder of the county in which the condominium project is located to continue renting until:
(A) the unit owner occupies the unit; or
(B) an officer, owner, member, trustee, beneficiary, director, or person holding a similarposition of ownership or control of an entity or trust that holds an ownership interest in the unit,occupies the unit; and
(iii) a requirement that the association of unit owners create, by rule or resolution,procedures to:
(A) determine and track the number of rentals and units in the condominium projectsubject to the provisions described in Subsections (9)(c)(i) and (ii); and
(B) ensure consistent administration and enforcement of the rental restrictions.
(d) For purposes of Subsection (9)(c)(ii), a transfer occurs when one or more of thefollowing occur:
(i) the conveyance, sale, or other transfer of a unit by deed;
(ii) the granting of a life estate in the unit; or
(iii) if the unit is owned by a limited liability company, corporation, partnership, or other
business entity, the sale or transfer of more than 75% of the business entity's share, stock,membership interests, or partnership interests in a 12-month period.
(e) This section does not limit or affect residency age requirements for an association ofunit owners that complies with the requirements of the Housing for Older Persons Act, 42 U.S.C.Sec. 3607.
(f) A declaration or amendment to a declaration recorded prior to transfer of the first unitfrom the initial declarant may prohibit or restrict rentals without providing for the exceptions,provisions, and procedures required under Subsection (9)(c).
(g) This section does not apply to:
(i) a condominium project containing a time period unit as defined in Section 57-8-3;
(ii) any other form of timeshare interest as defined in Section 57-19-2; or
(iii) a condominium project in which the initial declaration is recorded before May 12,2009.
(h) Notwithstanding this section, an association of unit owners may, upon unanimousapproval by all unit owners, restrict or prohibit rentals without an exception described inSubsection (9)(c).
Amended by Chapter 178, 2009 General Session