Connecticut Declarant/Developer Responsibilities

Connecticut - Development Year 2013 to present

We have a 13 unit Condo association that was recently turned over from declarant control to unit owner control.

There will be a TOTAL of 13 units when the project is finished. There are presently 8 units sold and the other 5 are still owned by the developer / former declarant.

These units are individual homes on individual "lots". The HOA association set an HOA Fee of approximately 1/4 of the Unit Owner Cost to the lots owned by the developer for their share of landscape/plowing/insurance which is not related to dwellings...ie liability etc.

The developers have failed to pay their HOA fees. What are the options of the HOA in collecting these fees?

Thanks.

Are there any exemptions in your organizing docs for the declarant's lots?

The first paragraph you quoted from 47-249b acknowledges that a declarant can have liability "as a unit owner". Suggest you scour your organizing docs and statutes for all references to "unit owner", especially any definition sections.

Not sure what you're saying. Before you were talking about total of 5 units owned by developer not making HOA payments. Now you're talking about only 1 and it makes HOA payments. Please clarify.

It is not uncommon for undeveloped lots owned by the developer to be exempt from HOA assessments. I did a quick scan of Ct statute and didn't see anything on it - Doesn't mean that it isn't there. Statutes usually defer to declaration on issues like this, so best for you to wade through your HOA docs thoroughly. Shouldn't be too expensive to get your question answered by a Ct HOA lawyer.

Amador,

Also could you clarify re the 1/4 fee?

You wrote: “The HOA fee the association has set for those lots are 1/4 of the full HOA fee. It was calculated, not just pulled out of the air. They refuse to make those payments.

Who set, calculated, the fee of approximately 1/4 of the Unit Owner cost for the undeveloped lots? And when was this 1/4 fee set, or when did it start, or go into effect?

What reason does the Developer give for not paying “the fee” on the undeveloped lots?

Hi, they are single family detached CONDOMINIUMS. So, even though we have been saying HOA it is really the condo association.

Declarant's argument sounds like nonsense. You may have to go to court to recover though.

Yes............that is correct........with the exception that they do have a declared home on one of those 5 lots which they have been unable to sell and have it rented out. They pay the FULL assessment on that home and collect the rent to their benefit which seems to be correct.

Amador,

A few more questions, to help in understanding your “problem”.

Per your Declaration (could be in your Bylaws, but typically would be in your Declaration), would you post the paragraphs that:

1. Define the Boundaries of the Condominium Unit?

2. Define what are the Common Elements and/or Common Areas?

3. Define the “Percentage of Allocated Interests” for each of the Condominium Units.

4. Also, since typically “Association Maintenance Fees” are assessed ONLY against the Condominium Unit Owners, based on percentage of ownership, it would be interesting to know “what words in your Condo Documents” allow for assessing against the 4 vacant lots reserved for 4 declared, but unbuilt Condo Units (assuming that, that vacant land is defined as COMMON Area, and/or Common Elements). Would you be willing to post those words?

Thank you.

Ama

I am confused. You said the Declarant turned the association over to the owners thus the Declarant is no longer a/the Declarant. They are simply the owner of 4 vacant lots.

Amador posted “we are hoping on using the state statute” and then posted the words of paragraph (b) from Section 47-249 of the CT State statute.

For reference: Section 47-249 - Upkeep of common interest community. Liability for expenses.

(a) Except to the extent provided by the declaration, subsection (b) of this section or subsection (h) of section 47-255, the association is responsible for maintenance, repair and replacement of the common elements . . . . . .
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Note: Section (h) of section 47-255 deals with Insurance Proceeds and the rebuilding or not, of a portion of the community which is damaged or destroyed. And (a) also refers back to words that might be in the Declaration.
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(b) In addition to the liability that a declarant as a unit owner has under this chapter, the declarant alone is liable for all expenses in connection with real property subject to development rights. No other unit owner and no other portion of the common interest community is subject to a claim for payment of those expenses. Unless the declaration provides otherwise, any income or proceeds from real property subject to development rights inures to the declarant.

As I interpret, and I could be wrong, paragraph (b) as it applies to Amador’s Condominium Association, now after turnover, and with the developer retaining the right to build the four (4) remaining Condominium Units:

1. The first sentence states that the developer has to pay for all of the expenses incurred in the building of the Condominium Units (houses), all of the construction costs, labor, materials, etc., and presumably all the costs associated with selling the Condo Unit, after it is built.
2. The second sentence clarifies, by stating that none of the existing Condominium Owners can be charged, or be required to pay for any of the costs associated with the building of the remaining Condo Units (houses).
3. And the third, or last sentence, simply states that the developer has the right keep all profits made.

Does anyone see a connection, or how the words of paragraph 47-249(b) allow Amador’s Condominium Association, now that it has been turned over, to conclude that the costs of the landscaping, and other expenses, for the four (4) remaining VACANT Common Area Lots, should be subtracted from the “fees” due from the current owners of the nine (9) built Condominium Units, and become an obligation of the developer, who now after turnover is no longer the Declarant, but continues to have developmental rights to complete the building of the 4 remaining Condominium Units, or up to 20 years, whichever comes first.?

Per Section 47-202, Definitions: Keep in mind that this is a Condominium Association, and note the use of the word “unit” throughout.

(2) “Allocated interests” means the following interests allocated to each unit: (A) In a condominium, the undivided interest in the common elements, the common expense liability, and votes in the association
(3) “Assessment” means the sums attributable to a unit and due the association pursuant to section 47-257
(6) “Common elements” means (A) in the case of (i) a condominium or cooperative, all portions of the common interest community other than the units; . . . . . . . .
(8) “Common expense liability” means the liability for common expenses allocated to each unit pursuant to section 47-226.

And per Section 47-226 - Allocation of interests.
(a) The declaration shall allocate to each unit: (1) In a condominium, a fraction or percentage of undivided interests in the common elements and in the common expenses of the association, and a portion of the votes . . . . . . .
(b) The declaration shall state the formulas used to establish allocations of interests. . . . . . . .
(c) If units may be added to or withdrawn from the common interest community, the declaration shall state the formulas to be used to reallocate the allocated interests among all units included in the common interest community after the addition or withdrawal.
(f) In a condominium, the common elements are not subject to partition, and any purported conveyance, encumbrance, judicial sale or other voluntary or involuntary transfer of an undivided interest in the common elements made without the unit to which that interest is allocated is void.
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Do you agree with the position taken by the developer, that now after turnover, they need to pay only their share of the assessed Fees as Owner of their unsold Condo Unit (the ninth Unit the developer built), and not any additional maintenance fees, just because they still have the right to complete the building of the last four (4) remaining Houses, Buildings, Condominium Units?