Flashcards in Terminating Condominiums & Amending their Dedicatory Instruments Deck (31):
Where are the termination provisions located in the Texas Property Code for condominiums?
What are the Termination requirements for a Pre-TUCA condominium under 81.110?
i. 100% approval of owners & lienholders; or
ii. If Declaration provides for termination, vote percentage is 67% or the percentage required in the declaration, whichever is higher.
May a pre-TUCA association amend its declaration to change the percentage required to terminate?
After termination, what type of interest does a pre-TUCA owner own in the common elements?
The owner owns the same undivided interest previously owned in the common elements.
What are the requirements for Termination for a Post-TUCA condominium under 82.068?
i. 100% approval of owners; or
ii. If Declaration provides for termination, use percentage required by Declaration, but it cannot be less than 80% if restricted to residential use.
What type of agreement must TUCA condos prepare after termination?
Termination Agreement. Pre-TUCA condos do not need one.
It must be prepared and signed by the requisite number of unit owners.
Must the Termination Agreement be filed in the county clerk's office?
If a property is to be sold after termination, must the termination agreement set forth the terms of the sale?
In a TUCA Condominium is to be sold, who is the Trustee for the owners?
What trustee rights and responsibilities does the Association have in a sale?
If condominium is terminated and the be sold, the Association acts as trustee for holders of those with interests in the units.
It has the following powers:
a. All powers necessary to effect the sale.
b. May convey interests of nonconsenting owners.
c. Trustee powers terminate after sale is concluded.
May the association contract to sell the property?
Yes, but it is not binding on unit owners unle approved under a termination agreement.
How are sale proceeds to be distributed after a sale of a condominium?
Sale proceeds shall be distrusted to owners and lienholders in accordance with their interests in proportion to the fair market value of their units against the fair market value of all units. Assets of the sale of the property are not association assets but assets of the owners.
What is the appraiser and appriaser report?
How long do owners have to contest the report?
When a TUCA condo is terminated-
Association must hire appraiser to appraise property and units. Appraiser shall distribute its report to unit owners and becomes final more than 25% of unit owners disapprove within 30 days. If unit is destroyed prior to appraisal, then the appraisal should be the units common element interest.
Do owners have a right to occupy their units after termination?
TUCA unit owners do-
Unless termination agreement provides otherwise, owners may occupy their units as long as the association holds title to real property. Occupying owners may also be required to pay assessments prior to termination.
If a condominium is terminated with no sale, what interest do TUCA owners have in the common elements?
They are tenants in common.
If a condominium is terminated with no sale, do owners have the right to occupy their units?
May TUCA owners rescind a termination of a condominium?
Yes. They may rescind in the same manner- by written agreement that is signed by the same percentage of owners required to terminate.
Must the rescinding of termination be filed in the county clerk's office?
What is the effect of foreclosure of a mortgage lien on the common elements of a TUCA condo?
Does it withdraw property from the condominium?
Foreclosure of a lien against the entire condominium does not withdraw that portion against the entire condominium unless it is withdrawable real property or the mortgage was recorded prior to the declaration and the mortgagee did not consent in writing to the declaration.
Where are the amendment provisions located in the Texas Property Code for condominiums?
What is the Pre-TUCA general rule for amendment of Declarations?
Declarations may not be amended except at a meeting of the apartment owners at which the amendment is approved by the holders of at least 67% of the ownership interests in the condominium.
Does 82.111 include provisions for the unilateral amendment of a declaration by other parties or the declarant?
No. The are no declarant amendment exceptions like there are under TPC 82.067.
What is the Post-TUCA general rule for amendment of Declarations?
Declarations may not be amended except at a meeting of the apartment owners at which the amendment is approved by the holders of at least 67% of the ownership interests in the condominium or any larger percentage the declaration specifies.
What are the exceptions to general rule allowing for amendment of codominium declarations under TPC 82.067?
a. If declaration requires more than 67%, then you must use number in declaration.
b. Declaration may specify smaller number if all units are restricted to non-residential use.
c. TUCA condos may amend their declarations in limited circumstances without approval of owners. Pre-TUCA condos require owner approval to do this. Examples include:
i. Reallocation of limited common elements.
ii. Reallocation of unit boundaries;
iii. Subdividing units.
What are the methods by which TUCA condos may vote on an amendment to the declaration?
1. Written Absentee Ballot- Must state exact wording or substance of amendment and date which ballot must be received to be counted.
2. Meeting Vote- Meeting of members. Must notify each unit owner in writing that purpose of meeting is to vote on declaration amendment; or
3. Any Method Permitted by Declaration
What notice is required for TUCA condos of an amendment to a declaration?
1. Copy of Proposed Amendment- Must give each unit owner a copy of the proposed amendment. Via mail or hand delivery with receipt.
2. 10-20 Days- Must send copy at least 10-20 days prior to the meeting.
Unless otherwise allowed by TUCA, a declaration may not be amended for the following reasons without 100% of a unit owner's vote:
1. Increase special declarant rights;
2. Increase number of units;
3. Change boundaries of a unit;
4. Alter or destroy a unit;
5. Alter or destroy limited common elements; and
6. Change the allocated interest.
Under what circumstances may a TUCA declarant amend the declaration unilaterally?
1. Curing a defect w/ proper execution of Declaration; or
2. Records new plats for exercising developmental rights.
May a TUCA board or declarant unilaterally amend to comply with FHA, FNMA, or VA qualifications?
1. Declaration permits such an amendment; and
2. Declarant may amend if declarant owns unit that has never been occupied.
Who signs a TUCA amendment to the declaration?
Designated officer for that purpose. If no officer is designated, then the President.