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H.B. 115
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CONDOMINIUM PRIVACY
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2000 GENERAL SESSION
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STATE OF UTAH
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Sponsor: Bryan D. Holladay
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AN ACT RELATING TO THE CONDOMINIUM OWNERSHIP ACT; REQUIRING NOTICE
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TO CONDOMINIUM OCCUPANT PRIOR TO ENTRY BY MANAGEMENT; EXPANDING
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THE DEFINITION OF CRIMINAL TRESPASS; AND MAKING TECHNICAL CHANGES.
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This act affects sections of Utah Code Annotated 1953 as follows:
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AMENDS:
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57-8-7, as last amended by Chapter 173, Laws of Utah 1975
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57-8-8, as enacted by Chapter 111, Laws of Utah 1963
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57-8-10, as last amended by Chapter 12, Laws of Utah 1992
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76-6-206, as last amended by Chapter 142, Laws of Utah 1996
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
57-8-7
is amended to read:
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57-8-7. Common areas and facilities.
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(1) As used in this section:
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(a) "emergency repairs" means any repairs which if not made in a timely manner will likely
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result in immediate and substantial damage to the common areas and facilities or to another unit
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or units; and
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(b) "reasonable notice" means written notice which is hand delivered to the unit at least
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48 hours prior to the proposed entry.
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[(1)] (2) Each unit owner shall be entitled to an undivided interest in the common areas and
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facilities in the percentages or fractions expressed in the declaration. The declaration may allocate
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to each unit an undivided interest in the common areas and facilities proportionate to either the size
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or par value of [such] the unit. Otherwise, the declaration shall allocate to each unit an equal
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undivided interest in the common areas and facilities, subject to the following exception: each
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convertible space depicted on the record of survey map shall be allocated an undivided interest in
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the common areas and facilities proportionate to the size of [such] the space vis-a-vis the aggregate
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size of all units so depicted, while the remaining undivided interest in the common areas and
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facilities shall be allocated equally among the other units so depicted. The undivided interest in
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the common areas and facilities allocated in accordance with this Subsection (2) shall add up to
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one if stated as fractions or to 100% if stated as percentages. If an equal undivided interest in the
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common areas and facilities is allocated to each unit, the declaration may simply state that fact and
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need not express the fraction or percentage so allocated. Otherwise, the undivided interest allocated
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to each unit shall be reflected by a table in the declaration, or by an exhibit or schedule
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accompanying the declaration and recorded simultaneously with it, containing columns. The first
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column shall identify the units, listing them serially or grouping them together in the case of units
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to which identical undivided interests are allocated. Corresponding figures in the second and third
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columns shall set forth the respective sizes or par values of those units and the fraction or
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percentage of undivided interest in the common areas and facilities allocated thereto.
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[(2)] (3) Except as otherwise expressly provided by this act, the undivided interest of each
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unit owner in the common areas and facilities as expressed in the declaration shall have a
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permanent character and shall not be altered without the consent of all of the unit owners expressed
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in an amended declaration duly recorded. The undivided interest in the common areas and facilities
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shall not be separated from the unit to which it appertains and shall be [deemed] considered to be
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conveyed or encumbered or released from liens with the unit even though such interest is not
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expressly mentioned or described in the conveyance or other instrument. A time period unit may
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not be further divided into shorter time periods by a conveyance or disclaimer.
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[(3)] (4) The common areas and facilities shall remain undivided and no unit owner or any
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other person shall bring any action for partition or division of any part thereof, unless the property
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has been removed from the provisions of this act as provided in Sections
57-8-22
and
57-8-31
.
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Any covenants to the contrary shall be null and void.
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[(4)] (5) Each unit owner may use the common areas and facilities in accordance with the
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purpose for which they were intended without hindering or encroaching upon the lawful rights of
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the other unit owners.
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[(5)] (6) The necessary work of maintenance, repair, and replacement of the common areas
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and facilities and the making of any additions or improvements thereon shall be carried out only
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as provided in this act or in the declaration or bylaws.
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[(6)] (7) The manager or management committee shall have the [irrevocable] right to have
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access to each unit from time to time during reasonable hours and after reasonable notice to the
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occupant of the unit being entered, as may be necessary for the maintenance, repair, or replacement
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of any of the common areas and facilities or for making emergency repairs necessary to prevent
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damage to the common areas and facilities or to another unit or units.
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Section 2.
Section
57-8-8
is amended to read:
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57-8-8. Compliance with covenants, bylaws and/or house rules and administrative
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provisions.
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[Each] Subject to reasonable compliance therewith by the manager and the management
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committee, each unit owner shall reasonably comply [strictly] with the covenants, conditions, and
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restrictions as set forth in the declaration or in the deed to his unit, and with the bylaws and/or
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house rules and with the administrative rules and regulations drafted pursuant thereto, as either of
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the same may be lawfully amended from time to time, and failure to comply shall be ground for
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an action to recover sums due for damages or injunctive relief or both, maintainable by the
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manager or management committee on behalf of the unit owners, or in a proper case, by an
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aggrieved unit owner.
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Section 3.
Section
57-8-10
is amended to read:
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57-8-10. Contents of declaration.
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(1) Prior to the conveyance of any unit in a condominium project, a declaration shall be
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recorded that contains the covenants, conditions, and restrictions relating to the project that shall
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be enforceable equitable servitudes, where reasonable, and which shall run with the land. Unless
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otherwise provided, these servitudes may be enforced by any unit owner and his successors in
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interest.
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(2) (a) For every condominium project:
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(i) The declaration shall include a description of the land or interests in real property
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included within the project.
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(ii) The declaration shall contain a description of any buildings, which states the number
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of storeys and basements, the number of units, the principal materials of which the building is or
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is to be constructed, and a description of all other significant improvements contained or to be
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contained in the project.
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(iii) The declaration shall contain the unit number of each unit, the square footage of each
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unit, and any other description or information necessary to properly identify each unit.
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(iv) The declaration shall describe the common areas and facilities of the project.
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(v) The declaration shall describe any limited common areas and facilities and shall state
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to which units the use of the common areas and facilities is reserved.
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(b) Any shutters, awnings, window boxes, doorsteps, porches, balconies, patios, or other
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apparatus intended to serve a single unit, but located outside the boundaries of the unit, shall
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constitute a limited common area and facility appertaining to that unit exclusively, whether or not
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the declaration makes such a provision.
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(c) The record of survey map recorded with the declaration may provide or supplement the
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information required under Subsections (2)(a) and (b).
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(d) (i) The declaration shall include the percentage or fraction of undivided interest in the
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common areas and facilities appurtenant to each unit and its owner for all purposes, including
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voting, derived and allocated in accordance with Subsection
57-8-7
[(1)](2).
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(ii) If any use restrictions are to apply, the declaration shall state the purposes for which
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the units are intended and restricted as to use.
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(iii) (A) The declaration shall include the name of a person to receive service of process
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on behalf of the project, in the cases provided by this chapter, together with the residence or place
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of business of that person.
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(B) The person described in Subsection (2)(d)(iii)(A) shall be a resident of, or shall
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maintain a place of business within, this state.
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(iv) The declaration shall describe the method by which it may be amended consistent with
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this chapter.
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(v) Any further matters in connection with the property may be included in the declaration,
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which the person or persons executing the declaration may consider desirable consistent with this
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chapter.
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(vi) The declaration shall contain a statement of intention that this chapter applies to the
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property.
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(3) (a) If the condominium project contains any convertible land:
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(i) The declaration shall contain a legal description by metes and bounds of each area of
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convertible land within the condominium project.
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(ii) The declaration shall state the maximum number of units that may be created within
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each area of convertible land.
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(iii) (A) The declaration shall state, with respect to each area of convertible land, the
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maximum percentage of the aggregate land and floor area of all units that may be created and the
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use of which will not or may not be restricted exclusively to residential purposes.
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(B) The statements described in Subsection (3)(a)(iii)(A) need not be supplied if none of
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the units on other portions of the land within the project are restricted exclusively to residential
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use.
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(iv) The declaration shall state the extent to which any structure erected on any convertible
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land will be compatible with structures on other portions of the land within the condominium
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project in terms of quality of construction, the principal materials to be used, and architectural
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style.
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(v) The declaration shall describe all other improvements that may be made on each area
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of convertible land within the condominium project.
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(vi) The declaration shall state that any units created within each area of convertible land
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will be substantially identical to the units on other portions of the land within the project or it shall
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describe in detail what other type of units may be created.
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(vii) The declaration shall describe the declarant's reserved right, if any, to create limited
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common areas and facilities within any convertible land in terms of the types, sizes, and maximum
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number of the limited common areas within each convertible land.
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(b) The record of survey map recorded with the declaration may provide or supplement
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the information required under Subsection (3)(a).
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(4) If the condominium is an expandable condominium project:
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(a) (i) (A) The declaration shall contain an explicit reservation of an option to expand the
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project.
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(B) The declaration shall include a statement of any limitations on the option to expand,
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including a statement as to whether the consent of any unit owners shall be required and, a
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statement as to the method by which consent shall be ascertained, or a statement that there are no
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such limitations.
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(ii) The declaration shall include a time limit, not exceeding seven years from the date of
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the recording of the declaration, upon which the option to expand the condominium project shall
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expire, together with a statement of any circumstances which will terminate the option prior to
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expiration of the specified time limits.
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(iii) The declaration shall contain a legal description by metes and bounds of all land that
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may be added to the condominium project, which is known as additional land.
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(iv) The declaration shall state:
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(A) if any of the additional land is added to the condominium project, whether all of it or
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any particular portion of it must be added;
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(B) any limitations as to what portions may be added; or
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(C) a statement that there are no such limitations.
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(v) The declaration shall include a statement as to whether portions of the additional land
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may be added to the condominium project at different times, together with any limitations fixing
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the boundaries of those portions by legal descriptions setting forth the metes and bounds of these
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lands and regulating the order in which they may be added to the condominium project.
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(vi) The declaration shall include a statement of any limitations as to the locations of any
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improvements that may be made on any portions of the additional land added to the condominium
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project, or a statement that no assurances are made in that regard.
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(vii) The declaration shall state the maximum number of units that may be created on the
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additional land. If portions of the additional land may be added to the condominium project and
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the boundaries of those portions are fixed in accordance with Subsection (4)(a)(v), the declaration
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shall also state the maximum number of units that may be created on each portion added to the
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condominium project. If portions of the additional land may be added to the condominium project
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and the boundaries of those portions are not fixed in accordance with Subsection (4)(a)(v), then
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the declaration shall also state the maximum number of units per acre that may be created on any
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portion added to the condominium project.
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(viii) With respect to the additional land and to any portion of it that may be added to the
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condominium project, the declaration shall state the maximum percentage of the aggregate land
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and floor area of all units that may be created on it, the use of which will not or may not be
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restricted exclusively to residential purposes. However, these statements need not be supplied if
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none of the units on the land originally within the project are restricted exclusively to residential
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use.
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(ix) The declaration shall state the extent to which any structures erected on any portion
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of the additional land added to the condominium project will be compatible with structures on the
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land originally within the project in terms of quality of construction, the principal materials to be
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used, and architectural style. The declaration may also state that no assurances are made in those
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regards.
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(x) The declaration shall describe all other improvements that will be made on any portion
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of the additional land added to the condominium project, or it shall contain a statement of any
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limitations as to what other improvements may be made on it. The declaration may also state that
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no assurances are made in that regard.
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(xi) The declaration shall contain a statement that any units created on any portion of the
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additional land added to the condominium project will be substantially identical to the units on the
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land originally within the project, or a statement of any limitations as to what types of units may
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be created on it. The declaration may also contain a statement that no assurances are made in that
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regard.
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(xii) The declaration shall describe the declarant's reserved right, if any, to create limited
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common areas and facilities within any portion of the additional land added to the condominium
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project, in terms of the types, sizes, and maximum number of limited common areas within each
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portion. The declaration may also state that no assurances are made in those regards.
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(b) The record of survey map recorded with the declaration may provide or supplement
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the information required under Subsections (4)(a)(iii) through (a)(vi) and (a)(ix) through (a)(xii).
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(5) If the condominium project is a contractible condominium:
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(a) (i) The declaration shall contain an explicit reservation of an option to contract the
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condominium project.
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(ii) The declaration shall contain a statement of any limitations on the option to contract,
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including a statement as to whether the consent of any unit owners shall be required, and if so, a
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statement as to the method by which this consent shall be ascertained. The declaration may also
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contain a statement that there are no such limitations.
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(iii) The declaration shall state the time limit, not exceeding seven years from the
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recording of the declaration, upon which the option to contract the condominium project shall
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expire, together with a statement of any circumstances which will terminate this option prior to
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expiration of the specified time limit.
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(b) (i) The declaration shall include a legal description by metes and bounds of all land that
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may be withdrawn from the condominium project, which is known as withdrawable land.
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(ii) The declaration shall include a statement as to whether portions of the withdrawable
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land may be withdrawn from the condominium project at different times, together with any
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limitations fixing the boundaries of those portions by legal descriptions setting forth the metes and
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bounds and regulating the order in which they may be withdrawn from the condominium project.
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(iii) The declaration shall include a legal description by metes and bounds of all of the land
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within the condominium project to which the option to contract the project does not extend.
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(c) The record of survey map recorded with the declaration may provide or supplement the
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information required under Subsection (5)(b).
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(6) (a) If the condominium project is a leasehold condominium, then with respect to any
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ground lease or other leases the expiration or termination of which will or may terminate or
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contract the condominium project:
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(i) The declaration shall include recording information enabling the location of each lease
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in the official records of the county recorder.
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(ii) The declaration shall include the date upon which each lease is due to expire.
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(iii) The declaration shall state whether any land or improvements will be owned by the
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unit owners in fee simple. If there is to be fee simple ownership, the declaration shall include:
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(A) a description of the land or improvements, including without limitation, a legal
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description by metes and bounds of the land; or
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(B) a statement of any rights the unit owners have to remove these improvements within
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a reasonable time after the expiration or termination of the lease or leases involved, or a statement
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that they shall have no such rights.
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(iv) The declaration shall include a statement of the rights the unit owners have to extend
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or renew any of the leases or to redeem or purchase any of the reversions, or a statement that they
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have no such rights.
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(b) After the recording of the declaration, no lessor who executed the declaration, and no
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successor in interest to this lessor, has any right or power to terminate any part of the leasehold
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interest of any unit owner who:
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(i) makes timely payment of his share of the rent to the persons designated in the
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declaration for the receipt of the rent; and
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(ii) otherwise complies with all covenants which would entitle the lessor to terminate the
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lease if they were violated.
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(7) (a) If the condominium project contains time period units, the declaration shall also
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contain the location of each condominium unit in the calendar year. This information shall be set
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out in a fourth column of the exhibit or schedule referred to in Subsection
57-8-7
[(1)](2), if the
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exhibit or schedule accompanies the declaration.
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(b) The declaration shall also put timeshare owners on notice that tax notices will be sent
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to the management committee, not each timeshare owner.
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(c) The time period units created with respect to any given physical unit shall be such that
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the aggregate of the durations involved constitute a full calendar year.
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(8) (a) The declaration, bylaws, and record of survey map shall be duly executed and
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acknowledged by all of the owners and any lessees of the land which is made subject to this
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chapter.
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(b) As used in Subsection (8)(a), "owners and lessees" does not include, in their respective
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capacities, any mortgagee, any trustee or beneficiary under a deed of trust, any other lien holder,
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any person having an equitable interest under any contract for the sale or lease of a condominium
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unit, or any lessee whose leasehold interest does not extend to any portion of the common areas
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and facilities.
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Section 4.
Section
76-6-206
is amended to read:
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76-6-206. Criminal trespass.
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(1) For purposes of this section "enter" means intrusion of the entire body.
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(2) A person is guilty of criminal trespass if, under circumstances not amounting to
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burglary as defined in Section
76-6-202
,
76-6-203
, or
76-6-204
:
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(a) he enters or remains unlawfully on property and:
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(i) intends to cause annoyance or injury to any person or damage to any property, including
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the use of graffiti as defined in Section
76-6-107
;
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(ii) intends to commit any crime, other than theft or a felony; or
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(iii) is reckless as to whether his presence will cause fear for the safety of another; [or]
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(b) knowing his entry or presence is unlawful, he enters or remains on property as to which
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notice against entering is given by:
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(i) personal communication to the actor by the owner or someone with apparent authority
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to act for the owner;
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(ii) fencing or other enclosure obviously designed to exclude intruders; or
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(iii) posting of signs reasonably likely to come to the attention of intruders[.]; or
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(c) he enters a condominium unit in violation of Subsection
57-8-7
(7).
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(3) (a) A violation of Subsection (2)(a) is a class C misdemeanor unless it was committed
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in a dwelling, in which event it is a class B misdemeanor.
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(b) A violation of Subsection (2)(b) is an infraction.
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(4) It is a defense to prosecution under this section that the:
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(a) property was open to the public when the actor entered or remained; and
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(b) actor's conduct did not substantially interfere with the owner's use of the property.
Legislative Review Note
as of 1-28-00 11:20 AM
A limited legal review of this legislation raises no obvious constitutional or statutory concerns.