The CCIOA Act defines “Common Elements” as real estate explicitly owned or leased by an association. [Case law later expanded this definition to include any property which is commonly used within a community.]
“Common elements” means:(a) in a condominium or cooperative, all portions of the condominium or cooperative other than the units; and(b) in a planned community, any real estate within a planned community owned or leased by the association, other than a unit.
An easement is not real estate. It cannot be considered a “Common element” within the statutory definition.
As worded – the declaration suggests the road itself (true real estate) is to become a Common element – and thus RERA appears to seek title to real estate that it does not own.
The community must be sensitive to this because the CCOIA requires “Filing the declaration in the same manner as a deed”.
The only legal description in the “Declaration” encompasses the entire road association area, thus enclosing, possibly claiming, all of our properties.
Any filing that could ever be interpreted to assert a claim of ownership on our real estate would soil title of every landowner in the area. PERFECT clarity of the legal definition of any assigned “property” is essential in any such filing.
Note also that RERA does not, and can never meet the statutory requirements to be or ever become a CCIOA.
It was incorporated too late, 1988. § 38-33.3-301. Organization of unit owners’ association. A unit owners’ association shall be organized no later than the date the first unit in the common interest community is conveyed to a purchaser.
§ 38-33.3-201 (1) A common interest community may be created pursuant to this article only by *recording a declaration executed in the same manner as a deed and, in a cooperative, by **conveying the real estate subject to that declaration to the association.
*The language “recording a declaration executed in the same manner as a deed” appears to mandate a declaration of ownership of property to the Association.
Assigning a deed requires three elements, 1) an assignor, 2) an assignee, and 3) proper legal description of the property being assigned.
The only legal description within the “Declaration” describes several square miles of property belonging to 150+ landowners.
Only the 1) assignor, as signatory, is included declaration submitted for our review.
This is why I used the language “Blank Check” to describe “Declaration”. Neither the recipient, nor the amount(property) is described in the legal Declaration.
**If you were to argue we are a cooperative, which we are not, RERA was never conveyed any real estate.
Since the CCIOA would be invalid from it’s inception, so would any protections from liability from CCIOA would void. *******************
RERA does possess title to an easement for road maintenance.