Your Condo Declaration is Not a Contract Between You and the Developer

Many buyers of condominiums do not understand that the Condo Association and the Developer are not the same (even though they seem to be early on in the life of the Condo Association). The purchase and sale agreement that the buyer and seller have is not a contractual relationship between the Association and the buyer, and CANNOT impose different rights and obligations on the association than are contained in the recorded Declaration.

We have had instances where a sales contract indicated that a buyer was getting some specific parking space, but the space assigned to that buyer's unit is allocated differently in the Condominium Declaration. We have heard of purchase and sale agreements that promised the right to rent a condo unit, or to conduct a business out of the unit, when those rights are specifically prohibited by the Condo Declaration.

These conflicts create a problem for the buyer/owner, because the buyer/owner has been sold something that the Developer (or, indeed, any seller) cannot sell.

And when the conflict comes to light, often because the Association is asked to enforce the Declaration as written, the owner does not have legal rights against the Association. Their rights to remedy the problem need to go back to the developer. We have a client who purchased a condo before construction was completed with two covered parking spaces. When the construction was completed, the two covered parking spaces did not physically exist. The owner wanted the Association to give them 2 spaces, but the association had no obligation to do so. The owner's recourse was only to sue the developer for not delivering what had been sold.

The reality was that the Association was a necessary party to resolve the parking space issue. The owner could have taken money in exchange for the missing parking spaces, but would have a condo with no place to park. The association had four guest parking spaces, but did not want to give them up. A nd when a solution to creating an uncovered parking space was found, the association wanted money, and the owner wanted money because they only would have one space and it was not covered.

The moral of the story is that when you purchase a condominium unit, you should check that the promises made in the purchase and sale agreement are provided for in the Condominum Declaration. Check that the parking spaces, storage units, and other limited common areas are properly assigned in the Declaration. Check that the uses you want for your condominium are allowed by the Declaration and other rules and regulations (check things like smoking, bar-b-ques, pets allowed, business activities allowed, rentals allowed, ability to put signs in windows, holidiay decorations, etc.). Condominiums do not allow unfettered use of your property, and you want to make sure that the Declaration provides for the use you intend.

If you have any questions we can answer, please feel free to leave a comment or contact us directly. We look forward to continuing this conversation with you in our future posts!

Categories: Governing Documents