The essential elements for creating a condominium include:
- a property expressly submitted by a developer for creating a condominium ownership;
- an instrument containing a declaration as to the creation of a condominium that is executed according to Condominium Act[i];and
- the bylaws that govern the legal rights of a basic unit owner and condominium association[ii].
A declaration is an instrument by which a property is submitted for creating a condominium. The declaration is the operative part of a condominium. The declaration must be filed with the Judge of probate along with a duplicate copy. The duplicate copy will be returned to the person filing a declaration. A book called Condominium Book is maintained by the Judge of probate for each condominium. A condominium book contains declaration of condominium, drawings, certificate of completion, amendments and certificate of termination.
The provisions of a declaration that is contained in an instrument of condominium must conform to the condominium statutes. If a condominium instrument comes into conflict with the statute, then the statute will prevail over the condominium instrument.
The affairs of a condominium’s basic unit owner are governed by the condominium bylaws. The use of common facilities by the basic unit owner’s in a condominium is governed by these bylaws[iii]. The bylaws gives authority to the condominium’s governing body to amend a declaration. A condominium bylaw corresponds to a form of private law making in which individual owners join together and enters into an agreement by subordinating their traditional individual ownership rights and privileges[iv]. However, a condominium bylaw is governed by strict rules of interpretation[v].
[i] Royal York Owners Corp. v. Royal York Assocs., L.P., 2005 NY Slip Op 50889U, 1 (N.Y. Sup. Ct. 2005)
[ii]Lacy v. Sutton Place Condo. Ass’n, 684 A.2d 390 (D.C. 1996)
[iii] Murphy v. State, 14 A.D.3d 127 (N.Y. App. Div. 2d Dep’t 2004)
[iv] Johnson v. Fairfax Village Condominium IV Unit Owners Ass’n, 548 A.2d 87 (D.C. 1988)
[v] Garfink v. Cloisters at Charles, Inc., 392 Md. 374 (Md. 2006)