Cohousing-L Mailing List: Re: Legal structure for ownership of common facilities

[Kathy Tymoczko (kathy.tymoczko]

I suspect the answers to your questions vary according to state law.  And
because we don't have individual lots, but rather condominiums, our
situation is different.  But see below for the excerpts from our Bylaws and
Declaration which are relevant.

On Mon, Jun 15, 2015 at 2:55 PM, Jerry McIntire <jerry.mcintire [at] gmail.com>
wrote:

>
> We've started talking with attorneys as we plan for development and I was
> asked this question:
>
> Will the LLC continue to exist after selling the individual lots, retaining
> ownership of the common elements? I have assumed it would not, that it
> would dissolve and the HOA would own the common land and facilities, with
> each of the lot owners being part of the HOA.
>

Our bylaws say:

> Within three years after the date of conveyance of the first unit to a
> person other than a successor declarant, or within 90 days after Declarant
> has sold and conveyed to a person other than a successor declarant
> seventy-five percent (75%) or more of the units in Daybreak Cohousing,
> whichever is earlier, the Declarant shall call the first meeting of the
> unit owners to organize the Association and to elect directors.  Notice of
> such meeting shall be given to all unit owners as provided in Section 4.4.
> If Declarant fails to call the meeting, the meeting may be called and
> notice given by any unit owner or mortgagee of a unit.  At the turnover
> meeting, Declarant shall relinquish control of the administration of the
> Association to the unit owners, and the unit owners shall assume control;
> the unit owners shall elect a Board of Directors as set forth in these
> Bylaws; and the Declarant shall deliver to the Association the information
> and documents specified in ORS 100.210(5).  Nothing in this Section shall
> be construed as preventing the Declarant from calling the organizational
> and turnover meeting prior to such date, or from calling informal,
> informational meetings of the unit owners.
>
We held the turnover meeting (as specified above in our Bylaws), three
years after the first unit was sold.


>
> Where does ownership of the common elements reside? Does each lot owner own
> a percentage, and the HOA simply manages, or does the HOA hold ownership?
>

For us, units are "individually conveyed" (the buyer owns their condo), and
common elements are "owned" as specified in the declaration:

> Each unit shall be entitled to a percentage undivided ownership interest
> in the common elements, as shown on the attached Exhibit B, which is
> determined by the ratio of the area of each unit plus the area of its
> assigned limited common elements to the total area of all units and limited
> common elements combined.  Each unit owner's interest in the common
> elements shall be inseparable from the unit and any conveyance,
> encumbrance, judicial sale, or other transfer, voluntary or involuntary, of
> an undivided interest in the common elements shall be void unless the unit
> to which that interest is allocated is also transferred.
>
So, not an equal division based on the number of units, but a percentage
based on unit square footage.


>
> Perhaps these questions will be answered if we find an experienced
> attorney. Does anyone know of an attorney with cohousing experience who is
> licensed to practice in Wisconsin?
>
> Thanks,
>
> Jerry
>
> Jerry McIntire
> Stone's Throw Ecovillage, in the heart of Wisconsin's beautiful Driftless
> region
> http://stonesthrowcommunity.wordpress.com/
> 1-608-637-6620
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>


-- 
Kathy Tymoczko
Daybreak Cohousing <http://www.daybreakcohousing.org>
Portland, Oregon
765-307-1083