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

[Jerry McIntire (jerry.mcintire]

Kathy, thanks for the specifics. That answers a couple questions-- though
we will check with an attorney familiar with Wisconsin regulations.

Did you know I was part of the original organizing group for Daybreak? 2005
- 2006, when we left Portland for Wisconsin. Congratulations on your
success!

Jerry

Jerry McIntire
Stone's Throw Ecovillage, in the heart of Wisconsin's beautiful Driftless
region
http://stonesthrowcommunity.wordpress.com/
1-608-637-6620

On Tue, Jun 16, 2015 at 10:34 AM, Kathy Tymoczko <kathy.tymoczko [at] gmail.com>
wrote:

>
> 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.
>