CHAPTER 81. DELAWARE UNIFORM COMMON INTEREST OWNERSHIP ACT
Subchapter II. Creation, Alteration, and Termination of Common Interest
§ 81-201. Creation of common interest communities.
(a) A common interest community may be created pursuant to this chapter 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 declaration
and bylaws must be recorded in every county in which any portion of the common interest community is located and must be indexed
in the grantee's index in the name of the common interest community and the association and in the grantor's index in the
name of each person executing the declaration.
(b) In a condominium, a declaration, or an amendment to a declaration, adding units that are contained in or comprised by
buildings may not be recorded unless the structural components and mechanical systems of any buildings containing or comprising
any units thereby created, if any, are substantially completed in accordance with the plans, as evidenced by a record certification
of completion executed by an independent registered engineer or architect, which may be incorporated in the recorded declaration
or amendment or the recorded plat or otherwise, or by the issuance by the appropriate governmental authority of a certificate
of occupancy, or its equivalent, for the applicable unit.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, §§ 22, 82.;
§ 81-202. Unit boundaries.
Except as provided by the declaration:
(a) If walls, floors, or ceilings are designated as boundaries of a unit, all lath, furring, wallboard, plasterboard, plaster,
paneling, tiles, wallpaper, paint, finished flooring, and any other materials constituting any part of the finished surfaces
thereof are a part of the unit, and all other portions of the walls, floors, or ceilings are a part of the common elements.
(b) If any chute, flue, duct, wire, conduit, bearing wall, bearing column, or any other fixture lies partially within and
partially outside the designated boundaries of a unit, any portion thereof serving only that unit is a limited common element
allocated solely to that unit, and any portion thereof serving more than 1 unit or any portion of the common elements is a
part of the common elements.
(c) Subject to subsection (b) of this section, all spaces, interior partitions, and other fixtures and improvements within
the boundaries of a unit are a part of the unit.
(d) Any shutters, awnings, window boxes, doorsteps, stoops, porches, balconies, patios, and all exterior doors and windows
or other fixtures designed to serve a single unit, but located outside the unit's boundaries, are limited common elements
allocated exclusively to that unit.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, § 82.;
§ 81-203. Construction and validity of declaration and bylaws.
(a) All provisions of the declaration and bylaws are severable.
(b) The rule against perpetuities does not apply to defeat any provision of the declaration, bylaws or rules.
(c) In the event of a conflict between the provisions of the declaration and the bylaws, the declaration prevails.
(d) Title to a unit and common elements is not rendered unmarketable or otherwise affected by reason of an insubstantial failure
of the declaration to comply with this chapter. Whether a substantial failure impairs marketability is not affected by this
chapter.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, §§ 23, 24, 82.;
§ 81-204. Description of units.
A description of a unit which sets forth the name of the common interest community, the recording data for the declaration,
the county in which the common interest community is located, and the identifying number of the unit, is a legally sufficient
description of that unit and all rights, obligations, and interests appurtenant to that unit which were created by the declaration
or bylaws.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, § 82.;
§ 81-205. Contents of declaration.
(a) The declaration must contain:
(1) The names of the common interest community and the association and a statement that the common interest community is either
a condominium, cooperative, or planned community;
(2) The name of every county in which any part of the common interest community is situated;
(3) A legally sufficient description of the real estate included in the common interest community;
(4) A statement of the maximum number of units that the declarant reserves the right to create;
(5) In a condominium, a description of the boundaries of each unit created by the declaration, including the unit's identifying
number; or, in a cooperative, a description, which may be by plats or plans, of each unit created by the declaration, including
the unit's identifying number, its size or number of rooms, and its location within a building if it is within a building
containing more than 1 unit;
(6) A description of any limited common elements, other than those specified in § 81-202(b) and (d) of this title, as provided
in § 81-209(b)(10) of this title and, in a planned community, any real estate that is or must become common elements;
(7) A description of any real estate, except real estate subject to development rights, that may be allocated subsequently
as limited common elements, other than limited common elements specified in § 81-202(b) and (d) of this title, together with
a statement that they may be so allocated;
(8) A description of any development rights (§ 81-103(19) of this title) and other special declarant rights (§ 81-103(45)
of this title) reserved by the declarant, together with a legally sufficient description of the real estate to which each
of those rights applies, and a time limit within which each of those rights must be exercised;
(9) If any development right may be exercised with respect to different parcels of real estate at different times, a statement
to that effect together with: (i) either a statement fixing the boundaries of those portions and regulating the order in which
those portions may be subjected to the exercise of each development right or a statement that no assurances are made in those
regards, and (ii) a statement as to whether, if any development right is exercised in any portion of the real estate subject
to that development right, that development right must be exercised in all or in any other portion of the remainder of that
real estate;
(10) Any other conditions or limitations under which the rights described in paragraph (8) of this section may be exercised
or will lapse;
(11) An allocation to each unit of the allocated interests in the manner described in § 81-207 of this title;
(12) Any restrictions: (i) on alienation of the units, including any restrictions on leasing which exceed the restrictions
on leasing units which executive boards may impose pursuant to § 81-302(c)(2) of this title, and (ii) on the amount for which
a unit may be sold or on the amount that may be received by a unit owner on sale, condemnation, or casualty loss to the unit
or to the common interest community, or on termination of the common interest community;
(13) The recording data for recorded easements and licenses appurtenant to or included in the common interest community or
to which any portion of the common interest community is or may become subject by virtue of a reservation in the declaration;
(14) In the case of a condominium or cooperative, provisions that mandate that the association create and maintain, in addition
to any reserve for contingencies, a fully funded repair and replacement reserve based upon a current reserve study;
(15) Any authorization pursuant to which the association may regulate the display of American flags or political signs within
the common interest community;
(16) Any authorization pursuant to which the association may adopt rules to establish and enforce construction and design
criteria and aesthetic standards in the manner provided in § 81-320 of this title; and
(17) All matters required by §§ 81-206, 81-207, 81-208, 81-209, 81-215, 81-216, and 81-303 of this title.
(b) The declaration may contain any other matters the declarant considers appropriate, including any restrictions on the uses
of a unit or the number or other qualifications of persons who may occupy units.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, §§ 25, 26, 82.;
§ 81-206. Leasehold common interest communities.
(a) Any lease the expiration or termination of which may terminate the common interest community or reduce its size must be
referenced in the declaration. Every lessor of those leases in a condominium or planned community shall sign the declaration.
The declaration must state:
(1) The recording data for the lease;
(2) The date on which the lease is scheduled to expire;
(3) A legally sufficient description of the real estate subject to the lease;
(4) Any right of the unit owners to redeem the reversion and the manner whereby those rights may be exercised, or a statement
that they do not have those rights;
(5) Any right of the unit owners to remove any improvements within a reasonable time after the expiration or termination of
the lease, or a statement that they do not have those rights; and
(6) Any rights of the unit owners to renew the lease and the conditions of any renewal, or a statement that they do not have
those rights.
(b) After the declaration for a leasehold condominium or leasehold planned community is recorded, neither the lessor nor the
lessor's successor in interest may terminate the leasehold interest of a unit owner who makes timely payment of a unit owner's
share of the rent and otherwise complies with all covenants which, if violated, would entitle the lessor to terminate the
lease. A unit owner's leasehold interest in a condominium or planned community is not affected by failure of any other person
to pay rent or fulfill any other covenant.
(c) Acquisition of the leasehold interest of any unit owner by the owner of the reversion or remainder does not merge the
leasehold and fee simple interests unless the leasehold interests of all unit owners subject to that reversion or remainder
are acquired.
(d) If the expiration or termination of a lease decreases the number of units in a common interest community, the allocated
interests must be reallocated in accordance with § 81-107(a) of this title as if those units had been taken by eminent domain.
Reallocations must be confirmed by an amendment to the declaration prepared, executed, and recorded by the association.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 4, § 12; 77 Del. Laws, c. 91, § 82.;
§ 81-207. Allocation of allocated interests.
(a) The declaration must allocate to each unit:
(1) In a condominium, a fraction or percentage of undivided interests in the common elements and a fraction or percentage
of undivided interests in the common expenses of the association, and a portion of the votes in the association;
(2) In a cooperative, an ownership interest in the association, a fraction or percentage of the common expenses of the association,
and a portion of the votes in the association; and
(3) In a planned community, a fraction or percentage of the common expenses of the association, and a portion of the votes
in the association.
(b) The declaration must state the formulas used to establish allocations of interests and the portions of the votes. Those
allocations may not discriminate in favor of units owned by the declarant or an affiliate of the declarant.
(c) If units may be added to or withdrawn from the common interest community, the declaration must state the formulas to be
used to reallocate the allocated interests among all units included in the common interest community after the addition or
withdrawal.
(d) The declaration may provide: (i) that different allocations of votes shall be made to the units on particular matters
specified in the declaration; (ii) for cumulative voting only for the purpose of electing members of the executive board;
and (iii) for class voting on specified issues affecting the class if necessary to protect valid interests of the class. A
declarant may not utilize cumulative or class voting for the purpose of evading any limitation imposed on declarants by this
chapter nor may units constitute a class because they are owned by a declarant.
(e) Except for minor variations due to rounding, the sum of the common expense liabilities and, in a condominium, the sum
of the undivided interests in the common elements allocated at any time to all the units must each equal one if stated as
a fraction or 100 percent if stated as a percentage. In the event of discrepancy between an allocated interest and the result
derived from application of the pertinent formula, the allocated interest prevails.
(f) In a condominium, the common elements are not subject to partition, and any purported conveyance, encumbrance, judicial
sale, or other voluntary or involuntary transfer of an undivided interest in the common elements made without the unit to
which that interest is allocated is void.
(g) In a cooperative, any purported conveyance, encumbrance, judicial sale, or other voluntary or involuntary transfer of
an ownership interest in the association made without the possessory interest in the unit to which that interest is related
is void.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, § 82.;
§ 81-208. Limited common elements.
(a) Except for the limited common elements described in § 81-202(b) and (d) of this title, the declaration must specify to
which unit or units each limited common element is allocated. An allocation may not be altered without the consent of the
unit owners whose units are affected.
(b) Except as the declaration otherwise provides, a limited common element may be reallocated by an amendment to the declaration
executed by the unit owners between or among whose units the reallocation is made. The persons executing the amendment shall
provide a copy thereof to the association, which shall record it. The amendment must be recorded in the names of the parties
and the common interest community.
(c) A common element not previously allocated as a limited common element may be so allocated only pursuant to provisions
in the declaration made in accordance with § 81-205(a)(7) of this title. The allocations must be made by amendments to the
declaration.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, § 82.;
§ 81-209. Plats and plans.
(a) Plats and plans are a part of the declaration, and are required for all condominiums and cooperatives. Each plat and plan
must be clear and legible and contain a certification as required by subsection (g) of this section and by declarant that
the plat or plan contains all information required by this section.
(b) Each plat must show or project:
(1) The name and a survey or general schematic map of the entire common interest community;
(2) The location and dimensions of all real estate not subject to development rights, or subject only to the development right
to withdraw, and the location and dimensions of all existing improvements within that real estate;
(3) A legally sufficient description of any real estate subject to development rights, labeled to identify the rights applicable
to each parcel, but plats and plans need not designate or label which development rights are applicable to each parcel if
that information is clearly delineated in the declaration;
(4) The extent of any encroachments by or upon any portion of the common interest community;
(5) To the extent feasible, a legally sufficient description of all easements serving or burdening any portion of the common
interest community;
(6) Except as provided in subsection (h) of this section, the approximate location and dimensions of any vertical unit boundaries
not shown or projected on plans recorded pursuant to subsection (d) of this section and that unit's identifying number;
(7) Except as provided in subsection (h) of this section, the approximate location with reference to an established datum
of any horizontal unit boundaries not shown or projected on plans recorded pursuant to subsection (d) of this section and
that unit's identifying number;
(8) A legally sufficient description of any real estate in which the unit owners will own only an estate for years, labeled
as "leasehold real estate";
(9) The distance between noncontiguous parcels of real estate comprising the common interest community; and
(10) The approximate location and dimensions of any porches, decks, balconies, garages, or patios allocated as limited common
elements, and show or contain a narrative description of any other limited common elements.
(11) [Repealed.]
(c) A plat shall show the intended location and dimensions of any contemplated improvement to be constructed anywhere within
the common interest community. Any contemplated improvement shown must be labeled either "MUST BE BUILT" or "NEED NOT BE BUILT."
(d) Except as provided in subsection (h) of this section, to the extent not shown or projected on the plats, plans of the
units must show or project:
(1) The approximate location and dimensions of the vertical boundaries of each unit, and that unit's identifying number;
(2) The approximate location of any horizontal unit boundaries, with reference to an established datum, and that unit's identifying
number; and
(3) The approximate location of any units in which the declarant has reserved the right to create additional units or common
elements (§ 81-210(c) of this title), identified appropriately.
(e) Unless the declaration provides otherwise, the horizontal boundaries of part of a unit located outside a building have
the same elevation as the horizontal boundaries of the inside part and need not be depicted on the plats and plans.
(f) Upon exercising any development right, the declarant shall record either new plats and plans necessary to conform to the
requirements of subsections (a), (b), and (d) of this section, or new certifications of plats and plans previously recorded
if those plats and plans otherwise conform to the requirements of those subsections.
(g) Any certification of a plat or plan required by this section or § 81-201(b) of this title must be made by an independent
architect, independent licensed professional land surveyor or independent engineer.
(h) Plats and plans need not show the location and dimensions of the units' boundaries or their limited common elements if:
(1) The plat shows the location and dimensions of all buildings containing or comprising the units; and
(2) The declaration includes other information that shows or contains a narrative description of the general layout of the
units in those buildings and the limited common elements allocated to those units.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, §§ 27-29, 82.;
§ 81-210. Exercise of development rights.
(a) To exercise any development right reserved under § 81-205(a)(8) of this title, the declarant shall prepare, execute, and
record, without joinder of any other person required except as expressly provided in the declaration, an amendment to the
declaration and in a condominium or planned community comply with § 81-209 of this title. The declarant is the unit owner
of any units thereby created. The amendment to the declaration must assign an identifying number to each new unit created,
and, except in the case of subdivision or conversion of units described in subsection (b) of this section, reallocate the
allocated interests among all units. The amendment must describe any common elements and any limited common elements thereby
created and, in the case of limited common elements, designate the unit to which each is allocated to the extent required
by § 81-208 of this title.
(b) Development rights may be reserved within any real estate added to the common interest community if the amendment adding
that real estate includes all matters required by § 81-205 or § 81-206 of this title, as the case may be, and, in a condominium
or planned community, the plats and plans include all matters required by § 81-209 of this title. This provision does not
extend the time limit on the exercise of development rights imposed by the declaration pursuant to § 81-205(a)(8) of this
title.
(c) Whenever a declarant exercises a development right to subdivide or convert a unit previously created into additional units,
common elements, or both:
(1) If the declarant converts the unit entirely to common elements, the amendment to the declaration must reallocate all the
allocated interests of that unit among the other units as if that unit had been taken by eminent domain; and
(2) If the declarant subdivides the unit into 2 or more units, whether or not any part of the unit is converted into common
elements, the amendment to the declaration must reallocate all the allocated interests of the unit among the units created
by the subdivision in any reasonable manner prescribed by the declarant.
(d) If the declaration provides, pursuant to § 81-205(a)(8) of this title, that all or a portion of the real estate is subject
to a right of withdrawal:
(1) If all the real estate is subject to withdrawal, and the declaration does not describe separate portions of real estate
subject to that right, none of the real estate may be withdrawn after a unit has been conveyed to a purchaser; and
(2) If any portion is subject to withdrawal, it may not be withdrawn after a unit in that portion has been conveyed to a purchaser.
(e) If the declaration for a pre-existing condominium provides for conversion of limited common elements to part of the unit
to which such limited common elements are allocated, the same shall be a development right exercisable by the declarant by
amendment to the declaration prepared, executed and recorded by the declarant, without the joinder of any other person required,
and complying with § 81-209 of this title.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, § 82.;
§ 81-211. Alterations of units.
Subject to the provisions of the declaration and other provisions of law, a unit owner:
(a) May, upon written notice to the association specifying the improvements or alterations planned, make any improvements
or alterations to that unit owner's unit that do not impair the structural integrity or mechanical systems or lessen the support
of any portion of the common interest community;
(b) May not change the appearance of the common elements, or the exterior appearance of a unit or any other portion of the
common interest community, without permission of the association;
(c) After acquiring an adjoining unit or an adjoining part of an adjoining unit, may, upon written notice to the association
specifying the improvements or alteration planned, but without requiring permission of the association, remove or alter any
intervening partition or create apertures therein, even if the partition in whole or in part is a common element, if those
acts do not impair the structural integrity or mechanical systems or lessen the support of any portion of the common interest
community. Removal of partitions or creation of apertures under this subsection is not an alteration of boundaries.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, § 82.;
§ 81-212. Relocation of unit boundaries.
(a) Subject to the provisions of the declaration and other provisions of law, the boundaries between adjoining units may be
relocated by an amendment to the declaration upon application to the association by the owners of those units. If the owners
of the adjoining units have specified a reallocation between their units of their allocated interests, the application must
state the proposed reallocations. Unless the executive board determines, within 30 days, that the reallocations are unreasonable,
the association shall prepare an amendment that identifies the units involved and states the reallocations. The amendment
must be executed by those unit owners, contain words of conveyance between them, and, on recordation, be indexed in the name
of the grantor and the grantee, and in the grantee's index in the name of the association. All costs associated with the relocation
or any attempted relocation which fails or is denied, including reasonable attorney's and engineer's fees, shall be paid by
the owners seeking the change.
(b) Subject to the provisions of the declaration and other provisions of law, boundaries between units and common elements
may be relocated to incorporate common elements within a unit by an amendment to the declaration upon application to the association
by the owner of the unit who proposes to relocate a boundary. Unless the declaration provides otherwise, the amendment may
be approved only if persons entitled to cast at least 67 percent of the votes in the association, including 67 percent of
the votes allocated to units not owned by the declarant, agree to the action. The amendment may describe any fees or charges
payable by the owner of the affected unit in connection with the boundary relocation. The fees and charges shall be assets
of the association. The amendment must be executed by the unit owner of the unit whose boundary is being relocated and by
the association, contain words of conveyance between them, and on recordation be indexed in the name of the unit owner and
the association as grantor or grantee, as appropriate. All costs associated with the relocation or any attempted relocation
which fails or is denied, including reasonable attorney's and engineer's fees, shall be paid by the owners seeking the change.
(c) The association: (i) in a condominium or planned community shall prepare and record plats or plans necessary to show the
altered boundaries of affected units, and their dimensions and identifying numbers, and (ii) in a cooperative shall prepare
and record amendments to the declaration, including any plans, necessary to show or describe the altered boundaries of affected
units, and their dimensions and identifying numbers.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, § 82.;
§ 81-213. Subdivision of units.
(a) In a condominium or cooperative if the declaration expressly so permits and approval as noted herein is obtained in writing,
a unit may be subdivided into 2 or more units. Subject to the provisions of the declaration, payment of all expenses by the
unit owner and other provisions of law other than this chapter, upon application of a unit owner to subdivide a unit in a
condominium or cooperative, the association shall prepare, execute, and record an amendment to the declaration, including
in a condominium or planned community the plats and plans, subdividing that unit.
(b) The amendment to the declaration must be executed by the owner of the unit to be subdivided, assign an identifying number
to each unit created, and reallocate the allocated interests formerly allocated to the subdivided unit to the new units in
any reasonable manner prescribed by the owner of the subdivided unit or on any other basis the declaration requires.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, §§ 30, 31, 82.;
§ 81-214. Variations in boundaries.
The existing physical boundaries of a unit or a common element or the physical boundaries of a unit or a common element reconstructed
in substantial accordance with the description contained in the original declaration are its legal boundaries, rather than
the boundaries derived from the description contained in the original declaration, regardless of vertical or lateral movement
of the building or minor variance between those boundaries and the boundaries derived from the description contained in the
original declaration. This section does not relieve a unit owner of liability in case of the unit owner's wilful misconduct
or relieve a declarant or any other person of liability for failure to adhere to any plats and plans or, in a cooperative,
to any representation in the public offering statement.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, § 82.;
§ 81-215. Use for sales purposes.
A declarant may maintain sales offices, management offices, and models in units or on common elements in the common interest
community only if the declaration so provides and specifies the rights of a declarant with regard to the number, size, location,
and relocation thereof. In a cooperative or condominium, any sales office, management office, or model not designated a unit
by the declaration is a common element. If a declarant ceases to be a unit owner, the declarant ceases to have any rights
with regard thereto unless it is removed promptly from the common interest community in accordance with a right to remove
reserved in the declaration. Subject to any limitations in the declaration, a declarant may maintain signs on the common elements
advertising the common interest community. This section is subject to the provisions of other state law and to local ordinances.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, § 82.;
§ 81-216. Easement rights.
(a) Subject to the provisions of the declaration, a declarant has an easement through the common elements as may be reasonably
necessary for the purpose of discharging the declarant's obligations or exercising special declarant rights, whether arising
under this chapter or reserved in the declaration.
(b) Subject to §§ 81-302(a)(6) and 81-312 of this title, the unit owners have an easement in the common elements for purposes
of access to their units.
(c) Subject to the declaration and the rules, the unit owners have an easement to use the common elements and all real estate
that must become common elements for the purposes for which they were intended.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, §§ 32, 82.;
§ 81-217. Amendment of declaration.
(a) Except in cases of amendments that may be executed by a declarant under § 81-209(f) or § 81-210 of this title, or by the
association under § 81-107, § 81-206(d), § 81-208(c), § 81-212(a), or § 81-213 of this title, or by certain unit owners under
§ 81-208(b), § 81-212(a), § 81-213(b), or § 81-218(b) of this title, or by secured lenders pursuant to § 81-219 of this title,
and except as limited by subsection (d) of this section or as otherwise provided in this § 81-217 of this title, the declaration,
including any plats and plans, may be amended only by vote or agreement of unit owners of units to which at least 67 percent
of the votes in the association are allocated, unless the declaration specifies a different percentage for all amendments
or for specific subjects of amendment. If the declaration requires the approval of another person as a condition of its effectiveness,
the amendment is not valid without the approval.
(b) No action to challenge the validity of an amendment adopted by the association pursuant to this section may be brought
more than 1 year after the amendment is recorded.
(c) Every amendment to the declaration must be recorded in every county in which any portion of the common interest community
is located and is effective only upon recordation. An amendment, except an amendment pursuant to § 81-212(a) of this title,
must be indexed in the grantee's index in the name of the common interest community and the association and in the grantor's
index in the name of the parties executing the amendment.
(d) Except to the extent expressly permitted or required by other provisions of this chapter, or in a nonresidential common
interest community, except as provided in the declaration, no amendment may create or increase special declarant rights, increase
the number of units, change the boundaries of any unit or the allocated interests of a unit, in the absence of unanimous consent
of the unit owners.
(e) Amendments to the declaration required by the chapter to be recorded by the association must be prepared, executed, recorded,
and certified on behalf of the association by any officer of the association designated for that purpose or, in the absence
of designation, by the president of the association.
(f) By vote or agreement of unit owners of units to which at least 80 percent of the votes in the association are allocated,
or any larger percentage specified in the declaration, an amendment to the declaration may prohibit or materially restrict
the permitted uses of or behavior in a unit or the number or other qualifications of persons who may occupy units. The amendment
must provide reasonable protection for a use or occupancy permitted at the time the amendment was adopted.
(g) The time limits specified in the declaration pursuant to § 81-205(a)(8) of this title within which reserved development
rights must be exercised may be extended, and additional development rights may be created, if persons entitled to cast at
least 80 percent of the votes in the association, including 80 percent of the votes allocated to units not owned by the declarant,
agree to that action. The agreement is effective 30 days after an amendment to the declaration reflecting the terms of the
agreement is recorded unless all the persons holding the affected special declarant rights, or security interests in those
rights, record a written objection within the 30-day period, in which case the amendment is void, or consent in writing at
the time the amendment is recorded, in which case the amendment is effective when recorded.
(h) Provisions in the declaration creating special declarant rights which have not expired may not be amended without the
consent of the declarant.
(i) If any provision of this chapter or of the declaration of any common interest community subject to this chapter requires
the consent of a person holding a security interest in a unit as a condition to the effectiveness of any amendment to the
declaration, that consent shall be deemed granted if no written refusal to consent is received by the association within 45
days after the association delivers notice of the proposed amendment to the holder of the interest or mails the notice to
the holder of the interest by certified mail, return receipt requested. The association may rely on the last recorded security
interest of record in delivering or mailing notice to the holder of that interest. Notwithstanding this section, no amendment
to the declaration that affects the priority of a holder's security interest or the ability of that holder to foreclose its
security interest may be adopted without that holder's consent in a record if the declaration requires that consent as a condition
to the effectiveness of the amendment.
(j) Unless the declaration or bylaws provide otherwise and subject to paragraphs (j)(ii) and (j)(iii) of this section:
(i) The executive board may execute and record an amendment to the declaration bylaws, or plat, to conform the declaration
or bylaws to be consistent with the provisions of this chapter or to correct:
(1) A typographical error or other error in the percentage interests or number of votes appurtenant to any unit;
(2) A typographical error or other incorrect reference to another prior recorded document; or
(3) A typographical error or other incorrect unit designation or assignment of limited common elements if the affected unit
owners and their mortgagees consent in writing to the amendment, and the consent documents are recorded with the amendment.
(ii) If the executive board executes and records an amendment under paragraph (j)(i) of this section, the executive board
shall also record with the amendment:
(1) During the time that the declarant has an interest:
(A) The consent of the declarant; or
(B) An affidavit by the executive board that any declarant who has an interest in the condominium has been provided a copy
of the amendment and a notice that the declarant may object in writing to the amendment within 30 days of receipt of the amendment
and notice, that 30 days have passed since delivery of the amendment and notice, and that the declarant has made no written
objection; and
(2) An affidavit by the executive board that at least 30 days before recordation of the amendment a copy of the amendment
was sent with a notice of the amendment sent to each unit owner as required for notices pursuant to this chapter.
(iii) An amendment under this section is entitled to be recorded and is effective upon recordation if accompanied by the supporting
documents required by this section.
(k) During the time that the declarant has an interest, the declaration, bylaws or plat may be amended by declarant in order
to achieve compliance with the requirements of Federal National Mortgage Association, Federal Home Loan Mortgage Corporation,
Federal Housing Authority, Veterans Administration or other governmental agency or their successors.
(l) During the time that the declarant has an interest, the declaration, bylaws or plat may be amended by declarant to conform
the same to be consistent with the provisions required or allowed by this chapter.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, §§ 33-36, 82.;
§ 81-218. Termination of common interest community.
(a) Except in the case of a taking of all the units by eminent domain or in the case of foreclosure against an entire cooperative
of a security interest that has priority over the declaration, a common interest community may be terminated only by agreement
of unit owners of units to which at least 80 percent of the votes in the association are allocated, or any larger percentage
the declaration specifies. The declaration may specify a smaller percentage only if all of the units are restricted exclusively
to nonresidential uses.
(b) An agreement to terminate must be evidenced by the execution of a termination agreement, or ratifications thereof, in
the same manner as a deed, by the requisite number of unit owners. The termination agreement must specify a date after which
the agreement will be void unless it is recorded before that date. A termination agreement and all ratifications thereof must
be recorded in every county in which a portion of the common interest community is situated and is effective only upon recordation.
(c) In the case of a condominium or planned community containing only units having horizontal boundaries described in the
declaration, a termination agreement may provide that all of the common elements and units of the common interest community
must be sold following termination. If, pursuant to the agreement, any real estate in the common interest community is to
be sold following termination, the termination agreement must set forth the minimum terms of the sale.
(d) In the case of a condominium or planned community containing any units not having horizontal boundaries described in the
declaration, a termination agreement may provide for sale of the common elements, but it may not require that the units be
sold following termination, unless the declaration as originally recorded provided otherwise or all the unit owners consent
to the sale.
(e) The association, on behalf of the unit owners, may contract for the sale of real estate in a common interest community,
but the contract is not binding on the unit owners until approved pursuant to subsections (a) and (b) of this section. If
any real estate is to be sold following termination, title to that real estate, upon termination, vests in the association
as trustee for the holders of all interests in the units. Thereafter, the association has all powers necessary and appropriate
to effect the sale. Until the sale has been concluded and the proceeds thereof distributed, the association continues in existence
with all powers it had before termination. Proceeds of the sale must be distributed to unit owners and lien holders as their
interests may appear, in accordance with subsections (h), (i), and (j) of this section. Unless otherwise specified in the
termination agreement, as long as the association holds title to the real estate, each unit owner and the unit owner's successors
in interest have an exclusive right to occupancy of the portion of the real estate that formerly constituted the unit. During
the period of that occupancy, each unit owner and the unit owner's successors in interest remain liable for all assessments
and other obligations imposed on unit owners by this chapter or the declaration.
(f) In a condominium or planned community, if the real estate constituting the common interest community is not to be sold
following termination, title to the common elements and, in a common interest community containing only units having horizontal
boundaries described in the declaration, title to all the real estate in the common interest community, vests in the unit
owners upon termination as tenants in common in proportion to their respective interests as provided in subsection (j) of
this section, and liens on the units shift accordingly. While the tenancy in common exists, each unit owner and the unit owner's
successors in interest have an exclusive right to occupancy of the portion of the real estate that formerly constituted the
unit.
(g) Following termination of the common interest community, the proceeds of any sale of real estate, together with the assets
of the association, are held by the association as trustee for unit owners and holders of liens on the units as their interests
may appear.
(h) Following termination of a condominium or planned community, creditors of the association holding liens on the units,
which were recorded or judgments docketed before termination, may enforce those liens in the same manner as any lien holder.
All other creditors of the association are to be treated as if they had perfected liens on the units immediately before termination.
(i) In a cooperative, the declaration may provide that all creditors of the association have priority over any interests of
unit owners and creditors of unit owners. In that event, following termination, creditors of the association holding liens
on the cooperative which were recorded or judgments docketed before termination may enforce their liens in the same manner
as any lien holder, and any other creditor of the association is to be treated as if the creditor had perfected a lien against
the cooperative immediately before termination. Unless the declaration provides that all creditors of the association have
that priority:
(1) The lien of each creditor of the association which was perfected against the association before termination becomes, upon
termination, a lien against each unit owner's interest in the unit as of the date the lien was perfected;
(2) Any other creditor of the association is to be treated upon termination as if the creditor had perfected a lien against
each unit owner's interest immediately before termination;
(3) The amount of the lien of an association's creditor described in paragraphs (i)(1) and (i)(2) of this section against
each of the unit owners' interest must be proportionate to the ratio which each unit's common expense liability bears to the
common expense liability of all of the units;
(4) The lien of each creditor of each unit owner which was perfected before termination continues as a lien against that unit
owner's unit as of the date the lien was perfected; and
(5) The assets of the association must be distributed to all unit owners and all lien holders as their interests may appear
in the order described above. Creditors of the association are not entitled to payment from any unit owner in excess of the
amount of the creditor's lien against that unit owner's interest.
(j) The respective interests of unit owners referred to in subsections (e), (f), (g), (h), and (i) of this section are as
follows:
(1) Except as provided in paragraph (j)(2) of this section, the respective interests of unit owners are the fair market values
of their units, allocated interests, and any limited common elements immediately before the termination, as determined by
one or more independent appraisers selected by the association. The decision of the independent appraisers must be distributed
to the unit owners and becomes final unless disapproved within 30 days after distribution by unit owners of units to which
25 percent of the votes in the association are allocated. The proportion of any unit owner's interest to that of all unit
owners is determined by dividing the fair market value of that unit owner's unit and its allocated interests by the total
fair market values of all the units and their allocated interests.
(2) If any unit or any limited common element is destroyed to the extent that an appraisal of the fair market value thereof
before destruction cannot be made, the interests of all unit owners are: (i) in a condominium, their respective common element
interests immediately before the termination, (ii) in a cooperative, their respective ownership interests immediately before
the termination, and (iii) in a planned community, their respective common expense liabilities immediately before the termination.
(k) In a condominium or planned community, except as provided in subsection (l) of this section, foreclosure or enforcement
of a lien or encumbrance against the entire common interest community does not terminate, of itself, the common interest community,
and foreclosure or enforcement of a lien or encumbrance against a portion of the common interest community, other than withdrawable
real estate, does not withdraw that portion from the common interest community. Foreclosure or enforcement of a lien or encumbrance
against withdrawable real estate, or against common elements that have been subjected to a security interest by the association
under § 81-312 of this title, does not withdraw, of itself, that real estate from the common interest community, but the person
taking title thereto may require from the association, upon request, an amendment excluding the real estate from the common
interest community.
(l) In a condominium or planned community, if a lien or encumbrance against a portion of the real estate comprising the common
interest community has priority over the declaration and the lien or encumbrance has not been partially released, the parties
foreclosing the lien or encumbrance, upon foreclosure, may record an instrument excluding the real estate subject to that
lien or encumbrance from the common interest community.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, § 82.;
§ 81-219. Rights of secured lenders.
(a) The declaration may require that all or a specified number or percentage of the lenders who hold security interests encumbering
the units or who have extended credit to the association approve specified actions of the unit owners or the association as
a condition to the effectiveness of those actions, but no requirement for approval may operate to: (i) deny or delegate control
over the general administrative affairs of the association by the unit owners or the executive board, or (ii) prevent the
association or the executive board from commencing, intervening in, or settling any litigation or proceeding, or (iii) prevent
any insurance trustee or the association from receiving and distributing any insurance proceeds except pursuant to § 81-313
of this title.
(b) A lender who has extended credit to an association secured by an assignment of income or an encumbrance on the common
elements may enforce its security agreement in accordance with its terms, subject to the requirements of this chapter and
other law. Requirements that the association must deposit its periodic common charges before default with the lender to which
the association's income has been assigned, or increase its common charges at the lender's direction by amounts reasonably
necessary to amortize the loan in accordance with its terms, do not violate the prohibitions on lender approval contained
in subsection (a) of this section.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, § 82.;
§ 81-220. Master associations.
(a) If the declaration provides that any of the powers described in § 81-302 of this title are to be exercised by or may be
delegated to a profit or nonprofit corporation that exercises those or other powers on behalf of one or more common interest
communities or for the benefit of the unit owners of 1 or more common interest communities, all provisions of this chapter
applicable to unit owners' associations apply to any such corporation, except as modified by this section.
(b) Unless it is acting in the capacity of an association described in § 81-301 of this title, a master association may exercise
the powers set forth in § 81-302(a)(2) of this title only to the extent expressly permitted in the declarations of common
interest communities which are part of the master association or expressly described in the delegations of power from those
common interest communities to the master association.
(c) If the declaration of any common interest community provides that the executive board may delegate certain powers to a
master association, the members of the executive board have no liability for the acts or omissions of the master association
with respect to those powers following delegation.
(d) The rights and responsibilities of unit owners with respect to the unit owners' association set forth in §§ 81-303, 81-308,
81-309, 81-310, and 81-312 of this title apply in the conduct of the affairs of a master association only to persons who elect
the board of a master association, whether or not those persons are otherwise unit owners within the meaning of this chapter.
(e) Even if a master association is also an association described in § 81-301 of this title, the certificate of incorporation
or other instrument creating the master association and the declaration of each common interest community, the powers of which
are assigned by the declaration or delegated to the master association, may provide that the executive board of the master
association must be elected after the period of declarant control in any of the following ways:
(1) All unit owners of all common interest communities subject to the master association may elect all members of the master
association's executive board.
(2) All members of the executive boards of all common interest communities subject to the master association may elect all
members of the master association's executive board.
(3) All unit owners of each common interest community subject to the master association may elect specified members of the
master association's executive board.
(4) All members of the executive board of each common interest community subject to the master association may elect specified
members of the master association's executive board.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, § 82.;
§ 81-221. Merger or consolidation of common interest communities.
(a) Any 2 or more common interest communities of the same form of ownership, by agreement of the unit owners as provided in
subsection (b) of this section, may be merged or consolidated into a single common interest community. In the event of a merger
or consolidation, unless the agreement otherwise provides, the resultant common interest community is the legal successor,
for all purposes, of all of the pre-existing common interest communities, and the operations and activities of all associations
of the pre-existing common interest communities are merged or consolidated into a single association that holds all powers,
rights, obligations, assets, and liabilities of all preexisting associations.
(b) An agreement of 2 or more common interest communities to merge or consolidate pursuant to subsection (a) of this section
must be evidenced by an agreement prepared, executed, recorded, and certified by the president of the association of each
of the preexisting common interest communities following approval by owners of units to which are allocated the percentage
of votes in each common interest community required to terminate that common interest community. The agreement must be recorded
in every county in which a portion of the common interest community is located and is not effective until recorded.
(c) Every merger or consolidation agreement must provide for the reallocation of the allocated interests in the new association
among the units of the resultant common interest community either: (i) by stating the reallocations or the formulas upon which
they are based or (ii) by stating the percentage of overall allocated interests of the new common interest community which
are allocated to all of the units comprising each of the preexisting common interest communities, and providing that the portion
of the percentages allocated to each unit formerly comprising a part of the pre-existing common interest community must be
equal to the percentages of allocated interests allocated to that unit by the declaration of the preexisting common interest
community.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, § 82.;
§ 81-222. Addition of unspecified real estate.
In a planned community, if the right is originally reserved in the declaration, the declarant in addition to any other development
right, may amend the declaration at any time during as many years as are specified in the declaration for adding additional
real estate to the planned community without describing the location of that real estate in the original declaration; but,
the amount of real estate added to the planned community pursuant to this section may not exceed 10 percent of the real estate
described in § 81-205(a)(3) of this title and the declarant may not in any event increase the number of units in the planned
community beyond the number stated in the original declaration pursuant to § 81-205(a)(5) of this title.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, § 82.;
§ 81-223. Master planned communities.
(a) The declaration for a common interest community may state that it is a master planned community if the declarant has reserved
the development right to create at least 400 units that may be used for residential purposes, and at the time of the reservation
that declarant owns or controls more than 400 acres on which the units may be built.
(b) If the requirements of subsection (a) of this section are satisfied, the declaration for the master planned community
need not state a maximum number of units and need not contain any of the information required by § 81-205(a)(3) through (14)
of this title until the declaration is amended under subsection (c) of this section.
(c) When each unit in a master planned community is conveyed to a purchaser, the declaration must contain: (i) a sufficient
legal description of the unit and all portions of the master planned community in which any other units have been conveyed
to a purchaser; and (ii) all the information required by § 81-205(a)(3) through (14) of this title with respect to that real
estate.
(d) The only real estate in a master planned community which is subject to this chapter is units that have been declared or
which are being offered for sale and any other real estate described pursuant to subsection (c) of this section. Other real
estate that is or may become part of the master planned community is only subject to other law and to any other restrictions
and limitations that appear of record.
(e) If the public offering statement conspicuously identifies the fact that the community is a master planned community, the
disclosure requirements contained in subchapter IV of this chapter apply only with respect to units that have been declared
or are being offered for sale in connection with the public offering statement and to the real estate described pursuant to
subsection (c) of this section.
(f) Limitations in this chapter on the addition of unspecified real estate do not apply to a master planned community.
(g) The period of declarant control of the association for a master planned community terminates in accordance with any conditions
specified in the declaration or otherwise at the time the declarant, in a recorded instrument and after giving written notice
to all the unit owners, voluntarily surrenders all rights to control the activities of the association.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, § 82.;
§ 81-224. Other exempt real estate arrangements.
(a) An agreement between two or more common interest communities to share the costs of real estate taxes, insurance premiums,
services, maintenance or improvements of real estate or other activities specified in their agreement or declarations does
not create a separate common interest community unless the cost sharing agreement was intended to evade the limitations of
this chapter. If the declarants of those common interest communities are affiliates, the agreement may not unreasonably allocate
the costs among those common interest communities.
(b) An agreement between an association for a common interest community and the owner of real estate that is not part of that
common interest community to share the costs of real estate taxes, insurance premiums, services, maintenance or improvements
of real estate or other activities specified in their agreement does not create a separate common interest community so long
as the assessments against the units in the common interest community are included in the periodic budget for the common interest
community and are subject to unit owner approval under § 81-324 of this title.
(c) An arrangement between 2 separately owned parcels of real estate for sharing costs associated with a common law party
wall, shared driveway or shared well does not create a common interest community.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, § 82.;
§ 81-225. Termination following catastrophe.
If substantially all the units in a common interest community have been destroyed or are uninhabitable and the available methods
for giving notice for a meeting of unit owners to consider termination under § 81-218 of this title will not likely result
in receipt of the notice, the executive board or any other interested person may commence an action in the Court of Chancery
of the State of Delaware seeking to terminate the common interest community. During the pendency of the action, the Court
may enter whatever orders it considers appropriate, including appointment of a receiver. After a hearing, the court may terminate
the common interest community or reduce its size and may enter into any other order the court considers to be in the best
interest of the unit owners and persons holding an interest in the common interest community.
CHAPTER 81. DELAWARE UNIFORM COMMON INTEREST OWNERSHIP ACT
Subchapter II. Creation, Alteration, and Termination of Common Interest
§ 81-201. Creation of common interest communities.
(a) A common interest community may be created pursuant to this chapter 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 declaration
and bylaws must be recorded in every county in which any portion of the common interest community is located and must be indexed
in the grantee's index in the name of the common interest community and the association and in the grantor's index in the
name of each person executing the declaration.
(b) In a condominium, a declaration, or an amendment to a declaration, adding units that are contained in or comprised by
buildings may not be recorded unless the structural components and mechanical systems of any buildings containing or comprising
any units thereby created, if any, are substantially completed in accordance with the plans, as evidenced by a record certification
of completion executed by an independent registered engineer or architect, which may be incorporated in the recorded declaration
or amendment or the recorded plat or otherwise, or by the issuance by the appropriate governmental authority of a certificate
of occupancy, or its equivalent, for the applicable unit.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, §§ 22, 82.;
§ 81-202. Unit boundaries.
Except as provided by the declaration:
(a) If walls, floors, or ceilings are designated as boundaries of a unit, all lath, furring, wallboard, plasterboard, plaster,
paneling, tiles, wallpaper, paint, finished flooring, and any other materials constituting any part of the finished surfaces
thereof are a part of the unit, and all other portions of the walls, floors, or ceilings are a part of the common elements.
(b) If any chute, flue, duct, wire, conduit, bearing wall, bearing column, or any other fixture lies partially within and
partially outside the designated boundaries of a unit, any portion thereof serving only that unit is a limited common element
allocated solely to that unit, and any portion thereof serving more than 1 unit or any portion of the common elements is a
part of the common elements.
(c) Subject to subsection (b) of this section, all spaces, interior partitions, and other fixtures and improvements within
the boundaries of a unit are a part of the unit.
(d) Any shutters, awnings, window boxes, doorsteps, stoops, porches, balconies, patios, and all exterior doors and windows
or other fixtures designed to serve a single unit, but located outside the unit's boundaries, are limited common elements
allocated exclusively to that unit.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, § 82.;
§ 81-203. Construction and validity of declaration and bylaws.
(a) All provisions of the declaration and bylaws are severable.
(b) The rule against perpetuities does not apply to defeat any provision of the declaration, bylaws or rules.
(c) In the event of a conflict between the provisions of the declaration and the bylaws, the declaration prevails.
(d) Title to a unit and common elements is not rendered unmarketable or otherwise affected by reason of an insubstantial failure
of the declaration to comply with this chapter. Whether a substantial failure impairs marketability is not affected by this
chapter.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, §§ 23, 24, 82.;
§ 81-204. Description of units.
A description of a unit which sets forth the name of the common interest community, the recording data for the declaration,
the county in which the common interest community is located, and the identifying number of the unit, is a legally sufficient
description of that unit and all rights, obligations, and interests appurtenant to that unit which were created by the declaration
or bylaws.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, § 82.;
§ 81-205. Contents of declaration.
(a) The declaration must contain:
(1) The names of the common interest community and the association and a statement that the common interest community is either
a condominium, cooperative, or planned community;
(2) The name of every county in which any part of the common interest community is situated;
(3) A legally sufficient description of the real estate included in the common interest community;
(4) A statement of the maximum number of units that the declarant reserves the right to create;
(5) In a condominium, a description of the boundaries of each unit created by the declaration, including the unit's identifying
number; or, in a cooperative, a description, which may be by plats or plans, of each unit created by the declaration, including
the unit's identifying number, its size or number of rooms, and its location within a building if it is within a building
containing more than 1 unit;
(6) A description of any limited common elements, other than those specified in § 81-202(b) and (d) of this title, as provided
in § 81-209(b)(10) of this title and, in a planned community, any real estate that is or must become common elements;
(7) A description of any real estate, except real estate subject to development rights, that may be allocated subsequently
as limited common elements, other than limited common elements specified in § 81-202(b) and (d) of this title, together with
a statement that they may be so allocated;
(8) A description of any development rights (§ 81-103(19) of this title) and other special declarant rights (§ 81-103(45)
of this title) reserved by the declarant, together with a legally sufficient description of the real estate to which each
of those rights applies, and a time limit within which each of those rights must be exercised;
(9) If any development right may be exercised with respect to different parcels of real estate at different times, a statement
to that effect together with: (i) either a statement fixing the boundaries of those portions and regulating the order in which
those portions may be subjected to the exercise of each development right or a statement that no assurances are made in those
regards, and (ii) a statement as to whether, if any development right is exercised in any portion of the real estate subject
to that development right, that development right must be exercised in all or in any other portion of the remainder of that
real estate;
(10) Any other conditions or limitations under which the rights described in paragraph (8) of this section may be exercised
or will lapse;
(11) An allocation to each unit of the allocated interests in the manner described in § 81-207 of this title;
(12) Any restrictions: (i) on alienation of the units, including any restrictions on leasing which exceed the restrictions
on leasing units which executive boards may impose pursuant to § 81-302(c)(2) of this title, and (ii) on the amount for which
a unit may be sold or on the amount that may be received by a unit owner on sale, condemnation, or casualty loss to the unit
or to the common interest community, or on termination of the common interest community;
(13) The recording data for recorded easements and licenses appurtenant to or included in the common interest community or
to which any portion of the common interest community is or may become subject by virtue of a reservation in the declaration;
(14) In the case of a condominium or cooperative, provisions that mandate that the association create and maintain, in addition
to any reserve for contingencies, a fully funded repair and replacement reserve based upon a current reserve study;
(15) Any authorization pursuant to which the association may regulate the display of American flags or political signs within
the common interest community;
(16) Any authorization pursuant to which the association may adopt rules to establish and enforce construction and design
criteria and aesthetic standards in the manner provided in § 81-320 of this title; and
(17) All matters required by §§ 81-206, 81-207, 81-208, 81-209, 81-215, 81-216, and 81-303 of this title.
(b) The declaration may contain any other matters the declarant considers appropriate, including any restrictions on the uses
of a unit or the number or other qualifications of persons who may occupy units.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, §§ 25, 26, 82.;
§ 81-206. Leasehold common interest communities.
(a) Any lease the expiration or termination of which may terminate the common interest community or reduce its size must be
referenced in the declaration. Every lessor of those leases in a condominium or planned community shall sign the declaration.
The declaration must state:
(1) The recording data for the lease;
(2) The date on which the lease is scheduled to expire;
(3) A legally sufficient description of the real estate subject to the lease;
(4) Any right of the unit owners to redeem the reversion and the manner whereby those rights may be exercised, or a statement
that they do not have those rights;
(5) Any right of the unit owners to remove any improvements within a reasonable time after the expiration or termination of
the lease, or a statement that they do not have those rights; and
(6) Any rights of the unit owners to renew the lease and the conditions of any renewal, or a statement that they do not have
those rights.
(b) After the declaration for a leasehold condominium or leasehold planned community is recorded, neither the lessor nor the
lessor's successor in interest may terminate the leasehold interest of a unit owner who makes timely payment of a unit owner's
share of the rent and otherwise complies with all covenants which, if violated, would entitle the lessor to terminate the
lease. A unit owner's leasehold interest in a condominium or planned community is not affected by failure of any other person
to pay rent or fulfill any other covenant.
(c) Acquisition of the leasehold interest of any unit owner by the owner of the reversion or remainder does not merge the
leasehold and fee simple interests unless the leasehold interests of all unit owners subject to that reversion or remainder
are acquired.
(d) If the expiration or termination of a lease decreases the number of units in a common interest community, the allocated
interests must be reallocated in accordance with § 81-107(a) of this title as if those units had been taken by eminent domain.
Reallocations must be confirmed by an amendment to the declaration prepared, executed, and recorded by the association.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 4, § 12; 77 Del. Laws, c. 91, § 82.;
§ 81-207. Allocation of allocated interests.
(a) The declaration must allocate to each unit:
(1) In a condominium, a fraction or percentage of undivided interests in the common elements and a fraction or percentage
of undivided interests in the common expenses of the association, and a portion of the votes in the association;
(2) In a cooperative, an ownership interest in the association, a fraction or percentage of the common expenses of the association,
and a portion of the votes in the association; and
(3) In a planned community, a fraction or percentage of the common expenses of the association, and a portion of the votes
in the association.
(b) The declaration must state the formulas used to establish allocations of interests and the portions of the votes. Those
allocations may not discriminate in favor of units owned by the declarant or an affiliate of the declarant.
(c) If units may be added to or withdrawn from the common interest community, the declaration must state the formulas to be
used to reallocate the allocated interests among all units included in the common interest community after the addition or
withdrawal.
(d) The declaration may provide: (i) that different allocations of votes shall be made to the units on particular matters
specified in the declaration; (ii) for cumulative voting only for the purpose of electing members of the executive board;
and (iii) for class voting on specified issues affecting the class if necessary to protect valid interests of the class. A
declarant may not utilize cumulative or class voting for the purpose of evading any limitation imposed on declarants by this
chapter nor may units constitute a class because they are owned by a declarant.
(e) Except for minor variations due to rounding, the sum of the common expense liabilities and, in a condominium, the sum
of the undivided interests in the common elements allocated at any time to all the units must each equal one if stated as
a fraction or 100 percent if stated as a percentage. In the event of discrepancy between an allocated interest and the result
derived from application of the pertinent formula, the allocated interest prevails.
(f) In a condominium, the common elements are not subject to partition, and any purported conveyance, encumbrance, judicial
sale, or other voluntary or involuntary transfer of an undivided interest in the common elements made without the unit to
which that interest is allocated is void.
(g) In a cooperative, any purported conveyance, encumbrance, judicial sale, or other voluntary or involuntary transfer of
an ownership interest in the association made without the possessory interest in the unit to which that interest is related
is void.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, § 82.;
§ 81-208. Limited common elements.
(a) Except for the limited common elements described in § 81-202(b) and (d) of this title, the declaration must specify to
which unit or units each limited common element is allocated. An allocation may not be altered without the consent of the
unit owners whose units are affected.
(b) Except as the declaration otherwise provides, a limited common element may be reallocated by an amendment to the declaration
executed by the unit owners between or among whose units the reallocation is made. The persons executing the amendment shall
provide a copy thereof to the association, which shall record it. The amendment must be recorded in the names of the parties
and the common interest community.
(c) A common element not previously allocated as a limited common element may be so allocated only pursuant to provisions
in the declaration made in accordance with § 81-205(a)(7) of this title. The allocations must be made by amendments to the
declaration.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, § 82.;
§ 81-209. Plats and plans.
(a) Plats and plans are a part of the declaration, and are required for all condominiums and cooperatives. Each plat and plan
must be clear and legible and contain a certification as required by subsection (g) of this section and by declarant that
the plat or plan contains all information required by this section.
(b) Each plat must show or project:
(1) The name and a survey or general schematic map of the entire common interest community;
(2) The location and dimensions of all real estate not subject to development rights, or subject only to the development right
to withdraw, and the location and dimensions of all existing improvements within that real estate;
(3) A legally sufficient description of any real estate subject to development rights, labeled to identify the rights applicable
to each parcel, but plats and plans need not designate or label which development rights are applicable to each parcel if
that information is clearly delineated in the declaration;
(4) The extent of any encroachments by or upon any portion of the common interest community;
(5) To the extent feasible, a legally sufficient description of all easements serving or burdening any portion of the common
interest community;
(6) Except as provided in subsection (h) of this section, the approximate location and dimensions of any vertical unit boundaries
not shown or projected on plans recorded pursuant to subsection (d) of this section and that unit's identifying number;
(7) Except as provided in subsection (h) of this section, the approximate location with reference to an established datum
of any horizontal unit boundaries not shown or projected on plans recorded pursuant to subsection (d) of this section and
that unit's identifying number;
(8) A legally sufficient description of any real estate in which the unit owners will own only an estate for years, labeled
as "leasehold real estate";
(9) The distance between noncontiguous parcels of real estate comprising the common interest community; and
(10) The approximate location and dimensions of any porches, decks, balconies, garages, or patios allocated as limited common
elements, and show or contain a narrative description of any other limited common elements.
(11) [Repealed.]
(c) A plat shall show the intended location and dimensions of any contemplated improvement to be constructed anywhere within
the common interest community. Any contemplated improvement shown must be labeled either "MUST BE BUILT" or "NEED NOT BE BUILT."
(d) Except as provided in subsection (h) of this section, to the extent not shown or projected on the plats, plans of the
units must show or project:
(1) The approximate location and dimensions of the vertical boundaries of each unit, and that unit's identifying number;
(2) The approximate location of any horizontal unit boundaries, with reference to an established datum, and that unit's identifying
number; and
(3) The approximate location of any units in which the declarant has reserved the right to create additional units or common
elements (§ 81-210(c) of this title), identified appropriately.
(e) Unless the declaration provides otherwise, the horizontal boundaries of part of a unit located outside a building have
the same elevation as the horizontal boundaries of the inside part and need not be depicted on the plats and plans.
(f) Upon exercising any development right, the declarant shall record either new plats and plans necessary to conform to the
requirements of subsections (a), (b), and (d) of this section, or new certifications of plats and plans previously recorded
if those plats and plans otherwise conform to the requirements of those subsections.
(g) Any certification of a plat or plan required by this section or § 81-201(b) of this title must be made by an independent
architect, independent licensed professional land surveyor or independent engineer.
(h) Plats and plans need not show the location and dimensions of the units' boundaries or their limited common elements if:
(1) The plat shows the location and dimensions of all buildings containing or comprising the units; and
(2) The declaration includes other information that shows or contains a narrative description of the general layout of the
units in those buildings and the limited common elements allocated to those units.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, §§ 27-29, 82.;
§ 81-210. Exercise of development rights.
(a) To exercise any development right reserved under § 81-205(a)(8) of this title, the declarant shall prepare, execute, and
record, without joinder of any other person required except as expressly provided in the declaration, an amendment to the
declaration and in a condominium or planned community comply with § 81-209 of this title. The declarant is the unit owner
of any units thereby created. The amendment to the declaration must assign an identifying number to each new unit created,
and, except in the case of subdivision or conversion of units described in subsection (b) of this section, reallocate the
allocated interests among all units. The amendment must describe any common elements and any limited common elements thereby
created and, in the case of limited common elements, designate the unit to which each is allocated to the extent required
by § 81-208 of this title.
(b) Development rights may be reserved within any real estate added to the common interest community if the amendment adding
that real estate includes all matters required by § 81-205 or § 81-206 of this title, as the case may be, and, in a condominium
or planned community, the plats and plans include all matters required by § 81-209 of this title. This provision does not
extend the time limit on the exercise of development rights imposed by the declaration pursuant to § 81-205(a)(8) of this
title.
(c) Whenever a declarant exercises a development right to subdivide or convert a unit previously created into additional units,
common elements, or both:
(1) If the declarant converts the unit entirely to common elements, the amendment to the declaration must reallocate all the
allocated interests of that unit among the other units as if that unit had been taken by eminent domain; and
(2) If the declarant subdivides the unit into 2 or more units, whether or not any part of the unit is converted into common
elements, the amendment to the declaration must reallocate all the allocated interests of the unit among the units created
by the subdivision in any reasonable manner prescribed by the declarant.
(d) If the declaration provides, pursuant to § 81-205(a)(8) of this title, that all or a portion of the real estate is subject
to a right of withdrawal:
(1) If all the real estate is subject to withdrawal, and the declaration does not describe separate portions of real estate
subject to that right, none of the real estate may be withdrawn after a unit has been conveyed to a purchaser; and
(2) If any portion is subject to withdrawal, it may not be withdrawn after a unit in that portion has been conveyed to a purchaser.
(e) If the declaration for a pre-existing condominium provides for conversion of limited common elements to part of the unit
to which such limited common elements are allocated, the same shall be a development right exercisable by the declarant by
amendment to the declaration prepared, executed and recorded by the declarant, without the joinder of any other person required,
and complying with § 81-209 of this title.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, § 82.;
§ 81-211. Alterations of units.
Subject to the provisions of the declaration and other provisions of law, a unit owner:
(a) May, upon written notice to the association specifying the improvements or alterations planned, make any improvements
or alterations to that unit owner's unit that do not impair the structural integrity or mechanical systems or lessen the support
of any portion of the common interest community;
(b) May not change the appearance of the common elements, or the exterior appearance of a unit or any other portion of the
common interest community, without permission of the association;
(c) After acquiring an adjoining unit or an adjoining part of an adjoining unit, may, upon written notice to the association
specifying the improvements or alteration planned, but without requiring permission of the association, remove or alter any
intervening partition or create apertures therein, even if the partition in whole or in part is a common element, if those
acts do not impair the structural integrity or mechanical systems or lessen the support of any portion of the common interest
community. Removal of partitions or creation of apertures under this subsection is not an alteration of boundaries.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, § 82.;
§ 81-212. Relocation of unit boundaries.
(a) Subject to the provisions of the declaration and other provisions of law, the boundaries between adjoining units may be
relocated by an amendment to the declaration upon application to the association by the owners of those units. If the owners
of the adjoining units have specified a reallocation between their units of their allocated interests, the application must
state the proposed reallocations. Unless the executive board determines, within 30 days, that the reallocations are unreasonable,
the association shall prepare an amendment that identifies the units involved and states the reallocations. The amendment
must be executed by those unit owners, contain words of conveyance between them, and, on recordation, be indexed in the name
of the grantor and the grantee, and in the grantee's index in the name of the association. All costs associated with the relocation
or any attempted relocation which fails or is denied, including reasonable attorney's and engineer's fees, shall be paid by
the owners seeking the change.
(b) Subject to the provisions of the declaration and other provisions of law, boundaries between units and common elements
may be relocated to incorporate common elements within a unit by an amendment to the declaration upon application to the association
by the owner of the unit who proposes to relocate a boundary. Unless the declaration provides otherwise, the amendment may
be approved only if persons entitled to cast at least 67 percent of the votes in the association, including 67 percent of
the votes allocated to units not owned by the declarant, agree to the action. The amendment may describe any fees or charges
payable by the owner of the affected unit in connection with the boundary relocation. The fees and charges shall be assets
of the association. The amendment must be executed by the unit owner of the unit whose boundary is being relocated and by
the association, contain words of conveyance between them, and on recordation be indexed in the name of the unit owner and
the association as grantor or grantee, as appropriate. All costs associated with the relocation or any attempted relocation
which fails or is denied, including reasonable attorney's and engineer's fees, shall be paid by the owners seeking the change.
(c) The association: (i) in a condominium or planned community shall prepare and record plats or plans necessary to show the
altered boundaries of affected units, and their dimensions and identifying numbers, and (ii) in a cooperative shall prepare
and record amendments to the declaration, including any plans, necessary to show or describe the altered boundaries of affected
units, and their dimensions and identifying numbers.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, § 82.;
§ 81-213. Subdivision of units.
(a) In a condominium or cooperative if the declaration expressly so permits and approval as noted herein is obtained in writing,
a unit may be subdivided into 2 or more units. Subject to the provisions of the declaration, payment of all expenses by the
unit owner and other provisions of law other than this chapter, upon application of a unit owner to subdivide a unit in a
condominium or cooperative, the association shall prepare, execute, and record an amendment to the declaration, including
in a condominium or planned community the plats and plans, subdividing that unit.
(b) The amendment to the declaration must be executed by the owner of the unit to be subdivided, assign an identifying number
to each unit created, and reallocate the allocated interests formerly allocated to the subdivided unit to the new units in
any reasonable manner prescribed by the owner of the subdivided unit or on any other basis the declaration requires.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, §§ 30, 31, 82.;
§ 81-214. Variations in boundaries.
The existing physical boundaries of a unit or a common element or the physical boundaries of a unit or a common element reconstructed
in substantial accordance with the description contained in the original declaration are its legal boundaries, rather than
the boundaries derived from the description contained in the original declaration, regardless of vertical or lateral movement
of the building or minor variance between those boundaries and the boundaries derived from the description contained in the
original declaration. This section does not relieve a unit owner of liability in case of the unit owner's wilful misconduct
or relieve a declarant or any other person of liability for failure to adhere to any plats and plans or, in a cooperative,
to any representation in the public offering statement.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, § 82.;
§ 81-215. Use for sales purposes.
A declarant may maintain sales offices, management offices, and models in units or on common elements in the common interest
community only if the declaration so provides and specifies the rights of a declarant with regard to the number, size, location,
and relocation thereof. In a cooperative or condominium, any sales office, management office, or model not designated a unit
by the declaration is a common element. If a declarant ceases to be a unit owner, the declarant ceases to have any rights
with regard thereto unless it is removed promptly from the common interest community in accordance with a right to remove
reserved in the declaration. Subject to any limitations in the declaration, a declarant may maintain signs on the common elements
advertising the common interest community. This section is subject to the provisions of other state law and to local ordinances.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, § 82.;
§ 81-216. Easement rights.
(a) Subject to the provisions of the declaration, a declarant has an easement through the common elements as may be reasonably
necessary for the purpose of discharging the declarant's obligations or exercising special declarant rights, whether arising
under this chapter or reserved in the declaration.
(b) Subject to §§ 81-302(a)(6) and 81-312 of this title, the unit owners have an easement in the common elements for purposes
of access to their units.
(c) Subject to the declaration and the rules, the unit owners have an easement to use the common elements and all real estate
that must become common elements for the purposes for which they were intended.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, §§ 32, 82.;
§ 81-217. Amendment of declaration.
(a) Except in cases of amendments that may be executed by a declarant under § 81-209(f) or § 81-210 of this title, or by the
association under § 81-107, § 81-206(d), § 81-208(c), § 81-212(a), or § 81-213 of this title, or by certain unit owners under
§ 81-208(b), § 81-212(a), § 81-213(b), or § 81-218(b) of this title, or by secured lenders pursuant to § 81-219 of this title,
and except as limited by subsection (d) of this section or as otherwise provided in this § 81-217 of this title, the declaration,
including any plats and plans, may be amended only by vote or agreement of unit owners of units to which at least 67 percent
of the votes in the association are allocated, unless the declaration specifies a different percentage for all amendments
or for specific subjects of amendment. If the declaration requires the approval of another person as a condition of its effectiveness,
the amendment is not valid without the approval.
(b) No action to challenge the validity of an amendment adopted by the association pursuant to this section may be brought
more than 1 year after the amendment is recorded.
(c) Every amendment to the declaration must be recorded in every county in which any portion of the common interest community
is located and is effective only upon recordation. An amendment, except an amendment pursuant to § 81-212(a) of this title,
must be indexed in the grantee's index in the name of the common interest community and the association and in the grantor's
index in the name of the parties executing the amendment.
(d) Except to the extent expressly permitted or required by other provisions of this chapter, or in a nonresidential common
interest community, except as provided in the declaration, no amendment may create or increase special declarant rights, increase
the number of units, change the boundaries of any unit or the allocated interests of a unit, in the absence of unanimous consent
of the unit owners.
(e) Amendments to the declaration required by the chapter to be recorded by the association must be prepared, executed, recorded,
and certified on behalf of the association by any officer of the association designated for that purpose or, in the absence
of designation, by the president of the association.
(f) By vote or agreement of unit owners of units to which at least 80 percent of the votes in the association are allocated,
or any larger percentage specified in the declaration, an amendment to the declaration may prohibit or materially restrict
the permitted uses of or behavior in a unit or the number or other qualifications of persons who may occupy units. The amendment
must provide reasonable protection for a use or occupancy permitted at the time the amendment was adopted.
(g) The time limits specified in the declaration pursuant to § 81-205(a)(8) of this title within which reserved development
rights must be exercised may be extended, and additional development rights may be created, if persons entitled to cast at
least 80 percent of the votes in the association, including 80 percent of the votes allocated to units not owned by the declarant,
agree to that action. The agreement is effective 30 days after an amendment to the declaration reflecting the terms of the
agreement is recorded unless all the persons holding the affected special declarant rights, or security interests in those
rights, record a written objection within the 30-day period, in which case the amendment is void, or consent in writing at
the time the amendment is recorded, in which case the amendment is effective when recorded.
(h) Provisions in the declaration creating special declarant rights which have not expired may not be amended without the
consent of the declarant.
(i) If any provision of this chapter or of the declaration of any common interest community subject to this chapter requires
the consent of a person holding a security interest in a unit as a condition to the effectiveness of any amendment to the
declaration, that consent shall be deemed granted if no written refusal to consent is received by the association within 45
days after the association delivers notice of the proposed amendment to the holder of the interest or mails the notice to
the holder of the interest by certified mail, return receipt requested. The association may rely on the last recorded security
interest of record in delivering or mailing notice to the holder of that interest. Notwithstanding this section, no amendment
to the declaration that affects the priority of a holder's security interest or the ability of that holder to foreclose its
security interest may be adopted without that holder's consent in a record if the declaration requires that consent as a condition
to the effectiveness of the amendment.
(j) Unless the declaration or bylaws provide otherwise and subject to paragraphs (j)(ii) and (j)(iii) of this section:
(i) The executive board may execute and record an amendment to the declaration bylaws, or plat, to conform the declaration
or bylaws to be consistent with the provisions of this chapter or to correct:
(1) A typographical error or other error in the percentage interests or number of votes appurtenant to any unit;
(2) A typographical error or other incorrect reference to another prior recorded document; or
(3) A typographical error or other incorrect unit designation or assignment of limited common elements if the affected unit
owners and their mortgagees consent in writing to the amendment, and the consent documents are recorded with the amendment.
(ii) If the executive board executes and records an amendment under paragraph (j)(i) of this section, the executive board
shall also record with the amendment:
(1) During the time that the declarant has an interest:
(A) The consent of the declarant; or
(B) An affidavit by the executive board that any declarant who has an interest in the condominium has been provided a copy
of the amendment and a notice that the declarant may object in writing to the amendment within 30 days of receipt of the amendment
and notice, that 30 days have passed since delivery of the amendment and notice, and that the declarant has made no written
objection; and
(2) An affidavit by the executive board that at least 30 days before recordation of the amendment a copy of the amendment
was sent with a notice of the amendment sent to each unit owner as required for notices pursuant to this chapter.
(iii) An amendment under this section is entitled to be recorded and is effective upon recordation if accompanied by the supporting
documents required by this section.
(k) During the time that the declarant has an interest, the declaration, bylaws or plat may be amended by declarant in order
to achieve compliance with the requirements of Federal National Mortgage Association, Federal Home Loan Mortgage Corporation,
Federal Housing Authority, Veterans Administration or other governmental agency or their successors.
(l) During the time that the declarant has an interest, the declaration, bylaws or plat may be amended by declarant to conform
the same to be consistent with the provisions required or allowed by this chapter.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, §§ 33-36, 82.;
§ 81-218. Termination of common interest community.
(a) Except in the case of a taking of all the units by eminent domain or in the case of foreclosure against an entire cooperative
of a security interest that has priority over the declaration, a common interest community may be terminated only by agreement
of unit owners of units to which at least 80 percent of the votes in the association are allocated, or any larger percentage
the declaration specifies. The declaration may specify a smaller percentage only if all of the units are restricted exclusively
to nonresidential uses.
(b) An agreement to terminate must be evidenced by the execution of a termination agreement, or ratifications thereof, in
the same manner as a deed, by the requisite number of unit owners. The termination agreement must specify a date after which
the agreement will be void unless it is recorded before that date. A termination agreement and all ratifications thereof must
be recorded in every county in which a portion of the common interest community is situated and is effective only upon recordation.
(c) In the case of a condominium or planned community containing only units having horizontal boundaries described in the
declaration, a termination agreement may provide that all of the common elements and units of the common interest community
must be sold following termination. If, pursuant to the agreement, any real estate in the common interest community is to
be sold following termination, the termination agreement must set forth the minimum terms of the sale.
(d) In the case of a condominium or planned community containing any units not having horizontal boundaries described in the
declaration, a termination agreement may provide for sale of the common elements, but it may not require that the units be
sold following termination, unless the declaration as originally recorded provided otherwise or all the unit owners consent
to the sale.
(e) The association, on behalf of the unit owners, may contract for the sale of real estate in a common interest community,
but the contract is not binding on the unit owners until approved pursuant to subsections (a) and (b) of this section. If
any real estate is to be sold following termination, title to that real estate, upon termination, vests in the association
as trustee for the holders of all interests in the units. Thereafter, the association has all powers necessary and appropriate
to effect the sale. Until the sale has been concluded and the proceeds thereof distributed, the association continues in existence
with all powers it had before termination. Proceeds of the sale must be distributed to unit owners and lien holders as their
interests may appear, in accordance with subsections (h), (i), and (j) of this section. Unless otherwise specified in the
termination agreement, as long as the association holds title to the real estate, each unit owner and the unit owner's successors
in interest have an exclusive right to occupancy of the portion of the real estate that formerly constituted the unit. During
the period of that occupancy, each unit owner and the unit owner's successors in interest remain liable for all assessments
and other obligations imposed on unit owners by this chapter or the declaration.
(f) In a condominium or planned community, if the real estate constituting the common interest community is not to be sold
following termination, title to the common elements and, in a common interest community containing only units having horizontal
boundaries described in the declaration, title to all the real estate in the common interest community, vests in the unit
owners upon termination as tenants in common in proportion to their respective interests as provided in subsection (j) of
this section, and liens on the units shift accordingly. While the tenancy in common exists, each unit owner and the unit owner's
successors in interest have an exclusive right to occupancy of the portion of the real estate that formerly constituted the
unit.
(g) Following termination of the common interest community, the proceeds of any sale of real estate, together with the assets
of the association, are held by the association as trustee for unit owners and holders of liens on the units as their interests
may appear.
(h) Following termination of a condominium or planned community, creditors of the association holding liens on the units,
which were recorded or judgments docketed before termination, may enforce those liens in the same manner as any lien holder.
All other creditors of the association are to be treated as if they had perfected liens on the units immediately before termination.
(i) In a cooperative, the declaration may provide that all creditors of the association have priority over any interests of
unit owners and creditors of unit owners. In that event, following termination, creditors of the association holding liens
on the cooperative which were recorded or judgments docketed before termination may enforce their liens in the same manner
as any lien holder, and any other creditor of the association is to be treated as if the creditor had perfected a lien against
the cooperative immediately before termination. Unless the declaration provides that all creditors of the association have
that priority:
(1) The lien of each creditor of the association which was perfected against the association before termination becomes, upon
termination, a lien against each unit owner's interest in the unit as of the date the lien was perfected;
(2) Any other creditor of the association is to be treated upon termination as if the creditor had perfected a lien against
each unit owner's interest immediately before termination;
(3) The amount of the lien of an association's creditor described in paragraphs (i)(1) and (i)(2) of this section against
each of the unit owners' interest must be proportionate to the ratio which each unit's common expense liability bears to the
common expense liability of all of the units;
(4) The lien of each creditor of each unit owner which was perfected before termination continues as a lien against that unit
owner's unit as of the date the lien was perfected; and
(5) The assets of the association must be distributed to all unit owners and all lien holders as their interests may appear
in the order described above. Creditors of the association are not entitled to payment from any unit owner in excess of the
amount of the creditor's lien against that unit owner's interest.
(j) The respective interests of unit owners referred to in subsections (e), (f), (g), (h), and (i) of this section are as
follows:
(1) Except as provided in paragraph (j)(2) of this section, the respective interests of unit owners are the fair market values
of their units, allocated interests, and any limited common elements immediately before the termination, as determined by
one or more independent appraisers selected by the association. The decision of the independent appraisers must be distributed
to the unit owners and becomes final unless disapproved within 30 days after distribution by unit owners of units to which
25 percent of the votes in the association are allocated. The proportion of any unit owner's interest to that of all unit
owners is determined by dividing the fair market value of that unit owner's unit and its allocated interests by the total
fair market values of all the units and their allocated interests.
(2) If any unit or any limited common element is destroyed to the extent that an appraisal of the fair market value thereof
before destruction cannot be made, the interests of all unit owners are: (i) in a condominium, their respective common element
interests immediately before the termination, (ii) in a cooperative, their respective ownership interests immediately before
the termination, and (iii) in a planned community, their respective common expense liabilities immediately before the termination.
(k) In a condominium or planned community, except as provided in subsection (l) of this section, foreclosure or enforcement
of a lien or encumbrance against the entire common interest community does not terminate, of itself, the common interest community,
and foreclosure or enforcement of a lien or encumbrance against a portion of the common interest community, other than withdrawable
real estate, does not withdraw that portion from the common interest community. Foreclosure or enforcement of a lien or encumbrance
against withdrawable real estate, or against common elements that have been subjected to a security interest by the association
under § 81-312 of this title, does not withdraw, of itself, that real estate from the common interest community, but the person
taking title thereto may require from the association, upon request, an amendment excluding the real estate from the common
interest community.
(l) In a condominium or planned community, if a lien or encumbrance against a portion of the real estate comprising the common
interest community has priority over the declaration and the lien or encumbrance has not been partially released, the parties
foreclosing the lien or encumbrance, upon foreclosure, may record an instrument excluding the real estate subject to that
lien or encumbrance from the common interest community.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, § 82.;
§ 81-219. Rights of secured lenders.
(a) The declaration may require that all or a specified number or percentage of the lenders who hold security interests encumbering
the units or who have extended credit to the association approve specified actions of the unit owners or the association as
a condition to the effectiveness of those actions, but no requirement for approval may operate to: (i) deny or delegate control
over the general administrative affairs of the association by the unit owners or the executive board, or (ii) prevent the
association or the executive board from commencing, intervening in, or settling any litigation or proceeding, or (iii) prevent
any insurance trustee or the association from receiving and distributing any insurance proceeds except pursuant to § 81-313
of this title.
(b) A lender who has extended credit to an association secured by an assignment of income or an encumbrance on the common
elements may enforce its security agreement in accordance with its terms, subject to the requirements of this chapter and
other law. Requirements that the association must deposit its periodic common charges before default with the lender to which
the association's income has been assigned, or increase its common charges at the lender's direction by amounts reasonably
necessary to amortize the loan in accordance with its terms, do not violate the prohibitions on lender approval contained
in subsection (a) of this section.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, § 82.;
§ 81-220. Master associations.
(a) If the declaration provides that any of the powers described in § 81-302 of this title are to be exercised by or may be
delegated to a profit or nonprofit corporation that exercises those or other powers on behalf of one or more common interest
communities or for the benefit of the unit owners of 1 or more common interest communities, all provisions of this chapter
applicable to unit owners' associations apply to any such corporation, except as modified by this section.
(b) Unless it is acting in the capacity of an association described in § 81-301 of this title, a master association may exercise
the powers set forth in § 81-302(a)(2) of this title only to the extent expressly permitted in the declarations of common
interest communities which are part of the master association or expressly described in the delegations of power from those
common interest communities to the master association.
(c) If the declaration of any common interest community provides that the executive board may delegate certain powers to a
master association, the members of the executive board have no liability for the acts or omissions of the master association
with respect to those powers following delegation.
(d) The rights and responsibilities of unit owners with respect to the unit owners' association set forth in §§ 81-303, 81-308,
81-309, 81-310, and 81-312 of this title apply in the conduct of the affairs of a master association only to persons who elect
the board of a master association, whether or not those persons are otherwise unit owners within the meaning of this chapter.
(e) Even if a master association is also an association described in § 81-301 of this title, the certificate of incorporation
or other instrument creating the master association and the declaration of each common interest community, the powers of which
are assigned by the declaration or delegated to the master association, may provide that the executive board of the master
association must be elected after the period of declarant control in any of the following ways:
(1) All unit owners of all common interest communities subject to the master association may elect all members of the master
association's executive board.
(2) All members of the executive boards of all common interest communities subject to the master association may elect all
members of the master association's executive board.
(3) All unit owners of each common interest community subject to the master association may elect specified members of the
master association's executive board.
(4) All members of the executive board of each common interest community subject to the master association may elect specified
members of the master association's executive board.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, § 82.;
§ 81-221. Merger or consolidation of common interest communities.
(a) Any 2 or more common interest communities of the same form of ownership, by agreement of the unit owners as provided in
subsection (b) of this section, may be merged or consolidated into a single common interest community. In the event of a merger
or consolidation, unless the agreement otherwise provides, the resultant common interest community is the legal successor,
for all purposes, of all of the pre-existing common interest communities, and the operations and activities of all associations
of the pre-existing common interest communities are merged or consolidated into a single association that holds all powers,
rights, obligations, assets, and liabilities of all preexisting associations.
(b) An agreement of 2 or more common interest communities to merge or consolidate pursuant to subsection (a) of this section
must be evidenced by an agreement prepared, executed, recorded, and certified by the president of the association of each
of the preexisting common interest communities following approval by owners of units to which are allocated the percentage
of votes in each common interest community required to terminate that common interest community. The agreement must be recorded
in every county in which a portion of the common interest community is located and is not effective until recorded.
(c) Every merger or consolidation agreement must provide for the reallocation of the allocated interests in the new association
among the units of the resultant common interest community either: (i) by stating the reallocations or the formulas upon which
they are based or (ii) by stating the percentage of overall allocated interests of the new common interest community which
are allocated to all of the units comprising each of the preexisting common interest communities, and providing that the portion
of the percentages allocated to each unit formerly comprising a part of the pre-existing common interest community must be
equal to the percentages of allocated interests allocated to that unit by the declaration of the preexisting common interest
community.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, § 82.;
§ 81-222. Addition of unspecified real estate.
In a planned community, if the right is originally reserved in the declaration, the declarant in addition to any other development
right, may amend the declaration at any time during as many years as are specified in the declaration for adding additional
real estate to the planned community without describing the location of that real estate in the original declaration; but,
the amount of real estate added to the planned community pursuant to this section may not exceed 10 percent of the real estate
described in § 81-205(a)(3) of this title and the declarant may not in any event increase the number of units in the planned
community beyond the number stated in the original declaration pursuant to § 81-205(a)(5) of this title.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, § 82.;
§ 81-223. Master planned communities.
(a) The declaration for a common interest community may state that it is a master planned community if the declarant has reserved
the development right to create at least 400 units that may be used for residential purposes, and at the time of the reservation
that declarant owns or controls more than 400 acres on which the units may be built.
(b) If the requirements of subsection (a) of this section are satisfied, the declaration for the master planned community
need not state a maximum number of units and need not contain any of the information required by § 81-205(a)(3) through (14)
of this title until the declaration is amended under subsection (c) of this section.
(c) When each unit in a master planned community is conveyed to a purchaser, the declaration must contain: (i) a sufficient
legal description of the unit and all portions of the master planned community in which any other units have been conveyed
to a purchaser; and (ii) all the information required by § 81-205(a)(3) through (14) of this title with respect to that real
estate.
(d) The only real estate in a master planned community which is subject to this chapter is units that have been declared or
which are being offered for sale and any other real estate described pursuant to subsection (c) of this section. Other real
estate that is or may become part of the master planned community is only subject to other law and to any other restrictions
and limitations that appear of record.
(e) If the public offering statement conspicuously identifies the fact that the community is a master planned community, the
disclosure requirements contained in subchapter IV of this chapter apply only with respect to units that have been declared
or are being offered for sale in connection with the public offering statement and to the real estate described pursuant to
subsection (c) of this section.
(f) Limitations in this chapter on the addition of unspecified real estate do not apply to a master planned community.
(g) The period of declarant control of the association for a master planned community terminates in accordance with any conditions
specified in the declaration or otherwise at the time the declarant, in a recorded instrument and after giving written notice
to all the unit owners, voluntarily surrenders all rights to control the activities of the association.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, § 82.;
§ 81-224. Other exempt real estate arrangements.
(a) An agreement between two or more common interest communities to share the costs of real estate taxes, insurance premiums,
services, maintenance or improvements of real estate or other activities specified in their agreement or declarations does
not create a separate common interest community unless the cost sharing agreement was intended to evade the limitations of
this chapter. If the declarants of those common interest communities are affiliates, the agreement may not unreasonably allocate
the costs among those common interest communities.
(b) An agreement between an association for a common interest community and the owner of real estate that is not part of that
common interest community to share the costs of real estate taxes, insurance premiums, services, maintenance or improvements
of real estate or other activities specified in their agreement does not create a separate common interest community so long
as the assessments against the units in the common interest community are included in the periodic budget for the common interest
community and are subject to unit owner approval under § 81-324 of this title.
(c) An arrangement between 2 separately owned parcels of real estate for sharing costs associated with a common law party
wall, shared driveway or shared well does not create a common interest community.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, § 82.;
§ 81-225. Termination following catastrophe.
If substantially all the units in a common interest community have been destroyed or are uninhabitable and the available methods
for giving notice for a meeting of unit owners to consider termination under § 81-218 of this title will not likely result
in receipt of the notice, the executive board or any other interested person may commence an action in the Court of Chancery
of the State of Delaware seeking to terminate the common interest community. During the pendency of the action, the Court
may enter whatever orders it considers appropriate, including appointment of a receiver. After a hearing, the court may terminate
the common interest community or reduce its size and may enter into any other order the court considers to be in the best
interest of the unit owners and persons holding an interest in the common interest community.
CHAPTER 81. DELAWARE UNIFORM COMMON INTEREST OWNERSHIP ACT
Subchapter II. Creation, Alteration, and Termination of Common Interest
§ 81-201. Creation of common interest communities.
(a) A common interest community may be created pursuant to this chapter 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 declaration
and bylaws must be recorded in every county in which any portion of the common interest community is located and must be indexed
in the grantee's index in the name of the common interest community and the association and in the grantor's index in the
name of each person executing the declaration.
(b) In a condominium, a declaration, or an amendment to a declaration, adding units that are contained in or comprised by
buildings may not be recorded unless the structural components and mechanical systems of any buildings containing or comprising
any units thereby created, if any, are substantially completed in accordance with the plans, as evidenced by a record certification
of completion executed by an independent registered engineer or architect, which may be incorporated in the recorded declaration
or amendment or the recorded plat or otherwise, or by the issuance by the appropriate governmental authority of a certificate
of occupancy, or its equivalent, for the applicable unit.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, §§ 22, 82.;
§ 81-202. Unit boundaries.
Except as provided by the declaration:
(a) If walls, floors, or ceilings are designated as boundaries of a unit, all lath, furring, wallboard, plasterboard, plaster,
paneling, tiles, wallpaper, paint, finished flooring, and any other materials constituting any part of the finished surfaces
thereof are a part of the unit, and all other portions of the walls, floors, or ceilings are a part of the common elements.
(b) If any chute, flue, duct, wire, conduit, bearing wall, bearing column, or any other fixture lies partially within and
partially outside the designated boundaries of a unit, any portion thereof serving only that unit is a limited common element
allocated solely to that unit, and any portion thereof serving more than 1 unit or any portion of the common elements is a
part of the common elements.
(c) Subject to subsection (b) of this section, all spaces, interior partitions, and other fixtures and improvements within
the boundaries of a unit are a part of the unit.
(d) Any shutters, awnings, window boxes, doorsteps, stoops, porches, balconies, patios, and all exterior doors and windows
or other fixtures designed to serve a single unit, but located outside the unit's boundaries, are limited common elements
allocated exclusively to that unit.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, § 82.;
§ 81-203. Construction and validity of declaration and bylaws.
(a) All provisions of the declaration and bylaws are severable.
(b) The rule against perpetuities does not apply to defeat any provision of the declaration, bylaws or rules.
(c) In the event of a conflict between the provisions of the declaration and the bylaws, the declaration prevails.
(d) Title to a unit and common elements is not rendered unmarketable or otherwise affected by reason of an insubstantial failure
of the declaration to comply with this chapter. Whether a substantial failure impairs marketability is not affected by this
chapter.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, §§ 23, 24, 82.;
§ 81-204. Description of units.
A description of a unit which sets forth the name of the common interest community, the recording data for the declaration,
the county in which the common interest community is located, and the identifying number of the unit, is a legally sufficient
description of that unit and all rights, obligations, and interests appurtenant to that unit which were created by the declaration
or bylaws.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, § 82.;
§ 81-205. Contents of declaration.
(a) The declaration must contain:
(1) The names of the common interest community and the association and a statement that the common interest community is either
a condominium, cooperative, or planned community;
(2) The name of every county in which any part of the common interest community is situated;
(3) A legally sufficient description of the real estate included in the common interest community;
(4) A statement of the maximum number of units that the declarant reserves the right to create;
(5) In a condominium, a description of the boundaries of each unit created by the declaration, including the unit's identifying
number; or, in a cooperative, a description, which may be by plats or plans, of each unit created by the declaration, including
the unit's identifying number, its size or number of rooms, and its location within a building if it is within a building
containing more than 1 unit;
(6) A description of any limited common elements, other than those specified in § 81-202(b) and (d) of this title, as provided
in § 81-209(b)(10) of this title and, in a planned community, any real estate that is or must become common elements;
(7) A description of any real estate, except real estate subject to development rights, that may be allocated subsequently
as limited common elements, other than limited common elements specified in § 81-202(b) and (d) of this title, together with
a statement that they may be so allocated;
(8) A description of any development rights (§ 81-103(19) of this title) and other special declarant rights (§ 81-103(45)
of this title) reserved by the declarant, together with a legally sufficient description of the real estate to which each
of those rights applies, and a time limit within which each of those rights must be exercised;
(9) If any development right may be exercised with respect to different parcels of real estate at different times, a statement
to that effect together with: (i) either a statement fixing the boundaries of those portions and regulating the order in which
those portions may be subjected to the exercise of each development right or a statement that no assurances are made in those
regards, and (ii) a statement as to whether, if any development right is exercised in any portion of the real estate subject
to that development right, that development right must be exercised in all or in any other portion of the remainder of that
real estate;
(10) Any other conditions or limitations under which the rights described in paragraph (8) of this section may be exercised
or will lapse;
(11) An allocation to each unit of the allocated interests in the manner described in § 81-207 of this title;
(12) Any restrictions: (i) on alienation of the units, including any restrictions on leasing which exceed the restrictions
on leasing units which executive boards may impose pursuant to § 81-302(c)(2) of this title, and (ii) on the amount for which
a unit may be sold or on the amount that may be received by a unit owner on sale, condemnation, or casualty loss to the unit
or to the common interest community, or on termination of the common interest community;
(13) The recording data for recorded easements and licenses appurtenant to or included in the common interest community or
to which any portion of the common interest community is or may become subject by virtue of a reservation in the declaration;
(14) In the case of a condominium or cooperative, provisions that mandate that the association create and maintain, in addition
to any reserve for contingencies, a fully funded repair and replacement reserve based upon a current reserve study;
(15) Any authorization pursuant to which the association may regulate the display of American flags or political signs within
the common interest community;
(16) Any authorization pursuant to which the association may adopt rules to establish and enforce construction and design
criteria and aesthetic standards in the manner provided in § 81-320 of this title; and
(17) All matters required by §§ 81-206, 81-207, 81-208, 81-209, 81-215, 81-216, and 81-303 of this title.
(b) The declaration may contain any other matters the declarant considers appropriate, including any restrictions on the uses
of a unit or the number or other qualifications of persons who may occupy units.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, §§ 25, 26, 82.;
§ 81-206. Leasehold common interest communities.
(a) Any lease the expiration or termination of which may terminate the common interest community or reduce its size must be
referenced in the declaration. Every lessor of those leases in a condominium or planned community shall sign the declaration.
The declaration must state:
(1) The recording data for the lease;
(2) The date on which the lease is scheduled to expire;
(3) A legally sufficient description of the real estate subject to the lease;
(4) Any right of the unit owners to redeem the reversion and the manner whereby those rights may be exercised, or a statement
that they do not have those rights;
(5) Any right of the unit owners to remove any improvements within a reasonable time after the expiration or termination of
the lease, or a statement that they do not have those rights; and
(6) Any rights of the unit owners to renew the lease and the conditions of any renewal, or a statement that they do not have
those rights.
(b) After the declaration for a leasehold condominium or leasehold planned community is recorded, neither the lessor nor the
lessor's successor in interest may terminate the leasehold interest of a unit owner who makes timely payment of a unit owner's
share of the rent and otherwise complies with all covenants which, if violated, would entitle the lessor to terminate the
lease. A unit owner's leasehold interest in a condominium or planned community is not affected by failure of any other person
to pay rent or fulfill any other covenant.
(c) Acquisition of the leasehold interest of any unit owner by the owner of the reversion or remainder does not merge the
leasehold and fee simple interests unless the leasehold interests of all unit owners subject to that reversion or remainder
are acquired.
(d) If the expiration or termination of a lease decreases the number of units in a common interest community, the allocated
interests must be reallocated in accordance with § 81-107(a) of this title as if those units had been taken by eminent domain.
Reallocations must be confirmed by an amendment to the declaration prepared, executed, and recorded by the association.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 4, § 12; 77 Del. Laws, c. 91, § 82.;
§ 81-207. Allocation of allocated interests.
(a) The declaration must allocate to each unit:
(1) In a condominium, a fraction or percentage of undivided interests in the common elements and a fraction or percentage
of undivided interests in the common expenses of the association, and a portion of the votes in the association;
(2) In a cooperative, an ownership interest in the association, a fraction or percentage of the common expenses of the association,
and a portion of the votes in the association; and
(3) In a planned community, a fraction or percentage of the common expenses of the association, and a portion of the votes
in the association.
(b) The declaration must state the formulas used to establish allocations of interests and the portions of the votes. Those
allocations may not discriminate in favor of units owned by the declarant or an affiliate of the declarant.
(c) If units may be added to or withdrawn from the common interest community, the declaration must state the formulas to be
used to reallocate the allocated interests among all units included in the common interest community after the addition or
withdrawal.
(d) The declaration may provide: (i) that different allocations of votes shall be made to the units on particular matters
specified in the declaration; (ii) for cumulative voting only for the purpose of electing members of the executive board;
and (iii) for class voting on specified issues affecting the class if necessary to protect valid interests of the class. A
declarant may not utilize cumulative or class voting for the purpose of evading any limitation imposed on declarants by this
chapter nor may units constitute a class because they are owned by a declarant.
(e) Except for minor variations due to rounding, the sum of the common expense liabilities and, in a condominium, the sum
of the undivided interests in the common elements allocated at any time to all the units must each equal one if stated as
a fraction or 100 percent if stated as a percentage. In the event of discrepancy between an allocated interest and the result
derived from application of the pertinent formula, the allocated interest prevails.
(f) In a condominium, the common elements are not subject to partition, and any purported conveyance, encumbrance, judicial
sale, or other voluntary or involuntary transfer of an undivided interest in the common elements made without the unit to
which that interest is allocated is void.
(g) In a cooperative, any purported conveyance, encumbrance, judicial sale, or other voluntary or involuntary transfer of
an ownership interest in the association made without the possessory interest in the unit to which that interest is related
is void.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, § 82.;
§ 81-208. Limited common elements.
(a) Except for the limited common elements described in § 81-202(b) and (d) of this title, the declaration must specify to
which unit or units each limited common element is allocated. An allocation may not be altered without the consent of the
unit owners whose units are affected.
(b) Except as the declaration otherwise provides, a limited common element may be reallocated by an amendment to the declaration
executed by the unit owners between or among whose units the reallocation is made. The persons executing the amendment shall
provide a copy thereof to the association, which shall record it. The amendment must be recorded in the names of the parties
and the common interest community.
(c) A common element not previously allocated as a limited common element may be so allocated only pursuant to provisions
in the declaration made in accordance with § 81-205(a)(7) of this title. The allocations must be made by amendments to the
declaration.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, § 82.;
§ 81-209. Plats and plans.
(a) Plats and plans are a part of the declaration, and are required for all condominiums and cooperatives. Each plat and plan
must be clear and legible and contain a certification as required by subsection (g) of this section and by declarant that
the plat or plan contains all information required by this section.
(b) Each plat must show or project:
(1) The name and a survey or general schematic map of the entire common interest community;
(2) The location and dimensions of all real estate not subject to development rights, or subject only to the development right
to withdraw, and the location and dimensions of all existing improvements within that real estate;
(3) A legally sufficient description of any real estate subject to development rights, labeled to identify the rights applicable
to each parcel, but plats and plans need not designate or label which development rights are applicable to each parcel if
that information is clearly delineated in the declaration;
(4) The extent of any encroachments by or upon any portion of the common interest community;
(5) To the extent feasible, a legally sufficient description of all easements serving or burdening any portion of the common
interest community;
(6) Except as provided in subsection (h) of this section, the approximate location and dimensions of any vertical unit boundaries
not shown or projected on plans recorded pursuant to subsection (d) of this section and that unit's identifying number;
(7) Except as provided in subsection (h) of this section, the approximate location with reference to an established datum
of any horizontal unit boundaries not shown or projected on plans recorded pursuant to subsection (d) of this section and
that unit's identifying number;
(8) A legally sufficient description of any real estate in which the unit owners will own only an estate for years, labeled
as "leasehold real estate";
(9) The distance between noncontiguous parcels of real estate comprising the common interest community; and
(10) The approximate location and dimensions of any porches, decks, balconies, garages, or patios allocated as limited common
elements, and show or contain a narrative description of any other limited common elements.
(11) [Repealed.]
(c) A plat shall show the intended location and dimensions of any contemplated improvement to be constructed anywhere within
the common interest community. Any contemplated improvement shown must be labeled either "MUST BE BUILT" or "NEED NOT BE BUILT."
(d) Except as provided in subsection (h) of this section, to the extent not shown or projected on the plats, plans of the
units must show or project:
(1) The approximate location and dimensions of the vertical boundaries of each unit, and that unit's identifying number;
(2) The approximate location of any horizontal unit boundaries, with reference to an established datum, and that unit's identifying
number; and
(3) The approximate location of any units in which the declarant has reserved the right to create additional units or common
elements (§ 81-210(c) of this title), identified appropriately.
(e) Unless the declaration provides otherwise, the horizontal boundaries of part of a unit located outside a building have
the same elevation as the horizontal boundaries of the inside part and need not be depicted on the plats and plans.
(f) Upon exercising any development right, the declarant shall record either new plats and plans necessary to conform to the
requirements of subsections (a), (b), and (d) of this section, or new certifications of plats and plans previously recorded
if those plats and plans otherwise conform to the requirements of those subsections.
(g) Any certification of a plat or plan required by this section or § 81-201(b) of this title must be made by an independent
architect, independent licensed professional land surveyor or independent engineer.
(h) Plats and plans need not show the location and dimensions of the units' boundaries or their limited common elements if:
(1) The plat shows the location and dimensions of all buildings containing or comprising the units; and
(2) The declaration includes other information that shows or contains a narrative description of the general layout of the
units in those buildings and the limited common elements allocated to those units.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, §§ 27-29, 82.;
§ 81-210. Exercise of development rights.
(a) To exercise any development right reserved under § 81-205(a)(8) of this title, the declarant shall prepare, execute, and
record, without joinder of any other person required except as expressly provided in the declaration, an amendment to the
declaration and in a condominium or planned community comply with § 81-209 of this title. The declarant is the unit owner
of any units thereby created. The amendment to the declaration must assign an identifying number to each new unit created,
and, except in the case of subdivision or conversion of units described in subsection (b) of this section, reallocate the
allocated interests among all units. The amendment must describe any common elements and any limited common elements thereby
created and, in the case of limited common elements, designate the unit to which each is allocated to the extent required
by § 81-208 of this title.
(b) Development rights may be reserved within any real estate added to the common interest community if the amendment adding
that real estate includes all matters required by § 81-205 or § 81-206 of this title, as the case may be, and, in a condominium
or planned community, the plats and plans include all matters required by § 81-209 of this title. This provision does not
extend the time limit on the exercise of development rights imposed by the declaration pursuant to § 81-205(a)(8) of this
title.
(c) Whenever a declarant exercises a development right to subdivide or convert a unit previously created into additional units,
common elements, or both:
(1) If the declarant converts the unit entirely to common elements, the amendment to the declaration must reallocate all the
allocated interests of that unit among the other units as if that unit had been taken by eminent domain; and
(2) If the declarant subdivides the unit into 2 or more units, whether or not any part of the unit is converted into common
elements, the amendment to the declaration must reallocate all the allocated interests of the unit among the units created
by the subdivision in any reasonable manner prescribed by the declarant.
(d) If the declaration provides, pursuant to § 81-205(a)(8) of this title, that all or a portion of the real estate is subject
to a right of withdrawal:
(1) If all the real estate is subject to withdrawal, and the declaration does not describe separate portions of real estate
subject to that right, none of the real estate may be withdrawn after a unit has been conveyed to a purchaser; and
(2) If any portion is subject to withdrawal, it may not be withdrawn after a unit in that portion has been conveyed to a purchaser.
(e) If the declaration for a pre-existing condominium provides for conversion of limited common elements to part of the unit
to which such limited common elements are allocated, the same shall be a development right exercisable by the declarant by
amendment to the declaration prepared, executed and recorded by the declarant, without the joinder of any other person required,
and complying with § 81-209 of this title.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, § 82.;
§ 81-211. Alterations of units.
Subject to the provisions of the declaration and other provisions of law, a unit owner:
(a) May, upon written notice to the association specifying the improvements or alterations planned, make any improvements
or alterations to that unit owner's unit that do not impair the structural integrity or mechanical systems or lessen the support
of any portion of the common interest community;
(b) May not change the appearance of the common elements, or the exterior appearance of a unit or any other portion of the
common interest community, without permission of the association;
(c) After acquiring an adjoining unit or an adjoining part of an adjoining unit, may, upon written notice to the association
specifying the improvements or alteration planned, but without requiring permission of the association, remove or alter any
intervening partition or create apertures therein, even if the partition in whole or in part is a common element, if those
acts do not impair the structural integrity or mechanical systems or lessen the support of any portion of the common interest
community. Removal of partitions or creation of apertures under this subsection is not an alteration of boundaries.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, § 82.;
§ 81-212. Relocation of unit boundaries.
(a) Subject to the provisions of the declaration and other provisions of law, the boundaries between adjoining units may be
relocated by an amendment to the declaration upon application to the association by the owners of those units. If the owners
of the adjoining units have specified a reallocation between their units of their allocated interests, the application must
state the proposed reallocations. Unless the executive board determines, within 30 days, that the reallocations are unreasonable,
the association shall prepare an amendment that identifies the units involved and states the reallocations. The amendment
must be executed by those unit owners, contain words of conveyance between them, and, on recordation, be indexed in the name
of the grantor and the grantee, and in the grantee's index in the name of the association. All costs associated with the relocation
or any attempted relocation which fails or is denied, including reasonable attorney's and engineer's fees, shall be paid by
the owners seeking the change.
(b) Subject to the provisions of the declaration and other provisions of law, boundaries between units and common elements
may be relocated to incorporate common elements within a unit by an amendment to the declaration upon application to the association
by the owner of the unit who proposes to relocate a boundary. Unless the declaration provides otherwise, the amendment may
be approved only if persons entitled to cast at least 67 percent of the votes in the association, including 67 percent of
the votes allocated to units not owned by the declarant, agree to the action. The amendment may describe any fees or charges
payable by the owner of the affected unit in connection with the boundary relocation. The fees and charges shall be assets
of the association. The amendment must be executed by the unit owner of the unit whose boundary is being relocated and by
the association, contain words of conveyance between them, and on recordation be indexed in the name of the unit owner and
the association as grantor or grantee, as appropriate. All costs associated with the relocation or any attempted relocation
which fails or is denied, including reasonable attorney's and engineer's fees, shall be paid by the owners seeking the change.
(c) The association: (i) in a condominium or planned community shall prepare and record plats or plans necessary to show the
altered boundaries of affected units, and their dimensions and identifying numbers, and (ii) in a cooperative shall prepare
and record amendments to the declaration, including any plans, necessary to show or describe the altered boundaries of affected
units, and their dimensions and identifying numbers.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, § 82.;
§ 81-213. Subdivision of units.
(a) In a condominium or cooperative if the declaration expressly so permits and approval as noted herein is obtained in writing,
a unit may be subdivided into 2 or more units. Subject to the provisions of the declaration, payment of all expenses by the
unit owner and other provisions of law other than this chapter, upon application of a unit owner to subdivide a unit in a
condominium or cooperative, the association shall prepare, execute, and record an amendment to the declaration, including
in a condominium or planned community the plats and plans, subdividing that unit.
(b) The amendment to the declaration must be executed by the owner of the unit to be subdivided, assign an identifying number
to each unit created, and reallocate the allocated interests formerly allocated to the subdivided unit to the new units in
any reasonable manner prescribed by the owner of the subdivided unit or on any other basis the declaration requires.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, §§ 30, 31, 82.;
§ 81-214. Variations in boundaries.
The existing physical boundaries of a unit or a common element or the physical boundaries of a unit or a common element reconstructed
in substantial accordance with the description contained in the original declaration are its legal boundaries, rather than
the boundaries derived from the description contained in the original declaration, regardless of vertical or lateral movement
of the building or minor variance between those boundaries and the boundaries derived from the description contained in the
original declaration. This section does not relieve a unit owner of liability in case of the unit owner's wilful misconduct
or relieve a declarant or any other person of liability for failure to adhere to any plats and plans or, in a cooperative,
to any representation in the public offering statement.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, § 82.;
§ 81-215. Use for sales purposes.
A declarant may maintain sales offices, management offices, and models in units or on common elements in the common interest
community only if the declaration so provides and specifies the rights of a declarant with regard to the number, size, location,
and relocation thereof. In a cooperative or condominium, any sales office, management office, or model not designated a unit
by the declaration is a common element. If a declarant ceases to be a unit owner, the declarant ceases to have any rights
with regard thereto unless it is removed promptly from the common interest community in accordance with a right to remove
reserved in the declaration. Subject to any limitations in the declaration, a declarant may maintain signs on the common elements
advertising the common interest community. This section is subject to the provisions of other state law and to local ordinances.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, § 82.;
§ 81-216. Easement rights.
(a) Subject to the provisions of the declaration, a declarant has an easement through the common elements as may be reasonably
necessary for the purpose of discharging the declarant's obligations or exercising special declarant rights, whether arising
under this chapter or reserved in the declaration.
(b) Subject to §§ 81-302(a)(6) and 81-312 of this title, the unit owners have an easement in the common elements for purposes
of access to their units.
(c) Subject to the declaration and the rules, the unit owners have an easement to use the common elements and all real estate
that must become common elements for the purposes for which they were intended.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, §§ 32, 82.;
§ 81-217. Amendment of declaration.
(a) Except in cases of amendments that may be executed by a declarant under § 81-209(f) or § 81-210 of this title, or by the
association under § 81-107, § 81-206(d), § 81-208(c), § 81-212(a), or § 81-213 of this title, or by certain unit owners under
§ 81-208(b), § 81-212(a), § 81-213(b), or § 81-218(b) of this title, or by secured lenders pursuant to § 81-219 of this title,
and except as limited by subsection (d) of this section or as otherwise provided in this § 81-217 of this title, the declaration,
including any plats and plans, may be amended only by vote or agreement of unit owners of units to which at least 67 percent
of the votes in the association are allocated, unless the declaration specifies a different percentage for all amendments
or for specific subjects of amendment. If the declaration requires the approval of another person as a condition of its effectiveness,
the amendment is not valid without the approval.
(b) No action to challenge the validity of an amendment adopted by the association pursuant to this section may be brought
more than 1 year after the amendment is recorded.
(c) Every amendment to the declaration must be recorded in every county in which any portion of the common interest community
is located and is effective only upon recordation. An amendment, except an amendment pursuant to § 81-212(a) of this title,
must be indexed in the grantee's index in the name of the common interest community and the association and in the grantor's
index in the name of the parties executing the amendment.
(d) Except to the extent expressly permitted or required by other provisions of this chapter, or in a nonresidential common
interest community, except as provided in the declaration, no amendment may create or increase special declarant rights, increase
the number of units, change the boundaries of any unit or the allocated interests of a unit, in the absence of unanimous consent
of the unit owners.
(e) Amendments to the declaration required by the chapter to be recorded by the association must be prepared, executed, recorded,
and certified on behalf of the association by any officer of the association designated for that purpose or, in the absence
of designation, by the president of the association.
(f) By vote or agreement of unit owners of units to which at least 80 percent of the votes in the association are allocated,
or any larger percentage specified in the declaration, an amendment to the declaration may prohibit or materially restrict
the permitted uses of or behavior in a unit or the number or other qualifications of persons who may occupy units. The amendment
must provide reasonable protection for a use or occupancy permitted at the time the amendment was adopted.
(g) The time limits specified in the declaration pursuant to § 81-205(a)(8) of this title within which reserved development
rights must be exercised may be extended, and additional development rights may be created, if persons entitled to cast at
least 80 percent of the votes in the association, including 80 percent of the votes allocated to units not owned by the declarant,
agree to that action. The agreement is effective 30 days after an amendment to the declaration reflecting the terms of the
agreement is recorded unless all the persons holding the affected special declarant rights, or security interests in those
rights, record a written objection within the 30-day period, in which case the amendment is void, or consent in writing at
the time the amendment is recorded, in which case the amendment is effective when recorded.
(h) Provisions in the declaration creating special declarant rights which have not expired may not be amended without the
consent of the declarant.
(i) If any provision of this chapter or of the declaration of any common interest community subject to this chapter requires
the consent of a person holding a security interest in a unit as a condition to the effectiveness of any amendment to the
declaration, that consent shall be deemed granted if no written refusal to consent is received by the association within 45
days after the association delivers notice of the proposed amendment to the holder of the interest or mails the notice to
the holder of the interest by certified mail, return receipt requested. The association may rely on the last recorded security
interest of record in delivering or mailing notice to the holder of that interest. Notwithstanding this section, no amendment
to the declaration that affects the priority of a holder's security interest or the ability of that holder to foreclose its
security interest may be adopted without that holder's consent in a record if the declaration requires that consent as a condition
to the effectiveness of the amendment.
(j) Unless the declaration or bylaws provide otherwise and subject to paragraphs (j)(ii) and (j)(iii) of this section:
(i) The executive board may execute and record an amendment to the declaration bylaws, or plat, to conform the declaration
or bylaws to be consistent with the provisions of this chapter or to correct:
(1) A typographical error or other error in the percentage interests or number of votes appurtenant to any unit;
(2) A typographical error or other incorrect reference to another prior recorded document; or
(3) A typographical error or other incorrect unit designation or assignment of limited common elements if the affected unit
owners and their mortgagees consent in writing to the amendment, and the consent documents are recorded with the amendment.
(ii) If the executive board executes and records an amendment under paragraph (j)(i) of this section, the executive board
shall also record with the amendment:
(1) During the time that the declarant has an interest:
(A) The consent of the declarant; or
(B) An affidavit by the executive board that any declarant who has an interest in the condominium has been provided a copy
of the amendment and a notice that the declarant may object in writing to the amendment within 30 days of receipt of the amendment
and notice, that 30 days have passed since delivery of the amendment and notice, and that the declarant has made no written
objection; and
(2) An affidavit by the executive board that at least 30 days before recordation of the amendment a copy of the amendment
was sent with a notice of the amendment sent to each unit owner as required for notices pursuant to this chapter.
(iii) An amendment under this section is entitled to be recorded and is effective upon recordation if accompanied by the supporting
documents required by this section.
(k) During the time that the declarant has an interest, the declaration, bylaws or plat may be amended by declarant in order
to achieve compliance with the requirements of Federal National Mortgage Association, Federal Home Loan Mortgage Corporation,
Federal Housing Authority, Veterans Administration or other governmental agency or their successors.
(l) During the time that the declarant has an interest, the declaration, bylaws or plat may be amended by declarant to conform
the same to be consistent with the provisions required or allowed by this chapter.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, §§ 33-36, 82.;
§ 81-218. Termination of common interest community.
(a) Except in the case of a taking of all the units by eminent domain or in the case of foreclosure against an entire cooperative
of a security interest that has priority over the declaration, a common interest community may be terminated only by agreement
of unit owners of units to which at least 80 percent of the votes in the association are allocated, or any larger percentage
the declaration specifies. The declaration may specify a smaller percentage only if all of the units are restricted exclusively
to nonresidential uses.
(b) An agreement to terminate must be evidenced by the execution of a termination agreement, or ratifications thereof, in
the same manner as a deed, by the requisite number of unit owners. The termination agreement must specify a date after which
the agreement will be void unless it is recorded before that date. A termination agreement and all ratifications thereof must
be recorded in every county in which a portion of the common interest community is situated and is effective only upon recordation.
(c) In the case of a condominium or planned community containing only units having horizontal boundaries described in the
declaration, a termination agreement may provide that all of the common elements and units of the common interest community
must be sold following termination. If, pursuant to the agreement, any real estate in the common interest community is to
be sold following termination, the termination agreement must set forth the minimum terms of the sale.
(d) In the case of a condominium or planned community containing any units not having horizontal boundaries described in the
declaration, a termination agreement may provide for sale of the common elements, but it may not require that the units be
sold following termination, unless the declaration as originally recorded provided otherwise or all the unit owners consent
to the sale.
(e) The association, on behalf of the unit owners, may contract for the sale of real estate in a common interest community,
but the contract is not binding on the unit owners until approved pursuant to subsections (a) and (b) of this section. If
any real estate is to be sold following termination, title to that real estate, upon termination, vests in the association
as trustee for the holders of all interests in the units. Thereafter, the association has all powers necessary and appropriate
to effect the sale. Until the sale has been concluded and the proceeds thereof distributed, the association continues in existence
with all powers it had before termination. Proceeds of the sale must be distributed to unit owners and lien holders as their
interests may appear, in accordance with subsections (h), (i), and (j) of this section. Unless otherwise specified in the
termination agreement, as long as the association holds title to the real estate, each unit owner and the unit owner's successors
in interest have an exclusive right to occupancy of the portion of the real estate that formerly constituted the unit. During
the period of that occupancy, each unit owner and the unit owner's successors in interest remain liable for all assessments
and other obligations imposed on unit owners by this chapter or the declaration.
(f) In a condominium or planned community, if the real estate constituting the common interest community is not to be sold
following termination, title to the common elements and, in a common interest community containing only units having horizontal
boundaries described in the declaration, title to all the real estate in the common interest community, vests in the unit
owners upon termination as tenants in common in proportion to their respective interests as provided in subsection (j) of
this section, and liens on the units shift accordingly. While the tenancy in common exists, each unit owner and the unit owner's
successors in interest have an exclusive right to occupancy of the portion of the real estate that formerly constituted the
unit.
(g) Following termination of the common interest community, the proceeds of any sale of real estate, together with the assets
of the association, are held by the association as trustee for unit owners and holders of liens on the units as their interests
may appear.
(h) Following termination of a condominium or planned community, creditors of the association holding liens on the units,
which were recorded or judgments docketed before termination, may enforce those liens in the same manner as any lien holder.
All other creditors of the association are to be treated as if they had perfected liens on the units immediately before termination.
(i) In a cooperative, the declaration may provide that all creditors of the association have priority over any interests of
unit owners and creditors of unit owners. In that event, following termination, creditors of the association holding liens
on the cooperative which were recorded or judgments docketed before termination may enforce their liens in the same manner
as any lien holder, and any other creditor of the association is to be treated as if the creditor had perfected a lien against
the cooperative immediately before termination. Unless the declaration provides that all creditors of the association have
that priority:
(1) The lien of each creditor of the association which was perfected against the association before termination becomes, upon
termination, a lien against each unit owner's interest in the unit as of the date the lien was perfected;
(2) Any other creditor of the association is to be treated upon termination as if the creditor had perfected a lien against
each unit owner's interest immediately before termination;
(3) The amount of the lien of an association's creditor described in paragraphs (i)(1) and (i)(2) of this section against
each of the unit owners' interest must be proportionate to the ratio which each unit's common expense liability bears to the
common expense liability of all of the units;
(4) The lien of each creditor of each unit owner which was perfected before termination continues as a lien against that unit
owner's unit as of the date the lien was perfected; and
(5) The assets of the association must be distributed to all unit owners and all lien holders as their interests may appear
in the order described above. Creditors of the association are not entitled to payment from any unit owner in excess of the
amount of the creditor's lien against that unit owner's interest.
(j) The respective interests of unit owners referred to in subsections (e), (f), (g), (h), and (i) of this section are as
follows:
(1) Except as provided in paragraph (j)(2) of this section, the respective interests of unit owners are the fair market values
of their units, allocated interests, and any limited common elements immediately before the termination, as determined by
one or more independent appraisers selected by the association. The decision of the independent appraisers must be distributed
to the unit owners and becomes final unless disapproved within 30 days after distribution by unit owners of units to which
25 percent of the votes in the association are allocated. The proportion of any unit owner's interest to that of all unit
owners is determined by dividing the fair market value of that unit owner's unit and its allocated interests by the total
fair market values of all the units and their allocated interests.
(2) If any unit or any limited common element is destroyed to the extent that an appraisal of the fair market value thereof
before destruction cannot be made, the interests of all unit owners are: (i) in a condominium, their respective common element
interests immediately before the termination, (ii) in a cooperative, their respective ownership interests immediately before
the termination, and (iii) in a planned community, their respective common expense liabilities immediately before the termination.
(k) In a condominium or planned community, except as provided in subsection (l) of this section, foreclosure or enforcement
of a lien or encumbrance against the entire common interest community does not terminate, of itself, the common interest community,
and foreclosure or enforcement of a lien or encumbrance against a portion of the common interest community, other than withdrawable
real estate, does not withdraw that portion from the common interest community. Foreclosure or enforcement of a lien or encumbrance
against withdrawable real estate, or against common elements that have been subjected to a security interest by the association
under § 81-312 of this title, does not withdraw, of itself, that real estate from the common interest community, but the person
taking title thereto may require from the association, upon request, an amendment excluding the real estate from the common
interest community.
(l) In a condominium or planned community, if a lien or encumbrance against a portion of the real estate comprising the common
interest community has priority over the declaration and the lien or encumbrance has not been partially released, the parties
foreclosing the lien or encumbrance, upon foreclosure, may record an instrument excluding the real estate subject to that
lien or encumbrance from the common interest community.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, § 82.;
§ 81-219. Rights of secured lenders.
(a) The declaration may require that all or a specified number or percentage of the lenders who hold security interests encumbering
the units or who have extended credit to the association approve specified actions of the unit owners or the association as
a condition to the effectiveness of those actions, but no requirement for approval may operate to: (i) deny or delegate control
over the general administrative affairs of the association by the unit owners or the executive board, or (ii) prevent the
association or the executive board from commencing, intervening in, or settling any litigation or proceeding, or (iii) prevent
any insurance trustee or the association from receiving and distributing any insurance proceeds except pursuant to § 81-313
of this title.
(b) A lender who has extended credit to an association secured by an assignment of income or an encumbrance on the common
elements may enforce its security agreement in accordance with its terms, subject to the requirements of this chapter and
other law. Requirements that the association must deposit its periodic common charges before default with the lender to which
the association's income has been assigned, or increase its common charges at the lender's direction by amounts reasonably
necessary to amortize the loan in accordance with its terms, do not violate the prohibitions on lender approval contained
in subsection (a) of this section.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, § 82.;
§ 81-220. Master associations.
(a) If the declaration provides that any of the powers described in § 81-302 of this title are to be exercised by or may be
delegated to a profit or nonprofit corporation that exercises those or other powers on behalf of one or more common interest
communities or for the benefit of the unit owners of 1 or more common interest communities, all provisions of this chapter
applicable to unit owners' associations apply to any such corporation, except as modified by this section.
(b) Unless it is acting in the capacity of an association described in § 81-301 of this title, a master association may exercise
the powers set forth in § 81-302(a)(2) of this title only to the extent expressly permitted in the declarations of common
interest communities which are part of the master association or expressly described in the delegations of power from those
common interest communities to the master association.
(c) If the declaration of any common interest community provides that the executive board may delegate certain powers to a
master association, the members of the executive board have no liability for the acts or omissions of the master association
with respect to those powers following delegation.
(d) The rights and responsibilities of unit owners with respect to the unit owners' association set forth in §§ 81-303, 81-308,
81-309, 81-310, and 81-312 of this title apply in the conduct of the affairs of a master association only to persons who elect
the board of a master association, whether or not those persons are otherwise unit owners within the meaning of this chapter.
(e) Even if a master association is also an association described in § 81-301 of this title, the certificate of incorporation
or other instrument creating the master association and the declaration of each common interest community, the powers of which
are assigned by the declaration or delegated to the master association, may provide that the executive board of the master
association must be elected after the period of declarant control in any of the following ways:
(1) All unit owners of all common interest communities subject to the master association may elect all members of the master
association's executive board.
(2) All members of the executive boards of all common interest communities subject to the master association may elect all
members of the master association's executive board.
(3) All unit owners of each common interest community subject to the master association may elect specified members of the
master association's executive board.
(4) All members of the executive board of each common interest community subject to the master association may elect specified
members of the master association's executive board.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, § 82.;
§ 81-221. Merger or consolidation of common interest communities.
(a) Any 2 or more common interest communities of the same form of ownership, by agreement of the unit owners as provided in
subsection (b) of this section, may be merged or consolidated into a single common interest community. In the event of a merger
or consolidation, unless the agreement otherwise provides, the resultant common interest community is the legal successor,
for all purposes, of all of the pre-existing common interest communities, and the operations and activities of all associations
of the pre-existing common interest communities are merged or consolidated into a single association that holds all powers,
rights, obligations, assets, and liabilities of all preexisting associations.
(b) An agreement of 2 or more common interest communities to merge or consolidate pursuant to subsection (a) of this section
must be evidenced by an agreement prepared, executed, recorded, and certified by the president of the association of each
of the preexisting common interest communities following approval by owners of units to which are allocated the percentage
of votes in each common interest community required to terminate that common interest community. The agreement must be recorded
in every county in which a portion of the common interest community is located and is not effective until recorded.
(c) Every merger or consolidation agreement must provide for the reallocation of the allocated interests in the new association
among the units of the resultant common interest community either: (i) by stating the reallocations or the formulas upon which
they are based or (ii) by stating the percentage of overall allocated interests of the new common interest community which
are allocated to all of the units comprising each of the preexisting common interest communities, and providing that the portion
of the percentages allocated to each unit formerly comprising a part of the pre-existing common interest community must be
equal to the percentages of allocated interests allocated to that unit by the declaration of the preexisting common interest
community.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, § 82.;
§ 81-222. Addition of unspecified real estate.
In a planned community, if the right is originally reserved in the declaration, the declarant in addition to any other development
right, may amend the declaration at any time during as many years as are specified in the declaration for adding additional
real estate to the planned community without describing the location of that real estate in the original declaration; but,
the amount of real estate added to the planned community pursuant to this section may not exceed 10 percent of the real estate
described in § 81-205(a)(3) of this title and the declarant may not in any event increase the number of units in the planned
community beyond the number stated in the original declaration pursuant to § 81-205(a)(5) of this title.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, § 82.;
§ 81-223. Master planned communities.
(a) The declaration for a common interest community may state that it is a master planned community if the declarant has reserved
the development right to create at least 400 units that may be used for residential purposes, and at the time of the reservation
that declarant owns or controls more than 400 acres on which the units may be built.
(b) If the requirements of subsection (a) of this section are satisfied, the declaration for the master planned community
need not state a maximum number of units and need not contain any of the information required by § 81-205(a)(3) through (14)
of this title until the declaration is amended under subsection (c) of this section.
(c) When each unit in a master planned community is conveyed to a purchaser, the declaration must contain: (i) a sufficient
legal description of the unit and all portions of the master planned community in which any other units have been conveyed
to a purchaser; and (ii) all the information required by § 81-205(a)(3) through (14) of this title with respect to that real
estate.
(d) The only real estate in a master planned community which is subject to this chapter is units that have been declared or
which are being offered for sale and any other real estate described pursuant to subsection (c) of this section. Other real
estate that is or may become part of the master planned community is only subject to other law and to any other restrictions
and limitations that appear of record.
(e) If the public offering statement conspicuously identifies the fact that the community is a master planned community, the
disclosure requirements contained in subchapter IV of this chapter apply only with respect to units that have been declared
or are being offered for sale in connection with the public offering statement and to the real estate described pursuant to
subsection (c) of this section.
(f) Limitations in this chapter on the addition of unspecified real estate do not apply to a master planned community.
(g) The period of declarant control of the association for a master planned community terminates in accordance with any conditions
specified in the declaration or otherwise at the time the declarant, in a recorded instrument and after giving written notice
to all the unit owners, voluntarily surrenders all rights to control the activities of the association.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, § 82.;
§ 81-224. Other exempt real estate arrangements.
(a) An agreement between two or more common interest communities to share the costs of real estate taxes, insurance premiums,
services, maintenance or improvements of real estate or other activities specified in their agreement or declarations does
not create a separate common interest community unless the cost sharing agreement was intended to evade the limitations of
this chapter. If the declarants of those common interest communities are affiliates, the agreement may not unreasonably allocate
the costs among those common interest communities.
(b) An agreement between an association for a common interest community and the owner of real estate that is not part of that
common interest community to share the costs of real estate taxes, insurance premiums, services, maintenance or improvements
of real estate or other activities specified in their agreement does not create a separate common interest community so long
as the assessments against the units in the common interest community are included in the periodic budget for the common interest
community and are subject to unit owner approval under § 81-324 of this title.
(c) An arrangement between 2 separately owned parcels of real estate for sharing costs associated with a common law party
wall, shared driveway or shared well does not create a common interest community.
76 Del. Laws, c. 422, § 2; 77 Del. Laws, c. 91, § 82.;
§ 81-225. Termination following catastrophe.
If substantially all the units in a common interest community have been destroyed or are uninhabitable and the available methods
for giving notice for a meeting of unit owners to consider termination under § 81-218 of this title will not likely result
in receipt of the notice, the executive board or any other interested person may commence an action in the Court of Chancery
of the State of Delaware seeking to terminate the common interest community. During the pendency of the action, the Court
may enter whatever orders it considers appropriate, including appointment of a receiver. After a hearing, the court may terminate
the common interest community or reduce its size and may enter into any other order the court considers to be in the best
interest of the unit owners and persons holding an interest in the common interest community.