§514A-13  Common elements.  (a)  Each
apartment shall have appurtenant thereto a common interest as expressed in the
declaration.



(b)  The common interest appurtenant to each
apartment as expressed in the declaration shall have a permanent character and shall
not be altered without the consent of all of the apartment owners affected,
expressed in an amended declaration duly recorded, except as provided in
sections 514A-11(12) and 514A-13.4.  An amendment which subdivides or
consolidates apartments and reapportions the common interest appurtenant to the
subdivided or consolidated apartment shall, to the extent provided in the
declaration, require the vote or written consent of only the apartment owners
of the subdivided or consolidated apartments, their mortgagees, and such other
percentage of apartment owners as the declaration may provide.  The common
interest shall not be separated from the apartment to which it appertains and
shall be deemed to be conveyed or encumbered with the apartment even though such
interest is not expressly mentioned or described in the conveyance or other
instrument.



(c)  The common elements shall remain undivided
and no right shall exist to partition or divide any part thereof, except as
otherwise expressed in this chapter.  Any provision to the contrary is void.



(d)  Each apartment owner may use the common
elements in accordance with the purpose for which they were intended without
hindering or encroaching upon the lawful rights of the other apartment owners,
subject to:



(1)  The right of the board of directors, upon the
approval of the owners of seventy-five per cent of the common interests, except
as provided in section 514A-13.4, to change the use of the common elements;



(2)  The right of the board of directors, on behalf of
the association of apartment owners, to lease or otherwise use for the benefit
of the association of apartment owners those common elements which are not
actually used by any of the apartment owners for an originally intended special
purpose, as determined by the board of directors; provided that, except for any
leases, licenses, or other agreements entered into for the purposes authorized
by section 514A-13.4, unless the approval of the owners of seventy-five per
cent of the common interest is obtained, any such lease shall not have a term
exceeding five years and shall contain a provision that the lease or agreement
for use may be terminated by either party thereto on not more than sixty days
written notice;



(3)  The right of the board of directors to lease or
otherwise use for the benefit of the association of apartment owners those
common elements not falling within paragraph (2), upon obtaining:



(A)  Except as provided in section 514A-13.4,
the approval of the owners of seventy-five per cent of the common elements,
including all directly affected owners and all owners of apartments to which
such common elements are appurtenant in the case of limited common elements;
and



(B)  The approval of all mortgagees of record
on apartments with respect to which owner approval is required by subparagraph
(A), if such lease or use would be in derogation of the interest of such
mortgagees; and



(4)  The exclusive use of the limited common elements
as provided in the declaration.



(e)  The operation of the property shall be
carried out as provided herein and in the declaration and the bylaws.



(f)  The apartment owners shall have the
irrevocable right, to be exercised by the board of directors, to have access to
each apartment from time to time during reasonable hours as may be necessary
for the operation of the property or for making emergency repairs therein
necessary to prevent damage to the common elements or to another apartment or
apartments.



(g)  An undivided interest in the land included
in the common elements equal to the apartment's common interest may be leased
to the apartment owner and the apartment and other common elements may be
deeded to the apartment owner with a right of removal; and, this shall not
constitute a division or partition of the common elements, or a separation of
the common interest from the apartment to which it appertains; nor shall any
such deed be construed as conveying title to the land included in the common
elements.



(h)  Lobby areas, swimming pools, recreation
areas, saunas, storage areas, hallways, trash chutes, laundry chutes, and other
similar areas not located inside apartments intended for residential use or the
conduct of a business shall constitute common elements unless designated as
limited common elements by the declaration. [L 1977, c 98, pt of §2; am L 1984,
c 56, §1, c 109, §3, and c 112, §3; am L 2004, c 72, §1]



 



Case Notes



 



  Condominium owner has duty to warn lessee of a known
hazardous condition in the condominium's common area.  69 H. 530, 750 P.2d 929.



  Conversion of a common element to a limited common element
required the consent of all the apartment owners.  70 H. 469, 776 P.2d 393.