LAND USE AND PLANNING

Planned Communities • Condominium • General Assessments• Declaration of Covenants

Turnberry Mews Condo. Ass’n, Inc. v. Jams Properties, LLC, PICS Case No. 14-0108 (C.P. Northampton Jan. 16, 2014) Beltrami, J. (8 pages).

Defendant was obligated to pay annual general assessments due under a condominium’s declaration of covenants, even though his units within the condominium community were not yet developed, because the declaration of covenants did not distinguish between constructed and unconstructed units. Plaintiff’s petition granted.

Plaintiff, Turnberry Mews Condominium Association Inc., was the owners association for the Turnberry Mews condominium community in Bethlehem. Turnberry Mews was subject to a “Declaration of Covenants, Conditions and Restrictions” dated Oct. 24, 2005.

By sheriff’s deed, defendant, Jams Profits LLC, became the owner of nine units within the condominium community. Defendant’s real estate consisted of nine vacant lots. These lots were developed only with infrastructure such as paved streets and concrete curbing.

In 2013, plaintiff filed this lawsuit against defendant seeking $41,409 for unpaid annual general assessments, late fees and attorney fees allegedly due under the Declaration. Defendant argued in response that because his lots were undeveloped, there were no annual general assessments due.

Court of Common Pleas considered plaintiff’s petition for ancillary relief in the form of a declaratory judgment pursuant to Pa.R.Civ.P. 1602. The court noted that the Declaration was subject to Pennsylvania’s Uniform Condominium Act.

Under the act, “common expenses shall be assessed against all the units in accordance with the common expense liability allocated to each unit.” The act’s definition of a unit does not differentiate between condominium lots with constructed buildings and vacant lots.

Nevertheless, the act permits a declaration to define terms differently than those terms are defined within the act, the court observed. The subject Declaration did not distinguish between unconstructed and constructed units.

Rather, like §3103 of the act, §1.32 of the Declaration defined a “Unit” as that “part of the condominium designated and intended for independent ownership and use.” Defendant accepted the deed to the nine lots; thus, he was the sole recorded “owner” of the title to the surface of the lots.

Section 5.4 of the Declaration stated that “each Owner by acceptance of a deed of real estate within the Property is deemed to covenant and agree to pay to the Association” assessments, including annual general assessments, outlined in §§5.4 through 5.13.

According to §5.8 of the Declaration, “[t]he annual assessments shall commence on the date that a Unit is conveyed to an Owner.” As such, the court ruled that plaintiff was entitled to a declaration that defendant was obligated to pay assessments from the date he took title to the nine units within the condominium.