This chapter may be cited as the Horizontal Property Regimes Act.
An action to recover a judgment for unpaid common expenses is maintainable without foreclosing or waiving the lien securing it.
Each apartment owner shall have exclusive ownership and possession of the owner's apartment, but any apartment may be owned by husband and wife as tenants by the entirety or may be commonly owned by more than one person.
The recording office shall prescribe the style, size, form, and quality of floor plans filed and recorded under AS 34.07.030 .
Each apartment, together with its undivided interest in the common areas and facilities is not considered an intangible or a security or any interest therein but for all purposes constitutes and is classified as real property under the provisions of this chapter.
Service of process on two or more apartment owners in an action relating to the common areas and facilities of more than one apartment may be made on the person designated in the declaration to receive service of process.
The common profits of the property shall be distributed among and the common expenses shall be charged to the apartment owners according to the percentage of the undivided interest in the common areas and facilities.
Each apartment owner has a nonexclusive easement for, and may use the common areas and facilities in accordance with the purpose for which they were intended without hindering or encroaching upon the lawful right of the other apartment owners.
The declaration, an amendment to it, or any instrument by which the property may be removed from this chapter and every instrument affecting the property or an apartment may be recorded.
Article 02. APARTMENT OWNERSHIP AND CONVEYANCING
Local ordinances, resolutions, or laws relating to zoning shall be construed to treat like structures, lots, or parcels in like manner regardless of whether or not the ownership is divided by sale of apartments under this chapter rather than by lease of apartments.
Article 07. GENERAL PROVISIONS
Waiver by an apartment owner of the use or enjoyment of any of the common areas and facilities or abandonment of the apartment does not exempt the owner from liability for contribution towards the common expenses of common areas or facilities.
The survey map and floor plans are subject to the provisions of state and local laws relating to plats, planning and plans, subdivisions, and zoning, if the laws are not inconsistent with the purposes of this chapter and if the building is or is to be located on land that is not owned in common.
An action for partition may be started by an apartment owner if the apartment owners fail to act under AS 34.07.300 after the damage to or destruction of the property.
A grantee is entitled to a statement from the manager or board of directors setting out the amount of the unpaid assessments against the grantor. The grantee is not liable for, nor is the apartment conveyed subject to a lien for, any unpaid assessments against the grantor in excess of the amount in the statement.
An apartment owner may not do work that will jeopardize the soundness or safety of the property, reduce its value, or impair any easement or hereditament without the unanimous consent of all of the other apartment owners being first obtained.
(a) Each apartment owner has the common right to a share, with other apartment owners, in the common areas and facilities.
(b) Each apartment owner is entitled to an undivided interest in the common areas and facilities in the percentage expressed in the declaration. The percentage is computed by taking as a basis the value of the apartment in relation to the value of the property.
The percentage of the undivided interest in the common areas and facilities may not be separated from the apartment to which it appertains even though the interest is not expressly mentioned or described in the conveyance or other instrument.
(a) The manager or board of directors shall keep detailed and accurate records in chronological order of the receipts and expenditures affecting the common areas and facilities, specifying and itemizing the maintenance and repair expenses of the common areas and facilities and any other expenses incurred.
(b) All books and records shall be kept in accordance with good accounting procedures.
A sum assessed by the association of apartment owners but unpaid for the share of the common expenses chargeable to an apartment constitutes a lien on the apartment prior to all other liens except
(1) tax liens on the apartment in favor of an assessing unit or special district; and
(2) sums unpaid on deeds of trust or mortgages of record.
The receipts and expenditures records and vouchers authorizing payment for maintenance and repair of common areas and facilities required to be kept by AS 34.07.280 shall be available for examination by an apartment owner at convenient hours of weekdays.
Article 04. DAMAGE OR DESTRUCTION OF PROPERTY
(a) Upon removal of the property from the provisions of this chapter, the property is owned in common by the apartment owners.
(b) The undivided interest in the property owned in common that appertains to each apartment owner is the percentage of the undivided interest previously owned by the owners in the common areas and facilities.
In a voluntary conveyance the grantee of an apartment is jointly and severally liable with the grantor for all unpaid assessments against the latter for the grantor's share of the common expenses up to the time of the grantor's conveyance, without prejudice to the grantee's right to recover from the grantor the amounts paid on the assessments by the grantee.
The removal of property under AS 34.07.330 - 34.07.340 does not bar the subsequent resubmission of the property to the provisions of this chapter.
Article 06. MISCELLANEOUS PROVISIONS
(a) An apartment owner, a tenant, or their employees, or any other person that may in any manner use the property or any part of it under this chapter are subject to the provisions of this chapter, and to the declaration and bylaws of the association of apartment owners adopted under this chapter.
(b) An agreement, decision, and determination made by the association of apartment owners under this chapter, the declaration, or the bylaws and in accordance with the voting percentages established under this chapter, declaration, or the bylaws is binding on all apartment owners.
All of the apartment owners may remove a property from the provisions of this chapter by a recorded instrument to that effect if the mortgagees, trustees, and holders of all liens affecting any of the apartments consent or agree, in either case by a recorded instrument, that their mortgages, deeds of trust, and liens are transferred to the percentage of the undivided interest of the apartment owner in the property under AS 34.07.340 .
(a) The percentage of the undivided interest of each apartment owner in the common areas and facilities as expressed in the declaration may not be altered except in accordance with procedures set out in the bylaws and by amending the declaration.
(b) The bylaws must provide for a periodic reappraisal of the apartments and the common areas and facilities together with a recomputation, if required, of the percentage of the undivided interest of each apartment owner in the common areas and facilities.
(a) An apartment and its undivided interest in the common areas and facilities are a parcel and it is subject to separate assessments and taxation by each assessing unit for all types of taxes authorized by law including special ad valorem levies and special assessments. A building, property, or any of the common areas and facilities may not be a security or a parcel for any purpose.
(b) Nothing in this chapter detracts from or limits the powers and duties of any assessing or taxing unit or official otherwise granted or imposed by law or regulation.
(a) This chapter is applicable only to property, the sole owner or all of the owners of which submit it to the horizontal property regime by executing and recording a declaration under (c) of this section and AS 34.07.020.
(b) A declaration or any amendment to the declaration is not valid unless recorded.
(c) The declaration shall be recorded in the recording district in which the property is located.
Each apartment owner shall comply strictly with the bylaws and with the adopted administrative regulations, as either may be lawfully amended from time to time, and with the covenants, conditions, and restrictions set out in the declaration or in the deed to the apartment. Failure to comply with any of the foregoing is ground for an action to recover sums due for damages or injunctive relief, or both, maintainable by the manager or board of directors on behalf of the association of apartment owners or by a particularly aggrieved apartment owner.
If a mortgagee of a recorded mortgage or a trustee of a recorded deed of trust or other purchaser of an apartment obtains possession of the apartment as a result of foreclosure of the mortgage or deed of trust, the possessor, and successors and assigns of the possessor are not liable for the share of the common expenses or assessments by the association of apartment owners chargeable to the apartment that became due before possession. This unpaid share of common expenses or assessments is a common expense collectable from all of the apartment owners including the possessor and successors and assigns of the possessor.
A sum assessed by the association of apartment owners but unpaid for the share of the common expenses chargeable to any apartment may be enforced by the manager or board of directors acting on behalf of the apartment owners, upon first obtaining the approval of a majority of all apartment owners, in the following manner:
(1) 10 days' notice shall be given the delinquent apartment owner stating that unless the assessment is paid within 10 days any or all utility services will be immediately severed and shall remain severed until the assessment is paid; or
(2) by the lawful method of enforcement as may be provided in the declaration or bylaws.
(a) The net proceeds of a sale of the property conducted in an action for partition started under AS 34.07.310 shall be considered as one fund.
(b) The fund shall be divided into separate shares, one for each apartment owner in a percentage equal to the percentage of undivided interest that the owner has in the property.
(c) After first paying out of the respective share of each apartment owner, all mortgages, deeds of trust, and liens on the undivided interest in the property owned by the apartment owner, the balance remaining in each share shall be distributed to each apartment owner respectively.
Article 05. REMOVAL OF PROPERTY FROM THE HORIZONTAL PROPERTY REGIME
(a) The common areas and facilities shall remain undivided and an apartment owner or other person may not bring an action for partition or division of any part, unless the property has been removed from the provisions of this chapter under AS 34.07.300 - 34.07.340. Any covenant to the contrary is void.
(b) Nothing in this chapter limits the right of partition by a husband and wife owning as tenants by the entirety or by the owners in common of one or more of the apartments as to the ownership of the apartment or apartments.
(a) The necessary work of maintenance, repair, and replacement of the common areas and facilities and the making of an addition or improvement may be carried out only as provided in this chapter and in the bylaws.
(b) The association of apartment owners has the irrevocable right, to be exercised by the manager or board of directors, to have access to each apartment from time to time during reasonable hours as may be necessary for
(1) the maintenance, repair, or replacement of any of the common areas and facilities in it, or accessible from it; or
(2) making emergency repairs in the apartment necessary to prevent damage to the common areas and facilities or to another apartment.
(a) A manager or board of directors, if required by the declaration, bylaws, or by a majority of the apartment owners, or if requested by a mortgagee or trustee having a mortgage or a deed of trust of record covering an apartment, shall obtain insurance for the property against loss or damage by fire and other hazards under the terms and amounts required or requested.
(b) The insurance coverage shall be written on the property in the name of the manager or of the board of directors of the association of apartment owners, as trustee for each of the apartment owners in the percentages established by the declaration.
(c) Premiums for insurance coverage secured under (a) of this section are a common expense.
(d) Provision for insurance under this section does not prejudice the right of an apartment owner to insure the owner's apartment or the personal contents in it.
(a) A common expense lien under AS 34.07.230 may be foreclosed in a civil action brought by the manager or board of directors, acting on behalf of the apartment owners, in the same manner as a lien on, or mortgage of or a deed or trust of real property.
(b) In the event of foreclosure, the apartment owner shall be required to pay a reasonable rental for the apartment, if provided for in the bylaws, and the plaintiff in the foreclosure may appoint a receiver to collect it.
(c) The manager or board of directors, acting on behalf of the apartment owners may, unless prohibited by the declaration, bid in the apartment at the foreclosure sale, and may acquire and hold, lease, mortgage, and convey the apartment.
If within 60 days of damage or destruction of all or part of the property it is not determined by a majority of all apartment owners to repair, reconstruct, or rebuild in accordance with the original plan, or by a unanimous vote of all apartment owners to do otherwise, then
(1) the property shall be owned in common by the apartment owners;
(2) the undivided interest in the property owned in common that appertains to each apartment owner shall be the percentage of undivided interest previously owned by that owner in the common areas and facilities; and
(3) mortgages, deeds of trust, or liens affecting any of the apartments are transferred in accordance with the existing priorities to the percentage of the undivided interest of the apartment owner in the property.
(a) Without limiting the rights of an apartment owner, a cause of action may be brought by the manager or board of directors, in either case in the discretion of the board of directors, on behalf of two or more apartment owners, as their respective interests may appear, with respect to a cause of action relating to the common areas and facilities of more than one apartment.
(b) A cause of action relating to the common areas and facilities for damages arising out of tortious conduct may be maintained only against the association of apartment owners and a judgment lien or other charge is a common expense. The judgment lien or charge is removed from an apartment and its percentage of undivided interest in the common areas and facilities upon payment by the respective owner of the proportionate share based on the percentage of undivided interest owned by that owner.
(a) If the floor plans do not include a verified statement by a registered architect or registered professional engineer that the plans fully and accurately depict the layout, apartment numbers, and dimensions of the apartments as built, there shall be recorded before the first conveyance of an apartment an amendment to the declaration to which shall be attached a verified statement of a registered architect certifying that the plans previously filed and recorded or being filed and recorded simultaneously with the amendment fully and accurately depict the layout, apartment number, and dimensions of the apartments as built.
(b) The plans must each contain a reference to the date of recording of the declaration and the volume, page, and receiving number of the recorded declaration.
(a) If a lien against two or more apartments becomes effective, the apartment owners of the separate apartments may remove their apartments and the percentage of undivided interest in the common areas and facilities appurtenant to the apartments from the lien by payment of the fractional or proportional amounts attributable to each of the apartments affected. The individual payments are computed by reference to the percentage appearing on the declaration.
(b) After payment, discharge, or satisfaction of the lien, the apartment and the percentage of undivided interest in the common areas and facilities appurtenant to it are free and clear of the liens paid, satisfied, or discharged. The partial payment, satisfaction, or discharge does not prevent the lienor from proceeding to enforce the lienor's rights against any apartment and the percentage of undivided interest in the common areas and facilities appurtenant to it not paid, satisfied, or discharged.
An apartment deed must include
(1) a description of the land as provided in AS 34.07.020 , or the post office address of the property, and in either case, the date of recording of the declaration and its volume, page, and receiving number;
(2) the apartment number of the apartment in the declaration and any other data necessary for its proper identification;
(3) a statement of the use for which the apartment is intended and any restrictions on its use;
(4) the percentage of undivided interest appertaining to the apartment, the common areas and facilities and limited common areas and facilities appertaining to it, if any; and
(5) any further details that the grantor and grantee may set out consistent with the declaration and with this chapter.
Article 03. COMMON AREAS AND FACILITIES OWNED WITH APARTMENTS
There shall be filed and recorded simultaneously with the recording of the declaration in the recording district in which the property is located
(1) a survey map of the surface of the land submitted under the provisions of this chapter showing the location of the building on it;
(2) a set of the floor plans of the building showing the layout, apartment numbers and dimensions of the apartments in sufficient detail to identify and locate each apartment with certainty, stating the name of the building or that it has no name, and bearing the verified statement of a registered architect or registered professional engineer certifying that it is an accurate copy of portions of the plans of the building as filed with and approved by the governmental entity having jurisdiction over the approval or issuance of permits for the construction of the building, or a statement that no approval or permit is required.
(a) At the time of the first conveyance of each apartment, every mortgage, deed of trust, lien, or other encumbrance affecting the apartment, including the percentage of undivided interest of the apartment in the common areas and facilities, shall be paid and satisfied of record, or the apartment being conveyed and its percentage of undivided interest in the common areas and facilities shall be released by a recorded partial release.
(b) A partial waiver of lien claims created under AS 34.35.050 - 34.35.120 (mechanics liens) on unsold apartments may be obtained by following the procedures specified in AS 34.35.119 .
(a) After the recording of the declaration as provided in this chapter, and while the property remains subject to this chapter, a lien may not arise or be effective against the property. During this period, liens or encumbrances may arise or be created only against each apartment and the percentage of undivided interest in the common areas and facilities appurtenant to the apartment in the same manner and under the same conditions as liens or encumbrances may arise or be created upon or against any other separate parcel of real property subject to individual ownership. However, labor performed or materials furnished with the consent of or at the request of the owner of any apartment, or the owner's agent, contractor, or subcontractor, may not be the basis for the filing of a lien against any other apartment or any other property of any other apartment owner not expressly consenting to or requesting the same. However, express consent is considered given by an apartment owner in the case of emergency repairs.
(b) Labor performed or materials furnished for the common areas and facilities, if authorized as provided in this chapter, or by the declaration or bylaws, or by the association of apartment owners, the manager, or the board of directors, is considered performed or furnished with the express consent of each apartment owner and may be the basis for the filing of a lien against each of the apartments and is subject to the provisions of AS 34.07.420 .
The declaration must contain
(1) a description of the land on which the building and improvement are or are to be located;
(2) a description of the building, stating the number of stories and basements, the number of apartments and the principal materials of which it is or is to be constructed;
(3) the apartment number of each apartment, and a statement of its location, approximate area, number of rooms, and immediate common areas to which it has access, and any other data necessary for its proper identification;
(4) a description of the common areas and facilities;
(5) a description of the limited common areas and facilities, if any, stating to which apartment their use is reserved;
(6) the value of the property and of each apartment, and the percentage of undivided interest in the common areas and facilities appertaining to each apartment and its owner for all purposes, including voting;
(7) a statement of the purposes for which the building and each of the apartments are intended and restricted as to their use;
(8) the name of a person to receive service of process in the cases provided for in this chapter, together with the address of the person's residence or place of business, which shall be within the city or recording district in which the building is located;
(9) a provision as to the percentage of votes by the apartment owners that determines whether or not to rebuild, repair, restore, or sell the property in the event of the damage or the destruction of all or a part of the property;
(10) a provision authorizing and establishing procedures for the subdividing or combining of an apartment or apartments, common areas and facilities or limited common areas and facilities, through the use of a metes and bounds description or otherwise;
(11) a provision requiring the adoption of bylaws for the administration of the property or for other purposes not inconsistent with this chapter that may include that the property be administered by a board of directors elected from among the apartment owners, or by a manager, or by a managing agent, or otherwise, and the procedures for the adoption and amendment of the bylaws;
(12) any further details in connection with the property that the person executing the declaration may consider desirable to set out consistent with this chapter;
(13) the method by which the declaration may be amended, consistent with this chapter, except that not less than 60 percent of the apartment owners may consent to any amendment; and
(14) a reference to the file number and recording information for the floor plans of the building affected that are required to be filed and recorded simultaneously with the declaration under AS 34.07.030 .
In this chapter, unless the context otherwise requires,
(1) 'apartment' means a part of the property intended for any type of independent use, including one or more rooms or enclosed spaces located on one or more floors, or part or parts of the floors, in a building, regardless of whether or not it is destined for a residence, an office, the operation of any industry or business, or for any other use not prohibited by law, and that has a direct exit to a public street or highway, or to a common area leading to the street or highway; and the boundaries of an apartment are the interior surfaces of the perimeter walls, floors, ceilings, windows, and doors thereof, and the apartment includes both the portions of the building so described and the airspace so encompassed; and interpreting declarations, deeds, and plans, the existing physical boundaries of the apartment as originally constructed or as reconstructed in substantial accordance with the original plans shall be conclusively presumed to be its boundaries rather than the metes and bounds expressed or depicted in the declaration, deed, or plan, regardless of settling or lateral movement of the building and regardless of minor variance between boundaries shown in the declaration, deed, or plan and those of apartments in the building;
(2) 'apartment number' means the number, letter, or a combination of them, designating the apartment in the recorded declaration;
(3) 'apartment owner' means the person or persons owning an apartment in fee simple absolute or qualified, or by way of a periodic estate, or in any other manner in which real property may be owned in this state, together with an undivided interest in a like estate of the common areas and facilities in the percentage specified and established in the recorded declaration;
(4) 'association of apartment owners' means all of the apartment owners acting as a group in accordance with the bylaws and with the recorded declaration;
(5) 'building' means a building, containing two or more apartments, or two or more buildings each containing two or more apartments, and comprising a part of the property;
(6) 'common areas and facilities' unless otherwise provided in the recorded declaration includes
(A) the land on which the building is located;
(B) the foundations, columns, girders, beams, supports, main walls, roofs, halls, corridors, lobbies, stairs, stairways, fire escapes, and entrances and exits of the building;
(C) the basements, yards, gardens, parking areas, and storage spaces;
(D) the premises for the lodging of janitors or persons in charge of the property;
(E) the installations of central services such as power, light, gas, hot and cold water, heating, refrigeration, air conditioning, and incinerating;
(F) the elevators, tanks, pumps, motors, fans, compressors, ducts, and in general all apparatus and installations existing for common use;
(G) the community and commercial facilities as provided for in the recorded declaration;
(H) all other parts of the property necessary or convenient to its existence, maintenance, and safety, or normally in common use;
(7) 'common expenses' includes
(A) all sums lawfully assessed against the apartment owners by the association of apartment owners;
(B) expenses of administration, maintenance, repair, or replacement of the common areas and facilities;
(C) expenses agreed upon as common expenses by the association of apartment owners;
(D) expenses declared common expenses by the provisions of this chapter, or by the recorded declaration, or by the bylaws;
(8) 'common profits' means the balance of all income, rents, profits, and revenues from the common areas and facilities remaining after the deduction of the common expenses;
(9) 'declaration' means the instrument by which the property is submitted to provisions of this chapter and as it may be, from time to time amended;
(10) 'land' means the material of the earth, whatever may be the ingredients of which it is composed, whether soil, rock, or other substance, and includes free or occupied space for an indefinite distance upwards as well as downwards, subject to limitations upon the use of airspace imposed, and rights in the use of the airspace granted by the laws of the state or of the United States;
(11) 'limited common areas and facilities' includes those common areas and facilities designated in the recorded declaration, as reserved for use of certain apartment or apartments to the exclusion of the other apartments;
(12) 'majority' or 'majority of apartment owners' means the apartment owners with 51 percent or more of the votes in accordance with the percentages assigned in the recorded declaration to the apartments for voting purposes;
(13) 'property' means the land, the building, all its improvements and structures, all owned in fee simple absolute or qualified or by way of a periodic estate, or in any other manner in which real property may be owned in the state, and all easements, rights, and appurtenances belonging to it, none of which shall be considered as a security or security interest, and all articles of personalty intended for use in connection with it, that have been or are intended to be submitted to this chapter.
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