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Law Revision Commission Analysis of Connecticut Validating Acts - SECTION 2  

SECTION 2. Validating certain declarations, deeds, and development rights with respect to common interest communities.

Section 2 of the 1997 validating act validates certain declarations, deeds and development rights with respect to common interest communities. Subsections (a) and (b) of the section concern "old condominiums" that were created under and are governed by chapter 825 of the General Statutes, the "Condominium Act of 1976". Subsections (c) and (d) concern common interest communities governed under chapter 828, the Common Interest Ownership Act (CIOA).

Under chapter 828, common interest communities include planned communities and cooperatives as well as condominiums. For that reason, the heading of section 2 of the validating act, "Condominiums", is under-inclusive.

Subsection (a). Validating declarations and instruments under chapter 825.

Subsection (a) validates declarations under chapter 825 and instruments waiving the provisions of chapter 825 under the circumstances set out in the subdivisions that are analyzed below. However, condominiums created on or after January 1, 1984 are governed by chapter 828, the Common Interest Ownership Act, and are expressly not governed by chapter 825. See section 47-215. Only condominiums created before January 1, 1984 may be governed by chapter 825, the "old condominium act". The declaration for those condominiums will already have been filed. If the declaration was defective in accordance with the provisions of this subsection, it will have been validated by the 1997 validating act and by the other validating acts adopted after January 1984 and before 1997. In short, the provisions of subsection (a) are no longer necessary to validate a declaration because any error that it purports to validate has already been validated.

The provisions of this subsection might apply to amendments to an old declaration if the condominium is still governed by chapter 825, and to any instrument waiving provisions of the chapter.

Subdivision (1). This subdivision validates the declaration or instrument if "[s]aid declaration or instrument was attested by one witness only or by no witnesses."

Chapter 825 only contains references to "execution" of the declaration by the declarant and does not address the need for witnesses. However recordation of the declaration is a "conveyance" prescribing rights with respect to property and is subject to section 47-5, which requires all conveyances of land to be in writing, subscribed, acknowledged, and attested.

If there is no witness, or only one witness, the declaration is validated by this subdivision.

History and Comment: This provision dates back to section 24(a) of the 1973 act, Special Act 73-113. The validation of a declaration "attested by one witness only or by no witnesses" parallels the analogous validation provision for conveyances generally. See section 3(3) of the 97 act. Any such provision should be validated after a period of limitation within which the instrument could be contested for its failure to conform to conveyancing requirements.

Recommendation: Proposed legislation as set out in section 4(a)(2) of the Commission bill would self-validate such a defect after a period of limitations. See comments to section 4 below.

Subdivision (2). This subdivision validates the declaration or instrument if it "was executed only by the owners of the fee and not by the owners of other interests in the land."

Why this validation provision is required is unclear. This section validates any possible invalidity arising from the fact that a holder of an interest in the property other than the fee owner did not execute the document.

History and Comment: This provision dates from section 24(b) of the 1973 act.

Recommendation: See comment to subdivision 1 above. Because this provision addresses only old condominiums and is unnecessary even for that limited purpose, it is not addressed by the Commission bill. Any such defective declaration, as noted above, will already have been validated by prior validating acts.

Subdivision (3). This subdivision validates the declaration or instrument where it "was executed only by the buyer under an executory purchase or option contract with the owner of the fee and the buyer subsequently obtained title to the fee." In other words, the execution is valid where the documents were only executed by the buyer, provided the buyer afterwards obtains title.

History and Comment: This provision dates back to section 2(a)(3) of the 1985 act, Special Act 85-47. It appears to deal with an anomalous case where a buyer executed the declaration before obtaining title. Because such a declaration or instrument would be out of the chain of title, there are serious doubts as to the effectiveness of such a validating provision against persons acting in reliance on the land records.

Recommendation: Declarations under the old condominium law no longer need validations and this provision seems intended to apply only to original declarations that will already have been validated. Because its validity is questionable and it has such limited application, it is not addressed by the Commission bill.

Subdivision (4). This subdivision validates the declaration or instrument if it "fails to contain a reference to a survey". Such a survey reference is required for the declaration by section 47-70(a)(2). (It is not clear that such a requirement exists for an instrument waiving the provisions of the chapter. See section 47-88.)

History and Comment: This provision dates back to section 24(c) of the 1973 act.

Recommendation: Declarations under the old condominium law no longer need validations. This provision, which governs a requirement for the declaration, is therefore unnecessary since such a declaration will have been validated by a prior validating act.

Subdivision (5). This subdivision validates the declaration if "[a] survey was not recorded simultaneously with the declaration or was not certified substantially correct by a licensed surveyor or engineer". Subsection (d) of section 47-71 requires that a survey be filed simultaneously or prior to the recording of the original declaration. The review did not disclose a provision under chapter 825 requiring that the survey be certified as substantially correct by a licensed surveyor or engineer. Section 47-228 concerning Common Interest Communities requires certification of a survey by a licensed surveyor, architect, engineer or landscape architect but would not apply to chapter 825 declarations. See section 47-214.

History and Comment: This provision dates back to section 24(d) of the 1973 act.

Recommendation: As noted above, declarations under the old condominium law no longer need to be validated. This provision, which validates old declarations, is therefore unnecessary.

Subdivision (6). This subdivision validates the declaration or instrument if "[s]aid declaration or instrument does not contain the name of the building". The review did not disclose any requirement that the building have a name.

History and Comment: This provision dates back to section 24(e) of the 1973 act.

Recommendation: Declarations under the old condominium law no longer need validations even if such a requirement were disclosed. This provision is therefore not addressed by the Commission bill.

Subdivision (7). This subdivision validates the declaration or instrument if it "does not contain a reference to the file number of the floor plans of the building affected thereby". While subsection (e) of section 47-71 sets out requirements for the filing of floor plans, the review did not disclose a requirement that the declaration contain "a reference to the file number of the floor plans."

History and Comment: This provision dates back to section 24(f) of the 1973 act.

Recommendation: Declarations under the old condominium law no longer need validations and this provision is therefore not addressed by the Commission bill.

Subdivision (8). This subdivision validates the declaration or instrument if "[t]he floor plans filed in the office of the town clerk do not contain a reference to the original declaration or the verified statement of a registered architect or licensed professional engineer". Subsection (e) of section 47-71 sets out the requirement for floor plans which "must state the name of the condominium and shall bear a verified statement of a registered architect or licensed professional engineer certifying that the plans are… accurate…" This subdivision validates a declaration where there was a failure to comply with those section 47-71(e) requirements.

History and Comment: This provision dates back to section 24(g) of the 1973 act.

Recommendation: Declarations under the old condominium law no longer need validations. The provision is not addressed by the Commission bill.

Subsection (b). Validating deeds and other conveyancing instruments of interests under chapter 825.

This subsection validates deeds and other conveyancing instruments of chapter 825 "old condominium" interests "which deeds or instruments contain a description of the building and land or other property in which the same is located, but which fail "to include any one or more of the particulars required by statute with respect to the description of a condominium unit…"

Section 47-72 sets out the statutory requirements for conveyance of title to a condominium unit. Deeds containing an adequate description but failing to strictly comply with those requirements are validated by subsection (b).

However, no new chapter 825 condominium interests are being created, and while condominiums created under those laws still exist, section 47-223 of the Common Interest Ownership Act now generally governs the requirements for description of the unit with respect to old condominiums. See section 47-216. Condominiums subject to the Common Interest Ownership Act are subject to the provisions of section 47-222(d) and 47-223 which validate title notwithstanding certain insubstantial defects in the declaration and which limit the requirements for a description.

History and Comment: This provision dates back to section 24(g) of the 1973 act.

Recommendation: Title examiners on the Commission subcommittee advised that no validating provision was necessary.

Subsection (c). Validating certain declarations and amendments thereto under chapter 828, the Common Interest Ownership Act.

Subsection (c) validates declarations, and amendments thereto, under chapter 828 in the following cases:

Subdivision (1). This subdivision validates a declaration or amendment which fails "to contain any provision, statement or information required by statute to be included in such declaration or amendment."

Declaration requirements are set out generally in section 47-224. However, the extremely broad language of the subdivision (1) validating provision appears, on its face, to validate declarations that otherwise lack legal sufficiency. For example, a declaration that otherwise lacks a legally sufficient description of the real property cannot be validated. Moreover, the Common Interest Ownership Act already contains a provision, section 47-222(d), that states:

"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."

Thus, the broader validating provision of subdivision (1) is not necessary or appropriate.

History and Comment: This provision dates back to section 2(c)(1) of the 1993 act, Special Act 93-17. As noted above, its blanket validating provisions are too broad. In particular, the section purports to validate provisions otherwise lacking in legal sufficiency. Such a provision is ineffective as to intervening interests and, to the extent that the legal intent of the defective provision cannot be determined, such a prospective validation would also be ineffective. Moreover, the use of such a blanket provision to validate unknown substantive defects is not sound policy.

Recommendation: The self-validating provisions of section 47-222, together with the conveyancing recommendations proposed in section 4 of the Commission bill adequately address the need to address conveyancing defects.

Subdivision (2). This subdivision validates a declaration or amendment that fails "to state the formula or formulas used to establish allocation of interests among units, provided such declaration or amendment shall set forth an allocation of such interests among all units declared in the declaration and all amendments thereto". Such an allocation of interests is required under section 47-226. A statement of the formula is required by subsection (b).

History and Comment: This provision dates back to section 2(c)(2) of the 1993 act.

Where the actual allocation is stated, failure to state the formula for the allocation is an insubstantial failure already covered by section 47-222. To obtain the formula, one could merely parrot the actual allocation or devise a formula reflecting the allocated interests. This provision is, therefore, unnecessary.

Recommendation: This provision is unnecessary and is not addressed by the Commission bill.

Subdivision (3). This subdivision validates a declaration or amendment where "[t]he allocation of interests among units set forth in the declaration or amendment shall not in the aggregate equal one hundred per cent of all such interest, provided the aggregate of such allocations of interest shall equal at least ninety-nine per cent of all such interests".

Subsection (e) of section 47-226 requires that the sum of the undivided interests must equal one hundred percent except for minor variations due to rounding. The validating act validates a sum of ninety-nine percent in all cases.

History and Comment: This provision dates back to section 2(c)(3) of the 1993 act.

If the aggregate of the allocations equal ninety-nine percent rather than one hundred percent, the error is an insubstantial failure already covered by section 47-222 and by section 47-226(e) which allows "minor variations due to rounding". Each allocated percent interest is merely worth a fraction (1/99th) of a percent more than stated. Since the error is covered, this provision is unnecessary.

Recommendation: This provision is unnecessary and is not addressed by the Commission bill.

Subdivision (4). This subdivision validates a declaration or amendment where "[a]ny survey or plans required to be recorded or filed as part of the declaration or amendment were not recorded or filed simultaneously with the declaration or amendment, provided such survey or plans were filed or recorded subsequent to the recording of such declaration or amendment and before the effective date of this act and were indexed in a manner which would lead to their discovery."

Surveys and plans are required generally by section 47-228 (but are not required for cooperatives.) They are part of the declaration, section 47-228, and therefore recording at a separate time from the rest of the declaration raises issues as to the sufficiency of the declaration. Under section 47-220(a), a common interest community is created, except with respect to a cooperative, only by recording a declaration executed in the same manner as a deed. Arguably the common interest community is not created until recordation of the full declaration including required surveys and plans. This subdivision validates over any such issue if the surveys and plans are actually recorded and discoverable.

History and Comment: This provision dates back to section 2(c)(4) of the 1993 act. It addresses a legitimate, potentially substantive, defect that may not be covered by section 47-222, which covers insubstantial defects.

Recommendation: This defect should be addressed directly in the General Statutes by a revision of the conveyancing provisions rather than through a periodic validating act. Section 47-222 should be amended to specify that the declaration is effective if the required survey or plans, as identified in the declaration, are, in fact, recorded even if they are not recorded simultaneously.

Such a provision is set out in section 3 of the Commission bill.

Subsection (d). Validating certain special declarant rights.

This provision validates certain special declarant rights transferred through a foreclosure or deed in lieu of foreclosure. Under section 47-246(c), prior to its amendment in 1995, a person foreclosing CIOA property was required to request inclusion of the special declarant rights to succeed to that interest. This subsection allowed the foreclosing party to succeed to those special declarant rights "notwithstanding the failure or inadvertence of such person to have requested the same in accordance with said subsection (c) of section 47-246." (In other words, the validating act reversed the statutory rule with respect to foreclosures that were covered by that act.)

In 1995, pursuant to the recommendation of the Law Revision Commission, the legislature amended the underlying rule so that, under section 47-246(c), the foreclosing party no longer has to request transfer of the special declarant rights. See Public Act 95-187. Subsection (c)(2) now expressly states that the foreclosure, unless otherwise provided, "operates to vest absolute title to the development rights related to the property being foreclosed…"

In short, this validating provision is no longer needed because the underlying statutory provision has been amended.

History and Comment: This provision dates back to section 2(d) of the 1993 act.

Recommendation: Because the issue raised by this provision was addressed by Public Act 95-187, the provision does not need to be further addressed in the Commission bill.

Connecticut Validating Acts - Brief History and Legal Issues

SECTION 1. Validating Assessment Lists, Taxes, Tax Liens, Tax Rates, and Other Actions Related to Tax Levies.

SECTION 2. Validating certain declarations, deeds, and development rights with respect to common interest communities.

SECTIONS 3-10.

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