January 3, 1988
Subject:
Condominium Act; N.C.G.S. Chapter 47C; Plats and Plans; Registers of Deeds
Requested By:
Robert H. Bartelt Assistant County Attorney for Cumberland County
Question:
When recording new plats and plans for units newly added to an expandable condominium, must the developer-declarant refile condominium plans previously recorded as part of the plats and plans for earlier units?
Conclusion:
No, the new plats and plans may incorporate the previously recorded condominium plans by reference if an architect or engineer certifies that the previously recorded plans accurately depict the newly added units as built.
Under the North Carolina Condominium Act, the developer may create an expandable condominium by reserving the right to add new units. G.S. 47C-2-105(4) and (8). A description of the rights so reserved must be included in the declaration creating the condominium and the declaration must be recorded in the office of the register of deeds in the county where the condominium is located. G.S. 47C-2-101, 47C-2-105(a)(8). In addition to the declaration, the developer-declarant must also record with the register of deeds plats and plans for the condominium in accordance with the provisions of G.S. 47C-2-109. The term "plats and plans" refers to the collection of site maps and condominium plans that describe the real estate made subject to the condominium and the units and other improvements as they are built. G.S. 47C-2109(a), (b) and (c).
When a developer adds new units to the condominium, thereby exercising a reserved development right, he is required by G.S. 47C-2-110(a) to record an amendment to the declaration and record new plats and plans according to G.S. 47C-2-109. Subsection (d) of G.S. 47C-2-109, however, permits the developer to
"record either new plats and plans necessary to conform to the requirements of subsections (a), (b), and (c) [of G.S. 47C-2-109] or new certifications of plats and plans previously recorded if those plats and plans otherwise conform to the requirements of those subsections." (citation in brackets added).
The evident purpose of this provision is to prevent unnecessary and repetitious filings in the records of the registers of deeds.
If the units newly added have been built according to condominium plans included as part of plats and plans recorded earlier in the history of the project, it is not necessary to record those same condominium plans again as part of the new plats and plans required to be recorded for the new units. It is sufficient that the new plats and plans incorporate the previously recorded condominium plans by specific reference to the number and page of the condominium file where the plans are recorded. A licensed architect or registered engineer must then certify that the new plats and plans, including the previously recorded condominium plans incorporated by reference, contain all the information required by G.S. 47C-2-109 and accurately depict the newly added units as built. G.S. 47C-2-109(a), 47C-2-109(b)(6).
LACY H. THORNBURG Attorney General
Thomas R. Miller Assistant Attorney General