Condominiums have been
popular for about the past twenty-five years. They exist at all
because of state statutes which permit the draftsman to do one thing
that was never possible before: draw a horizontal boundary line. In
Iowa that chapter is 499B.
Iowa is dotted with farms. The boundary between farms is a
line but it is also a vertical plane to the heavens.
When the Iowa
legislature adopted the Horizontal Property Act in 1966 they made a
law in Iowa that permits the lawyer who draws the legal papers
the means to divide ownership of real property by horizontal lines
as well as traditional vertical lines.
The legal paper that
does this is called the Declaration and the owner signs it and it is
recorded in the Recorder’s office like other instruments that affect
title to land. Recording the Declaration, by operation of law,
“submits” the land included in the Declaration to a “horizontal
property regime” established by Chapter 499B. That this happens at
all is because of the words used in Section 499B.3. The legal
effect of recording a properly drawn Declaration is to create “cubes
of air space” defined by the interior unfinished surfaces of the
perimeter walls, ceiling and floors. Those cubes are called units
or apartments and numbered. Thus a deed can be prepared to convey
legal title to the cube of space.
perimeter boundary of the lot or parcel which was made subject to
the horizontal property regime, everything except the cubes of air
space are called “common elements.” An example is the roof.
Another example is the lawn or yard.
The property called
common elements is owned in common. The percentage of the common
elements that pertains to any unit is spelled out in the
Declaration. A deed conveying a unit automatically includes a
conveyance of an undivided fractional interest in the common
elements in the percentage spelled out in the Declaration.
There can be limited
common elements whose use is reserved to less than all of the unit
owners in the regime. All common elements are either limited common
elements or general common elements. If the regime included more
than one building and there was a clubhouse, for example, the
clubhouse could easily be designated as a general common element.
All of the unit
owners acting together have to be the owners’ association. Whether
or not that association is incorporated depends on the draftsman for
the Declarant. The topic of the Bylaws and the subject of the
incorporation of the homeowners association are taken up on another
When a developer is
building more than one building near other buildings that are
submitted to a horizontal property regime, the question will come up
whether to make each building a separate regime or keep them part of
one big regime. I discuss that
problem under the heading of a Phased condominium.
This page was written on 04190.