When a North Carolina condominium developer adds new units to an expandable condominium, do the original plans for previously built units have to be refiled with the register of deeds?

Plain-English summary

The Assistant County Attorney for Cumberland County asked the AG a practical recording question that came up when a condominium developer added a new phase to an existing expandable condominium. Did the developer have to re-file all the previously recorded plats and plans for the older units, or could the new filing simply incorporate the older filings by reference?

Assistant Attorney General Thomas R. Miller answered: incorporation by reference works, with an engineer or architect certification.

The North Carolina Condominium Act (Chapter 47C) lets a developer create an "expandable" condominium by reserving in the original declaration the right to add new units later. § 47C-2-105(4) and (8) authorize that reservation, and the declaration must be recorded in the register of deeds in the county where the condominium is located.

Along with the declaration, the developer must record "plats and plans" under § 47C-2-109. "Plats and plans" is a defined term covering site maps showing the real estate subject to the condominium plus condominium plans showing the buildings and units as built. The plats and plans are how prospective unit buyers can see what they are buying, where the unit boundaries are, and what common elements exist. Title insurers and lenders also rely on the plats and plans.

When the developer later exercises the reserved right to add units (a phase 2, a phase 3), § 47C-2-110(a) requires the developer to record an amendment to the declaration and to record new plats and plans under § 47C-2-109. The natural reading would be that "new plats and plans" means a complete new set covering the new units plus the old units. That would be redundant and expensive: refiling drawings for units already built and already documented in the public records.

§ 47C-2-109(d) provides an alternative. The developer can choose between:

(a) "new plats and plans necessary to conform to the requirements of subsections (a), (b), and (c)" of § 47C-2-109, or

(b) "new certifications of plats and plans previously recorded if those plats and plans otherwise conform to the requirements of those subsections."

The AG read § 47C-2-109(d) as authority for the developer to incorporate the previously recorded plans by reference rather than refile them. The new filing for the added units (a) covers the new units with their own plat and plan drawings, and (b) references the previously recorded plans for the older units by book and page citation. An architect or engineer then certifies that the new filing, including the incorporated reference, contains all the information required by § 47C-2-109 and accurately depicts the newly added units as built. § 47C-2-109(b)(6) specifies the engineer/architect certification requirement.

The AG identified the policy rationale: § 47C-2-109(d) exists to "prevent unnecessary and repetitious filings in the records of the registers of deeds." Title indexes are crowded enough; forcing developers to refile drawings that are already in the public record would clutter the index without adding information.

The opinion's bottom line: a condominium developer building a new phase of an expandable condominium can save the cost and clutter of refiling existing drawings by referencing them in the new filing, provided the architect/engineer certification covers both the new and the incorporated old plans and confirms accuracy as to the new units.

Currency note

This opinion was issued in 1988. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. Chapter 47C has been amended multiple times since 1988, with adjustments to the plats and plans recording requirements and the engineer/architect certification. The incorporation-by-reference mechanism remains the standard approach for expandable condominium phases. Modern developers should consult the current statute, the register of deeds' local recording practices, and the title insurance company's documentation requirements before finalizing a multi-phase recording plan.

Background and statutory framework

The North Carolina Condominium Act was enacted in 1986 to replace the older Unit Ownership Act. Chapter 47C was modeled on the Uniform Condominium Act and introduced new concepts like the expandable condominium (a project where the developer reserves the right to add units in future phases) and the contractable condominium (a project where the developer reserves the right to subtract units). These flexible structures matched the realities of phased real estate development: builders rarely complete all phases of a large project before selling units in the first phase.

For an expandable project, the legal challenge is documenting the condominium in stages. The declaration is recorded once, at the outset, and describes the entire eventual project. The plats and plans, by contrast, can only show units that actually exist. As each new phase is built, new plats and plans need to be recorded to show the new units.

The recording office is the register of deeds. North Carolina registers of deeds are county-level officials who maintain land records, including condominium documents. The records are indexed by name and by book and page citation. Title searches rely on these indexes to trace ownership history.

§ 47C-2-109(d) was drafted to give developers flexibility in recording the new plats and plans. The choice between "new plats and plans" and "new certifications of plats and plans previously recorded" is the developer's, and the AG opinion treats both as legitimate. The new certifications option is the practical mechanism for the incorporation-by-reference approach.

The architect/engineer certification under § 47C-2-109(b)(6) is the quality-control mechanism. The certification is a professional representation that the plans accurately depict the as-built condition of the units. Without the certification, the recording is incomplete and may not be effective to perfect the condominium. The certification also creates a liability hook: the certifying professional is responsible for the accuracy of the plans, and a unit buyer harmed by an inaccurate plan can pursue the professional.

Common questions

Does the architect/engineer have to be the same one who certified the original plans?

The statute does not require continuity of the certifying professional. The certification is about the accuracy of the plans as they exist now, not about who certified them originally. A different architect or engineer can certify the new filing as long as they professionally vouch for the depicted units' accuracy.

Can the developer skip the engineer/architect certification if no new units are being added?

The opinion is specifically about adding new units. The recording in that scenario requires the certification. A pure amendment to the declaration (with no plat changes) is governed by different provisions of Chapter 47C. The 1988 opinion does not extend its reasoning to that scenario.

What if the previously recorded plans turn out to be inaccurate?

If the original plans were inaccurate, the developer cannot incorporate them by reference and certify them as accurate. The developer would need to record corrected plans (either a full re-file or an amended set). The AG opinion presumes the previously recorded plans "otherwise conform to the requirements" of § 47C-2-109.

Can the new certification refer to the entire prior recording or only the parts relevant to the new units?

The opinion does not address that detail. The practical answer is to reference the specific portions of the prior recording that depict units relevant to the new filing. A blanket reference to the entire prior recording is workable but less precise.

Does the register of deeds have discretion to refuse the incorporation-by-reference filing?

The register of deeds' role is ministerial: register the documents that comply with the recording requirements. If the statute permits incorporation by reference (and the AG opinion confirms it does), the register of deeds cannot demand that the developer refile the old drawings. The register can refuse a filing that fails to meet the statutory requirements (no certification, missing required content), but cannot impose additional requirements beyond the statute.

Source

• Landing page: https://ncdoj.gov/opinions/condominium-act-n-c-g-s-chapter-47c-plats-and-plans-registers-of-deeds/

Citations

• N.C.G.S. § 47C-2-101 (declaration recording)
• N.C.G.S. § 47C-2-105, including (4) and (8) (declaration contents; expandable condo reservation)
• N.C.G.S. § 47C-2-109, including (a), (b), (c), (b)(6), (d) (plats and plans; engineer certification; option to incorporate by reference)
• N.C.G.S. § 47C-2-110(a) (recording amendments and new plats and plans when adding units)

Original opinion text

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-2-109(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