If new units in an expandable North Carolina condominium were built according to plans already recorded, must those same plans be filed again?

Plain-English summary

A Cumberland County assistant county attorney asked whether a developer adding units to an expandable condominium must refile condominium plans already recorded for earlier units. The AG answered no when the newly added units were built according to those earlier plans. The opinion says the new plats and plans may incorporate the old condominium plans by a specific reference to the number and page of the condominium file where they were recorded.

The condition matters. The AG said: “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.” A licensed architect or registered engineer must certify that the new filing, including plans incorporated by reference, contains all information required by G.S. 47C-2-109 and accurately depicts the newly added units as built.

Currency note

This opinion interprets the North Carolina Condominium Act as it stood in 1988. Check the current recording and certification requirements before preparing a filing today.

Background and statutory framework

Under the statute described in the opinion, a developer can reserve the right to add units in the recorded condominium declaration. Adding units requires an amendment to that declaration and new plats and plans under G.S. 47C-2-110(a). G.S. 47C-2-109(d), quoted by the AG, allows either new plats and plans meeting the statute’s requirements or new certifications of previously recorded plats and plans that otherwise meet those requirements.

The AG described the point of this option as preventing “unnecessary and repetitious filings” in register-of-deeds records. The opinion does not give a general exemption from filing plans for added units. It explains how an earlier drawing can serve for newly added units if that drawing already shows those units as built and the required professional certification is supplied.

Common questions

Can a developer refer to old plans simply because they are already on file?

No. The AG’s answer applies when the newly added units were built according to those previously recorded condominium plans, which must otherwise meet the statutory requirements.

How must the new filing identify the plans being incorporated?

The opinion calls for a specific reference to the number and page of the condominium file where the earlier plans were recorded.

Who confirms that the combined plans describe the new units accurately?

A licensed architect or registered engineer must certify that the new plats and plans, including the incorporated earlier plans, contain the information required by G.S. 47C-2-109 and accurately depict the newly added units as built.

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