Final Text
CHAPTER 30
CONDOMINIUM REGULATIONS (REPEALED)
Part I
General
18VAC135-30-10. Purpose. (Repealed.)
This chapter governs the exercise of powers granted to and
the performance of duties imposed upon the Virginia Real Estate Board by the
Horizontal Property Act, § 55-79.1 et seq. of the Code of Virginia, and by the
Condominium Act, § 55-79.39 et seq. of the Code of Virginia.
18VAC135-30-20. Definitions. (Repealed.)
The definitions provided in § 55-79.41 of the Code of
Virginia, as they may be supplemented herein, shall apply to this chapter. The corresponding
meanings assigned to certain terms by § 55-79.41 of the Code of Virginia shall
be applicable in this chapter.
18VAC135-30-30. Explanation of terms. (Repealed.)
Each reference in this chapter to a "declarant,"
"purchaser" and "unit owner" or to the plural of those terms
shall be deemed to refer, as appropriate, to the masculine and the feminine, to
the singular and the plural and to natural persons and organizations. The term
"declarant" shall refer to any successors to the persons referred to
in § 55-79.41 who come to stand in the same relation to the condominium as
their predecessors in that they assumed rights reserved for the benefit of a
declarant that (i) offers to dispose of his or its interest in a condominium
unit not previously disposed of, (ii) reserves or succeeds to any special
declarant right, or (iii) applies for registration of the condominium.
18VAC135-30-40. Condominiums located outside of Virginia.
(Repealed.)
A. In any case involving a condominium located outside of Virginia
in which the laws or practices of the jurisdiction in which such condominium is
located prevent compliance with a provision of these condominium regulations,
the board or its subordinate shall prescribe, by order, a substitute provision
to be applicable in such case which is as nearly equivalent to the original
provision as is reasonable under the circumstances.
B. The words "declaration," "bylaws,"
"plats" and "plans," when used in these condominium
regulations with reference to a condominium located outside of Virginia, shall
refer to documents, portions of documents or combinations thereof, by whatever
name denominated, which have a content and function identical or substantially
equivalent to the content and function of their Virginia counterparts.
C. The words "recording" or
"recordation," when used with reference to condominium instruments of
a condominium located outside of Virginia, shall refer to a procedure which, in
the jurisdiction in which such condominium is located, causes the condominium
instruments to become legally effective.
D. This chapter shall apply to a contract for the
disposition of a condominium unit located outside of Virginia only to the
extent permissible under the provisions of § 55-79.40 B of the Code of
Virginia.
18VAC135-30-50. Condominium advisory committee. (Repealed.)
A condominium advisory committee, appointed by the board, may
advise the board in the exercise of its powers and the performance of its
duties under the Horizontal Property Act and the Condominium Act.
18VAC135-30-60. Property registration administrator. (Repealed.)
A property registration administrator, employed and
designated as such by the Director of the Department of Professional and
Occupational Regulation, shall function as a subordinate of the board within
the meaning of § 9-6.14:4 G of the Code of Virginia for the purpose of carrying
out the routine daily operations of the board with respect to condominium
regulations, including, without limitation, the entry of any orders provided
for in these condominium regulations, the issuance of public reports and the
administration of oaths and affirmations in connection with investigations or
other proceedings. The administrator shall act as secretary of the condominium
advisory committee.
Part II
Application for Registration
18VAC135-30-70. Application for registration. (Repealed.)
Application for registration of condominium units shall be
filed at the offices of the board. The application shall contain all of the
documents and information required by the standard application form.
18VAC135-30-80. Applications not in proper form. (Repealed.)
Upon receipt of an application for registration not in proper
form, the board shall return the application to the declarant with a statement
specifying the deficiencies in its form however, if the board has reason to
believe that the application may readily be put into proper form it may retain
the application and notify the declarant of the steps that must be taken to put
the application in proper form.
18VAC135-30-90. Form of the application; submission of
documents. (Repealed.)
The board may establish specific guidelines which establish
the form for preparation of the application for registration. These guidelines
shall set forth reasonable requirements for paper size, binding and
organization which assure uniformity in the manner disclosures are made to
prospective purchasers.
18VAC135-30-100. Procedure upon receipt of application for
registration. (Repealed.)
A. Upon receipt of an application for registration and the fee
required by § 55-79.89(d) of the Code of Virginia, the board shall issue the
notice of filing required by § 55-79.92(a) of the Code of Virginia and shall
conduct an inquiry and investigation to determine whether the prerequisites for
registration set out in § 55-79.91 of the Code of Virginia and 18VAC135-30-130
of this chapter have been met. In conducting such inquiry and investigation,
the board shall take cognizance of any reliable information concerning the
declarant or the condominium coming to the board's attention.
B. If any of the prerequisites for registration appear to
the board not to have been met, the board may informally advise the declarant
of such fact and indicate in detail the nature of the failure to meet the
prerequisites.
C. If the document review conducted by the administrator
reveals that the prerequisites for registration have not been met, the board
shall issue the correction notification required by § 55-79.92(c) of the Code
of Virginia.
D. A request for an extension of the 60-day application
period shall be in writing and shall be delivered to the board prior to the
expiration of the period being extended. The request shall be for an extension
of definite duration. The board may grant in writing a request for an extension
of the application period and it may limit the extension to a period not longer
than is reasonably necessary to permit correction of the application. An
additional extension of the application period may be obtained, subject to the
conditions applicable to the initial request. A request for an extension of the
application period shall be deemed a consent to delay within the meaning of §
55-79.92(a) of the Code of Virginia.
E. If the prerequisites for registration are not met within
the application period or a valid extension thereof, the board shall, upon the
expiration of such period, enter an order rejecting registration as required by
§ 55-79.92(c) of the Code of Virginia.
F. The board shall receive and act upon corrections to the
application for registration at any time prior to the effective date of an
order rejecting registration.
G. At such time as the board affirmatively determines that
the prerequisites for registration have been met, the board shall enter an
order registering the condominium. The order shall designate the form and
content of the public offering statement, substituted disclosure document or
prospectus to be used and, in the case of application for registration made
pursuant to 18VAC135-30-680 D of this chapter shall provide that previous
orders designating the form and content of the public offering statement,
substituted disclosure document or prospectus to be used are superseded.
18VAC135-30-110. Application for registration of expandable
condominium. (Repealed.)
In accordance with the practice contemplated by § 55-79.74(a)
of the Code of Virginia, the declarant may register all units for which
development rights have been reserved.
18VAC135-30-120. Filing fee. (Repealed.)
Each application shall be accompanied by a fee in an amount
equal to $35 per unit, except that the initial application fee shall be not less
than $1,750 nor more than $3,500, and the fee for any application for
registration of additional units shall be not less than $875 nor more than
$3,500.
Part III
Registration
18VAC135-30-130. Prerequisites for registration. (Repealed.)
The following provisions are prerequisites for registration
and are supplementary to the provisions of § 55-79.91 of the Code of Virginia.
1. The declarant shall own or have the right to acquire an
estate in the land constituting or to constitute the condominium which is of at
least as great a degree and duration as the estate to be conveyed in the
condominium units.
2. The condominium instruments must be adequate to bring a
condominium into existence upon recordation except that the certification
requirements of § 55-79.58 of the Code of Virginia need not be complied with as
a prerequisite for registration. This subsection does not apply to condominium
instruments that may be recorded after the condominium has been created.
3. The declarant shall have filed with the board evidence of
its ability to complete all proposed improvements on the condominium. Such
evidence shall consist of the commitment of an institutional lender to advance
construction funds to the declarant and, to the extent that any such
commitments will not furnish all the necessary funds, other evidence,
satisfactory to the board, of the availability to the declarant of necessary
funds. A lender's commitment may be subject to such conditions, including
registration of the condominium units and presale requirements as are normal
for loans of the type and as to which nothing appears to indicate that the
conditions will not be complied with or fulfilled. In the case of a condominium
located in Virginia, proposed improvements are uncompleted improvements which
the declarant is affirmatively and unconditionally obligated to complete under
§§ 55-79.58 and 55-79.67(al) of the Code of Virginia and applicable provisions
of the condominium instruments or which the declarant would be so obligated to
complete, if plats and plans filed with the board in accordance with
18VAC135-30-140 A of this chapter were recorded. In the case of a condominium
located outside of Virginia, "proposed improvements" are all
uncompleted improvements which the declarant intends, without condition or
limitation, to build or place on the condominium.
4. The current and planned condominium marketing activities
of the declarant shall comply with § 18.2-216 of the Code of Virginia, and
18VAC135-30-160, 18VAC135-30-180 and 18VAC135-30-190 of this chapter.
5. The declarant shall have filed with the board: (i) a
proposed public offering statement which complies with § 55-79.90(a) of the
Code of Virginia and 18VAC135-30-210 through 18VAC135-30-440 and
18VAC135-30-540 through 18VAC135-30-650 of this chapter and, if applicable, §
55-79.94(a) of the Code of Virginia and 18VAC135-30-470 through 18VAC135-30-520
of this chapter (ii) a substituted disclosure document which complies with
18VAC135-30-450 of this chapter; or (iii) a prospectus which complies with
18VAC135-30-460 of this chapter.
18VAC135-30-140. Requirements for plats and plans.
(Repealed.)
A. Except as provided in subsection C hereof, improvements shall
be depicted on plats filed with the application for registration exactly as the
declarant has depicted or intends to depict them on the recorded plats and
"(NOT YET BEGUN)" and "(NOT YET COMPLETED)" labels shall be
used with respect to such improvements exactly as the declarant has used or
intends to use them on the recorded plats. Copies of plats and plans as
recorded by the declarant shall be filed with the board if such plats and plans
are different from those filed with the application for registration.
B. The requirement of § 55-79.58(b) of the Code of Virginia
that plans shall show the location and dimensions of the boundaries of each
unit shall be deemed satisfied, in the case of units which are identical
(within normal constructions tolerances), by depiction of the location and
dimensions of the vertical boundaries and horizontal boundaries, if any, of one
such unit. The identifying numbers of all units represented by such depiction
shall be indicated. Each structure within which any such units are located
shall be depicted so as to indicate the exact location of each such unit within
the structure.
C. In the case of a condominium located outside Virginia,
certain materials may be filed with the application for registration in lieu of
plats and plans complying with the provisions of § 55-79.58 of the Code of
Virginia. Such materials shall contain, as a minimum, (i) a plat of survey
depicting all existing improvements and all improvements which the declarant
intends, without condition or limitation to build or place on the condominium
and (ii) legally sufficient descriptions of each unit. Any improvements whose
completion is subject to conditions or limitations shall be appropriately
labeled to indicate that such improvements may not be completed. Unit
descriptions may be written or graphic, shall demarcate each unit vertically
and, if appropriate, horizontally, and shall indicate each unit's location
relative to established points or datum.
D. The plats and plans must bear the form of the certification
statement required by § 55-79.58(a) and (b) of the Code of Virginia. However,
such certification may appear in a separate document to be recorded with the
plats and plans. As stated in 18VAC135-30-130 2 of this chapter, the statement
need not be executed prior to recordation.
18VAC135-30-150. Exemption from registration of
nonresidential condominiums. (Repealed.)
The exemption from registration of condominiums in which all
units are restricted to nonresidential use provided in § 55-79.87(a) shall not
be deemed to apply to any condominium as to which there is a substantial
possibility that a unit therein other than a unit owned by the declarant or the
unit owners' association will be used as permanent or temporary living quarters
or as a site upon which vehicular or other portable living quarters will be
placed and occupied. Residential use for the purposes of these regulations
includes transient occupancy.
Part IV
Marketing
18VAC135-30-160. Preregistration offers prohibited. (Repealed.)
A. No declarant or individual or entity acting on behalf of
the declarant shall offer a condominium unit prior to its registration.
B. No condominium marketing activity shall be deemed an
offer unless, by its express terms, it induces, solicits or encourages a
prospective purchaser to execute a contract of sale of the condominium unit or
lease of a leasehold condominium unit or perform some other act which would
create or purport to create a legal or equitable interest in the condominium
unit other than a security interest in or a nonbinding reservation of the condominium
unit.
18VAC135-30-170. Condominium marketing activities. (Repealed.)
Condominium marketing activities shall include every contact
for the purpose of promoting disposition of a condominium unit. Such contacts
may be personal, by telephone, by mail or by advertisement. A promise,
assertion, representation or statement of fact or opinion made in connection
with a condominium marketing activity may be oral, written or graphic. With
respect to condominiums located outside of Virginia, the application of these
regulations is limited to those condominiums for which contracts are executed
in Virginia as required by § 55-79.40 B of the Code of Virginia.
18VAC135-30-180. Condominium marketing standards. (Repealed.)
A. No promise, assertion, representation or statement of fact
or opinion in connection with a condominium marketing activity shall be made
which is false, inaccurate or misleading by reason of inclusion of an untrue
statement of a material fact or omission of a statement of a material fact
relative to the actual or intended characteristics, circumstances or features
of the condominium or a condominium unit.
B. No promise, assertion, representation or statement of
fact or opinion made in connection with a condominium marketing activity shall
indicate that an improvement will be built or placed on the condominium unless
the improvement is a proposed improvement within the meaning of 18VAC135-30-130
3 of this chapter; except that, if the condominium is one for which no
application for registration has been filed, there shall be no indication that
an improvement will be built or placed on the condominium unless the declarant
has sufficient financial assets and a bona fide intention to complete the
improvement as represented.
C. No promise, assertion, representation or statement of
fact or opinion made in connection with a condominium marketing activity and
relating to a condominium unit not registered shall, by its express terms,
induce, solicit or encourage a prospective purchaser to leave Virginia for the
purpose of executing a contract for sale or lease of the condominium unit or
performing some other act which would create or purport to create a legal or
equitable interest in the condominium unit other than a security interest in or
a nonbinding reservation of the condominium unit.
18VAC135-30-190. Offering literature. (Repealed.)
A. Offering literature is any written promise, assertion,
representation or statement of fact or opinion made in connection with a condominium
marketing activity mailed or delivered directly to a specific prospective
purchaser, except that information printed in a publication shall not be deemed
offering literature solely by virtue of the fact that the publication is mailed
or delivered directly to a prospective purchaser.
B. Offering literature mailed or delivered prior to the
registration of the condominium which is the subject of the offering literature
shall bear a conspicuous legend containing the substance of the following language:
Identification of the condominium has not been registered
by the Virginia Real Estate Board. A condominium unit may be reserved on a
nonbinding reservation agreement, but no contract of sale or lease may be
entered into prior to registration.
C. Prior to registration a copy of every item of offering
literature other than a personal communication shall be filed with the board
prior to its use. A personal communication is a communication directed to a
particular prospective purchaser which has not been and is not intended to be
directed to any other prospective purchaser.
D. The declarant of a condominium shall provide with the
application for registration a narrative description of the promotional plan
for the condominium.
E. Offering literature or marketing activities violative of
the Virginia Fair Housing Law, § 36-96.1 et seq. of the Code of Virginia, and
the Virginia Condominium Act, § 55-79.52(c) of the Code of Virginia is
prohibited.
F. Offering literature shall indicate that the property
being offered is under the condominium form of ownership. The requirement of
this subsection is satisfied by including the full name of the condominium in
all offering literature.
18VAC135-30-200. Exemption from marketing regulations. (Repealed.)
Nothing in 18VAC135-30-160, 18VAC135-30-180 A, B and C, and
18VAC135-30-190 shall apply in the case of a condominium exempted from
registration by § 55-79.87 of the Code of Virginia, or condominiums located
outside of Virginia for which no contracts are to be signed in Virginia.
Part V
Public Offering Statement
18VAC135-30-210. Scope of public offering statement. (Repealed.)
A public offering statement shall make disclosure relative
to a single offering and to the entire condominium in which the condominium
units being offered are located. Not more than one version of a public offering
statement shall be authorized for use or used at any given time with respect to
a particular condominium.
18VAC135-30-220. Offering defined. (Repealed.)
As used in these condominium regulations, the word
"offering" shall refer to the continuing act of the declarant in making
condominium units owned by the declarant within a particular condominium
available for acquisition by purchasers or, where appropriate, to the aggregate
of the condominium units thus made available.
18VAC135-30-230. Preparation of public offering statement.
(Repealed.)
The public offering statement shall be clear and legible with
pages numbered sequentially. A blank cover or a cover bearing identification
information only may be used. Except as elsewhere provided, no portion of the
public offering statement may be printed in larger, heavier or different color
type than the remainder of the public offering statement. The first page of the
public offering statement shall be prepared to conform as closely as possible
to the specimen appended as Appendix A to this chapter and made a part hereof.
18VAC135-30-240. Nature of information to be included. (Repealed.)
A. The provisions of §§ 55-79.90(a) and 55-79.94(a) of the Code
of Virginia, and 18VAC135-30-210 through 18VAC135-30-720 of this chapter shall
be strictly construed to promote full and accurate disclosure in the public
offering statement and, thereby, to protect the interests of purchasers.
B. The requirements for disclosure are not exclusive. In
addition to expressly required information, the declarant shall disclose all
other available information which may reasonably be expected to affect the
decision of the ordinarily prudent purchaser to accept or reject the offer of a
condominium unit. The declarant shall disclose any additional information
necessary to make the required information not misleading. No information may
be presented in such a fashion as to obscure the facts, to encourage a
misinterpretation of the facts or otherwise to mislead a purchaser.
C. No information shall be incorporated by reference to an
extrinsic source which is not readily available to an ordinary purchaser.
Whenever required information is not known or not reasonably available, such
fact shall be stated in the public offering statement with a brief explanation.
Whenever special circumstances exist which would render required disclosure
inaccurate or misleading, the required disclosure shall be modified to
accomplish the purpose of the requirement or the disclosure shall be omitted,
provided that such modification or omission promotes full and accurate
disclosure.
D. Disclosure shall be made of pertinent facts, events,
conditions or other states of affairs which the declarant has reason to believe
will occur or exist in the future or which the declarant intends to cause to
occur or exist in the future. Disclosure relating to future facts, events,
conditions or states of affairs shall be limited by the provisions of
subsection F hereof.
E. The public offering statement shall be as brief as is
consistent with full and accurate disclosure. In no event shall the public
offering statement be made so lengthy or detailed as to discourage close
examination.
F. Expressions of opinion in the public offering statement
shall be deemed inconsistent with full and accurate disclosure unless there is
ample foundation in fact for the opinion; provided, however, that this sentence
shall not affect in any way the declarant's duty to set forth a projected
budget for the condominium's operation.
G. Except for brief excerpts therefrom, the public offering
statement shall not incorporate verbatim portions of the condominium
instruments or other documents. The purchaser's attention may be directed to
pertinent portions of the declaration, bylaws or other documents attached to
the public offering statement which are too lengthy to incorporate verbatim.
H. Maps, photographs and drawings may be utilized in the
public offering statement, provided that such utilization promotes full and
accurate disclosure.
18VAC135-30-250. Readability. (Repealed.)
The public offering statement shall be clear and
understandable. Determinations as to compliance with the standards of this paragraph
are within the exclusive discretion of the board.
18VAC135-30-260. Summary of important considerations. (Repealed.)
A. Immediately following the first page and before the table
of contents, the public offering statement shall include a summary of important
considerations consisting of particularly noteworthy items of disclosure.
Certain summary statements are required by subsection D hereof. Other summary
statements may be proposed by the declarant or included by order of the board
for the purpose of reinforcing the disclosure of significant information not
otherwise included in the summary of important considerations. No summary
statement shall be included for the sole purpose of enhancing the sales appeal
of condominium units.
B. The summary shall be titled as such and shall be
introduced by the following statement: "Following are important matters to
be considered in acquiring a condominium unit. They are highlights only. The
narrative sections should be examined to obtain detailed information."
Each summary statement shall include a reference to pertinent portions, if any,
of the public offering statement for details respecting the information
summarized. Each summary statement, exclusive of any reference to other
portions of the public offering statement, shall be limited to not more than
three sentences except that the board may, by order, permit or require
additional sentences.
C. Whenever the board finds that the significance to
purchasers of certain information requires that it be disclosed more
conspicuously than by regular presentation in the summary of important
considerations, it may provide, by order, that a summary statement of the
information shall be underscored, italicized or printed in a larger or heavier
or different color type than the remainder of the public offering statement.
D. Summary statements shall be made of the substance of the
following facts and circumstances, to the extent that each is applicable.
Specific information shall be substituted for the general information indicated
by brackets. Appropriate modifications shall be made to reflect facts and
circumstances varying from those indicated herein:
1. The condominium will be governed by a unit owners'
association. Each unit owner will have a vote on certain decisions of the
association and will be bound by all decisions of the association including
those with which he disagrees.
2. Certain decisions of the unit owners' association will be
made by an executive organ.
3. The expenses of operating the unit owners' association
will be paid by the unit owners on the basis of a periodic budget. Each unit
owner will pay a periodic assessment. A unit owner cannot reduce the amount of
his assessment by refraining from use of the common elements.
4. If a unit owner fails to pay an assessment when due, the
unit owners' association will have a lien against his condominium unit. Certain
other penalties may be applied.
5. The declarant must pay assessments on unsold condominium
units.
6. The declarant, its predecessors or principal officer has
undergone a debtor's relief proceeding.
7. The declarant will retain control of the unit owners'
association for an initial period.
8. A managing agent will perform the routine operations of
the unit owners' association. The managing agent is related to the declarant,
director or officer of the unit owners' association.
9. The declarant may rent unsold condominium units. The
right of any unit owner to rent his unit is subject to restrictions.
10. The declarant may expand or contract the condominium or
convert convertible land or space without the consent of any unit owner.
11. The right of the unit owner to resell his condominium
unit is subject to restrictions.
12. The units are restricted to residential use.
13. The unit owner may not alter the structure of his unit
or modify the exterior of his unit without the approval of the declarant or
unit owners' association.
14. The unit owners' association will obtain certain
insurance benefiting the unit owner, but the unit owner should obtain other
insurance on his own.
15. The unit owner will pay real estate taxes on his
condominium unit.
16. The unit owner's right to bring legal action against the
declarant is limited by certain provisions of the purchase contract;
specifically the contract requires the unit owner or the association to pay the
attorney's fee of the declarant; requires the unit owner to waive trial by jury
in any civil action against the declarant.
17. The condominium is (is not) subject to development as a
time-share.
18. Marketing and sale of condominium units will be
conducted in accordance with the Virginia Fair Housing Law (Code of Virginia §
36-96.1 et seq.) and the Virginia Condominium Act (Code of Virginia §
55-79.52(c)).
18VAC135-30-270. Narrative sections. (Repealed.)
The information to be presented in the public offering
statement shall be broken down into sections in order to facilitate reading and
comprehension. Certain sections are required by 18VAC135-30-280 through
18VAC135-30-430 of this chapter. Supplementary sections may be included
whenever necessary to incorporate information which cannot properly be placed
within one of the required sections. Supplementary section captions which
indicate the nature of the material presented thereunder shall be utilized. The
sections may be set out in any order which lends itself to the organized
presentation of information. Section captions may be underscored, italicized or
printed in larger or heavier or different color type than the remainder of the
public offering statement. A table of contents shall be utilized.
18VAC135-30-280. Narrative sections; condominium concept.
(Repealed.)
The public offering statement shall contain a section
captioned "The Condominium Concept." The section shall consist of a
brief discussion of the condominium form of ownership. The section shall
discuss the distinction among units, common elements and limited common
elements, if any, and shall explain ownership of an undivided interest in the common
elements. Attention shall be directed to any features of ownership of the
condominium units being offered which are different from typical condominium
unit ownership.
18VAC135-30-290. Narrative sections; creation of condominium.
(Repealed.)
The public offering statement shall contain a section
captioned "Creation of the Condominium." The section shall briefly
explain the manner in which the condominium was or will be created and shall
briefly describe each of the condominium instruments, their functions, and the
procedure for their amendment. The section shall indicate where each of the
condominium instruments or copies thereof may be found. In the case of a
condominium located in Virginia or in a jurisdiction having a law similar to §
55-79.96 of the Code of Virginia, the section shall indicate the purchaser will
receive copies of the recorded declaration and bylaws, or amendments, as
appropriate, within the time provided for in the applicable statute.
18VAC135-30-300. Narrative sections; description of
condominium. (Repealed.)
A. The public offering statement shall contain a section
captioned "Description of the Condominium." The section shall contain
a narrative description of the condominium. The description shall include
statements of (i) the land area of the condominium; (ii) the number of units in
the condominium; (iii) the number of units in the offering; (iv) the number of
units in the condominium planned to be rented; and (v) whether at the time of
registration the declarant intends to sell more than 20% of the units to
persons who do not intend to occupy the units as their primary residence.
B. If the condominium is contractable, expandable or
includes convertible land or space, the section shall contain a brief
description of each such feature including the land area and the maximum number
of units or maximum number of units per acre which may be added, withdrawn or converted,
as the case may be, together with a statement of the declarant's plans for the
implementation of each such feature. In the case of a contractable or
expandable condominium, the section shall contain the substance of the
following statement: "The construction and development of the condominium
may be abandoned or altered, at the declarant's option, short of completion and
land or buildings originally intended for condominium development may be put to
other uses or sold." In the case of a condominium including convertible
land, the section shall contain the substance of the following statements:
"Until such time as the declarant converts the convertible land into units
or limited common elements, the declarant is required by the Virginia Condominium
Act to pay for the upkeep of the convertible land. Once the convertible land
has been converted, maintenance and other financial responsibilities associated
with the land so designated become the responsibility of the unit owners and,
therefore, may be reflected in the periodic assessment for the
condominium." If the common expense assessments are expected to increase
should convertible land be converted, this section shall also disclose an
estimate of the approximate percentage by which such assessments are expected
to increase by reason of any such conversion.
C. The section shall state whether or not the units are
restricted solely to residential use and shall state where this and other use
and occupancy restrictions are to be found in the condominium instruments.
18VAC135-30-310. Narrative section; individual units. (Repealed.)
The public offering statement shall contain a section
captioned "Individual Units." The section shall contain a general description
of the various type units being offered, together with the dates on which
substantial completion of unfinished units is anticipated. The section shall
discuss what restrictions, if any, exist as to changes unit owners may make to
the structure or exterior of their units, whether or not said exterior is a
portion of the common elements.
18VAC135-30-320. Narrative sections; common elements. (Repealed.)
A. The public offering statement shall contain a section
captioned "Common Elements." The section shall contain a general description
of the common elements.
B. A statement of the anticipated completion dates of
unfinished common elements shall be included except that no such statement
shall be necessary with respect to common elements which are completed or
expected to be substantially complete when the units are completed.
C. With respect to common elements which the declarant
intends to build or place on the condominium but which are not expected to be
substantially complete when the units are completed, the section shall state:
(i) In the case of a condominium located in Virginia, the nature, source and
extent of the obligation to complete such common elements which the declarant
has incurred or intends to incur upon recordation of the condominium
instruments pursuant to §§ 55-79.58(a) and 55-79.67(a)(1) of the Code of
Virginia and applicable provisions of the condominium instruments and pursuant
to § 55-79.58:1 of the Code of Virginia, the declarant has filed with the
Virginia Real Estate Board a bond to insure completion of improvements to the
common elements which the declarant has incurred or intends to incur upon
recordation of the condominium instruments; and (ii) in the case of a
condominium located outside of Virginia, the nature, source and extent of the
obligation to complete such common elements which the declarant has incurred or
intends to incur under the law of the jurisdiction in which the condominium is
located.
D. The section shall describe any limited common elements
which are assigned or which may be assigned and shall indicate the reservation
of exclusive use. In the case of limited common elements which may be assigned,
the section shall state the manner of such assignment or reassignment.
E. The section shall indicate the availability of vehicular
parking spaces including the number of spaces available per unit and
restrictions on or charges for the use of spaces.
18VAC135-30-330. Narrative sections; declarant. (Repealed.)
A. The public offering statement shall contain a section
captioned "The Declarant." The section shall contain a brief history of
the declarant with emphasis on its experience in condominium development.
B. The following information shall be stated with regard to
persons immediately responsible for the development of the condominium: (i)
name; (ii) length of time associated with the declarant; (iii) role in the
development of the condominium; and (iv) experience in real estate development.
If different from the persons immediately responsible for the development of
the condominium, the principal officers of the declarant shall be identified.
C. If the declarant or its parent or predecessor
organization has, during the preceding 10 years, been adjudicated a bankrupt or
has undergone any proceeding for the relief of debtors, such fact or facts
shall be stated. If any of the persons identified pursuant to subsection B
hereof has, during the preceding three years, been adjudicated a bankrupt or
undergone any proceeding for the relief of debtors, such fact or facts shall be
stated.
D. The section shall indicate any final action taken by an
administrative agency or civil or criminal court which reflects adversely upon
the performance of the declarant as a developer of real estate projects. The
section shall also indicate any current or past proceedings brought against the
declarant by any condominium unit owners' association or by its executive organ
or any managing agent on behalf of such association or which has been certified
as a class action on behalf of some or all of the unit owners. For the purposes
of the previous sentence with respect to past proceedings, if the ultimate
disposition of those proceedings is one which reflects adversely upon the
performance of the declarant, that disposition shall be disclosed. The board
has the sole discretion to require additional disclosure of any legal
proceedings where it finds such disclosure necessary to assure full and
accurate disclosure.
18VAC135-30-340. Narrative sections; terms of offering. (Repealed.)
A. The public offering statement shall contain a section
captioned "Terms of the Offering." The section shall discuss the expenses
to be borne by a purchaser in acquiring a condominium unit and present
information regarding the settlement of purchase agreements as provided in
subsections B through G hereof.
B. The section shall indicate the offering prices for
condominium units or a price range for condominium units, if either is
established.
C. The section shall set forth the significant terms of any
financing offered by or through the declarant to purchasers. Such discussion
shall include the substance of the following statement: "Financing is
subject to additional terms and conditions stated in the loan commitment or
instruments."
D. The section shall discuss in detail any settlement costs
which are not normal for residential real estate transactions including,
without limitation, any contribution to the initial or working capital of the
unit owners' association to be paid by a purchaser at settlement.
E. The section shall discuss any penalties or forfeitures
to be incurred by a purchaser upon default in performance of a purchase
agreement which are not normal for residential real estate transactions.
Penalties or forfeitures to be discussed include, without limitation, the
declarant's right to retain sums deposited in connection with a purchase
agreement in the event of a refusal by a lending institution to provide
financing to a purchaser who has made proper application for same.
F. The section shall discuss the right of the declarant to
cancel a purchase agreement upon failure of the declarant to obtain purchase
agreements on a given number or percentage of condominium units being offered
or upon failure of the declarant to meet other conditions precedent to
obtaining necessary financing.
G. The section shall set forth any provisions in the
contract which require the unit owner or the association to pay the attorney's
fee of the declarant or require the unit owner to waive trial by jury in any
civil action against the declarant and the section shall set forth the
paragraph or section and page number of the contract where such provision is
located.
18VAC135-30-350. Narrative sections; encumbrances. (Repealed.)
A. The public offering statement shall contain a section
captioned "Encumbrances." The section shall include the significant terms
of any encumbrances, easements, liens and matters of title affecting the
condominium as provided in subsections B through I hereof.
B. Except to the extent that such encumbrances are required
to be satisfied or released by § 55-79.46(a) of the Code of Virginia, or a
similar law, the section shall describe every mortgage, deed of trust, other
perfected lien or choate mechanics or materialmen's lien affecting all or any
portion of the condominium other than those placed on condominium units by
their purchasers or owners. Such description shall identify the lender secured
or the lienholder shall state the nature and original amount of the obligation
secured, shall identify the party having primary responsibility for performance
of the obligation secured and shall indicate the practical effect upon unit
owners of failure of said party to perform the obligation.
C. Normal easements for utilities, municipal rights-of-way
and emergency access shall be described only as such, without reference to
ownership, location or other details.
D. Easements reserved to the declarant to facilitate
conversion, expansion or sales shall be briefly described.
E. Easements reserved to the declarant or to the unit
owners' association or its representatives or agents for access to units shall
be briefly described. In the event that access to a unit may be had without
notice to the unit owner, such fact shall be stated.
F. Easements across the condominium reserved to the owners
or occupants of land located in the vicinity of the condominium including,
without limitation, easements for the use of recreational areas shall be
briefly described.
G. Covenants, servitudes or other devices which create an
actual or potential restriction on the right of any unit owner to use and enjoy
his unit or any portion of the common elements other than limited common
elements shall be briefly described.
H. Any matter of title which is not otherwise required to
be disclosed by the provisions of this section and which has or may have a
substantial adverse impact upon units owners' interests in the condominium
shall be described. Under normal circumstances, an easement for encroachments
and an easement running in favor of unit owners for ingress and egress across
the common elements shall be deemed not to have a substantial adverse impact
upon unit owners' interest in the condominium.
I. The section need not include any information required to
be disclosed by 18VAC135-30-300 C, 18VAC135-30-310, or 18VAC135-30-360 of this
chapter.
18VAC135-30-360. Narrative sections; restrictions on
transfer. (Repealed.)
The public offering statement shall include a section
captioned "Restrictions on Transfer." The section shall describe and
explain any rights of first refusal, preemptive rights, limitations on leasing
or other restraints on free alienability created by the condominium instruments
or the rules and regulations of the unit owners' association and which affect
the unit owners' right to resell, lease or otherwise transfer an interest in
his condominium unit.
18VAC135-30-370. Narrative sections; unit owners'
association. (Repealed.)
A. The public offering statement shall contain a section
captioned "Unit Owners' Association." The section shall discuss the
manner in which the condominium is governed and administered and shall include
the information required by subsections B through J hereof.
B. The section shall state in summary fashion the functions
of the unit owners' association.
C. The section shall describe the organizational structure
of the unit owners' association. Such description shall indicate (i) the
existence of or provision for an executive organ, officers and managing agent,
if any; (ii) the relationships between such persons or bodies; (iii) the manner
of their election or appointment; and (iv) the assignment or delegation of
responsibility for the performance of the functions of the unit owners'
association.
D. The section shall describe the allocation of voting
power among the unit owners.
E. The section shall discuss any retention by the declarant
of control over the unit owners' association.
F. The managing agent, if any, shall be identified. If a
managing agent is to be employed in the future, the criteria, if any, for
selection of the managing agent shall be briefly stated. The section shall
indicate any relationship between the managing agent and the declarant or a
member of the executive organ or an officer of the unit owners' association.
The duration of any management agreement shall be stated.
G. Except to the extent otherwise disclosed in connection
with discussion of a management agreement, the significant terms of any lease
of recreational areas or similar contract or agreement affecting the use, maintenance
or access of all or any part of the condominium shall be stated. The section
shall include a brief narrative statement of the effect of each such agreement
upon a purchaser.
H. Rules and regulations of the unit owners' association
and the authority to promulgate rules and regulations shall be discussed.
Particular provisions of the rules and regulations shall not be discussed
except as required by other provisions of these condominium regulations. The
purchaser's attention shall be directed to the copy of rules and regulations,
if any, attached to the public offering statement.
I. Any standing committees established or to be established
to perform functions of the unit owners' association shall be discussed. Such
committees include, without limitation, architectural control committees and
committees having the authority to interpret condominium instruments, rules and
regulations or other operative provisions.
J. Unless required to be disclosed by 18VAC135-30-350,
subsection E, of this chapter any power of the declarant or of the unit owners'
association or its representatives or agents to enter units shall be discussed.
To the extent each is applicable, the following facts shall be stated: (i) a
unit may be entered without notice to the unit owner; (ii) the declarant or the
unit owners' association or its representatives or agents are empowered to take
actions or perform work in a unit without the consent of the unit owner; and
(iii) the unit owner may be required to bear the costs of actions so taken or
work so performed.
18VAC135-30-380. Narrative sections; surrounding area. (Repealed.)
The public offering statement shall contain a section
captioned "Surrounding Area." The section shall briefly describe the zoning
of the immediate neighborhood of the condominium. The section may indicate the
existence and proximity of community facilities available to unit owners.
18VAC135-30-390. Narrative sections; financial matters. (Repealed.)
A. The public offering statement shall contain a section
captioned "Financial Matters." The section shall discuss the expenses
incident to the ownership of a condominium unit, excluding certain taxes, in
the manner provided in subsections B through I hereof.
B. The section shall distinguish, in general terms, the
following categories of costs of operation, maintenance, repair and replacement
of various portions of the condominium: (i) common expenses apportioned among
and assessed to all of the condominium units pursuant to § 55-79.83(c) of the
Code of Virginia or similar law or condominium instrument provision (referred
to elsewhere in these regulations as "regular common expenses"); (ii)
common expenses, if any, apportioned among and assessed to less than all of the
condominium units pursuant to § 55-79.83(a) and (b) of the Code of Virginia or
similar law or condominium instrument provisions; and (iii) costs borne
directly by individual unit owners. The section need not discuss taxes assessed
against individual condominium units and payable directly by their owners.
C. A projected budget shall be prepared showing regular
common expenses to be assessed for the first year of the condominium's
operation or, if different, the latest year for which projections are
available; provided, however, that in no event shall the year for which the
budget is projected have commenced more than six months prior to the date
application for registration is filed. The projected budget shall be attached
to the public offering statement as an exhibit and the section shall direct the
purchaser's attention thereto. The section shall describe the manner in which
the projected budget is established.
D. The section shall describe the manner in which regular
common expenses are apportioned among and assessed to the condominium units.
The section shall include the substance of the following statement, if
applicable: "A unit owner cannot obtain a reduction of the regular common
expenses assessed against his unit by refraining from use of any of the common
elements."
E. The section shall describe budget provisions for reserves
for capital expenditures and for contingencies, if any.
F. The section shall describe provisions for special
assessments to be levied in the event that budgeted assessments provide
insufficient funds for operation of the unit owners' association.
G. The section shall discuss any common expenses actually
planned to be specially assessed pursuant to § 55-79.83(a) and (b) of the Code
of Virginia or similar law or condominium instrument provisions.
H. The section shall indicate any fee, rental or other charge
to be payable by unit owners other than through common expense assessments to
any party for use of the common elements or for use of recreational or parking
facilities in the vicinity of the condominium. As an exception to the
provisions of this subsection, the section need not discuss any fees provided
for in §§ 55-79.84(h) and 55-79.85 of the Code of Virginia, or similar laws or
condominium instrument provisions or any costs for certificates for resale.
I. The section shall discuss the effect of failure of a
unit owner to pay when due assessments levied against his condominium unit.
Such discussion shall indicate provisions for penalties to be applied in the
case of overdue assessments and for acceleration of unpaid assessments. The
section shall indicate the existence of a lien for unpaid assessments and where
applicable the bond conditioned on the payment of assessments filed with the
board in accordance with § 55-79.84:1 of the Code of Virginia. The section
shall include, to the extent applicable, the substance of the following
statement: "The unit owners' association may obtain payment of overdue
assessments by foreclosure of the lien resulting in a forced sale of the
condominium unit or by suing the unit owner."
18VAC135-30-400. Narrative sections; insurance. (Repealed.)
The public offering statement shall contain a section
captioned "Insurance." The section shall describe generally the insurance
on the condominium to be maintained by the unit owners' association. The
section shall state, with respect to such insurance, each of the following
circumstances, to the extent applicable: (i) property damage coverage will not
insure personal property belonging to unit owners; (ii) property damage
coverage will not insure improvements to a unit which increase its value beyond
the limits of coverage provided in the unit owners' association's policy, and
(iii) liability coverage will not insure against liability arising from an
accident or injury occurring within a unit or as a result of the act or
negligence of a unit owner. The section shall indicate any conditions imposed
by the condominium instruments or rules and regulations to which insurance obtained
directly by unit owners will be subject. Such indication may be made by
reference to pertinent provisions of the condominium instruments or rules and
regulations.
18VAC135-30-410. Narrative sections; taxes. (Repealed.)
A. The public offering statement shall contain a section
captioned "Taxes." The section shall describe all existing or proposed
taxes to be levied against condominium units individually including, without
limitation, real property taxes, sewer connection charges and other special
assessments.
B. With respect to real property taxes, the section shall
state the tax rate currently in effect. The section shall also state a
procedure or formula by means of which the taxes may be estimated.
C. With respect to other taxes, the section shall describe
each tax in sufficient detail as to indicate the time at which the tax will be
levied and the actual or estimated amount to be levied.
18VAC135-30-420. Narrative sections; governmental approval.
(Repealed.)
The public offering statement shall contain a section
captioned "Governmental Approval." The section shall discuss approval
of a site plan and issuance of a building permit by appropriate governmental
authorities. The section shall also discuss compliance with all zoning
ordinances, building codes, housing codes and similar laws affecting the condominium.
18VAC135-30-430. Narrative sections; warranties. (Repealed.)
The public offering statement shall contain a section
captioned "Warranties." The section shall describe any warranties
provided by or through the declarant on the units or the common elements. If
any such warranty is different from the warranty provided by § 55-79.79(b) of
the Code of Virginia or a similar applicable law, the section shall include the
substance of the following statement: "Nothing contained in the warranty
provided by the declarant shall limit the protection afforded by the statutory
warranty."
18VAC135-30-440. Documents to be included. (Repealed.)
Copies of the following documents shall be attached as exhibits
to the public offering statement: (i) the declaration; (ii) the bylaws; (iii)
the projected budget; (iv) rules and regulations of the unit owners'
association; (v) any management contract; (vi) any lease of recreational areas;
and (vii) any similar contract or agreement affecting the use, maintenance or
access of all or any part of the condominium. Other pertinent documents may be
attached to the public offering statement including, without limitation, a
purchase agreement, a certificate of warranty, a warranty limitation agreement
and a depiction of unit layouts.
18VAC135-30-450. Documents from other jurisdictions. (Repealed.)
A. A substituted disclosure document is a document
originally prepared in compliance with the laws of another jurisdiction and
modified in accordance with the provisions of this paragraph in order to
fulfill the disclosure requirements established for public offering statements
by § 55-79.90(a) and, if applicable, § 55-79.94(a) of the Code of Virginia. A
substituted disclosure document shall not be employed in the case of a
condominium located in Virginia.
B. The substituted disclosure document shall be prepared by
deleting from the original disclosure document: (i) references to any
governmental agency of another jurisdiction to which application has been made
or will be made for registration or related action; (ii) references to the
action of such governmental agency relative to the condominium; (iii)
statements of the legal effect in another jurisdiction of delivery, failure to
deliver, acknowledgement of receipt or related events involving the disclosure
document; (iv) the effective date or dates in another jurisdiction of the
disclosure document; and (v) all other information which is untrue, inaccurate
or misleading with respect to marketing, offers or disposition of condominium
units in Virginia.
C. The substituted disclosure document shall incorporate
all information not otherwise included which is necessary to effect fully and
accurately the disclosures required by §§ 55-79.90(a) and, if applicable,
55-79.94(a) of the Code of Virginia. The substituted disclosure document shall
clearly explain any nomenclature which is different from the definitions
provided in § 55-79.41 of the Code of Virginia or which, for any other reason,
may confuse purchasers in Virginia. Any information not required by §§
55-79.90(a) and 55-79.94(a) of the Code of Virginia may be deleted, provided
that such deletion does not render the required information misleading.
D. The first page of the substituted disclosure document
shall be prepared to conform as closely as possible to the specimen appended as
Appendix A to these regulations and made a part hereof. The three blanks in the
first sentence of the third paragraph of the specimen shall be completed by
insertion of the following information: (i) the designation by which the
original disclosure document is identified in the jurisdiction pursuant to
whose laws it was prepared; (ii) the governmental agency of such other
jurisdiction with which the original disclosure document is or will be filed;
and (iii) the jurisdiction of such filing.
E. No portion of the substituted disclosure document may be
underscored, italicized or printed in larger, heavier or different color type
than the remainder of the substituted disclosure document, except: (i) as
required by subsection D hereof; (ii) as required or permitted in the original
disclosure document by the laws of the jurisdiction pursuant to which it was
prepared; and (iii) as provided by order of the board in cases in which it
finds that the significance to purchasers of certain information requires that
such information be disclosed more conspicuously than by regular presentation
in the substituted disclosure document.
F. The provisions of §§ 55-79.88(c), 55-79.90, and
55-79.94(a) of the Code of Virginia and 18VAC135-30-210, 18VAC135-30-230,
18VAC135-30-240, 18VAC135-30-250, 18VAC135-30-440 and 18VAC135-30-450 of this
chapter shall apply to substituted disclosure documents in the same manner and
to the same extent that they apply to public offering statements.
18VAC135-30-460. Condominium securities. (Repealed.)
A prospectus used in lieu of a public offering statement shall
contain or have attached thereto copies of documents, other than the projected
budget required to be attached to a public offering statement by
18VAC135-30-440 of this chapter. Such prospectus shall be deemed to satisfy all
of the disclosure requirements of 18VAC135-30-260 through 18VAC135-30-440 and
Part VII of this chapter. In the case of a conversion condominium, the
prospectus shall have attached thereto, in suitable form, the information
required by 18VAC135-30-500, subsections C and D of 18VAC135-30-510 and
18VAC135-30-520 of this chapter to be disclosed in public offering statements
for conversion condominiums. The provisions of § 55-79.88(c) of the Code of
Virginia shall apply to the delivery of the prospectus in the same manner and
to the same extent that they apply to the delivery of a public offering
statement.
Part VI
Conversion Condominiums
18VAC135-30-470. Public offering statement for conversion
condominium; general instructions. (Repealed.)
The public offering statement for a conversion condominium
shall conform in all respects to the requirements of 18VAC135-30-210 through
18VAC135-30-460 and Part VII of this chapter. In addition, the public offering
statement for a conversion condominium shall (i) contain special disclosures in
the narrative sections captioned "Description of the Condominium,"
"Terms of the Offering" and "Financial Matters"; and (ii)
incorporate narrative sections captioned "Present Condition of the
Condominium" and "Replacement Requirements." Provisions for such
additional disclosure are set forth in 18VAC135-30-490 through 18VAC135-30-520
of this chapter.
18VAC135-30-480. Public offering statement for conversion
condominium; special definitions. (Repealed.)
As used in this paragraph and in 18VAC135-30-490 through 18VAC135-30-520
of this chapter:
"Class of physical assets" means two or more
physical assets which are substantially alike in function, manufacture, date of
construction or installation and history of use and maintenance.
"Expected useful life" means the estimated number
of years from the date on which such estimate is made until the date when,
because of the effects of time, weather, stress or wear, a physical asset will
become incapable of performing its intended function and will have to be
replaced.
"Major utility installation" means a utility
installation or portion thereof which is a common element or serves more than
one unit.
"Physical asset" is a generic term and means
either a structural component or a major utility installation.
"Present condition" means condition as of the
date of the inspection by means of which condition is determined.
"Replacement cost" means the expenditure which
would be necessary to replace a physical asset with an identical or
substantially equivalent physical asset as of the date on which replacement
cost is determined and includes all costs of removing the physical asset to be
replaced, of obtaining its replacement and of erecting or installing the
replacement.
"Structural component" means a component
constituting any portion of the structure of a unit or common element and in
which a defect would reduce the stability or safety of all or a part of the
structure below accepted standards or restrict the normal intended use of all
or a part of the structure.
"Structural defect" shall have the meaning given
in § 55-79.79(b) of the Code of Virginia.
18VAC135-30-490. Description of conversion condominium. (Repealed.)
In addition to the information required by 18VAC135-30-300
of this chapter, the section captioned "Description of the
Condominium" shall indicate that the condominium is a conversion
condominium. The term conversion condominium shall be defined and the
particular circumstances which bring the condominium within the definition
shall be stated. The nature and inception date of prior occupancy of the
property being converted shall be stated.
18VAC135-30-500. Financial matters, conversion condominium.
(Repealed.)
A. The provisions for capital reserves described in the
section captioned "Financial Matters" shall be supplemented by the
information set forth in subsections B and C hereof.
B. The section shall state the aggregate replacement cost
of all physical assets whose replacement costs will constitute regular common
expenses and whose expected useful lives are 10 years or less. For the purposes
of this subsection, an expected useful life which is stated as being within a
range of years pursuant to 18VAC135-30-520 E of this chapter shall be deemed to
be 10 years or less, if the lower limit of such range is 10 years or less. The
total common expense assessments per unit which would be necessary in order to
accumulate an amount of capital reserves equal to such aggregate replacement
cost shall be stated.
C. The section shall state the amount of capital reserves
which will be accumulated by the unit owners' association during the period of
declarant's control together with any provisions of the condominium instruments
specifying the rate at which reserves are to be accumulated thereafter. If any
part of the capital reserves will or may be obtained other than through regular
common expense assessments, such fact shall be stated.
D. The actual expenditures made over a three-year period on
operation, maintenance, repair or other upkeep of the property prior to its
conversion to condominium shall be set forth in tabular form as an exhibit
immediately preceding or following the budget attached to the public offering
statement pursuant to 18VAC135-30-390 C of this chapter. Distinction shall be
made between expenditures which would have constituted regular common expenses
and expenditures which would have been borne by unit owners individually if the
property had been converted to condominium prior to the commencement of the
three-year period. To the extent that it is impossible or impracticable to so
distinguish the expenditures it shall be assumed that they would have
constituted regular common expenses.
Both types of expenditures shall be cumulatively broken
down on a per unit basis in the same proportion that common expenses are or
will actually be assessed against the condominium units. The three-year period
to which this subsection refers shall be the most recent three-year period
prior to application for registration during which the property was occupied
and for which expenditure information is available. The expenditure information
shall indicate the years for which expenditures are stated. If any portion of
the property being converted to condominium was not occupied for the full
three-year period, expenditure information shall be set forth for the maximum
period the property was occupied. The "Financial Matters" section
shall direct the purchaser's attention to the expenditure information.
18VAC135-30-510. Present condition of conversion condominium.
(Repealed.)
A. The section captioned "Present Condition of the
Condominium" shall contain a statement of the approximate dates of
original construction or installation of all physical assets in the
condominium. A single construction or installation date may be stated for all
of the physical assets: (i) in the condominium; (ii) within a distinctly
identifiable portion of the condominium; or (iii) within a distinctly
identifiable category of physical assets. A statement made pursuant to the
preceding sentence shall include a separate reference to the construction or
installation date of any physical asset within a stated group of physical
assets which was constructed or installed significantly earlier than the
construction or installation date indicated for the group generally. No
statement shall be made that a physical asset or portion thereof has been
repaired, altered, improved or replaced subsequent to its construction or
installation unless the approximate date, nature and extent of such repair,
alteration, improvement or replacement is also stated.
B. Subject to the exceptions provided in subsections D, E
and F hereof, the section captioned "Present Condition of the
Condominium" shall contain a description of the present condition of all
physical assets within the condominium. The description of present condition
shall disclose all structural defects and incapacities of major utility
installations to perform their intended functions as would be observable,
detectable or deducible by means of standard inspection and investigative
techniques employed by architects or professional engineers, as the case may
be.
C. The section shall indicate the dates of inspection by
means of which the described present condition was determined; provided,
however, that such inspections shall have been conducted not more than one year
prior to the date of filing the application for registration. The section shall
identify the party or parties by whom present condition was ascertained and
shall indicate the relationship of such party or parties to the declarant.
D. A single statement of the present condition of a class
of physical assets shall suffice to disclose the present condition of each
physical asset within the class; provided, however, that, unless subsection F
hereof applies, such statement shall include a separate reference to the
present condition of any physical asset within the class which is significantly
different from the present condition indicated for the class generally.
E. The description of present condition may include a
statement that all structural components in the condominium or in a distinctly
identifiable portion thereof are in sound condition except those for which
structural defects are noted.
F. In a case in which there are numerous physical assets
within a class of physical assets and inspection of each such physical asset is
impracticable, the description of present condition of all the physical assets
within the class may be based upon an inspection of a number of them selected
at random, provided that the number selected is large enough to yield a
reasonably reliable sample and that the total number of physical assets within
the class and the number selected are disclosed.
18VAC135-30-520. Replacement requirements in conversion
condominium. (Repealed.)
A. Subject to the exceptions provided in subsections B and
H hereof, the section captioned "Replacement Requirements" shall
state the expected useful lives of all physical assets in the condominium. The
section shall state that expected useful lives run from the date of the
inspection by means of which the expected useful lives were determined. Such
inspection date shall be stated.
B. A single statement of the expected useful life of a
class of physical assets shall suffice to disclose the expected useful life of
each physical asset within the class; provided, however, that such statement
shall include a separate reference to the expected useful life of any physical
asset within such class which is significantly shorter than the expected useful
life indicated for the class generally.
C. An expected useful life may be qualified. A qualified
expected useful life is an expected useful life expressly conditioned upon a
given use or level of maintenance or other factor affecting longevity. No use,
level of maintenance or other factor affecting longevity shall be stated as a
qualification unless such use, level of maintenance or factor affecting
longevity is normal or reasonably anticipated for the physical asset involved.
If appropriate, an expected useful life may be stated as being indefinite,
subject to the stated qualification that the physical asset involved must be
properly used and maintained. An expected useful life may be stated as being
within a range of years, provided that the range is not so broad as to render
the statement meaningless. In no event shall the number of years constituting
the lower limit of such range be less than two-thirds of the number of years
constituting the upper limit.
D. Subject to the exceptions provided in subsections E and
H hereof, the section captioned "Replacement Requirements" shall
state the replacement costs of all physical assets in the condominium including
those whose expected useful lives are stated as being indefinite.
E. A statement of the replacement cost of a representative
member of a class of physical assets shall suffice to disclose the replacement
cost of each physical asset within the class; provided, however, that such
statement shall include a separate reference to the replacement cost of any
physical asset within the class which is significantly greater than the
replacement cost indicated for the representative member of the class.
F. Distinction shall be made between replacement costs
which will be common expenses and replacement costs which will be borne by unit
owners individually. The latter type of replacement costs shall be broken down
on a per unit basis. The purchaser's attention shall be directed to the
"Financial Matters" section for an indication of the amount of the
former type or replacement costs.
G. In any case in which the replacement cost of a physical
asset may vary depending upon the circumstances surrounding its replacement,
the stated replacement cost shall reflect the circumstances under which
replacement will most probably be undertaken.
H. A single expected useful life and an aggregate
replacement cost may be stated for all of the structural components of a
building or structure which have both (i) the same expected useful lives and
(ii) replacement costs which will constitute regular common expenses. A
statement made pursuant to the preceding sentence shall be accompanied by
statements of the expected useful lives and replacement costs, stated on a per
unit basis, of all of the structural components of the building or structure
whose expected useful lives differ from the general expected useful life or
whose replacement costs will be borne by unit owners individually.
18VAC135-30-530. Notice to tenants. (Repealed.)
No notice to terminate a tenancy provided for by § 55-79.94(b)
of the Code of Virginia shall be given prior to the registration of the
condominium unit as to which the tenancy is to be terminated.
Part VII
Time-Share Condominiums
18VAC135-30-540. Public offering statement for time-share
condominiums; general instructions. (Repealed.)
This Part VII of the Condominium Regulations applies to
those property developments in which purchasers are offered both condominium
and time-share interests. The developer of a time-share condominium shall
prepare one public offering statement which complies with the requirements of
this Part VII even though the developer may be required to register under both
the Condominium Act (§ 55-79.39 et seq. of the Code of Virginia) and Real
Estate Time-Share Act (§ 55-360 et seq. of the Code of Virginia).
The public offering statement for a time-share condominium
shall conform in all respects to the requirements of 18VAC135-30-210 and
18VAC135-30-230 through 18VAC135-30-460 of this chapter. In addition, the
public offering statement for a time-share condominium shall (i) contain
special disclosures in the narrative sections captioned "Condominium
Concept," "Description of Condominium," "Declarant,"
"Terms of Offering," "Encumbrances," "Unit Owners'
Association," "Financial Matters," "Insurance," and
"Taxes," and (ii) contain a narrative section entitled "Exchange
Program."
18VAC135-30-550. Summary of important considerations. (Repealed.)
In addition to the information required by 18VAC135-30-260 of
this chapter in the case of a time-share program, summary statements shall be
made of the substance of the following facts and circumstances. Specific
information shall be substituted for the general information indicated by
brackets. Appropriate modifications shall be made to reflect facts and
circumstances varying from those indicated herein:
1. The time-share program will [will not] be governed by a
time-share owners' association.
2. Decisions affecting the time-share project will be made
by the developer.
3. Each time-share owner cannot reduce the amount of his
assessment by refraining from use of his time-share or the projects'
facilities.
4. If a time-share owner fails to pay an assessment when
due, the developer may impose certain sanctions or penalties, including the
forfeiture of the time-share.
5. The developer, its principals, officers, directors,
partners, or trustees have undergone [a debtor's relief proceeding].
6. A managing agent may perform routine operations for the
operation, maintenance and upkeep of the time-share project, as determined by
the developer. The managing agent is [affiliated with] the [developer, or a
director or officer thereof].
7. The developer may rent on a transient basis, unsold
time-shares. The right of a time-share use owner to rent his time-share is
subject to [restrictions].
8. The right of a time-share owner to resell his time-share
is subject to [restrictions].
9. The time-shares are restricted to residential use.
10. The time-share owner may not alter the structure or
exterior of the unit in which his time-share is located.
11. The developer will obtain certain insurance benefiting
the time-share use owner, but the time-share use owner should obtain additional
insurance on his own.
12. The time-share owner may be required to pay applicable
taxes imposed on the project similar in scope and design to taxes applicable to
hotels, motels or other transient type accommodations.
13. Marketing and sale of time-shares will be conducted in
accordance with Virginia Fair Housing Law (§ 36-96.1 et seq. of the Code of
Virginia).
14. A time-share purchaser is required to make certain
disclosures to purchasers in the resale of his time-share.
18VAC135-30-560. Condominium concept, time-share condominium.
(Repealed.)
In addition to the information required by 18VAC135-30-280 of
this chapter, this section shall consist of discussion of the time-share form
of ownership and shall include a detailed explanation of the type of time-share
arrangement employed in the project.
18VAC135-30-570. Description of condominium, time-share
condominium. (Repealed.)
In addition to the information required by 18VAC135-30-300 of
this chapter, this section shall consist of a general description of the
time-share program, the units, amenities and type of time-shares being made
available to purchasers. The section shall include, without limitation,
statements indicating:
1. The land area of the time-share project;
2. The number of units in the project;
3. The number of units in the project to be organized on a
time-share basis;
4. An identification of units that are subject to
time-sharing and the type of time-shares being offered;
5. The duration of the time-shares;
6. The different types of units available;
7. Provisions, if any, that have been made for public
utilities in the time-share project, including water, electricity, telephone,
and sewerage facilities;
8. Restrictions, if any, as to what changes a time-share
owner may make to his unit in which his time-share is located; and
9. Whether or not the units are restricted solely to
residential use.
18VAC135-30-580. Declarant/developer, time-share condominium.
(Repealed.)
In addition to the information required by 18VAC135-30-330 of
this chapter, the following information shall be stated with regard to every
director, partner or trustee of the declarant/developer: (i) name and address;
and (ii) principal occupation. The name and address of each person owning or
controlling an interest of 20% or more in the time-share project shall also be
indicated.
18VAC135-30-590. Terms of offering, time-share condominium.
(Repealed.)
In addition to the information required by 18VAC135-30-340,
subsection A of this chapter, this section shall set forth provisions with
respect to the purchaser's right to cancel his purchase contract. Such
disclosure shall be consistent with the applicable statutory provision, §
55-79.88(c) or § 55-376 of the Code of Virginia. Special escrow requirements of
§ 55-375 of the Code of Virginia shall be likewise described in this section.
18VAC135-30-600. Encumbrances, time-share condominium. (Repealed.)
In addition to the information required by 18VAC135-30-350 of
this chapter, regardless of the form of time-share project, the section shall
describe the extent to which a time-share unit may become subject to a tax or
other lien arising out of claims against other owners of the same unit. The
section shall discuss the consequences that the filing of federal tax liens
would have on the project.
18VAC135-30-610. Unit owners' association, time-share
condominium. (Repealed.)
A. In addition to the information required by 18VAC135-30-370
of this chapter, this section shall contain either a section captioned
"Administration of Time-Share Estate Program" or a section captioned
"Administration of Time-Share Use Program," depending upon the form
of time-shares being offered by the developer. The section shall discuss the
manner in which the time-share program will be governed and administered.
B. "Administration of time-share estate program."
1. The section shall describe the functions and the
organization's structure of the time-share estate owners' association formed
pursuant to the Virginia Nonstock Corporation Act. The description shall
indicate:
(a) the existence or provisions for a board of directors
and officers;
(b) the manner of their election or appointment;
(c) the assignment or delegation of responsibility for
performance of the functions of the unit owners' association; and
(d) those items outlined in § 55-368, numbered 2 through
10, of the Code of Virginia.
2. The section shall describe the allocation of voting power
among the time-share estate owners and will explain how votes will be cast. Any
provision in the time-share instruments for regular meetings of the estate
owners shall be mentioned.
3. The significant terms of any lease of recreational areas
or similar contract or agreement affecting the use, maintenance or access of
all or any part of the time-share shall be stated. A brief narrative statement
of the effect of each of any such agreement shall be included.
4. Rules and regulations for the use, enjoyment, and
occupancy of units, and the authority to promulgate and amend such rules shall
be discussed. Included shall be a description of the method, if any, to be
employed to assign or reserve occupancy periods for the time-share owners.
Methods for providing alternate use periods or monetary compensation to a
time-share owner if his contracted-for unit cannot be made available for the
period to which the owner is entitled by schedule or by confirmed reservation
shall be discussed.
5. Any standing committees established or to be established
to perform functions of the time-share estate owners' association shall be
discussed. Such committees include, without limitation, executive committees,
architectural control committees and committees having the authority to
interpret time-share instruments or rules and regulations.
6. Any power of the developer or of the time-share estate
owners' association to enter units shall be discussed. To the extent each is
applicable, the following facts shall be stated:
a. a unit may be entered without notice to the time-share
owners;
b. the developer or representatives of the time-share
estate owners' association are empowered to take actions or perform work in a
unit without the consent of the units owners; and
c. the time-share owners may be required to bear the costs
of actions so taken or work so performed.
7. The section shall describe any routine janitorial
procedures that are to occur between occupancy periods of time-share owners, as
well as any maintenance program that is to take place on an annual or
semi-annual basis.
8. The managing agent, if any, shall be identified. If a
managing agent is to be employed in the future, the criteria, if any, for
selection of the managing agent shall be briefly stated. The section shall
indicate any relationship between the managing agent and the developer or a
member of the board of directors or an officer of the time-share estate owners'
association. The duration of any management agreement shall be stated.
9. The section shall discuss any retention by the developer
of control over the time-share estate owners' association. The association's
power to pass special assessments against and raise the annual assessments of
the time-share owners upon the termination of the developer control shall also
be discussed.
C. "Administration of time-share use program."
The section shall provide the information required by § 55-371 of the Code of
Virginia.
18VAC135-30-620. Financial matters, time-share condominium.
(Repealed.)
A. In addition to the information required by 18VAC135-30-390
of this chapter, this section shall contain either a section captioned
"Finances of Time Share Estate Ownership" or a section captioned
"Finances of Time-Share Use Ownership," depending upon the form of
time-share development used in the projects. The section shall discuss the
expenses incident to the ownership of a time-share in the manner provided in
subsections B through H hereof.
B. The section shall describe the nature of the costs and
expenses of operating the time-share program and shall distinguish between
those to be paid by the developer and those to be paid by the time-share
owners. The section shall explain how the responsibilities for payment of
operating costs will be apportioned among the time-share owners. In the case of
a time-share estate program, this section shall describe and distinguish
between developer expenses and time-share estate occupancy expenses as well as
the meaning of the "Developer Control Period" as outlined in § 55-369
of the Code of Virginia, and when it commences and ends. Mention shall be made
of the developer's right to collect a periodic fee from the time-share estate
owner for the payment of the latter expenses; the method of apportionment
between time-share estate owners shall be explained.
C. The section shall contain a statement describing any
current or expected fees or charges to be paid by time-share owners for the use
and enjoyment of any facilities related to the project. This shall include,
without limitation, any fee attributable to the use of recreational facilities
mentioned in any of the time-share documents or during the marketing
activities.
D. The section shall contain a statement describing the
extent to which financial arrangements, if any, have been provided for
completion of any time-share unit offered for sale.
E. The section shall describe any services which the
developer provides or expenses it pays which may become at any subsequent time
a time-share expense of the time-shares, and the projected time-share expense
liability attributable to each of those services or expenses for each
time-share.
F. The section shall contain the latest annual balance
sheet and a projected budget for the program for one year after the date of the
first transfer to a purchaser. After that one-year period, a current budget
shall be included in lieu of the projected budget and annual balance sheet
mentioned above. All budgets shall be accompanied by a statement indicating the
name of the preparer of the budget, and a statement explaining all budgetary assumptions
concerning occupancy and inflation. All budgets must include, without
limitation: (i) a statement of the amount, or a statement that there is no
amount, included in the budget as a reserve for repairs and replacements; and
(ii) a statement of any other reserves. If the project is a time-share estate
project and if the developer control period has not ended, the budget shall
also include: (i) the projected common expense liability for all time-share
owners; (ii) the projected common expense liability by category of
expenditures; and (iii) a statement of the amount included in the budget
reserved for repairs to and refurbishing of the project and the replacement of
the personalty situated therein.
G. The "Finances of Time-Share Use Ownership"
section shall, where the developer's equity in the project is less than
$250,000, include a current audited financial statement disclosing the
developer's net worth. Such statement shall specifically state the amount of
equity in the project.
H. The section shall discuss the effect of failure of a
time-share owner to pay when due the assessments, fees or charges levied
against his time-share. Such discussion shall indicate provisions for penalties
to be applied in the case of overdue assessments including the lien authorized
by § 55-370 B of the Code of Virginia, and for the acceleration of unpaid
assessments.
18VAC135-30-630. Insurance, time-share condominium. (Repealed.)
In addition to the information required by 18VAC135-30-400 of
this chapter, this section shall describe the insurance coverage provided for
the benefit of time-share owners. Included shall be a discussion of the
comprehensive general liability insurance for death, bodily injury, and
property damage arising out of, or in connection with, the use and enjoyment of
units by time-share estate owners or time-share use owners or their guests. It
shall be made clear that in the case of a time-share estate project the costs
associated with this liability insurance will be borne by the developer during
the developer control period, and thereafter, the costs will be assumed by the
time-share estate owners' association; and that in the case of a time-share use
project, the costs associated with securing and maintaining such insurance
shall be borne by the developer.
Depending on the time-share organization employed by the
developer, §§ 55-368(7) or 55-371(7) of the Code of Virginia shall be included
in this discussion.
18VAC135-30-640. Taxes, time-share condominium. (Repealed.)
In addition to the information required by 18VAC135-30-410 of
this chapter, this section shall describe all existing or proposed taxes to be
levied against time-shares individually including, without limitation, real
property taxes, transient taxes and other special assessments.
18VAC135-30-650. Exchange program, time-share condominium.
(Repealed.)
The public offering statement shall contain a section
captioned "Exchange Program." if, at the time of purchase of a
time-share, the purchaser is permitted or required to become a member of or a
participant in an exchange program. An "exchange program" is a
program offered by the developer or an independent exchange agent for the
exchange of occupancy rights with the owners of time-shares of other time-share
projects. This section shall contain the information required by § 55-374 B of
the Code of Virginia.
Part VIII
Post-Registration Provisions
18VAC135-30-660. Material change defined. (Repealed.)
As used in 18VAC135-30-670 through 18VAC135-30-700 of this
chapter, "material change" means a change which renders inaccurate,
incomplete or misleading, any information or document disclosed in or attached
to a public offering statement whose form and content are designated for use
pursuant to 18VAC135-30-100 G or 18VAC135-30-680 B of this chapter. Without
limiting the generality of the preceding sentence, a material change shall be
whenever (i) information or a document required to be disclosed in or attached
to a public offering statement but not so disclosed or attached by reason of
its previous unavailability or nonexistence becomes available or comes into
existence and (ii) a new budget is adopted.
18VAC135-30-670. Amendment of public offering statement. (Repealed.)
A. Prior to or upon the occurrence of a material change, the
declarant shall amend the public offering statement to disclose the modified or
additional information or to include the modified or additional document, as
the case may be. The declarant may amend the public offering statement other
than in connection with a material change.
B. Amendment of the public offering statement may be
accomplished in any intelligible manner and, to the extent that strict
compliance with any of the provisions of these regulations governing the form
of presentation of information in the public offering statement would be unduly
burdensome, the declarant may deviate therefrom in amending the public offering
statement, provided that (i) no such deviation shall be more extensive than is
necessary and appropriate under the circumstances; (ii) the requirements of
18VAC135-30-230 and 18VAC135-30-280 of this chapter are strictly observed and
(iii) the presentation of information in the amended public offering statement
is organized so as to facilitate reading and comprehension. Nothing contained
herein shall authorize a deviation from strict compliance with a provision of
these regulations governing the substance of disclosure in the public offering
statement. If any information has become inaccurate or misleading by reason of
the material change and is not deleted from the public offering statement in
connection with its amendment, such fact shall be clearly noted.
C. Correction of spelling, grammar, omission or other
similar errors not affecting the substance of a public offering statement shall
not be deemed an amendment of the public offering statement for the purposes of
these regulations; provided, however, that the declarant shall file with the
board a copy of a public offering statement so corrected.
18VAC135-30-680. Filing of amended public offering statement.
(Repealed.)
A. The declarant shall promptly file with the board a copy of
an amended public offering statement. Unless subsection D hereof applies, the
declarant shall, as part of such filing, update the application for
registration on file with the board either by filing a new application or by
advising the board of changes in the information contained in a previously
filed application or file new or substitute documents. In the case of a public
offering statement (i) amended other than in connection with a material change
or (ii) presumed current pursuant to 18VAC135-30-700 of this chapter, the
filing shall indicate the date of amendment.
B. Unless subsection D hereof applies, the board shall
issue a notice of filing within five business days following receipt in proper
form of the materials required by subsection A hereof. The board shall review
the amended public offering statement and supporting materials to determine
whether the amendment complies with 18VAC135-30-670 of this chapter. At such
time as the board affirmatively determines that the amendment complies with 18VAC135-30-670
of this chapter, but not later than the 30th day following issuance of the
notice of filing, it shall enter an order designating the amended form and
content of the public offering statement to be used. Such order shall provide
that previous orders designating the form and content of the public offering
statement for use are superseded.
C. If the board determines, pursuant to subsection B
hereof, that an amendment to the public offering statement does not comply with
18VAC135-30-670 of this chapter, it shall immediately, but in no event later
than the 30th day following issuance of the notice of filing enter an order
declaring the amendment not in compliance with 18VAC135-30-670 of this chapter
and specifying the particulars of such noncompliance. In the case of a public
offering statement amended other than in connection with a material change, the
order shall relate back to the date of amendment. If neither of the orders
provided for by this subsection and subsection B hereof are entered within the
time allotted, the amendment shall be deemed to comply with 18VAC135-30-670 of
this chapter, except that the 30-day period may be extended in the manner
provided for extension of the correction period by 18VAC135-30-100, subsection
D of this chapter. The declarant may, at any time correct and refile an amended
public offering statement; provided, however, that if an order of noncompliance
has been entered with respect to the amendment, all of the provisions of
subsections A and B hereof and this subsection shall apply to such refiling.
D. If the material change which resulted in amendment of
the public offering statement was an expansion of the condominium or the
formation of units out of convertible land or convertible space, the declarant
shall file a complete application for registration of the additional units,
provided, that no such application need be filed for units previously
registered. Such application for registration shall be subject to all of the
provisions of 18VAC135-30-70 through 18VAC135-30-150 of this chapter and the
board shall observe the procedures of 18VAC135-30-100 of this chapter in regard
to the application. Documents then on file with the board and not changed in
connection with the creation of additional units need not be refiled, provided
that the application indicates that such documents are unchanged.
E. In each case in which an amended document is filed
pursuant to this paragraph and the manner of its amendment is not apparent on
the face of the document, the declarant shall provide an indication of the
manner and extent of amendment.
18VAC135-30-690. Current public offering statement. (Repealed.)
A. A public offering statement is current if its form and content
are designated for use pursuant to 18VAC135-30-100 G or 18VAC135-30-680 B of
this chapter and remains current so long as no material change occurs and any
amendment of the public offering statement other than in connection with a
material change is made in compliance with 18VAC135-30-670 of this chapter.
B. A public offering statement ceases to be current upon
the occurrence of a material change and, subject to the exception provided in
18VAC135-30-700 of this chapter, does not thereafter become current unless and
until (i) it is amended pursuant to 18VAC135-30-670 of this chapter and (ii)
the board, with respect to such amendment, enters an order pursuant to
18VAC135-30-100 G or 18VAC135-30-680 B or fails to enter, within the times
allotted therefor, any of the orders provided for by 18VAC135-30-100 E and G or
18VAC135-30-680 B and C.
C. If the board determines that the public offering
statement amended other than in connection with a material change fails to
comply with 18VAC135-30-670 of this chapter that public offering statement
ceases to be current as of the date of amendment. Such cessation shall be
affected retroactively by the board's entry of an order of noncompliance and
nothing contained herein shall limit the declarant's right to use the public
offering statement as current prior to the entry of an order of noncompliance.
The public offering statement does not thereafter become current unless and
until it is corrected and refiled and the board, with respect to such
amendment, enters an order pursuant to 18VAC135-30-680 B of this chapter or
fails to enter either of the orders provided for by 18VAC135-30-680 B or C of
this chapter.
D. Upon issuance of a public offering statement amended
because of the occurrence of a change that materially and adversely affects the
purchaser's bargain, that was caused by the declarant or any agent or affiliate
of the declarant, and of the possibility of which the purchaser was not
forewarned in the public offering statement given him pursuant to § 55-79.88(c)
of the Code of Virginia, then the purchaser's 10-day rescission right afforded
by § 55-79.88(c) of the Code of Virginia is renewed. The declarant shall
deliver the public offering statement so amended and give the purchaser notice
of his renewed rescission right as required by 18VAC135-30-710 of this chapter.
18VAC135-30-700. Certain amended public offering statements
presumed current. (Repealed.)
A. A public offering statement amended by the declarant to disclose
any material change which is an aspect or result of the orderly development of
the condominium or the normal functioning of the unit owners' association shall
be presumed current immediately upon its amendment, subject, however, to the
condition that the board shall subsequently determine that the amendment was
made in compliance with 18VAC135-30-670 of this chapter. An amended public
offering statement presumed current pursuant to this subsection shall be
referred to elsewhere in these regulations as a presumptively current public
offering statement.
B. The declarant shall file with the board a copy of a
presumptively current public offering statement and all of the provisions of
18VAC135-30-680 of this chapter shall apply to such filing except that, in
addition: (i) filing shall be made not later than 10 business days following
the occurrence of the material change which necessitated the amendment, and
(ii) the filing shall indicate the declarant's plans, if any, to deliver the
presumptively current public offering statement to purchasers pursuant to §
55-79.88(c) of the Code of Virginia.
C. A board order declaring that an amendment which resulted
in a presumptively current public offering statement is not in compliance with
18VAC135-30-670 of this chapter shall render ineffective the presumption that
the public offering statement is current. In that event, the public offering
statement shall be deemed to have ceased being current upon the occurrence of
the material change which necessitated the amendment. Nothing contained herein
shall limit the declarant's right to use a presumptively current public
offering statement prior to entry of the order of noncompliance. A
presumptively current public offering statement also ceases being current upon
the declarant's failure to file within the time provided in subsection B
hereof, but such cessation shall have no retroactive effect. A presumptively
current public offering statement which ceases to be current pursuant to this
subsection does not thereafter become current unless and until it is filed or
refiled with the board pursuant to 18VAC135-30-680 of this chapter and the
board, with respect to such public offering statement, enters an order pursuant
to 18VAC135-30-100 G or 18VAC135-30-680 B of this chapter or fails to enter,
within the times allotted therefor, any of the orders provided for in
18VAC135-30-100 E and G or 18VAC135-30-680 B and C of this chapter.
18VAC135-30-710. Public offering statement not current;
notification of purchasers. (Repealed.)
The declarant shall notify every purchaser to whom has been
delivered a public offering statement which was subsequently determined not to
have been current at the time of its delivery. Such notification shall indicate
that any contract for disposition of a condominium unit may be cancelled unless
and until the declarant complies with the provisions of § 55-79.88(c) of the
Code of Virginia. The declarant shall file a copy of the notification with the
board and provide proof that such notification has been delivered to all
purchasers under contract.
18VAC135-30-720. Annual report by declarant. (Repealed.)
Prior to filing the annual report required by § 55-79.93 of
the Code of Virginia, the declarant shall review the public offering statement
then being delivered to purchasers. If such public offering statement is
current, the declarant shall so certify in the annual report and include a copy
thereof in the report. If such public offering statement is not current, the
declarant shall amend the public offering statement and the annual report
shall, in that event, consist of a filing complying with the requirements of
18VAC135-30-680 of this chapter. In addition, the annual report shall indicate
the number of condominium units (i) conveyed, (ii) under contract for
disposition, (iii) being rented by the declarant and (iv) still being offered.
The annual report shall indicate the status of declarant's control retained pursuant
to § 55-79.74 of the Code of Virginia. The annual report may be in any form
suitable for compliance with the provisions of this paragraph and § 55-79.93 of
the Code of Virginia.
18VAC135-30-730. Provisions applicable to substituted
disclosure document, prospectus. (Repealed.)
A. The provisions of 18VAC135-30-660 through 18VAC135-30-720
of this chapter shall apply to a substituted disclosure document in the same
manner and to the same extent that they apply to public offering statements.
B. The provisions of 18VAC135-30-660 through
18VAC135-30-700 of this chapter shall apply to a prospectus only to the extent
that amendment of the information or documents attached to the prospectus
pursuant to 18VAC135-30-460 of this chapter is required or permitted. The body
of the prospectus shall be amended only as provided in applicable securities
law. The declarant shall immediately file with the board any amendments to the
body of the prospectus and, upon receipt thereof, the board shall enter an
order designating the form and content of the prospectus to be used and
providing that previous orders designating the form and content of the
prospectus for use are superseded. A prospectus is current so long as it is
effective under applicable securities law and the information and documents
attached thereto are current under the provisions of 18VAC135-30-690 and
18VAC135-30-700 of this chapter. The declarant shall immediately notify the
board if the prospectus ceases being effective. If no prospectus is effective
and the declarant proposes to continue offering condominium units, the declarant
shall file a public offering statement with the board pursuant to
18VAC135-30-680 of this chapter.
C. The provisions of 18VAC135-30-710 of this chapter shall
apply to a prospectus in the same manner and to the same extent that they apply
to a public offering statement.
D. In an annual report involving a prospectus the declarant
shall comply with all of the provisions of 18VAC135-30-720 of this chapter
applicable to public offering statements and, in addition, shall certify that
an effective prospectus is available for delivery to purchasers and shall
indicate the declarant's plans or expectations regarding the continuing
effectiveness of the prospectus.
Part IX
Horizontal Property Regimes
18VAC135-30-740. Horizontal property regime; special
definitions. (Repealed.)
The definitions provided in § 55-79.2 of the Code of
Virginia, as they may be supplemented herein, shall apply to 18VAC135-30-740
through 18VAC135-30-800 of this chapter. A condominium established in Virginia
prior to July 1, 1974, shall be referred to in 18VAC135-30-740 through
18VAC135-30-800 of this chapter as a "horizontal property regime."
18VAC135-30-750. Horizontal property regime; provisions
applicable. (Repealed.)
A horizontal property regime and board action with respect
thereto shall be subject to:
1. All of the provisions of 18VAC135-30-10 through
18VAC135-30-120 of this chapter and
2. All of the provisions of 18VAC135-30-160 through
18VAC135-30-190 except 18VAC135-30-180 B of this chapter, provided that each
reference therein to registration shall be deemed to refer also to the issuance
of a final public report.
18VAC135-30-760. Notice of intention. (Repealed.)
A developer shall notify the board of its intention to offer
apartments in a horizontal property regime in Virginia by completing and filing
at the offices of the board a notice of intention containing substantially all
of the information and documents required by the standard notice of intention.
The notice of intention may request issuance of a preliminary, final,
substitute or supplementary public report.
18VAC135-30-770. Inspection by board. (Repealed.)
Upon receipt of a notice of intention requesting issuance of
a final, substitute or supplementary public report the board shall determine
whether an inspection of the horizontal property regime is necessary. If the
board determines that inspection is necessary, it shall so notify the developer
within 10 days following receipt of the notice of intention. The developer
shall pay an inspection fee of $75 plus the reasonable expenses of first class
travel incurred in such inspection. The duty of conducting the inspection and
preparing the public report is delegated to the property registration
administrator. Inspection fees shall be placed to the credit of the special
fund established by § 55-79.31 of the Code of Virginia.
18VAC135-30-780. Public report. (Repealed.)
Five copies of each public report issued by the board shall
be furnished to the developer without charge. Additional copies may be secured
by the developer at its own expense. A developer shall not represent or cause a
purchaser to believe that the board's issuance of a public report is an
approval of any horizontal property regime. The public report shall be used
only in its entirety. The developer shall not cause any portion of a public
report to be underscored, italicized or printed in larger, heavier or different
color type than the remainder of the public report unless the original issued
by the board is so prepared.
18VAC135-30-790. Supplementary public report. (Repealed.)
A. Whenever, following the first filing of a notice of intention
with the board, a material change in the setup, value or use of a horizontal
property regime occurs, the developer shall so notify the board. If the board
has issued a final, substitute or supplementary public report relative to the
horizontal property regime, the notification provided for in the preceding
sentences shall be accomplished by the filing of a notice of intention
requesting issuance of a supplementary report. Previously issued final,
substitute or supplementary public reports shall not be delivered to purchasers
following the occurrence of a material change in the setup, use or value of the
horizontal property regime.
B. For the purposes of this paragraph, a material change in
the setup, use or value of a horizontal property regime shall include, without
limitation, a change in the number of apartments, a change in the land area, a
change in the percentage of ownership of the common elements by any co-owner
including the developer as owner of unsold apartments, a change in common elements
constituting amenities and a change of the developer whereby a party other than
the developer identified in the most recently issued public report succeeds to
the rights and interests of such original developer in the horizontal property
regime. Upon the request of a developer in a specific case, the board shall
determine whether a particular change constitutes a material change in the
setup, use or value; provided, however, that the presentation of information to
the board in connection with such request shall not relieve the developer of
any requirement for filing a notice of intention in the event that the board
determines that a material change in the setup, use or value has occurred or
will occur.
C. Upon receipt of a notice of intention filed pursuant to
this paragraph, the board shall issue a supplementary public report and the
developer shall deliver a true copy thereof to all purchasers who have executed
but not settled contracts for acquisition of an apartment in the horizontal
property regime.
D. The developer may amend a final, substitute or
supplementary public report to reflect changes not constituting material
changes in the setup, value or use, provided that a copy thereof is filed with
the board prior to its delivery to any prospective purchaser.
18VAC135-30-800. Horizontal property regime constituting
conversion condominium. (Repealed.)
A. A notice of intention requesting issuance of a final public
report on a horizontal property regime which is a conversion condominium shall
have attached thereto the information required by 18VAC135-30-500 B, C and D,
18VAC135-30-510 and 18VAC135-30-520 of this chapter to be disclosed in public
offering statements for conversion condominiums. Such information shall be
prepared by the developer and submitted in a form suitable for presentation in
the final public report. The board shall make any revisions in such information
as are necessary to effect full compliance with the applicable regulations and
shall incorporate the information into the final public report.
B. A notice of intention requesting issuance of a final
public report on a horizontal property regime which is a conversion condominium
shall have attached thereto a copy of the notice to be given to tenants
pursuant to § 55-79.94(b) of the Code of Virginia. The declarant shall certify
that such notice to tenants shall be, at the time of issuance of the final
public report, mailed or delivered to each of the tenants in the building or
buildings in the horizontal property regime. No such notice shall be mailed or
delivered to a tenant prior to the issuance of the final public report on the
horizontal property regime.
FORMS (18VAC135-30) (Repealed.)
Appendix A Public Offering Statement (eff. 9/07).