§ 3-104. Transfer of special declarant rights
(a) A special declarant right may be transferred only by an instrument executed by the
transferee and recorded in each municipality in which any portion of the common interest
community is located.
(b) Upon transfer of a special declarant right, the liabilities are as follows:
(1) A transferor remains liable for obligations and actions arising before the transfer
of special declarant rights and warranty obligations imposed by this title. Lack of
privity does not deprive any unit owner of standing to bring an action to enforce
any obligation of the transferor.
(2) If a successor to a special declarant right is an affiliate of a declarant, the transferor
is jointly and severally liable with the successor for any obligations or liabilities
of the successor relating to the common interest community.
(3) If a transferor retains special declarant rights, but transfers other special declarant
rights to a successor who is not an affiliate of the declarant, the transferor remains
liable in regard to the retained special declarant rights.
(4) A transferor has no liability for any act or omission or any breach of a contractual
or warranty obligation arising from the exercise of a special declarant right by a
successor declarant who is not an affiliate of the transferor.
(c) Unless otherwise provided in a mortgage instrument, deed of trust, or other agreement
creating a security interest, in case of foreclosure of a security interest, sale
by a trustee under an agreement creating a security interest, tax sale, judicial sale,
or sale under bankruptcy code or receivership proceedings, of any units owned by a
declarant or real estate in a common interest community subject to development rights,
a person acquiring title to all the property being foreclosed or sold, but only upon
his or her request, succeeds to all special declarant rights related to that property
held by that declarant, or only to any rights reserved in the declaration pursuant
to section 2-115 of this title and held by that declarant to maintain models, sales offices, and signs. The judgment
or instrument conveying title must provide for transfer of only the special declarant
rights requested.
(d) Upon foreclosure of a security interest, sale by a trustee under an agreement creating
a security interest, tax sale, judicial sale, or sale under bankruptcy code or receivership
proceedings, of all interest in a common interest community owned by a declarant:
(1) the declarant ceases to have any special declarant rights, and
(2) the period of declarant control (subsection 3-103(d) of this title) terminates unless the judgment or instrument conveying title provides for transfer
of all special declarant rights held by that declarant to a successor declarant.
(e) The liabilities and obligations of a person who succeeds to special declarant rights
are as follows:
(1) A successor to any special declarant right who is an affiliate of a declarant is subject
to all obligations and liabilities imposed on the transferor by this title or by the
declaration.
(2) A successor to any special declarant right, other than a successor described in subdivision
(3) or (4) of this subsection or a successor who is an affiliate of a declarant, is
subject to the obligations and liabilities imposed by this title or the declaration:
(A) on a declarant that relate to the successor’s exercise or nonexercise of special declarant
rights; or
(B) on his or her transferor, other than:
(i) misrepresentations by any previous declarant;
(ii) warranty obligations on improvements made by any previous declarant, or made before
the common interest community was created;
(iii) breach of any fiduciary obligation by any previous declarant or his or her appointees
to the executive board; or
(iv) any liability or obligation imposed on the transferor as a result of the transferor’s
acts or omissions after the transfer.
(3) A successor to only a right reserved in the declaration to maintain models, sales
offices, and signs (section 2-115 of this title), may not exercise any other special declarant right, and is not subject to any liability
or obligation as a declarant, except the obligation to provide a public offering statement
and any liability arising as a result thereof.
(4) A successor to all special declarant rights held by a transferor who succeeded to
those rights pursuant to a deed or other instrument of conveyance in lieu of foreclosure
or a judgment or instrument conveying title under subsection (c) of this section,
may declare in a recorded instrument the intention to hold those rights solely for
transfer to another person. Thereafter, until transferring all special declarant rights
to any person acquiring title to any unit or real estate subject to development rights
owned by the successor, or until recording an instrument permitting exercise of all
those rights, that successor may not exercise any of those rights other than any right
held by his or her transferor to control the executive board in accordance with subsection 3-103(d) of this title for the duration of any period of declarant control, and any attempted exercise of
those rights is void. So long as a successor declarant may not exercise special declarant
rights under this subsection, the successor declarant is not subject to any liability
or obligation as a declarant other than liability for his or her acts and omissions
under subsection 3-103(d) of this title.
(f) Nothing in this section subjects any successor to a special declarant right to any
claims against or other obligations of a transferor declarant, other than claims and
obligations arising under this title or the declaration. (Added 1997, No. 104 (Adj. Sess.), § 3, eff. Jan. 1, 1999.)