Condominiums: Ownership of Airspace and More
A condominium represents a completely different animal from its cousins the duplex and the townhome. Differing contract forms and due diligence considerations make a condo deal a bit more sophisticated. A clear understanding of condo regimes will help facilitate a smooth condo transaction.
Residential condominiums differ in concept from all other real property interests. Typically, an owner of a lot owns all rights below, at and above the surface of the property. Ownership extends from the center of the earth up to the heavens above, subject of course, to other rules, laws and easements (for instance, although you may own air rights to the heavens above the surface of your lot, allowing you to build multi-story buildings on your lot if zoning permits, an airplane has a right to cross your airspace pursuant to federal and international law). So if title to property is held and described according to plats and surveys of the surface, how can one owner take ownership of a unit above the unit of another?
The answer lies in the concept of a condominium regime. If an owner of a parcel of land files the necessary paperwork to create a condominium regime, then he or she can build a structure on the land and carve up ownership in that structure into separate units, which may or may not be stacked on top of each other. In essence, it allows a property owner to carve up the airspace above the surface, and sell that airspace separately. A prospective owner of a condo unit must understand that they will not purchase the land underneath the structure; they will be purchasing the interior space of a unit within the structure, typically with a percentage interest in all the common areas shared with other condo owners. The purchaser must read and understand all the rules and regulations of the condo regime which govern the shared ownership of the property and structure.
This Title Tuesday Tip is provided courtesy of Rattikin & Rattikin, LLP, attorneys and counsel for Rattikin Title Company and is not a legal representation or statement of law. Please confer with your legal counsel for any and all legal questions.