§ 34-36.1-2.10. Exercise of development rights. (a) To exercise any development right reserved under § 34-36.1-2.05(a)(8), the declarant shall prepare, execute, and record an amendment to the declaration (§ 34-36.1-2.17) and comply with § 34-36.1-2.09. The declarant is the unit owner of any units thereby created. The amendment to the declaration must assign an identifying number to each new unit created; and, except in the case of subdivision or conversion of units described in subsection (c), reallocate the allocated interests among all units. The amendment must describe any common elements and any limited common elements thereby created and, in the case of limited common elements, designate the unit to which each is allocated to the extent required by § 34-36.1-2.08.

(b) Development rights may be reserved within any real estate added to the condominium if the amendment adding that real estate includes all matters required by §§ 34-36.1-2.05 or 34-36.1-2.06 as the case may be, and the plats and plans include all matters required by § 34-36.1-2.09. This provision does not extend the time limit on the exercise of development rights imposed by the declaration pursuant to § 34-36.1-2.05(a)(8).

(c) Whenever a declarant exercises a development right to subdivide or convert a unit previously created into additional units, common elements, or both:

(1) If the declarant converts the unit entirely to common elements, the amendment to the declaration must reallocate all the allocated interests of that unit among the other units as if that unit has been taken by eminent domain § 34-36.1-1.07.

(2) If the declarant subdivides the unit into two (2) or more units, whether or not any part of the unit is converted into common elements, the amendment to the declaration must reallocate all the allocated interests of the unit among the units created by the subdivision in any reasonable manner prescribed by the declarant.

(3) The time limit set forth in the declaration within which any development rights and other special declarant rights reserved by the declarant must be exercised pursuant to § 34-36.1-2.05 (a)(8) may be extended by an affirmation of seventy-five percent (75%) of unit owners and their mortgagees (if any).

(4) Development rights and other special declarant rights reserved by the declarant that expire unexercised shall become the property of the unit owners' association which unit owners' association shall have the power and right by vote or agreement of seventy-five percent (75%) of unit owners and their mortgagees (if any) to establish a new time limit within which each of such unexercised rights must be exercised by the unit owners' association or its assignee.

(d) If the declarant provides, pursuant to § 34-36.1-2.05(a)(8), that all or a portion of the real estate is subject to the development right of withdrawal:

(1) If all the real estate is subject to withdrawal, and the declaration does not describe separate portions of real estate subject to that right, none of the real estate may be withdrawn after a unit has been conveyed to a purchaser; and

(2) If a portion or portions are subject to withdrawal, no portion may be withdrawn after a unit in that portion has been conveyed to a purchaser.

(e) Development rights and other special declarant rights reserved by the declarant that have expired unexercised and which have become the property of the association and which have already received a vote or agreement of seventy-five percent (75%) of unit owners and their mortgagees (if any) to establish a new time limit within which each of such unexercised rights must be exercised by the unit owners' association or its assignee may be included upon any new plat plan or real estate added to the condominium as an amendment to the declaration as described in subsection (b) of this section. An amendment to the declaration pursuant to this section permitting real estate to be added to the condominium property shall require that the association receive a vote or agreement of fifty-one percent (51%) of unit owners.

History of Section. (P.L. 1982, ch. 329, § 2; P.L. 1999, ch. 408, § 1; P.L. 2004, ch. 404, § 1.)