Hawaii Supreme Court Upholds Right of Condominium Association to Vacate Residents for Maintenance

Most people involved with condominium associations understand that sometimes it is necessary to undertake repairs and maintenance of the common elements which might displace residents. For some reason, there have been a few recent instances where residents have challenged the right of an association to force the owners to vacate their units for this purpose. These cases have been complicated by the fact that very few condominium declarations and bylaws have provisions expressly authorizing the Board to force residents to vacate their apartments.

The Hawaii Supreme Court in Association Of Apartment Owners Of Ahuimanu Gardens v. Flint, just issued a decision that confirms the right of a condominium association to require owners to vacate the unit for termite fumigation of the common elements. John A. Morris of our office wrote the brief on behalf of the association. The Hawaii Supreme Court said:

Despite its lack of express authority in the Bylaws, the Board's broad authority to do all things necessary for the operation of the Association includes the authority to require Flint to temporarily vacate her unit so that termite infestation in the common elements may be treated by tent fumigation of the building in which she owns and occupies a unit.

Unfortunately, the The Hawaii Supreme Court decision is unpublished, which means it cannot be cited in other cases [Haw. Rules of App. Proc. 35(c)]. Even if it cannot be cited in other proceedings, the decision does provide some information about how the Court would rule in similar situations.

Recodification Available Online

As we have been mentioning for the last few years, the Recodification of the Condominium Property Act will be effective on July 1, 2006. The new Chapter of the Hawaii Revised Statutes will be designated Chapter 514B. The Hawaii State Legislature has updated its website to include the Recodification. This is important because this version contains some minor revisions made by the Revisor of Statutes. For instance, where the statute says the "effective date of the act", the Revisor of Statutes has replaced it with July 1, 2006.

What is leased fee interest?

The technical definition of "leased fee interest" is the Fee Simple interest in real property encumbered by a lease. Many people confuse "leased fee interest" and "fee simple interest". If you own 100% of the interest in real property, you own the real property in fee simple. The owner of real property in fee simple can do many things with the property including selling the property, mortgaging the property or leasing the property. If the owner of real property in fee simple leases the property on a long term lease, the real property is divided into two parts: (1) leasehold interest; and (2) leased fee interest. The lessee owns the leasehold interest. The leasehold interest is the right to use the property for the term of the lease and the obligation to pay rent during the term. There are other obligations created by the lease. The leased fee interest is the right to receive rent during the lease term and the right to receive the property at the end of the lease term (reversion). The owner of the leased fee interest does not have the present right to use the property. The leased fee interest is less than the fee simple interest.

What is a condominium unit or apartment?

I was recently talking to a friend of mine that is purchasing a unit in a highrise condominium project that hasn't been built yet. He made the remark that he's only buying air 80 feet in the sky. I said that wouldn't change very much once the building was built.

Under Hawaii condo law a condominium property regime consists of common elements (including limited common elements) and apartments. The condominium declaration defines what part of the project is an apartment, common element or limited common elements. Almost every condominium declaration in Hawaii first defines the apartment and states that everything else is a part of the common elements. Certain designated portions of the common elements are limited common elements.

Most condominium associations use an airspace definition for the apartments. The reason it is called an airspace definition is that the apartment is essentially a bubble made up of air, paint, carpeting and interior non-load-bearing walls. The boundaries of most apartments are the interior decorated surfaces of the perimeter of the apartment. Everything inside the decorated surfaces other than load-bearing walls and utilities that serve more than one apartment are part of the apartment.

The part of the condominium project that my friend is going to own by himself is the apartment, while he'll jointly own the structural elements of the project with the other members, he will mostly own air even after the condominium project is built.

What is a condominium unit or apartment?

I was recently talking to a friend of mine that is purchasing a unit in a highrise condominium project that hasn't been built yet. He made the remark that he's only buying air 80 feet in the sky. I said that wouldn't change very much once the building was built.

Under Hawaii condo law a condominium property regime consists of common elements (including limited common elements) and apartments. The condominium declaration defines what part of the project is an apartment, common element or limited common elements. Almost every condominium declaration in Hawaii first defines the apartment and states that everything else is a part of the common elements. Certain designated portions of the common elements are limited common elements.

Most condominium associations use an airspace definition for the apartments. The reason it is called an airspace definition is that the apartment is essentially a bubble made up of air, paint, carpeting and interior non-load-bearing walls. The boundaries of most apartments are the interior decorated surfaces of the perimeter of the apartment. Everything inside the decorated surfaces other than load-bearing walls and utilities that serve more than one apartment are part of the apartment.

The part of the condominium project that my friend is going to own by himself is the apartment, while he'll jointly own the structural elements of the project with the other members, he will mostly own air even after the condominium project is built.

What is the definition of "condominium?"

This is one of those situations where the legal definition of a word is different than its every day usage. Under Hawaii condominium law, a condominium is a special way of owning property. In the United States, condominiums could not exist until laws were adopted to permit them. Until the condominium statutes were adopted, someone owning the land automatically owned everything on it. If 100 people owned the land, they all jointly owned everything on it.

Hawaii Revised Statutes §514A-3 defines condominium as this special way of owning property. It states that a condominium is, "the ownership of single units, with common elements, located on property within the condominium property regime." In a condominium property regime, every member owns their own apartment or unit and all the members jointly own the common elements.

Even though this is the legal definition of condominium, most people (me included) often use it to refer to the condominium apartment or the condominium project. There's nothing wrong with that and it rarely has any consequences as long as everyone realizes what you're talking about.

What are Community Associations?

Community Associations refers to the organizations that manage and operate common property for the owners of a condominium, planned community and residential cooperative. In Hawaii, condominiums are governed by Hawaii Revised Statutes Chapter 514A. Condominiums are the most common for of community association in Hawaii. In a condominium, all the members own the common areas jointly while each member owns their own apartment.

Planned Communities are governed by Hawaii Revised Statutes Chapter 421J. In Planned Communities, the association is normally a Nonprofit Corporation and the corporation owns the common property. Each of the members own their lots.

Residential cooperatives are normally governed by Hawaii Revised Statutes Chapter 421I. In a residential cooperative, the cooperative is normally a corporation that owns or leases the Project. Each shareholder has the right to lease or sublease an apartment from the cooperative.