Residential Condominiums - As Built Plans

Chapter 3 RESIDENTIAL CONDOMINIUMS— “AS BUILT” PLANS ROBERT J. GALVIN, ESQ. Davis, Malm & D’Agostine, PC, Boston § 3.1 § 3.1.1 MASTER PLANS.............................................................. 3–1 What “As Built” Means ....................................................... 3–1 (a) (b) § 3.1.2 § 3.2 § 3.2.1 § 3.2.2 § 3.2.3 § 3.2.4 § 3.2.5 General Requirements ................................................ 3–1 Units That Are Substantially Complete ...................... 3–2 Attorney’s Review of Plans ................................................. 3–3 UNIT PLANS ..................................................................... 3–4 Must Accompany First Deed ............................................... 3–4 Required Certification .......................................................... 3–5 Contents ............................................................................... 3–6 Registry Requirements.......................................................... 3–6 Use at Closing: A Note of Caution ........................................ 3–6 EXHIBIT 3A—Master Plan Certification........................................ 3–8 EXHIBIT 3B—Plan Regulations ...................................................... 3–9 EXHIBIT 3C—Unit Plan Certification .......................................... 3–10 2nd Edition 2008 3–i Chapter 3 RESIDENTIAL CONDOMINIUMS— “AS BUILT” PLANS ROBERT J. GALVIN, ESQ. Davis, Malm & D’Agostine, PC, Boston Scope Note This chapter discusses “as built” plan requirements for residential condominiums in Massachusetts. It begins by addressing the requirements for master plans, including the terms of the applicable statute, its application to units whose construction is substantially complete, and issues to be addressed in an attorney’s review. The chapter concludes with a discussion of unit plans, with particular attention to required certifications and guidance on use of the plans at closing. § 3.1 § 3.1.1 (a) MASTER PLANS What “As Built” Means General Requirements The “as built” plan requirement of Chapter 183A is a vital part of condominium creation in Massachusetts. For plans, the commonly used phrase “as built” derives from the language of G.L. c. 183A, § 8(f). Section 8 lists the requirements for the master deed (see § 3.2.3, Contents, below), and in order to create a condominium properly, these requirements must be strictly followed. They include the requirement for as built plans set forth in Section 8(f), which reads (with emphasis added) as follows: A set of the floor plans of the building or buildings, showing the layout, location, unit numbers and dimensions of the units, stating the name of the building 2nd Edition 2008 3–1 § 3.1 MASSACHUSETTS CONDOMINIUM LAW or that it has not a name, and bearing the verified statement of a registered architect, registered professional engineer, or registered land surveyor, certifying that the plans fully and accurately depict the layout, location, unit number and dimensions of the units as built. In other words, the master deed cannot be recorded in the registry of deeds unless it is accompanied by a set of the floor plans that meets the requirements of G.L. c. 183A, § 8(f). One of those requirements is that the plans cannot show merely a proposed unit; rather, they must show the unit as it was actually built. Section 8(f) means that a registered architect, registered professional engineer, or registered land surveyor must sign each sheet of the floor plans certifying that the plans show, inter alia, the unit “as built.” Traditionally, this means including the appropriate verification language on the plan and stamping the floor plans with the stamp identifying the registered architect, registered professional engineer, or registered land surveyor, with the signature of that professional is affixed near the stamp. (Note that a stamp and original signature must appear on each sheet of the recorded plan.) Since the master deed cannot be recorded without the “as built” plans being recorded at the same time, it necessarily follows that the condominium cannot be created and units sold until after the units have actually been built. Of course, units can be sold prior to being built in the sense that a reservation form, offer to purchase, and purchase and sale agreement can be signed for a unit, although the unit cannot actually be conveyed (or mortgaged) until the master deed is recorded together with the “as built” plans. (b) Units That Are Substantially Complete An architect (or professional engineer or land surveyor) is usually willing to stamp and sign the plans when the units are substantially complete, even if they are not complete in all respects. For instance, certainly all of the exterior walls, and at least the studs of interior walls, must be constructed, but many architects will stamp and sign plans if all that remains to be completed is the drywall; other architects will not stamp and sign plans until all of the walls are completed, but do not require that such finish items as paint, paper, carpet, and wallcovering be completed in all respects. Occasionally, a condominium developer or converter is tempted to economize by using either plans of the building that are available from a previous owner, or in some cases, construction plans. These plans obviously do not meet the requirements of and are not acceptable for purposes of G.L. c. 183A, § 8(f). The only 3–2 2nd Edition 2008 RESIDENTIAL CONDOMINIUMS—“AS BUILT” PLANS § 3.1 plans that will satisfy the requirements of subsection (f) are plans that have been measured and that show the completed unit. § 3.1.2 Attorney’s Review of Plans The attorney for the developer should examine the plans in advance, with particular attention to the following issues: • The plans should be compared with the language of the master deed to be sure that the descriptions in the master deed tally with the units and the common areas depicted on the plans. It is especially critical to be sure that the plans show the same measurement criteria as those set forth in the master deed. • The certification written on the plan should be checked against the statute. See Exhibit 3A, Master Plan Certification. Unfortunately, it is common for architects to omit one or more of the mandatory requirements of G.L. c. 183A, § 8(f). • Once the plans have been checked, if you have any question as to whether the plans will be acceptable to the registry of deeds, it is useful to show the plans to the plan personnel at the registry of deeds on an informal basis prior to recording. In this manner, if the plans are not acceptable, there will be time to have them delivered to the architect for the necessary corrections. Otherwise, you may arrive at the registry of deeds on the morning of your first closing only to find that you will be delayed because the plans need revision. It should be remembered that this preliminary, informal perusal of the plans by the registry of deeds is a courtesy to the bar, and it is considered impolitic to request a preliminary examination of plans when the plan personnel are already inundated with plans that are ready to be recorded. One should also keep in mind that the plan policies of each registry of deeds are slightly different. For example, Suffolk County will usually take a plan on which the architect has placed “stick-ums,” which are preprinted or drawn lines or words indicating, for example, the identity of rooms (“dining room,” “living room,” etc.), while the Middlesex South Registry of Deeds will not accept such plans. • Although not a requirement of Chapter 183A, all plans must also meet the “plan regulations” of the registry of deeds. See 250 C.M.R. § 6.90 (250 C.M.R. § 6.00 app. A) (reproduced in Exhibit 3B). It is not uncommon for plan personnel in the registry to 2nd Edition 2008 3–3 § 3.1 MASSACHUSETTS CONDOMINIUM LAW measure borders and heights of words and to reject plans that do not comply with these requirements. • Although G.L. c. 183A does not specifically require either a site plan or an elevation (which shows the side of the building), it is good practice to include both. The elevation need not be detailed, since its only purpose is to show the outline of the building and the height of the various floors. The theory behind requiring elevations is that condominiums are to some extent horizontal property, and if a condominium building is destroyed, an elevation will be necessary in order to locate the floors. If your client is offering to sell easements for the exclusive use of parking spaces (see Massachusetts Condominium Law ch. 2 (MCLE, Inc. 2d ed. 2008)), or if the master deed grants to a specific unit owner or owners an easement to use one or more areas of the land (for example, a garden plot), a site plan will be mandatory because there will be no other way to depict the easement areas. Practice Note Some registries of deeds—and some title insurance companies— make a site plan mandatory. If you do not plan to record a site plan, you should check with the registry in which the master deed will be recorded to be sure that your documents will be accepted without a site plan. § 3.2 § 3.2.1 UNIT PLANS Must Accompany First Deed In addition to the requirements for the master plans of the condominium set forth in § 3.1, above, Chapter 183A also requires that the first deed of each unit be accompanied by a plan of that unit. This requirement is found in the last paragraph (not numbered) of G.L. c. 183A, § 9, which reads (with emphasis added) as follows: The first deed of each unit shall, in addition, have attached thereto, as part thereof, a copy of the portion or portions of the plans theretofore filed with the master deed to which copy shall be affixed the verified statement of a registered architect, a registered professional engineer or registered land surveyor certifying that they show the unit designation of the unit 3–4 2nd Edition 2008 RESIDENTIAL CONDOMINIUMS—“AS BUILT” PLANS § 3.2 being conveyed and of immediately adjoining units, and that they fully and accurately depict the layout of the unit, its location, dimensions, approximate area, main entrance and immediate common area to which it has access, as built. This language raises a few important counseling points. Note that only the first deed of each unit needs to be accompanied by a plan of that unit. Ordinarily, this will be the deed from the condominium developer or converter to the first unit purchaser of that unit. When the unit purchaser sells his or her unit in the future, a plan need not accompany the deed. Frequently, attorneys representing sellers will unthinkingly copy the deed by which their client (the seller) acquired the property they are about to convey. While it is true that the property description will ordinarily be the same, it is always dangerous to simply copy a previous document. With respect to a condominium conveyance, it can also be embarrassing because it is common to see a unit deed for a subsequent conveyance after the first sale that contains the boilerplate recitation that a plan accompanies the deed. This is a certain indication that the seller’s attorney either does not understand Chapter 183A or has not bothered to read the deed but only asked his or her secretary to retype it with the new names—or perhaps both. Incidentally, although the statute is perfectly clear, the above-quoted provision means that the first deed of each unit must be accompanied by a plan of that unit. § 3.2.2 Required Certification The unit plan must also bear the “as built” certification. See Exhibit 3C, Unit Plan Certification. Note that the certification required to be affixed to the unit plan by a registered architect, registered professional engineer, or registered land surveyor is similar to the certification required by Section 8(f) for master plans, but not exactly the same. It is important to read these two sections of the statute carefully and be sure that your client’s architect (or engineer or land surveyor) uses the correct language on the plans. As with the master plans, the certification language must appear on the unit plan, the architect’s (or engineer’s or land surveyor’s) stamp must be manually affixed to each sheet, and each sheet must be manually signed by the architect (or engineer or land surveyor). Customarily, this signature appears adjacent to the signatory’s seal; sometimes, it is written right over the seal. Practice Note If the architect (or engineer or land surveyor) uses a dark blue pen rather than a black pen, it will be possible to tell the original from a 2nd Edition 2008 3–5 § 3.2 MASSACHUSETTS CONDOMINIUM LAW copy after the plan has been photocopied. This is important because the registry of deeds will accept only an original, and the procedure suggested above will minimize frantic groping through your files at or just before the closing, while you vainly try to ascertain which is the original and which is the copy. (Of course, if the ink smudges, this is a sure sign that you are dealing with the original rather than a copy.) The signature (as well as the rest of the document) should be easily photocopied; otherwise, the registry of deeds need not, and probably will not, accept it for recording. The ink must be sufficiently dark and thick. Some registries (Essex South and Middlesex South among them) will accept only black or very dark blue ink on unit plans. § 3.2.3 Contents The unit plan can be, and usually is, simply a copy of that portion of the master deed that shows the unit to be conveyed. Because of the requirements that the unit plan show, inter alia, “immediately adjoining units” (G.L. c. 183A, § 9) and the “immediate common area to which it has access,” the unit plan must show more than just the unit. While the unit plan usually is merely a copy of a portion of the master plan, note that the architect’s (or engineer’s or land surveyor’s) seal and signature must be manually affixed to each sheet. § 3.2.4 Registry Requirements Most registries of deeds in eastern Massachusetts will accept only a Mylar (or, in some cases, a sepia) of the master plans for recording. However, most of these registries will accept a paper unit plan for recording, provided that the paper plan is the same size as the deed and is affixed to the deed as an exhibit. The deed may recite that the plan is annexed thereto, for example, as Exhibit A. If your client or the architect prefers, a Mylar (and in some cases a sepia) can also be used as a unit plan. § 3.2.5 Use at Closing: A Note of Caution It is a good idea to show the unit plan to the buyer at the beginning of the closing and ask: “Is this the unit you are purchasing?” It is not unusual for a mix-up to occur, especially in a large condominium, where either the unit deed, the unit plan, or both describe and depict, and therefore convey, the wrong unit. This may occur in a number of ways. In one case, the architect’s office prepared a preliminary set of plans indicating unit numbers. The developer and its sales personnel used this set of plans to show to prospective purchasers. Later, when 3–6 2nd Edition 2008 RESIDENTIAL CONDOMINIUMS—“AS BUILT” PLANS § 3.2 construction was completed, the architect measured the units and prepared the “as built” plans. However, at some point during this process, someone in the architect’s office inadvertently switched unit numbers from the left side of the building to the right side of the building. When the first closing took place, and the unit purchaser was asked if this was the unit she was buying, the purchaser shook her head “no” and correctly identified the unit she was purchasing. A hurried call was made to the architect who, anxious to avoid the wrath of his client, immediately appeared at the closing and changed back the unit numbers so that they correctly depicted the units, and the closing was completed. Practice Note In this instance, no harm was done because the architect’s mistake was discovered during the first closing. I am aware of instances, however, where the wrong units have actually been conveyed and mortgaged, so that in order to put things right, mortgages had to be discharged and units conveyed back to the developer, reconveyed to the proper purchasers, and remortgaged. The “as built” and unit plan requirements are a critical part of creating any condominium, and careful attention to the plan requirements is an essential part of any condominium transaction. 2nd Edition 2008 3–7 MASSACHUSETTS CONDOMINIUM LAW EXHIBIT 3A—Master Plan Certification I hereby certify that this floor plan fully and accurately depicts the layout, location, unit numbers and dimensions of the units of Ten Winter Street Condominium, Ten Winter Street, Boston, Massachusetts, as built. ______________________________________________________ Registered Architect I hereby certify that this plan was prepared in conformity with the rules and regulations of the registers of deeds of the Commonwealth of Massachusetts. ______________________________________________________ Registered Architect 3–8 2nd Edition 2008 RESIDENTIAL CONDOMINIUMS—“AS BUILT” PLANS EXHIBIT 3B—Plan Regulations In addition to the requirements set forth in this exhibit, note as discussed in this chapter that condominium plans must conform with the provisions of G.L. c. 183A, § 8(f) (master plans) and § 9, last ¶ (unit plans). (1) Plan sizes shall be a minimum of eight and one-half inches by eleven inches (8½” x 11”) and a maximum of twenty-four inches by thirty-six inches (24” x 36”). (2) Plans being presented for recording shall be on linen or polyester film, single matte with a thickness of .004 mils, and must have an opacity so as to allow consistent diazo and microfilm reproduction. [However, see the note on paper unit plans in § 3.2.4, above.] (3) All plans shall be prepared using a compatible ink with excellent cohesiveness that will produce a permanent bond and result in a plan with longterm durability. (4) Linen or polyester reproduction shall be accepted for recording provided they contain original signatures and comply with other requirements for the recording of plans. (5) Each plan shall have three quarter inch (¾”) borders. (6) The minimum letter size on plans presented for recording shall be oneeighth inch (⅛”). (7) Each plan presented for recording shall include a graphic scale. (8) Each plan shall have an area reserved to receive planning board recitation or contain a surveyor’s certification as required by Chapter 380 of the Acts of 1966. (9) Each plan shall have a three and one-half inch (3½”) square reserved for Registry use. (10) Each plan must contain a certification clause signed by the preparer stating that he or she has conformed with the rules and regulations of the Registers of Deeds in preparing the plan. 2nd Edition 2008 3–9 MASSACHUSETTS CONDOMINIUM LAW EXHIBIT 3C—Unit Plan Certification I hereby certify that this plan shows the unit designation of unit 23 being conveyed and of immediately adjoining units, and that it fully and accurately depicts the layout of the unit, its location, dimensions, approximate area, main entrance and immediate common area to which it has access, as built, in Ten Winter Street Condominium, Ten Winter Street, Boston, Massachusetts. ______________________________________________________ Registered Architect I hereby certify that this plan was prepared in conformity with the rules and regulations of the registers of deeds of the Commonwealth of Massachusetts. ______________________________________________________ Registered Architect 3–10 2nd Edition 2008