Q&A: Are We Grandfathered?

Q. The New Hampshire condo community I live in was established in 1974 and the Declaration cites in part: “Condominium use and ownership in accordance with the provisions of the New Hampshire Unit Ownership of Real Property Act (Chapter 479-A, New Hampshire Revised Statutes Annotated, 1955)”.

The president of our board of directors has consistently stated that our association is not governed by the current Chapter 356-B Condominium Act — nor, most especially, any of its new requirements — because we are completely grandfathered in under the 1955 Real Property Act.

 As a point of reference, under 356-B:2 Application (of the Condominium Act) it states:

   “I. This chapter shall apply to all condominiums and to all condominium projects. This chapter shall be deemed to supersede RSA 479-A, the New Hampshire Unit Ownership of Real Property Act; and no condominium shall be established under the latter on or after September 10, 1977. This chapter shall not be construed to affect the validity of any provision of any condominium instrument recorded prior to September 10, 1977. Nor shall this chapter, except as set forth in paragraphs II and III, be deemed to apply to any real estate, or any interest therein, submitted to the provisions of RSA 479-A prior to September 10, 1977.” 

 I am not questioning the fact that our 1974 Declaration and related documents are still valid. However the very first sentence “This chapter shall apply to all condominiums ....”  must also mean that our community and board are required to abide by any revisions to the Condo Act (such as took place in 2016).   

 Who is right in this instance?   If the board is wrong, how do we as owners compel them to abide by the law? I sincerely hope this does not entail taking them to court to make them comply.

          —Stumped in New Hampshire

A. “In review of the quoted provision of the Act, the first sentence is unfortunate in that it provides an impression of general applicability of RSA 356-B,” says Gary M. Daddario, Partner, in the Merrimack, New Hampshire office of Marcus, Errico, Emmer & Brooks PC. “However, the sentences that follow carve out exceptions that arguably render the first sentence to be almost misleading (though I am certain this was not the intent).  

“In particular for purposes of the case presented, the last sentence provides that nor shall this chapter apply to association submitted to RSA 479-A prior to September 10, 1977.  Then, of course, there is the third sentence of the provision which provides that RSA 356-B shall not affect the provisions of the condominiums submitted to RSA 479-A prior to September 10, 1977.  

“Reading that third sentence in conjunction with the final sentence, we see that pre-1977 condominiums still have valid, original documents as written and that RSA 356-B shall not apply to them (except as noted per Parts II and III).  Thus, unless the exceptions of Parts II or III apply, reading the sentences of RSA 356-B:2 together, the conclusion is that the Association is not obligated to follow RSA 356-B.”                        n

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