What is a “Unit” in a Tennessee Condominium?
June 24, 2013
Previously, we briefly touched on what is a Unit in a condominium development. Given that there is often a great deal of confusion about what a Unit Owner in a condominium development in Tennessee actually owns, it seems prudent to expand upon the concept of what a Unit actually is.
First, there is no common definition of a Unit. As previously mentioned, there are two statutes in Tennessee regarding condominiums: the Tennessee Horizontal Property Act, Tenn. Code § 66-27-101, et seq. (the “Horizontal Property Act”), and the Tennessee Condominium Act of 2008, Tenn. Code § 66-27-201, et seq. (the “Condominium Act”). The Condominium Act applies to all condominium developments completed after January 1, 2009. The Horizontal Property Act applies to all condominium developments completed prior to January 1, 2009. The point of potential confusion (but not part of the topic for discussion today) is that selected parts of the Condominium Act are applicable to condominium developments completed after January 1, 2009, as well.
The Horizontal Property Act does not define a “Unit”. In fact, it does not refer to Units at all. Instead, it refers to “Apartments”. Apartments are defined in the Horizontal Property Act at Tenn. Code § 66-27-102(a)(1) to be, effectively, an enclosed volume of space composed of one or more rooms. The Condominium Act does define a “Unit” at Tenn. Code § 66-27-203(23) as a physical portion of the condominium designated for separate ownership or occupancy, the boundaries of which are described in the Declaration. Thus, the two statutes do not effectively provide a uniform definition of a Unit. Rather, all that can be said from these statutory definitions is that a Unit is a three-dimensional volume which is more particularly defined in the Master Deed or Declaration.
That the Unit is a volume, divorced from the underlying real estate, is an important point. A Unit Owner does not necessarily own dirt. A Unit Owner owns a volume of space. The Master Deed or Declaration will provide that the Unit Owner has easements through the related real estate providing access to and from the Unit. Consequently, a Unit in a high-rise condominium development can be mentally conceptualized as a stationary, but untethered, balloon. It is a three-dimensional volume of space located within the bounds of a building. The Unit Owner’s rights in and to the building are more particularly defined in the Master Deed or Declaration.
Where the Master Deed and Declaration are truly important to the Unit Owner are in their definition of a Unit. Without this definition, the Unit Owner owns nothing, for it is the Master Deed or Declaration that defines and creates the Unit in a condominium development. A Unit definition in a Master Deed or Declaration may be rather lengthy. There are easy concepts with which to begin constructing a Unit definition in these documents. For example, typically a drafter will provide that a Unit is the volume created by the intersection of certain imaginary planes created by exterior walls, the floor, and the roof of the volume that is the Unit. Where things become complicated are exterior windows, exterior doors, interior common elements (i.e., load bearing walls), pipes, wires, conduits, and HVAC equipment. It is important to read a Master Deed or Declaration to see how these items are treated. For example, HVAC equipment may not be physically located within the bounds of the volume that comprises a Unit, but it may be included as part of the Unit. Consequently, such HVAC equipment would be the responsibility of the Unit Owner to maintain repair, and replace.
Because there is no fixed definition of a Unit in Tennessee and it is the Unit which a Unit Owner owns, particular attention must be paid to the definition of a Unit in a Master Deed or Declaration. In Tennessee the documents matter.
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