Chapter 83

 CONDOMINIUM CONVERSIONS

[HISTORY: Adopted by the Mayor and Council of the Town of Elsmere 3-11-1982 as Ord. No. 170. Amendments noted where applicable.]

GENERAL REFERENCES

Subdivision of land -- See Ch. 196.

Zoning -- See Ch. 225.

~ 83-1. Definitions.

  Unless a contrary meaning is clearly indicated from the context, the following definitions shall apply in this chapter:

          APARTMENT BUILDING -- Any existing structure or group of structures containing three (3) or more dwelling units for the purpose of multifamily occupancy.

          COMMON ELEMENTS -- Shall be defined as those words are defined in 25 Delaware Code, ~ 2202.

          CONDOMINIUM -- A building or complex of buildings governed by the provisions of the Unit Property Act, 25 Delaware Code, Chapter 22.

          CONDOMINIUM UNIT -- A single unit as defined in the Unit Property Act, 25 Delaware Code, Chapter 22.

          CONVERSION -- The change of rental units into condominium units resulting from the filing for recording with the Recorder of Deeds in New Castle County of a declaration pursuant to the Unit Property Act.

          DECLARATION -- Shall be defined as that word is defined in 25 Delaware Code, ~ 2202, and shall contain the contents required by 25 Delaware Code, ~ 2219.

          DECLARATION PLAN -- Shall be defined as that term is defined in 25 Delaware Code, ~ 2202.

          DEVELOPER -- Any person, group of persons, corporation, partnership, association, trustee or other legal entity who undertakes the conversion of an apartment building to a condominium.

          DWELLING UNIT -- Any room or group of rooms located within a dwelling and forming a single habitable unit with facilities which are used or intended to be used for living, sleeping, cooking and eating.

          ENGINEER'S REPORT -- The report of a duly registered engineer licensed in this state stating the present condition of all structural and major utility installations in the condominium, to include the type of construction or utility installation, the age, approximate remaining useful life, and approximate present replacement costs of all elements or components that need replacement including roofs, electrical wiring, plumbing, water heaters, heating systems and units, and air conditioning systems and units. The "engineer's report" may be supplemented by reports of duly licensed professional architects, with respect to structural elements, such as foundations, bearing walls, perimeter walls and floors. The present costs of remedying any structural deficiencies found shall be stated.

          HANDICAPPED -- Shall be defined as that term is defined in federal legislation prohibiting discrimination against the handicapped, the Rehabilitation Act of 1973, as amended.

          OFFER OF SALE TO THE PUBLIC -- Any advertisement, inducement, solicitation or attempt by a developer to encourage any person, other than a tenant, to purchase a condominium unit.

          PERSON -- Any individual, corporation, partnership, association, trustee or other legal entity.

          RECORDED -- That an instrument has been duly entered of record in the Office of the Recorder of Deeds for New Castle County.

          RECORDER -- The Recorder of Deeds for New Castle County.

          TENANT -- Any person entitled to occupy a dwelling unit primarily for purposes of habitation under a lease or rental agreement, written or oral.

          UNLAWFUL PRACTICE --The violation of, failure to comply with or attempt to avoid the application of the provisions of this chapter.

          VACANCY LISTING -- The published identification of name and location or locations of a substantial number of large apartment complexes within New Castle County, and the comprehensive compilation of the total number of dwelling units in said apartment complexes which are vacant and available for occupancy and which are comparable in rental prices to what the existing tenants are paying at the time of the recording of the developer's declaration with the recorder.

~ 83-2. Applicability; unlawful practices.

     A.     The provisions of this chapter shall apply to the conversion of any apartment building within the Town of Elsmere to a condominium for which declaration was first recorded with the recorder on or after the effective date of this chapter by which recording such apartment building becomes a condominium.

     B.     Any action of any kind undertaken by the developer toward completion of the conversion by way of notice to tenants-in-possession or offer of sale to the public or commencement of renovation without first complying with the provision required in ~~ 83-4 through 83-9 of this chapter shall constitute an unlawful practice.

~ 83-3. Notification requirements.

     A.     Notice of recording of declaration. A developer shall send a notice of the recording of a declaration and a copy of said declaration to the Planning Commission and the Building Committee of the Town of Elsmere by registered or certified mail, within seven (7) days of the recording of the declaration with the Recorder of Deeds for New Castle County.

     B.     Subdivision approval. If, at the time of recording of the declaration, a developer has not already done so, any developer converting an apartment building to a condominium shall make application to the Planning Commission and Building Committee, within seven (7) days of the recording of the developer's declaration, for review and approval of the developer's subdivision plat (the declaration and declaration plan) and shall file all other documents as required by this chapter for review and approval by the Planning Commission and Building Committee.

~ 83-4. Review and approval by Planning Commission and Building Committee.

     A.     No proposed condominium conversion project shall be approved for development unless the Planning Commission and Building Committee shall have first received from the developer the following documents and shall have reviewed and approved them on the basis of their effect on public health, safety and general welfare:

          (1)     A detailed development plan, including a report from a professional engineer licensed to do business in the State of Delaware, stating the engineer's observations regarding the condition of the structure involved and the major utility installations in the building.

          (2)     A proposed operating budget for the condominium which shall be based upon current operating expenses for the building.

          (3)     A listing of all rental charges for every type of apartment currently available and a listing of proposed selling prices for every type of condominium unit which shall be available for purchase.

          (4)     A copy of conditions, covenants, restrictions or other condominium agreement for the project setting forth the occupancy and management policies for the project.

          (5)     A statement of the overall impact a proposed conversion project would have on displaced persons and families especially the elderly and the handicapped.

          (6)     Submittal of vacancy listing as defined in ~ 83-1 of this chapter.

          (7)     Demonstration of applicability and conformity of the proposed conversion project to all zoning codes of the Town of Elsmere.

     B.     The Planning Commission and Building Committee shall, within thirty (30) days after receipt of notices and documents as required in ~~ 83-3 and 83-4, prepare and deliver to the applicant a conversion report, including therein a recommendation for approval or denial, a listing of conditions or requirements recommended as a basis for approval and supportive reasons or justifications for such recommendations.

     C.     A developer shall have thirty (30) days in which to respond to denial or conditional approval and shall demonstrate compliance to the satisfaction of the Planning Commission and Building Committee at which time final approval shall be granted.

~ 83-5. Licenses required; operator's license; fee refunds; unlawful practices.

     A.     Condominium conversion licenses. Within seven (7) days following receipt of final project approval by the Planning Commission and Building Committee, a developer shall make application to the Tax Collector for a condominium conversion license for each planned salable unit in the conversion project. A condominium conversion license for each planned salable unit shall be issued by the Tax Collector upon the payment of a fee in the amount of one thousand dollars ($1,000.) per planned salable unit in the project. Each license required herein shall be a one-time charge paid prior to the original sale of each new planned condominium conversion unit.

     B.     Operator's license. A business operator's license is required annually and may be obtained in accordance with the provisions of Ordinance No. 83[1] governing dwelling units.

     C.     Fee refunds. In the event that a developer abandons the development of condominium conversion units either in whole or in part before substantial work is begun and before the expiration of six (6) months following the issuance of condominium conversion licenses, the Tax Collector shall, upon receipt of evidence documented to his or her satisfaction that the conversion project or part of the conversion project has been abandoned, refund fifty percent (50%) of the total amount of fees paid for said project or part of said project for which abandonment has been substantiated, provided further that, in the event of such refund, it shall be unlawful for any person to proceed in any way with further development of the project without first applying for and receiving the applicable condominium license or licenses. In the event that a developer abandons the development of condominium conversion units either in whole or in part after substantial work has begun and after the expiration of six (6) months following the issuance of condominium conversion licenses, no fee refunds shall be given.

     D.     Unlawful practices. It shall be unlawful to engage in, permit, suffer or assist in the development or construction or to occupy any condominium for which a license has not been obtained as provided in this section. Failure to apply and pay for the required condominium conversion licenses shall constitute an unlawful practice. Each fee that remains unpaid shall be a separate offense.

~ 83-6. Notice of intent to sell; tenant's rights.

     A.     Notice of intent to sell. Within seven (7) days of obtaining the required condominium conversion licenses, the developer shall send to each tenant residing in a unit and to the Code Enforcement Officer, by certified mail, return receipt requested:

          (1)     A notice of intent to sell the tenant's unit;

          (2)     A report from a professional engineer licensed to do business in the State of Delaware, stating the engineer's observations regarding the condition of the structure involved and the major utility installations in the building;

          (3)     A proposed operating budget for the condominium which shall be based upon current operating expenses for the building;

          (4)     A listing of all rental charges for every type of apartment currently available and a listing of proposed selling prices for every type of condominium unit which shall be available for purchase; and

          (5)     A copy of vacancy listing as defined in ~ 83-1 of this chapter.

     B.     Form of notice. The form of the notice of intent to sell shall contain the following:

          (1)     The name and address of the current owner.

          (2)     The name and address of the proposed developer.

          (3)     A copy of the Planning Commission and Building Committee's conversion report.

          (4)     The approximate date on which the unit is to be vacated by nonpurchasing tenants.

          (5)     A statement of the tenant's right of written notification to vacate by a certain date as governed by Subsection D herein.

          (6)     A statement detailing the rights of tenants as set forth in Subsection D hereof.

          (7)     Such other information as the Planning Commission and Building Committee may deem to be required.

     C.     Other forms of notice. Any notice by way of public advertisement, or any other form of notice not in conformity with this section, or any notice of any kind given to any tenant prior to the date specified in Subsection A shall not be deemed to be sufficient notice under this section.

     D.     Rights of tenants.

          (1)     Exclusive right to purchase. A tenant of a unit at the time of sending of the notice of intent to sell shall have the exclusive right to purchase his or her unit for a period of ninety (90) days commencing with the receipt of the notice set forth in Subsection B above, unless the tenant, during said ninety-day period, signs a written waiver of such right.

          (2)     Right of privacy. Unless a tenant has sooner execute a written waiver of his or her exclusive right to purchase, the developer shall not show or offer the unit for sale to persons other than the tenant during the first forty-five (45) days following receipt by the tenant of the aforesaid notice of intention to convert. Following said forty-five (45) day period, or such waiver, the developer shall show the unit to prospective purchasers only during reasonable hours of the day and only upon not less than twenty-four (24) hours' notice to the tenant.

          (3)     Nontermination of lease. After ninety (90) days, or after such waiver, the tenant deciding not to purchase shall not have his or her lease terminated by the building owner or developer for a minimum period of ninety (90) additional days, during which time the tenant shall continue to try to find an alternative residence.

          (4)     Rent increases. In any instance in which a tenant has decided not to purchase his or her unit, no increase in rent charged to such tenant during the periods of time herein established shall result in an amount of rent exceeding that most recently charged a tenant of a comparable unit in the same complex; provided further, however, that in no event shall such increase exceed ten percent (10%) of the rent previously charged to such tenant.

          (5)     Tenant's right to terminate lease. Any tenant with more than sixty (60) days remaining on a lease who receives a notice of intent to convert shall at any time after receipt of such notice have the right to terminate such lease with sixty (60) days' written notice to the landlord. Such termination shall be without penalty or other termination charge to the tenant.

          (6)     Terms of purchase. The exclusive right to purchase granted to tenants under this subsection shall include the right of a tenant to purchase his or her unit upon at lease as favorable terms and conditions as said units are offered to the general public.

          (7)     Access. The tenant in a conversion condominium shall not unreasonably withhold consent to the developer to enter the unit in order to inspect the premises, make necessary or agreed repairs, supply necessary or agreed services or show the unit to prospective or actual workmen or purchasers in accordance with this section. The landlord shall not abuse right of access or use it to harass the tenant. Except as provided in Subsection D(2) hereof and except in case of emergency, or unless it is impractical to do so, the developer or landlord shall give the tenant at least two (2) days' notice of his intent and may enter only at reasonable times between the hours of 8:00 a.m. and 9:00 p.m.

          (8)     Provisions for special tenants. Those tenants of a dwelling unit of which at least one (1) occupant is sixty-two (62) years of age or older or who is a handicapped person shall not be evicted for a period of not less than eighteen (18) months from the date of receipt of the notice of intent to sell.

          (9)     No impairment of rights and obligations. This subsection shall not be construed as in any way impairing any rights and obligations expressly or impliedly provided for either in the specific terms of the lease or under the provisions of the Landlord-Tenant Code of the State of Delaware except for the additional requirements set forth in this subsection.

~ 83-7. Inspection of buildings and units.

     A.     The Building, Plumbing and Health Inspectors of the Town of Elsmere shall inspect all buildings being converted from apartments to condominiums.

     B.     In no instance shall a waiver of a presale inspection be valid. No condominium unit subject to the provisions of this chapter shall be sold in "as is" condition.

~ 83-8. Inspections and repair.

     A.     Conversion standards. Any apartment building under going conversion to condominium ownership must meet all applicable provisions of the zoning, housing and building codes of the Town of Elsmere, the fire prevention codes of the State of Delaware, and the provisions of this chapter.

     B.     Duties of the developer. The developer shall:

          (1)     Arrange for access to all parts of any apartment building undergoing conversion so that required inspections shall be conducted;

          (2)     Correct all violations in a unit as noted in the inspection reports required by Subsection C of this section at least seven (7) days prior to the sale of that unit;

          (3)     Correct all violations of the common elements as noted in the inspection reports required by Subsection C of this section at least seven (7) days prior to the sale of any unit;

          (4)     Warrant all repairs and improvements made by the developer to each condominium unit for one (1) year from the date of sale of each unit;

          (5)     Warrant all repairs and improvements made by the developer to the common elements for one (1) year from the date of sale of each unit;

          (6)     Obtain a certificate of occupancy issued by the town for each unit at least seven (7) days prior to the date of sale of each unit;

          (7)     Obtain a certificate of occupancy issued by the town for all common elements at least seven (7) days prior to the date of sale of the first unit; and

          (8)     Pay to the town all fees established for all applicable certificates of occupancy and permits.

     C.     Duties of town and state inspectors. The Building, Plumbing and Health Inspectors of the Town of Elsmere shall:

          (1)     Conduct inspections of all apartment buildings undergoing conversions;

          (2)     Issue inspection reports listing all violations of applicable code provisions discovered during the inspections;

          (3)     Conduct inspections of all repairs and improvements in accordance with all permits authorized; and

          (4)     Issue a certificate of occupancy for each condominium unit and for the common elements to the developer only upon satisfactory completion of all repairs and improvements.

~ 83-9. Information for prospective purchasers.

  A developer shall provide the following information to prospective purchasers at least seven (7) days before any agreement of sale is signed:

     A.   A copy of the inspection reports required by ~ 83-8C(2).

     B.   A copy of all documents filed pursuant to the Unit Property Act, 25 Delaware Code, Chapter 22.

     C.   An itemization of specific repairs and improvements made to the building and to the unit during the six (6) months preceding the recording of the declaration.

     D.   An itemization of specific repairs and improvements to be completed.

~ 83-10. Enforcement.

  The Code Enforcement Officer of the Town of Elsmere is authorized to conduct all necessary investigations and, if there appears to be any unlawful practice, the Code Enforcement Officer shall undertake one (1) or both of the following:

     A.     Attempt to arbitrate the matter and to secure a written conciliation agreement with the developer; or

     B.     Initiate appropriate court action.

~ 83-11. Filing complaint.

  Any person who has been the object of an unlawful practice under this chapter may file a complaint with the Code Enforcement Officer.

~ 83-12. Private right of action.

  Any person who has been the object of an unlawful practice as defined in this chapter or any purchaser in a contract which may be voided under this chapter may rely on the provisions of this chapter to institute civil proceedings against the developer to secure compliance with this chapter.

~ 83-13. Violations and penalties.

     A.     Fine. A person who commits an unlawful practice under this chapter shall, upon conviction, be fined a sum of two hundred fifty dollars ($250.) for each offense. Each day's unlawful practice shall constitute a separate offense.

     B.     Remedial action. Any binding agreement of sale entered into by a developer which results in an unlawful practice under this chapter is:

          (1)     Void, if the tenant was an object of the unlawful practice; or

          (2)     Voidable at the option of the purchaser, if the purchaser was the sole object of the unlawful practice.