§514B-47 - Removal from provisions of this chapter. - Hawaii Statutes

     §514B-47  Removal from provisions of this chapter.  (a)  If:

     (1)  Owners of units to which are appurtenant at least eighty per cent of the common interests execute and record an instrument to the effect that they desire to remove the property from this chapter, and the holders of all liens affecting any of such units consent thereto by duly recorded instruments; or

     (2)  The common elements suffer substantial damage or destruction and the damage or destruction has not been rebuilt, repaired, or restored within a reasonable time after the occurrence thereof, or the unit owners have earlier determined as provided in the declaration that the damage or destruction shall not be rebuilt, repaired, or restored;

the property shall be subject to an action for partition by any unit owner or lienor as if owned in common, in which event the sale of the property shall be ordered by the court and the net proceeds of sale, together with the net proceeds of the insurance on the property, if any, shall be considered as one fund and, except as otherwise provided in the declaration, shall be divided among all the unit owners in proportion to their respective common interests; provided that no payment shall be made to a unit owner until there has first been paid in full out of the owner's share of the net proceeds all liens on the owner's unit.  Upon this sale, the property ceases to be a condominium property regime or subject to this chapter.

     (b)  All of the unit owners may remove a property, or a part of a property, from this chapter by an instrument to that effect, duly recorded, if the holders of all liens affecting any of the units consent thereto, by duly recorded instruments.  Upon this removal from this chapter, the property, or the part of the property designated in the instrument, shall cease to be the subject of a condominium property regime or subject to this chapter, and shall be deemed to be owned in common by the unit owners in proportion to their respective common interests.

     (c)  Notwithstanding subsections (a) and (b), if the unit leases for a leasehold condominium property regime (including condominium conveyance documents, ground leases, or similar instruments creating a leasehold interest in the land) provide that:

     (1)  The estate and interest of the unit owner shall cease and determine upon the acquisition, by an authority with power of eminent domain of title and right to possession of any part of the condominium property regime;

     (2)  The unit owner shall not by reason of the acquisition or right to possession be entitled to any claim against the lessor or others for compensation or indemnity for the unit owner's leasehold interest;

     (3)  All compensation and damages for or on account of any land shall be payable to and become the sole property of the lessor;

     (4)  All compensation and damages for or on account of any buildings or improvements on the demised land shall be payable to and become the sole property of the unit owners of the buildings and improvements in accordance with their interests; and

     (5)  The unit lease rents are reduced in proportion to the land so acquired or possessed;

the lessor and the developer, if the developer retains any interests or reserved rights in the project, shall file and record an amendment to the declaration to reflect any acquisition or right to possession.  The consent or joinder of the unit owners or their respective mortgagees shall not be required, if the land acquired or possessed constitutes no more than five per cent of the total land of the condominium property regime.  Upon the recordation of the amendment, the land acquired or possessed shall cease to be the subject of a condominium property regime or subject to this chapter.  The lessor shall notify each unit owner in writing of the filing of the amendment and the rent abatement, if any, to which the unit owner is entitled.  The lessor shall provide the association, through its board, with a copy of the recorded amendment.

     (d)  For purposes of subsection (c), the acquisition or right to possession may be effected:

     (1)  By a taking or condemnation of property by the State or a county pursuant to chapter 101;

     (2)  By the conveyance of property to the State or county under threat of condemnation; or

     (3)  By the dedication of property to the State or county if the dedication is required by state law or county ordinance.

     (e)  The removal provided for in this section shall in no way bar the subsequent resubmission of the property to the requirements of this chapter. [L 2005, c 93, pt of §2; am L 2006, c 273, §11]