66-27-412 - Conveyance or encumbrance of common elements. - Tennessee Statutes

66-27-412. Conveyance or encumbrance of common elements.

(a)  Portions of the common elements may be conveyed or subjected to a security interest by the association if persons entitled to cast at least eighty percent (80%) of the votes in the association, including, during any period of declarant control, eighty percent (80%) of the votes allocated to units not owned by a declarant, or any larger percentage the declaration specifies, agree to that action; and a like percentage vote by the owners of any units to which any limited common element is allocated must agree in order to convey that limited common element or subject it to a security interest. The declaration may specify a smaller percentage only if all of the units are restricted exclusively to nonresidential uses. Proceeds of the sale are an asset of the association; provided, that proceeds of a sale of a limited common element shall be reserved for the benefit of the unit or units to which the limited common element is allocated.

(b)  An agreement to convey common elements or subject them to a security interest must be evidenced by the execution of an agreement, or ratifications of the agreement, in the same manner as a deed, by the requisite number of unit owners. The agreement may specify a date after which the agreement will be void unless recorded before that date. The agreement and all ratifications of the agreement must be recorded in every county in which a portion of the condominium is situated, and is effective only upon recordation.

(c)  The association, on behalf of the unit owners, may contract to convey common elements, or subject them to a security interest, but the contract is not enforceable against the association until approved pursuant to subsections (a) and (b). Thereafter, the association has all powers necessary and appropriate to effect the conveyance or encumbrance, including the power to execute deeds or other instruments.

(d)  Any purported conveyance, encumbrance, judicial sale or other voluntary transfer of common elements, unless made pursuant to this section, is voidable; provided, that no action challenging the validity of a conveyance or encumbrance made by the association pursuant to this section may be brought more than one (1) year following the conveyance or encumbrance.

(e)  A conveyance or encumbrance of common elements pursuant to this section does not deprive any unit of its rights of access to and support of the unit and the remaining common elements and essential services.

(f)  A conveyance or encumbrance of common elements pursuant to this section does not affect the priority or validity of preexisting encumbrances.

[Acts 2008, ch. 766, § 1.]