1.02 Definitions

• Library: South Carolina Community Association Law: Condominiums and Homeowners Associations (SCBar) (2019 Ed.)

1.02 Definitions

The South Carolina Horizontal Property Act provides definitions for commonly used terminology.¹⁹ Many of these terms are used in other state condominium acts, but with different definitions. It is, therefore, important to be attentive to definitional differences when comparing case law. The definitions contained in the SCHPA are set forth below. These definitions apply to the SCHPA "[u]less it is plainly evident from the context that a different meaning is intended..."²⁰ Where courts in other jurisdictions have interpreted similar definitions, those decisions are cited for guidance.

? Apartment

Apartment means a part of the property intended for any type of independent use (whether it be for residential, recreational, storage, or business)²¹ including one or more rooms or enclosed spaces located on one or more floors (or parts thereof) in a building or if not in a building in a separately delineated space²² whether open or enclosed and whether for the storage of an automobile, moorage of a boat,²³ or other lawful use,²⁴ and with a direct exit to a public street or highway, or to a common area leading to such street or highway.²⁵

? Building

Building means an existing or proposed structure or structures, containing in the aggregate two or more apartments, comprising a part of the property.²⁶

? Condominium Ownership

Condominium ownership means the individual ownership of a particular apartment in a building and the common right to share, with other co-owners, in the general and limited common elements of the property.²⁷

? Co-Owner

Co-owner means a person, firm, corporation,²⁸ partnership, association, trust or other legal entity, or any combination thereof, who owns an apartment within a building.²⁹

? Council of Co-Owners

Council of co-owners means all the co-owners as defined in subsection [27-31-20(d)]; but a majority, as defined in subsection [27-31-20(h)] shall, except as otherwise provided in [the SCHPA] constitute a quorum for the adoption of decisions.³⁰

? General Common Elements

General common elements means and includes:

(1) The land whether leased or in fee simple and whether or not submerged on which the apartment or building stands; provided, however, that submerged land developed or used under [the SCHPA] is subject to any law enacted relating to the leasing of submerged lands by the State for the benefit of the public;
(2) The foundation, main walls, roofs, halls, lobbies, stairways, moorages, walkways, docks, and entrance and exit or communication ways in existence or to be constructed or installed;³¹
(3) The basements, flat roofs, yards, and gardens, in existence or to be constructed or installed, except as otherwise provided or stipulated;
(4) The premises for the lodging of janitors or persons in charge of the property, in existence or to be constructed or installed, except as otherwise provided or stipulated;
(5) The compartments or installations of central services such as power, light, gas, cold and hot water, refrigeration, reservoirs, water tanks and pumps, and the like in existence or to be constructed or installed;
(6) The elevators, garbage incinerators and, in general, all devices or installations existing or to be constructed or installed for common use;
(7) All other elements of the property rationally of common use or necessary to its existence, upkeep, and safety.³²

? Limited Common Elements

Limited common elements means and includes those common elements which are agreed upon by all the co-owners to be reserved for the use of a certain number of apartments to the exclusion of the other apartments, such as special corridors, stairways, elevators, finger piers, sanitary services common to the apartments of a particular floor and the like.³³ A limited common element in not part of any unit, however courts have said the apartment owner to whom it is reserved has a right of possession and that owner might, therefore, have a cause of action for trespass to that limited common element against others, including the council of co-owners.³⁴

? Majority of Co-Owners

Majority of co-owners means 51% or more of the basic value of the property as a whole, in accordance with the percentages computed in accordance with the provisions of § 27-31-60.³⁵

? Master Deed or Master Lease

Master deed or master lease means a deed or lease establishing and recording³⁶ the property of the horizontal property regime.³⁷

? Person

Person means an individual, firm, corporation, partnership, association, trust or other legal entity, or any combination thereof.³⁸

? Property

Property means and includes (1) the land whether leasehold or in fee simple and whether or not submerged, (2) the building, all improvements, and structures on the land in existence or to be constructed, and (3) all easements, rights, and appurtenances³⁹ belonging thereto.⁴⁰

? To Record

To record means to record in accordance with the provisions of §§ 30-5-30 through 30-5-200, 30-7-10 through 30-7-90 and 30-9-10 through 30-9-80 or other applicable recording statutes.⁴¹

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Notes:

^[19] S.C. Code Ann. § 27-31-20.

^[20] S.C. Code Ann. § 27-31-20.

^[21] Note In re Eastport Golf Club, Inc., 373 B.R. 446 (Bankr. D.S.C. 2007) (condominium units are per se neither recreational nor social but inherently private, existing for basic purpose of providing shelter to owner of unit). Note that a relatively new form of condominium ownership is the "condo hotel" in which hotel rooms are separately owned by private individuals and managed for them by a hotel company. See 1993 S.C. AG LEXIS 112 (October 6, 1993).

^[22] While the definition does not directly address whether unimproved land may be a unit, the phrase "separately delineated space" seems to imply that land may be a condominium. Amendments to the SCHPA made by 1999 S.C. Acts 86 make clear that a condominium project may be established where improvements are not yet in place. For example § 27-31-20(b) was amended to read: "(b) 'Building' means...