Fairway Villas Venture v. Fairway Villas Condominium Ass'n

815 S.W.2d 912, 1991 Tex. App. LEXIS 2309, 1991 WL 182111

• Court: Court of Appeals of Texas
• Decided: September 18, 1991
• Docket: 3-90-143-CV
• Status: Published

Opinion

POWERS, Justice.

Fairway Villas Condominium Association (the “association”) recovered summary judgment against Fairway Villas Venture (the “developer”) for $23,900 and attorney’s fees on the association’s claim for condominium expenses that were past due and unpaid. The developer appeals. We will affirm the judgment.

THE CONTROVERSY

The Condominium Act, Tex.Prop.Code Ann. §§ 81.001-210 (1984 & Supp.1991), authorizes the creation of a condominium regime by the recording of a “declaration” in the county in which the land lies. § 81.-101. 1 In 1982, the developer recorded such a declaration in Travis County to create a condominium regime named “Fairway Villas.” The declaration indicated that the regime would contain nine buildings within its boundaries, each building containing one apartment. (The declaration used the word “unit” instead of “apartment,” but for clarity we shall use the latter word.) None of the buildings had been erected at the time the developer filed the declaration. In 1984, the developer recorded an amendment to the declaration. The amendment apparently did not alter the layout or number of buildings or apartments.

At the time of trial, five buildings had been erected within the regime. The five apartments within these buildings were owned by individuals having in their hands the government and management of the regime through a council of owners. See §§ 81.201-.203. The developer claims ownership of the remaining four “building sites.” 2 No buildings had been erected on these “sites” at the time of trial, although the declaration permits one building to be constructed on each “site” with a specified number of square feet and within a perimeter outline shown on the declaration.

In § 81.204, the Act declares that an “apartment owner” is responsible for his or her pro-rata share of general condominium expenses: (1) those required to administer the regime and to maintain and repair the general common elements; (2) “in proper cases,” those required to administer the limited common elements of the buildings in the regime; and (3) “other' expenses approved by the council of owners.” Id.

The association assessed the developer for a pro-rata share of the expenses allegedly authorized by § 81.204. The developer sued for declaratory judgment that he was not liable for such sums, and the association counterclaimed to recover the debt assessed. In a summary-judgment proceeding, the trial court denied the developer’s claim for declaratory relief and awarded the association judgment for $23,900 on its counterclaim, plus attorney’s fees.

The developer appeals by a single point of error in which he contends both aspects of the trial-court judgment were erroneous for the same legal reason: that he was not an “apartment owner” within the meaning of § 81.204 because § 81.002(1) defines “apartment” in terms of a “building,” and it was undisputed that no building had been erected on any of his four “building sites.”

DISCUSSION AND HOLDINGS

Section 81.204 imposes responsibility upon an “apartment owner” for a pro-rata share of certain expenses related to a condominium regime, but the Act does not define the term “apartment owner,” although that expression refers to what is the main or central feature of the Act. It falls to us, therefore, to ascertain the Legislature’s intended meaning of the term from a general view of the whole of the Act and its subject matter. Citizens Bank of Bryan v. First State Bank, 580 S.W.2d 344, 348 (Tex.1979); Calvert v. Fort Worth National Bank, 163 Tex. 405, 356 S.W.2d 918, 921 (1962).

A condominium regime comes into being by the recording of a declaration showing “each existing or proposed building,” § 81.-102(a)(1), and the word “building” is defined to include both existing and proposed structures, § 81.002(2).

Only one kind of property in a condominium is subject to exclusive ownership, and that is an “apartment.” § 81.-104(a). An “apartment” means an enclosed space consisting of one or more rooms in a “building.” § 81.002(1). The entire interest in the regime, apart from the exclusive ownership of the various apartments, is divided among the apartments. § 81.-104(c). Thus, an apartment owner has exclusive ownership of his apartment and an undivided ownership interest, shared with all other apartment owners, in the remainder of the regime not owned exclusively by others, including the common elements. §§ 81.104(a), (c), .107; Dutcher v. Owens, 647 S.W.2d 948, 949 (Tex.1983); Mixon, Apartment Ownership in Texas: Cooperative and Condominium, 1 Hous.L.Rev. 226, 240-44 (1964). An individual’s exclusive ownership of an apartment does not include the land or land surface underlying the building in which an apartment is located, for these are part of the “general common elements.” § 81.002(6)(A).

When § 81.204 employs the term “apartment owner,” it necessarily refers to and incorporates the foregoing propositions, and these indicate the meaning intended for that term by the legislature. The developer claims exclusive title to the “building sites.” It is undisputed that these are within the regime boundaries. “The building sites” can only be “apartments” for no other part of the regime, including land, is subject to exclusive ownership.

Moreover, we construe § 81.204 to encompass the owners of both existing and proposed apartments. The Act contemplates both existing and proposed buildings in a condominium regime, and the word “apartment” must therefore accommodate both because that word is defined solely in terms of a “building” in which the “apartment” is enclosed. See §§ 81.101, .102(a)(1). We hold, therefore, that § 81.-204 applies to the owners of apartments in both existing and proposed buildings.

The summary-judgment record does not reveal the component parts of the $23,-900 in expenses for which the association recovered summary judgment under § 81.-204. Thus, the record does not permit us to ascertain, as a matter of law, that the component sums do not come within the classes of expenses authorized by § 81.204 or that their pro-rata assessment against the developer results from unreasonable decisions by the council of owners. See Pooser v. Lovett Square Townhomes, 702 S.W.2d 226, 231 (Tex.App.1985, writ ref’d n.r.e.); Bracy, An Analysis of the Texas Condominium Act: Maintenance and Operation of a Condominium Project, 11 St. Mary’s L.J. 861, 871-72 (1980). It appears, however, that the developer does not complain in that regard in this Court and did not do so in the trial court. In both tribunals, he was content to assert simply that he was not liable for any sum as expenses under § 81.204 on the single ground that he was not an “apartment owner” within the meaning of that statute. In this respect, the trial court correctly interpreted the statute, and we may not disturb the trial-court judgment for reasons or objections that were not before the trial court, in writing, at the summary-judgment hearing. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 677 (Tex.1979).

For the reasons given, we affirm the trial-court judgment.

1 . The section references hereafter are to sections of the Act.

2 . The ‘building sites” claimed by the developer refer simply to sketches on a plat that was recorded with the condominium declaration. Each sketch outlines the perimeter of a building proposed to be built within the regime and locates the perimeter in reference to other proposed and existing structures in the regime.

The developer claims title to the four “building sites” under a deed that conveys to the developer property described as: "Unit 6-D, Building ‘F,’ Unit 7-C, Building ‘G,’ Unit 8-C, Building ‘H,‘ and Unit 9-B, Building T,’ FAIRWAY VILLAS, a condominium in Travis County, Texas, according to the Declaration of Condominium and Plats and Exhibits attached thereto, recorded in” the appropriate records of Travis County, Texas, as amended. The number-letter designations in the deed correspond, evidently, to those on the plat recorded with the condominium declaration. We are unable to say that with certainty because of the poor quality of the copy of the plat found in our appellate record.

The conveyance to the developer is consistent, of course, with the conveyance of an “apartment” except that it does not “state the apart ment’s fractional or percentage interest in the condominium regime.” § 81.106(4). The conveyance does not, on the other hand, purport to convey title to “land” but only to “units.”

The developer's silent premise on appeal is that the conveyance of the four “units" to him, by reference to the condominium declaration and attached plat, is the legal equivalent of receiving conveyance of a subdivision lot by reference to a recorded subdivision plat. There is no such equivalency because, as explained in the text of our opinion, the land within a condominium regime is not subject to exclusive ownership.