2012-1319 SB2295 SD1 SMA

SECTION 1. The legislature finds there is a need for viable, available, and affordable assisted living facilities for the State's aging population. The legislature further finds that the operation and expenses of making these facilities affordable have increased over time.

The purpose of this Act is to allocate the expenses related to the operation of an assisted living facility in a condominium project as limited common expenses to be assessed only when a unit owner elects to contract for these services.

SECTION 2. Section 514A-3, Hawaii Revised Statutes, is amended by amending the definition of "common expense" to read as follows:

""Common expense" means and includes:

(1) Expenses of operation of the property; and

(2) All sums designated common expenses by or pursuant to this chapter, the declaration or the bylaws[.], except as provided in section 514A-15."

SECTION 3. Section 514A-15, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) The common profits of the property shall be distributed among, and the common expenses shall be charged to, the apartment owners, including the developer, in proportion to the common interest appurtenant to their respective apartments; provided that in a mixed-use project containing apartments for both residential and commercial use, such charges and distributions may be apportioned in a fair and equitable manner as set forth in the declaration; provided further that all limited common elements costs and expenses, including but not limited to, maintenance, repair, replacement, additions and improvements shall be charged to the owner of the apartment to which the limited common element is appurtenant in an equitable manner as set forth in the declaration[.]; provided further that assessments for health care services or services relating to personal care that may be offered or provided to unit owners at a condominium licensed as an assisted living facility, shall be made against only the units occupied by persons who utilize such health care services and services relating to personal care, and shall not be included as part of the common expenses of the condominium.

For purposes of this subsection, "personal care" means the following categories of activities:

(1) Activities of daily living, such as ambulation, mobility, transfer and lifting, positioning and turning, bowel and bladder care, toileting, bathing, dressing, grooming, feeding, exercise, and range of motion; and

(2) Instrumental activities of daily living which are directly related to the well-being of the resident, such as meal preparation; bed, kitchen, and bathroom cleanliness; housekeeping; laundry; essential errands; transportation; medication assistance; and maintenance of health records."

SECTION 4. Section 514B-3, Hawaii Revised Statutes, is amended by amending the definition of "common expenses" to read as follows:

""Common expenses" means expenditures made by, or financial liabilities of, the association for operation of the property, and shall include any allocations to reserves[.], but shall exclude those expenses provided in section 514B-144."

SECTION 5. Section 514B-142, Hawaii Revised Statutes, is amended by amending subsection (g) to read as follows:

"(g) This section shall not be applicable to any condominium that seeks to become licensed as an assisted living facility pursuant to title 11, chapter 90, Hawaii Administrative Rules, as amended. In the event a condominium is licensed as an assisted living facility, any health care services or services relating to personal care that may be offered or provided to unit owners at the condominium, shall be assessed to only those unit owners who utilize such health care services or services relating to personal care, and shall not be included as part of the common expenses of the condominium.

For purposes of this subsection, "personal care" means the following categories of activities:

SECTION 6. Section 514B-144, Hawaii Revised Statutes, is amended to read as follows:

"§514B-144 Association fiscal matters; assessments for common expenses. (a) Assessments shall be made based on a budget adopted and distributed or made available to unit owners at least annually by the board.

(b) Except for assessments under subsections (c), (d), [~~and~~] (e), and (f), all common expenses shall be assessed against all the units in accordance with the allocations under section 514B‑41. Any past due common expense assessment or installment thereof shall bear interest at the rate established by the association, provided that the rate shall not exceed eighteen per cent per year.

(c) Assessments to pay a judgment against the association under section 514B‑147(a) may be made only against the units in the condominium at the time the judgment was entered, in proportion to their common expense allocations under section 514B‑41.

(d) If any common expense is caused by the misconduct of any unit owner, the association may assess that expense exclusively against such owner's unit.

(e) If common expense liabilities are reallocated, common expense assessments and any installment thereof not yet due shall be recalculated in accordance with the reallocated common expense liabilities.

(f) Assessments for health care services or services relating to personal care that may be offered or provided to unit owners at a condominium licensed as an assisted living facility, shall be made against only the units occupied by persons who utilize such health care services or services relating to personal care, and shall not be included as part of the common expenses of the condominium.

For purposes of this subsection, "personal care" means the following categories of activities:

[~~(f)~~] (g) In the case of a voluntary conveyance, the grantee of a unit shall be jointly and severally liable with the grantor for all unpaid assessments against the latter for the grantor's share of the common expenses up to the time of the grant or conveyance, without prejudice to the grantee's right to recover from the grantor the amounts paid by the grantee therefor. Any such grantor or grantee is, however, entitled to a statement from the board, either directly or through its managing agent or resident manager, setting forth the amount of the unpaid assessments against the grantor, and except as to the amount of subsequently dishonored checks mentioned in such statement as having been received within the thirty-day period immediately preceding the date of such statement, the grantee is not liable for, nor is the unit conveyed subject to a lien for, any unpaid assessments against the grantor in excess of the amount therein set forth.

[~~(g)~~] (h) No unit owner may exempt the unit owner from liability for the unit owner's contribution towards the common expenses by waiver of the use or enjoyment of any of the common elements or by abandonment of the unit owner's unit. Subject to such terms and conditions as may be specified in the declaration or bylaws, any unit owner, by conveying his or her unit and common interest to the association on behalf of all other unit owners, may exempt himself or herself from common expenses thereafter accruing.

[~~(h)~~] (i) The board, either directly or through its managing agent or resident manager, shall notify the unit owners in writing of maintenance fee increases at least thirty days prior to such an increase."

SECTION 7. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 8. This Act shall take effect on July 1, 2012, and shall apply to any and all existing and future condominiums or condominium projects in the State.

THE SENATE	S.B. NO.	2295
TWENTY-SIXTH LEGISLATURE, 2012		S.D. 1
STATE OF HAWAII		Proposed