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Permit Extension Act Part II: Tolling Provisions Apply To Uniform Condominium And Planned Community Acts

The amendments to the Permit Extension Act (“PEA”), Act 31 of 2015, have now specifically included condominium and planned community Declarations within the tolling provisions of the PEA. There had been concern in the development community that in the wake of the Commonwealth Court’s Logan Greens Community Association, Inc. v. Church Reserve, LLC decision in September of 2013, condominium and planned community Declaration time limits on certain flexibility rights would not benefit from the extensions set forth in the PEA. The Logan Greens court’s unreported opinion issued after the repeal and re-enactment of the provisions of the PEA, found that the extension provisions did not apply to the 7 year limitations on the withdrawal or conversion of designated real estate under the Uniform Planned Community Act, because the Declaration did not meet the definition of “approval” as that term was used in the PEA.

The amendment to the definition of “approval” in Act 31, coupled with changes in the language that suspends the running of relevant time periods, seems to have remedied the prior lack of clarity. The term “approval” is now defined to include “any of the following” … “any authorization to create additional units and common elements out of convertible real estate in a condominium or planned community or otherwise relating to the right to convert convertible real estate or withdrawable real estate pursuant to 68 Pa. C.S. Pt. II Subt. B or D.” (italics added). By specifically including this language in the amendment, the legislature has attempted to clarify that provisions in a Declaration reserving rights to develop convertible real estate or withdraw withdrawable real estate are an “approval” for purposes of the tolling provisions of the PEA, even though it is based on a combination of statutory authorization and language in the recorded Declaration, rather than the subject of a government agency permit or approval. The amendment does not appear to include the addition of Additional Real Estate to a condominium or planned community, even if that right was reserved in a recorded declaration.

The expiration of the 7 year period in effect during the time period between the beginning of the extension period on January 1, 2009 and July 2, 2013, will be suspended until July 2, 2016. Because the “expiration clock” stopped on the effective date, those Declarations for which the 7 year period had not yet expired and were in effect during the extension period as defined in Act 31, will have the time between the effective date and the date of expiration of the 7 year limitation added to July 2, 2016. For Declarations recorded after the effective date, the clock would be suspended from the date of recording and an additional 7 years will be added to July 2, 2016, extending the expiration date to July 2, 2023. It is also worth noting that the legislature amended the Uniform Condominium and Planned Communities Acts in July of 2013 to extend the 7 year period to 10 years.

The amended language of the PEA may offer an opportunity to extend the expiration of the 7 year time period for conversion and withdrawal of real estate under the Uniform Condominium and Planned Communities Acts well beyond the original time period.

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