Chapter 1 Confirmation of Legislative Grants

34-1-1. Perpetuation of colonial acts quieting title.

The act entitled “An Act Confirming the Grants Heretofore Made by the Inhabitants of the Towns of Newport, Providence, Portsmouth, Warwick and Westerly”, passed in May, 1682, and the act entitled “An Act Quieting Possessions and Establishing Title of Land Within the Towns of Bristol, Tiverton, Little Compton, Warren and Cumberland”, passed in January, 1746, are hereby continued in force as perpetual statutes.

History of Section. G.L. 1896, ch. 204, § 1; G.L. 1909, ch. 255, § 1; G.L. 1923, ch. 299, § 1; G.L. 1938, ch. 441, § 1; G.L. 1956, § 34-1-1 .

NOTES TO DECISIONS

Applicability.

This section does not extend to littoral lands in Little Compton the 1647 ordinance of the Massachusetts Bay colony extending the property of littoral owners to the low water mark, since such land was under the Plymouth colony, which did not recognize the Massachusetts Bay ordinance until long after the lands had been decreed to Rhode Island. Narragansett Real Estate Co. v. Mackenzie, 34 R.I. 103 , 82 A. 804, 1912 R.I. LEXIS 36 (1912).

34-1-2. Confirmation of legislative conveyances generally.

Whereas, at the first settling of this state, and for sundry years afterwards, lands were of little or no value, and skillful men in the law were much wanted, whereby many deeds, grants, and conveyances were weakly made, which may occasion great contests in law if not timely prevented; therefore, all grants, charters and conveyances previously made by the general assembly unto any town, corporation, community or propriety, or to any other person or persons whomsoever, shall be and hereby are ratified and confirmed as good and effectual, to all intents and purposes in law, for conveying all such lands, tenements, hereditaments, rights, privileges and profits as are therein mentioned, to the towns, corporations, communities, proprieties, person, or persons, and to their respective successors, heirs, and assigns forever.

History of Section. G.L. 1896, ch. 205, § 1; G.L. 1909, ch. 256, § 1; G.L. 1923, ch. 300, § 1; G.L. 1938, ch. 438, § 1; G.L. 1956, § 34-1-2 .

NOTES TO DECISIONS

Applicability.

Since the state had already granted the plaintiff the right to use certain coastal resources through nineteenth-century legislation confirmed by the Confirmation of Legislative Conveyances Generally Act, the Coastal Resources Management Council (CRMC) could only grant an assent to the plaintiff to work on its tide-flowed property rather than use coastal resources held in trust by the state, and the fact that the plaintiff was required to seek a permit from CRMC was of no consequence because CRMC had only the power to oversee and direct the method by which the plaintiff could fill in the tide waters to the harbor line, and once the plaintiff filled-in and improved that land below the mean high-water mark, it established title thereto, free and clear of the public trust claim asserted by the state. Providence & Worcester R.R. Co. v. Pine, 729 A.2d 202, 1999 R.I. LEXIS 98 (1999).

Chapter 2 Capacity to Hold Real Estate

34-2-1. Powers of aliens.

Aliens may take, hold, transmit, and convey real estate, and may sue for and recover possession of real estate in the same way and with the same effect as if they were citizens of the United States, and no title to real estate shall be invalid on account of the alienage of a former owner; but nothing contained in this section shall defeat the title to any real estate previously released or conveyed by the state or by authority thereof.

History of Section. G.L. 1896, ch. 201, § 4; G.L. 1909, ch. 252, § 4; G.L. 1923, ch. 296, § 4; G.L. 1938, ch. 432, § 1; G.L. 1956, § 34-2-1 .

Cross References.

Guardianship funds, investment in land, § 33-15-35 .

Life insurance companies, land held by, § 27-11-1 et seq.

Married woman, ownership of separate property, § 15-4-1 .

Comparative Legislation.

Title in aliens:

Mass. Ann. Laws ch. 184, § 1.

NOTES TO DECISIONS

Applicability.

This act does not affect the inheritance of the estate of an alien who died before its enactment. Haigh v. Haigh, 9 R.I. 26 , 1868 R.I. LEXIS 6 (1868).

Collateral References.

Dower of alien widow in estate of deceased husband. 110 A.L.R. 520.

Right of alien enemy to take by inheritance or will. 137 A.L.R. 1328; 147 A.L.R. 1297; 150 A.L.R. 1418; 152 A.L.R. 1450.

Treaty regulations, disabilities and property rights of aliens as proper subjects of. 4 A.L.R. 1391; 134 A.L.R. 887.

Chapter 3 Tenancy in Common

34-3-1. Tenancy in common presumed in conveyances.

All gifts, feoffments, grants, conveyances, devises or legacies, of real or personal estate, which shall be made to two (2) or more persons, whether they be husband and wife or otherwise, shall be deemed to create a tenancy in common and not a joint tenancy, unless it be declared that the tenancy is to be joint, or that the conveyance is to those persons and the survivors or survivor of them, or to them as trustees or executors, or unless the intention manifestly appears that the persons shall take as joint tenants and not as tenants in common.

History of Section. G.L. 1896, ch. 201, § 1; G.L. 1909, ch. 252, § 1; G.L. 1923, ch. 296, § 1; G.L. 1938, ch. 431, § 1; G.L. 1956, § 34-3-1 .

Cross References.

Contribution to tax, action by co-tenant for, § 44-7-19 .

Creation of co-tenancies by deed, § 34-11-3 .

Division of real estate devised in common, § 33-3-11 .

Ejectment action by co-tenants, § 34-20-3 .

Partition of joint or common property, § 34-15-1 et seq.

Possession of property, actions by cotenants for, § 34-20-3 .

Simultaneous death of joint tenants, § 33-2-4 .

Waste, liability of co-tenant, § 34-14-2 .

Comparative Legislation.

Tenants in common:

Conn. Gen. Stat. §§ 52-77, 52-495 et seq.

Mass. Ann. Laws ch. 184, § 7.

NOTES TO DECISIONS

Conflict of Laws.

Transfer of stock in foreign corporation, which was executed in Rhode Island, created a tenancy in common instead of a joint tenancy where deed contained no declaration that tenancy was to be joint and where there was no manifest intention to create a joint tenancy. Hoxie v. Page, 23 F. Supp. 905, 1938 U.S. Dist. LEXIS 2082 (D.R.I. 1938), aff'd, 104 F.2d 918, 1939 U.S. App. LEXIS 4255 (1st Cir. 1939).

Estates by Entirety.

This section does not prohibit an estate by the entirety nor did legislature intend to circumvent the common law as to such estates. Bloomfield v. Brown, 67 R.I. 452 , 25 A.2d 354, 1942 R.I. LEXIS 17 (1942).

Harmless Error.

Error in holding in partition proceeding that conveyance created joint tenancy was harmless where moving party failed to show more than a half interest in the property. Lucchetti v. Lucchetti, 85 R.I. 105 , 127 A.2d 244, 1956 R.I. LEXIS 126 (1956).

Intent to Create Joint Tenancy.

Bequest of income to two persons, “share and share alike during their lifetime,” and at their deaths remainder over, manifested intention that life tenants should take as joint tenants and not as tenants in common. In re Monroe, 42 R.I. 412 , 108 A. 497, 1920 R.I. LEXIS 3 (1920).

Conveyance to husband and wife, “as joint tenants and not as tenants in common,” which was not inconsistent or repugnant to the estate described in the granting and habendum clauses, created a joint tenancy. Hayes v. Siple, 65 R.I. 508 , 16 A.2d 489, 1940 R.I. LEXIS 144 (1940).

The words “joint tenancy” do not have to be used to create a joint tenancy, if the language used is such as to accurately describe a joint tenancy. Coffin v. Short, 82 R.I. 132 , 106 A.2d 262, 1954 R.I. LEXIS 22 (1954).

The conveyance to a husband and wife in 1880, the essential part of which read “in consideration of . . . dollars, etc., paid by W. and A., his wife (jointly),” under the statute prevailing in 1880 was held by the trial justice as not clearly manifesting an intention by the party to create a joint tenancy. Holland v. Lavigne, 88 R.I. 376 , 148 A.2d 522, 1959 R.I. LEXIS 19 (1959) (decided on facts arising prior to the General Laws of 1896).

— Joint Bank Accounts.

The opening of a joint bank account wherein survivorship rights are specifically provided for is conclusive evidence of the intention to transfer to the survivor an immediate in praesenti joint beneficial possessory ownership right in the balance of the account remaining after the death of the depositor, absent evidence of fraud, undue influence, duress, or lack of mental capacity. Likewise, if a joint bank account does not provide for survivorship rights, that absence will be conclusive evidence of an intent not to transfer any right of ownership to the survivor, absent evidence of mistake or fraud. Robinson v. Delfino, 710 A.2d 154, 1998 R.I. LEXIS 149 (1998).

— Negation of Intent.

Joint tenancy in lease of safety deposit box was negated by provision giving either tenant the power to surrender the box and by the act of one tenant in exercising exclusive control over the box during his life. Millman v. Streeter, 66 R.I. 341 , 19 A.2d 254, 1941 R.I. LEXIS 36 (1941).

Personal Property.

A gift of personal property to two persons, without more, created a joint tenancy, since this statute applies only to real estate. Gallagher v. Rhode Island Hosp. Trust Co., 22 R.I. 141 , 46 A. 451, 1900 R.I. LEXIS 65 (1900) (decided on facts arising prior to the General Laws of 1896).

Joint tenancy may be held by two or more persons in personal as well as real property. Millman v. Streeter, 66 R.I. 341 , 19 A.2d 254, 1941 R.I. LEXIS 36 (1941).

Presumption as to Tenancy Created.

In the absence of contrary words in the will indicating any intent on the part of testator to create a joint tenancy, the words “To Eva S. Hammond and Sophia B. Hammond * * * to them and their heirs” created a tenancy in common. Industrial Trust Co. v. Keyes, 45 R.I. 496 , 124 A. 101, 1924 R.I. LEXIS 26 (1924).

Oral agreement of property owner to convey property to daughter and son-in-law as joint tenants did not create joint tenancy where property was actually conveyed to daughter alone without objection by the son-in-law, since the intention to create joint tenancy must be clearly shown. Tillinghast v. Harrop, 63 R.I. 394 , 9 A.2d 28, 1939 R.I. LEXIS 107 (1939).

A conveyance of land to two or more persons, including a husband and wife, will be presumed to create a tenancy in common unless a contrary intention manifestly appears. Bloomfield v. Brown, 67 R.I. 452 , 25 A.2d 354, 1942 R.I. LEXIS 17 (1942).

Deed conveying property to husband and wife, not expressly stating that it was to them as joint tenants and not otherwise indicating that there was a right of survivorship, created only a tenancy in common. Lucchetti v. Lucchetti, 85 R.I. 105 , 127 A.2d 244, 1956 R.I. LEXIS 126 (1956).

Wills and Codicils.

This section vested an estate in the grandchildren of the testator as tenants in common where the devise seemed to create a joint tenancy but by a codicil the intent to give to the devisees as tenants in common became clear. In re Heath, 12 R.I. 479 , 1880 R.I. LEXIS 1 (1880).

A residuary bequest to the sons of the testator as tenants in common lapsed as to a son who died prior to the testator. Church v. Church, 15 R.I. 138 , 23 A. 302, 1885 R.I. LEXIS 71 (1885).

Collateral References.

Creation of joint savings account or savings certificate as gift to survivor. 43 A.L.R.3d 971.

Devise of “house,” or “lot,” etc., where there are two or more, or devise of specified acreage or other quantity out of a larger tract or from testator’s estate, with or without a right of selection, as creating co-tenancy. 157 A.L.R. 1129.

Estate by entireties as affected by statute declaring nature of tenancy under grant or devise to two or more persons. 32 A.L.R.3d 570.

Estate created by deed to persons described as husband and wife but not legally married. 9 A.L.R.4th 1189.

Husband and wife, deed to persons mistakenly supposed to be, as creating tenancy in common in the parties. 9 A.L.R.4th 1189.

Husband and wife, estate created by conveyance to, as affected by language used in deed. 161 A.L.R. 457.

Instrument purporting to convey one’s own title or interest to himself and another, character of tenancy created by. 44 A.L.R.2d 595.

Larceny, co-tenant taking co-tenancy property. 17 A.L.R.3d 1394.

Lease to two or more as creating a tenancy in common or a joint tenancy. 113 A.L.R. 573.

Partnership, effect of designating by firm name grantee in deed to pass title to partners as tenants in common. 1 A.L.R. 564.

Property rights arising from relationship of couple cohabiting without marriage. 69 A.L.R.5th 219.

Purchase of co-tenant’s interest at judicial sale as making purchaser co-tenant. 159 A.L.R. 395.

Rights and remedies of co-owners of copyright. 3 A.L.R.3d 1301.

Rights in proceeds of insurance on property held jointly with right of survivorship, where one of joint owners dies pending payment of proceeds. 4 A.L.R.3d 427.

Severance or termination of joint tenancy by conveyance of divided interest directly to self. 7 A.L.R.4th 1268.

Termination or severance of joint tenancy by marriage. 64 A.L.R.2d 918; 39 A.L.R.4th 1068.

Use of word “joint” or “jointly” in provision of deed other than the granting or habendum clause as indicating intention to create joint tenancy rather than one in common between grantees. 157 A.L.R. 566.

Validity and effect of one spouse’s conveyance to other spouse of interest in property held as estate by the entireties. 18 A.L.R.5th 230.

34-3-2. Joint heirs.

Joint heirs shall be deemed tenants in common.

History of Section. G.L. 1896, ch. 201, § 2; G.L. 1909, ch. 252, § 2; G.L. 1923, ch. 296, § 2; G.L. 1938, ch. 431, § 2; G.L. 1956, § 34-3-2 .

34-3-3. Proprietors of common and undivided lands.

Whereas, there is still remaining within several of the towns of this state, lands belonging to the original proprietors of the land, lying common or undivided, for the better government of the proprietors, the management of their prudential affairs, the more just and equal division of the lands and the allotments and preservation of the boundaries of the lands; it shall be lawful for the proprietors of the several towns within this state, being convened by warrant specifying the occasion for convening, under the hand and seal of a justice of the peace of the town, to choose a clerk, a surveyor or surveyors, and such other officers as they shall judge necessary for the orderly carrying on and management of their affairs, and in like manner to proceed from time to time as shall be necessary.

History of Section. G.L. 1896, ch. 190, § 1; G.L. 1909, ch. 55, § 1; G.L. 1923, ch. 56, § 1; G.L. 1938, ch. 341, § 1; G.L. 1956, § 34-3-3 .

Cross References.

Regulation of use of public grounds, § 32-3-1 .

Chapter 4 Estates in Real Property

34-4-1. Presumed death from absence of life tenant.

If any person shall be absent from this state for the term of seven (7) years without due proof of his or her being alive, for whose life any estate shall be holden by himself or herself or any other person, the person claiming the remainder or reversion of the estate expectant upon the death of the person so absent, may enter upon the estate and hold the estate according to his or her title, or until the absent person shall return to this state, or due proof shall be made of his or her being alive.

History of Section. G.L. 1896, ch. 201, § 3; G.L. 1909, ch. 252, § 3; G.L. 1923, ch. 296, § 3; G.L. 1938, ch. 433, § 1; G.L. 1956, § 34-4-1 .

34-4-2. Grant for life with remainder to heirs in fee.

When lands are conveyed by deed or devised by will hereafter executed, to a person for his or her life, and after his or her death to his or her heirs in fee, or by words to that legal effect, the conveyance or devise shall be construed to vest an estate for life only in the first taker and a remainder in fee simple in his or her heirs.

History of Section. G.L. 1896, ch. 201, § 6; G.L. 1909, ch. 252, § 6; G.L. 1923, ch. 296, § 6; G.L. 1938, ch. 433, § 2; G.L. 1956, § 34-4-2 .

Cross References.

Property tax, primary liability of life estate, § 44-9-6 .

Comparative Legislation.

Life tenancy with remainder to heirs:

Conn. Gen. Stat. § 47-4.

Mass. Ann. Laws ch. 184, § 5.

NOTES TO DECISIONS

In General.

Son of testator received a life estate where the will devised all of the estate to the widow for her natural life, and after her death to the son, and after his death to the “next of kin.” In re Willis' Will, 25 R.I. 332 , 55 A. 889, 1903 R.I. LEXIS 83 (1903).

A devise to the widow “for her sole use and benefit as long as she may live and to her heirs and assigns forever” creates a life estate and upon the widow’s death the fee vested in her heirs at law. Parr v. Gosling, 43 R.I. 68 , 110 A. 383, 1920 R.I. LEXIS 32 (1920).

Where a will clearly creates a life estate with a remainder in fee to certain persons, the court will not seek the intent of the testator by an interpretation of other portions of the will or by the consideration of surrounding circumstances. Parr v. Gosling, 43 R.I. 68 , 110 A. 383, 1920 R.I. LEXIS 32 (1920).

Collateral References.

Grant to one and his children. 161 A.L.R. 612.

Grant to one for life, and afterwards, either absolutely or contingently, to grantor’s heirs or next of kin, as leaving reversion or creating remainder. 16 A.L.R.2d 691.

34-4-2.1. Reservation of life estate with enhanced powers.

A grantor may convey title to real estate and reserve a life estate therein, coupled with the reserved power and authority, during his or her lifetime, to sell, convey, mortgage, or otherwise dispose of the real property without the consent or joinder by the holder(s) of the remainder interest. A duly-executed conveyance by the life tenant exercising such reserved powers shall, upon recording, vest good title to the interest conveyed in the grantee thereof, free and clear of any right, title and interest of the holder(s) of the remainder interest without the necessity of any additional conveyance by any such holder(s) of the remainder interest.

History of Section. P.L. 2014, ch. 145, art. 19, § 1.

34-4-3. Purported grant of estate greater than owned by grantor.

A conveyance made by a tenant for life or for years, purporting to grant a greater estate than he or she possesses or can lawfully convey, shall not work a forfeiture of his or her estate, but shall pass to the grantee all the estate which the tenant can lawfully convey.

History of Section. G.L. 1896, ch. 201, § 7; G.L. 1909, ch. 252, § 7; G.L. 1923, ch. 296, § 7; G.L. 1938, ch. 433, § 3; G.L. 1956, § 34-4-3 .

34-4-4. Expectant estates not dependent on precedent estates.

No expectant estate shall be defeated or barred by an alienation or other act of the owner of the precedent estate, nor by the destruction of the precedent estate by disseisin, forfeiture, surrender, or merger, nor shall a contingent remainder be defeated by the termination of a precedent estate before the occurrence of the contingency on which the remainder was limited to take effect. If that contingency subsequently occurs, the remainder takes effect in the same manner as a springing or shifting executory interest.

History of Section. G.L. 1896, ch. 201, § 8; G.L. 1909, ch. 252, § 8; G.L. 1923, ch. 296, § 8; G.L. 1938, ch. 433, § 4; G.L. 1956, § 34-4-4 ; P.L. 1983, ch. 168, § 1.

34-4-5. Bar of estates tail preserved — Defeat of expectancies provided for by grantor.

Sections 34-4-3 and 34-4-4 shall not be construed to prevent the barring of estates tail in the manner provided in §§ 34-4-14 — 34-4-18 , nor to prevent an expectant estate from being defeated in a manner provided for or authorized by the party creating the estate.

History of Section. G.L. 1896, ch. 201, § 9; G.L. 1909, ch. 252, § 9; G.L. 1923, ch. 296, § 9; G.L. 1938, ch. 433, § 5; G.L. 1956, § 34-4-5 .

34-4-6. Trustee of timber land subject to life estate.

When it appears that wood and timber standing on land, the use and improvement of which belongs, for life or otherwise, to a person other than the owner of the fee in the land, have ceased to improve by growth, or ought for any cause to be cut, the superior court may on petition appoint a trustee, and authorize and empower the trustee to sell and convey the wood and timber, to be cut and carried away within a time to be limited in the order of sale, and to hold, invest, reinvest, and change the investment of the proceeds thereof, after paying therefrom the expenses of the sale, and to pay over the income, above the taxes and other expenses of the trust, to the person entitled to the use and improvement while his or her right thereto continues, and, at the expiration of the right, to pay the principal sum to the owner of the land. When wood and timber have been cut as provided by this section, no more shall be cut on the land by the person entitled to the use and improvement without permission from the court. When a sale is authorized under this section, the trustee shall give, to the person as the court shall designate, a bond for the use and benefit of the persons interested in the proceeds of the sale, with condition for the faithful discharge of the trust; and the court may from time to time remove the trustee and appoint another in his or her stead, or fill a vacancy in the trusteeship whenever occasion may require.

History of Section. G.L. 1896, ch. 201, § 12; C.P.A. 1905, §§ 1220, 1229; G.L. 1909, ch. 252, § 12; G.L. 1923, ch. 296, § 12; G.L. 1938, ch. 433, § 6; G.L. 1956, § 34-4-6 .

Collateral References.

Timber rights of life tenant. 51 A.L.R.2d 1374.

34-4-7. Sale or mortgage of real estate subject to contingent remainder, executory devise, or power of appointment.

When real estate is subject to a contingent remainder, executory devise, or power of appointment, the superior court may, upon the petition of any person who has an estate in possession in the real estate, and after notice and other proceedings as required by this chapter, appoint one or more trustees and authorize him or her or them to sell and convey the estate or any part thereof in fee simple, if the sale and conveyance appears to the court to be necessary or expedient, for such an amount, and on such terms, as the court may deem proper; and the conveyance shall be valid and binding upon all parties. The trustee or trustees may, in the discretion of the court, and upon such terms and conditions as the court may prescribe, execute a mortgage of the estate or any part thereof, which mortgage may contain such powers of sale, conditions, and covenants as are usual in mortgages taken by savings banks in this state. Notes secured by, and covenants contained in, mortgages executed by the trustee or trustees, so far as those notes and covenants are made by the trustee or trustees in his or her or their representative capacity, shall not bind the trustee or trustees personally, but only the trust estate.

History of Section. G.L. 1896, ch. 201, § 18; C.P.A. 1905, §§ 1220, 1229; G.L. 1909, ch. 252, § 18; P.L. 1912, ch. 829, § 1; G.L. 1923, ch. 296, § 18; G.L. 1938, ch. 433, § 7; G.L. 1956, § 34-4-7 .

Collateral References.

Sale or exchange of property which is subject to life estate and remainder where it is unproductive, or income is insufficient to pay taxes and upkeep. 76 A.L.R. 540.

Taxes, repairs, or other charges against property, propriety during life estate in unproductive property of authorizing mortgage binding upon remaindermen to raise funds to pay, and powers of trustee in that respect. 116 A.L.R. 1420.

34-4-8. Notice of petition for sale — Representation of minors and parties not ascertained.

Notice of a petition for sale shall be given in such manner as the court may order to all persons who are, or may become, interested in the real estate to which the petition relates, and to all persons whose issue not in being may become interested in the property. The court shall in every case appoint a suitable person to appear and act on the petition as the next friend of all minors, persons not ascertained, and persons not in being, who are, or may become, interested in the real estate. The cost of the appearance and the services of the next friend, including the compensation of his or her counsel, to be determined by the court, shall be paid, as the court may order, either out of the proceeds of the sale or by the petitioner, and in the latter case execution for the compensation may issue in the name of the next friend.

History of Section. G.L. 1896, ch. 201, § 19; G.L. 1909, ch. 252, § 19; G.L. 1923, ch. 296, § 19; G.L. 1938, ch. 433, § 8; G.L. 1956, § 34-4-8 .

34-4-9. Management of proceeds of sale — Supervision by court.

The trustee or trustees appointed under § 34-4-7 shall give bond in such form and for such an amount as the court may order, shall receive, hold, and invest the proceeds of any sale, and shall pay, apply, and distribute the proceeds, and any income therefrom, to or for the benefit of the persons who would have been entitled to the real estate and the income therefrom if the sale had not been made, and shall have full power in his, her, or their discretion, or, if a corporation, in the discretion of its officer or committee duly authorized, from time to time to invest, reinvest, and change the investment of the proceeds; and the court shall have jurisdiction of all matters thereafter arising in relation to the trust, including the removal of a trustee and the appointment of another in his or her stead, or filling a vacancy in the trusteeship whenever the occasion requires.

History of Section. G.L. 1896, ch. 201, § 20; G.L. 1909, ch. 252, § 20; G.L. 1923, ch. 296, § 20; G.L. 1938, ch. 433, § 9; P.L. 1947, ch. 1953, § 1; G.L. 1956, § 34-4-9 .

Collateral References.

Commutation of life tenant’s interest in fund realized from sale of property into estimated present value. 102 A.L.R. 973.

Rights as between estate of life tenant and remainderman in respect of proceeds of sale or disposition made in exercise of power given life tenant. 47 A.L.R.3d 1078.

34-4-10. Construction of amendment to § 34-4-9.

Section 34-4-9 shall be deemed to be declaratory of the purposes of that section as originally enacted, and shall not be construed to invalidate any action taken by any trustee or trustees appointed under § 34-4-7 prior to June 3, 1947.

History of Section. P.L. 1947, ch. 1953, § 2; G.L. 1956, § 34-4-10 .

34-4-11. Conveyance of contingent, executory, and future interests.

A contingent, an executory and a future interest, and a possibility coupled with an interest, in any tenements or hereditaments of any tenure, and a right of entry whether immediate or future and whether vested or contingent, into or upon any tenements or hereditaments of any tenure, may be disposed of by legal conveyance or will, but no such disposition shall, by force only of this section, defeat or enlarge an estate tail.

History of Section. G.L. 1896, ch. 201, § 23; G.L. 1909, ch. 252, § 23; G.L. 1923, ch. 296, § 23; G.L. 1938, ch. 433, § 10; G.L. 1956, § 34-4-11 .

NOTES TO DECISIONS

Condemned Land.

Landowners convey away the totality of their rights in condemned land, and have no statutory right to repurchase, when they execute quit-claim deeds and releases to the state which state that they convey all of the “right, title and interest” to the properties, and which contain no express limitations on the estates conveyed. Lapre v. Flanders, 465 A.2d 214, 1983 R.I. LEXIS 1094 (1983).

Executory Interests.

A right to reconveyance in the event of condition broken was equivalent to a right of reentry for condition broken and could be devised. Ball v. Milliken, 31 R.I. 36 , 76 A. 789, 1910 R.I. LEXIS 77 (1910).

The tenement-hereditament language of this section is inclusive rather than exclusive in that it sanctions the use of those two categories, along with other interests, as proper subjects for disposition as an executory interest by way of a deed or will. Chile v. Beck, 452 A.2d 626, 1982 R.I. LEXIS 1093 (1982).

Where testator left land in fee simple absolute to son but in same instrument provided that her caretaker could live in the guest house on the farm rent free for life if the farm was sold, language of this section authorizing disposition of executory interest in tenements or hereditaments did not exclude disposition of this executory interest to caretaker. Chile v. Beck, 452 A.2d 626, 1982 R.I. LEXIS 1093 (1982).

Collateral References.

Creation of express trust in property to be acquired in future. 3 A.L.R.3d 1416.

Distinction between contingent estates and estates vested subject to defeasance. 131 A.L.R. 712.

Fee simple conditional, power to limit remainder after. 114 A.L.R. 616.

Grant to one and his children. 161 A.L.R. 612.

Phrase “from and after” death of life beneficiary as affecting character of remainder as vested or contingent. 103 A.L.R. 598.

Postponement of time of closing a class to which a future interest is given as implying survivorship. 166 A.L.R. 823.

Vested or contingent character of remainder which is subject to be defeated by death of remainderman without issue before termination of particular estate. 109 A.L.R. 136.

34-4-12. Rights against lessee in remainderman taking precedent estate by merger.

Where the reversion of any land expectant on a lease shall be merged in any remainder, other reversion, or estate, the person entitled to the estate into which the reversion shall have merged, his or her heirs, executors, administrators, successors and assigns, shall have and enjoy the like advantage, remedy and benefit, against the lessee, his or her heirs, successors, executors, administrators and assigns, for nonpayment of rent, or for doing of waste or other forfeiture, or for not performing conditions, covenants or agreements, contained and expressed in his or her lease, demise or grant, as the person, who would for the time being have been entitled to the mesne reversion which shall have merged, would or might have had and enjoyed if the reversion had not been merged.

History of Section. G.L. 1896, ch. 201, § 24; G.L. 1909, ch. 252, § 24; G.L. 1923, ch. 296, § 24; G.L. 1938, ch. 433, § 11; G.L. 1956, § 34-4-12 .

34-4-13. Rights of entry not defeated by descent or discontinuance.

No descent or discontinuance shall take away or defeat any right of entry or of action for the recovery of real estate.

History of Section. G.L. 1896, ch. 201, § 13; G.L. 1909, ch. 252, § 13; G.L. 1923, ch. 296, § 13; G.L. 1938, ch. 433, § 12; G.L. 1956, § 34-4-13 .

34-4-14. Liability of lands for debts of tenant in tail.

All lands held in fee tail shall be liable for the debts of the tenant in tail in his or her lifetime like estates in fee simple; and when sold on execution, or when sold by guardians, the creditor or purchaser shall hold the lands in fee simple, but this shall not extend to lands in which the debtor has only an estate tail in remainder.

History of Section. G.L. 1896, ch. 201, § 5; G.L. 1909, ch. 252, § 5; G.L. 1923, ch. 296, § 5; G.L. 1938, ch. 434, § 1; G.L. 1956, § 34-4-14 .

34-4-15. Conveyance of fee simple by tenant in tail.

A person actually seised of lands as a tenant in tail may convey the lands in fee simple by a deed in common form, in like manner as if he or she were seised of the lands in fee simple; provided, that in the deed the intention be expressed of barring the entail and reference be made to the specific land by metes and bounds, or by other definite description. This conveyance shall bar the estate tail and all remainders and reversions expectant thereon. An estate tail may also be barred as provided in § 34-4-14 .

History of Section. G.L. 1896, ch. 201, § 14; G.L. 1909, ch. 252, § 14; G.L. 1923, ch. 296, § 14; G.L. 1938, ch. 434, § 2; G.L. 1956, § 34-4-15 .

NOTES TO DECISIONS

Bar of Entail.

A deed in fee acknowledged in conformity with this section bars the grantor, his heirs and assigns and all others who may claim a remainder or reversion and will convey a fee simple estate where the grantor had received the land under a devise which, by the rule in Shelley’s case, creates in him an estate tail. Jillson v. Wilcox, 7 R.I. 515 , 1863 R.I. LEXIS 23 (1863).

Deed Equivalent to Common Recovery.

This section makes a fee simple deed executed by a tenant in tail the equivalent of a common recovery, so that where such deed is given, it conveys a fee simple estate notwithstanding will provisions that if the tenant in tail dies without issue he is to have a life estate only and the remainder is to go to others. Manchester v. Durfee, 5 R.I. 549 , 1885 R.I. LEXIS 11 (1885).

Life Tenant Joining With Remainderman in Tail.

A tenant in tail in remainder may join with the life tenant to bar the entail in the manner prescribed in this section. Sutton v. Miles, 10 R.I. 348 , 1872 R.I. LEXIS 35 (1872).

Recording of Deed.

This section does not require recordation in the town clerk’s office in order to bar an estate tail, and if a deed is executed and acknowledged in the manner provided by this section the estate is barred as between the parties and their heirs, regardless of recordation. Cooper v. Cooper, 6 R.I. 261 , 1859 R.I. LEXIS 40 (1859).

34-4-16. Conveyance by life tenant and remainderman in tail.

When lands are held by one person for life with a vested remainder in tail in another, the tenant for life and the remainderman may convey the lands in fee simple by their deed or deeds in common form subject to the proviso in § 34-4-15 ; and the deed or deeds shall bar the estate tail and all remainders and reversions expectant thereon.

History of Section. G.L. 1896, ch. 201, § 15; G.L. 1909, ch. 252, § 15; G.L. 1923, ch. 296, § 15; G.L. 1938, ch. 434, § 3; G.L. 1956, § 34-4-16 .

34-4-17. Barring of equitable estates tail.

Equitable estates tail in possession or remainder, and all remainders and reversions expectant on them, may be barred in the same manner as legal estates tail and the remainders and reversions expectant on them; and all conveyances of equitable estates tail made by deed in common form in which the intention is expressed of barring the entail, and reference is made to the specific land by metes and bounds, or by other definite description, shall bar the estate tail and all remainders and reversions expectant thereon.

History of Section. G.L. 1896, ch. 201, § 16; P.L. 1906, ch. 1346, § 1; G.L. 1909, ch. 252, § 16; G.L. 1923, ch. 296, § 16; G.L. 1938, ch. 434, § 4; G.L. 1956, § 34-4-17 .

NOTES TO DECISIONS

Constitutionality.

The 1906 amendment adding the second half of this section was unconstitutional insofar as it purported to apply to deeds executed prior to its enactment. Green v. Edwards, 31 R.I. 1 , 77 A. 188, 1910 R.I. LEXIS 86 (1910).

Estates to Which Applicable.

This section applies only to equitable estates tail created after January 31, 1896. Paine v. Sackett, 27 R.I. 300 , 61 A. 753, 1905 R.I. LEXIS 86 (1905).

Before G.L. 1896, there was no statutory authority permitting the barring of an equitable estate tail by the tenant in tail. Green v. Edwards, 31 R.I. 1 , 77 A. 188, 1910 R.I. LEXIS 86 (1910).

34-4-18. Right of grantee of equitable estate tail to conveyance of legal interest.

The person to whom an equitable fee simple is conveyed pursuant to § 34-4-17 shall, upon request, be entitled to a conveyance of the outstanding legal estate from the person in whom the legal estate is then or thereafter vested in trust, unless provisions to the contrary be made in the instrument creating the trust.

History of Section. G.L. 1896, ch. 201, § 17; G.L. 1909, ch. 252, § 17; G.L. 1923, ch. 296, § 17; G.L. 1938, ch. 434, § 5; G.L. 1956, § 34-4-18 .

34-4-19. Limitation of possibilities of reverter and rights of entry.

If a possibility of reverter or right of entry for condition broken in land is reserved in a deed executed after May 11, 1953, or in a will of a testator who dies after May 11, 1953, and the possibility of reverter does not become a possessory interest or the right of entry is not exercised within twenty (20) years from the date of the execution of the deed or the death of the testator, then the possibility of reverter or right of entry shall become void, except a housing restriction as set forth in § 34-39.1-3 .

History of Section. G.L. 1938, ch. 435, § 23; P.L. 1953, ch. 3213, § 1; G.L. 1956, § 34-4-19 ; P.L. 2006, ch. 368, § 1; P.L. 2006, ch. 464, § 1.

Collateral References.

Reverter, release of possibility of, as vesting fee in grantee. 38 A.L.R. 1111.

Validity of statute cancelling, destroying, nullifying, or limiting enforcement of possibilities of reverter or rights of re-entry for condition broken. 87 A.L.R.3d 1011.

34-4-20. Possibilities of reverter and rights of entry exempt from limitation.

Section 34-4-19 shall not apply to a possibility of reverter or right of entry for condition broken in:

  1. Lease for a term of years;
  2. Grant, gift or devise to the state;
  3. Grant, gift or devise for public, charitable, or religious purposes;
  4. Deed to a railroad or public utility corporation;
  5. Housing restriction as set forth in § 34-39.1-3 .

History of Section. G.L., 1938, ch. 435, § 23; P.L. 1953, ch. 3213, § 1; G.L. 1956, § 34-4-20 ; P.L. 2006, ch. 368, § 1; P.L. 2006, ch. 464, § 1.

Compiler's Notes

In 2021, “and Providence Plantations” was deleted following “devise to the state” in this section at the direction of the Law Revision Director to reflect the 2020 amendments to the state constitution that changed the state’s name.

34-4-21. Limitation of restrictive covenants.

If a covenant or restriction concerning the use of land, other than housing restrictions as set forth in § 34-39.1-3 , and conservation restrictions and preservation restrictions as set forth in §§ 34-39-3 and 34-39-4 , is created by any instrument taking effect after May 11, 1953, the covenant or restriction, if unlimited in time in the instrument, shall cease to be valid and operative thirty (30) years after the execution of the instrument creating it; provided, however, that the terms of this section shall not apply to any covenants and/or restrictions initially created by the Commerce Oil Refining Corporation with respect to land in the town of Jamestown.

History of Section. G.L. 1938, ch. 435, § 23; P.L. 1953, ch. 3213, § 1; G.L. 1956, § 34-4-21 ; P.L. 2006, ch. 368, § 1; P.L. 2006, ch. 464, § 1; P.L. 2008, ch. 271, § 1; P.L. 2008, ch. 418, § 1.

NOTES TO DECISIONS

Lapsed Restrictions.

When a developer claimed restrictions the developer filed regarding land the developer dedicated to a city when building a subdivision barred the city from allowing the construction of a sewer pump station on the land by limiting the land’s use to open space, any such restrictions were no longer effective because they had lapsed. Warwick Sewer Auth. v. Carlone, 45 A.3d 493, 2012 R.I. LEXIS 75 (2012).

Collateral References.

Laches or delay in bringing suit as affecting right to enforce restrictive building covenant. 25 A.L.R.5th 233.

Waiver of right to enforce restrictive covenant by failure to object to other violations. 25 A.L.R.5th 123.

34-4-22. Expiration of recorded options affecting real estate.

When a recorded instrument has created, or shall create, an option to purchase or lease real estate, other than housing restrictions as set forth in § 34-39.1-3 , and conservation restrictions and preservation restrictions as set forth in §§ 34-39-3 and 34-39-4 , which, according to its terms, or by operation of law, has expired, and one year has elapsed since the time of expiration, and no conveyance, contract, lease, or other instrument has been recorded showing that the option has been exercised or extended, then the instrument creating the option shall cease to be notice to any person or to put any person on inquiry, with respect to the existence, exercise, or extension of the option or of any contract, conveyance, lease, or other writing which may have been executed pursuant to the option. The one year period provided for in this section shall not be extended by any disability, absence from the state, acknowledgment, or new promise not of record, payment after maturity, or for any other cause.

History of Section. P.L. 1965, ch. 133, § 1; P.L. 2006, ch. 368, § 1; P.L. 2006, ch. 464, § 1.

Collateral References.

Necessity for payment or tender of purchase money within option period in order to exercise option, in absence of specific time requirement for payment. 71 A.L.R.3d 1201.

Validity of option to purchase realty as affected by indefiniteness of term provided for exercise. 31 A.L.R.3d 522.

34-4-23. Expiration of recorded instruments affecting real estate.

Any recorded contract or other instrument, other than housing restrictions as set forth in § 34-39.1-3 , and conservation restrictions and preservation restrictions as set forth in §§ 34-39-3 and 34-39-4 , which has created or shall create a right or obligation (other than an option) to purchase or sell real estate shall cease to be notice to any person or to put any person on inquiry with respect thereto unless, within ninety (90) days after the date therein provided for the delivery of the deed, or if no date is therein provided, then within ninety (90) days after the date therein provided for the payment of the final payment or instalment of the purchase price, or if no delivery date or payment date is therein provided, then within ninety (90) days after the date of the recording of the contract or other instrument, an action or proceeding shall have been commenced to enforce the contract or other instrument and a notice of the pendency of the action, containing a reference to the contract or other instrument and the book and page of the recording thereof and a description of the real estate sufficient to identify it, shall have been duly recorded. The ninety (90) day period provided for in this section shall not be extended by any disability, absence from the state, acknowledgement, or new promise not of record, payment after maturity, or for any other cause with the exception that the ninety (90) day period may be extended by agreement of all the parties to the contract or other instrument at the time of the execution of the contract or other instrument.

History of Section. P.L. 1965, ch. 133, § 1; P.L. 1986, ch. 213, § 1; P.L. 1987, ch. 480, § 1; P.L. 2006, ch. 368, § 1; P.L. 2006, ch. 464, § 1.

NOTES TO DECISIONS

Right of First Refusal.

The right of first refusal terminated when the mortgage was discharged because the agreement, separate and distinct from the mortgage, was part of the consideration given for the sale of the property. Kenyon v. Anderson, 656 A.2d 963, 1995 R.I. LEXIS 95 (1995).

34-4-24. Limitation of proceedings based upon right of entry for condition broken or possibility of reverter.

    1. No proceeding based upon any right of entry for condition broken or possibility of reverter to which a fee simple or fee simple determinable in land is subject, created before May 11, 1953, shall be maintained in any court after December 31, 1987, unless on or before December 31, 1987:
      1. The condition has been broken or the reverter has occurred, and a person or persons having the right of entry or reverter shall have taken possession of the land, or;
      2. A person or persons having the right of entry, or who would have it if the condition were broken, or would be entitled to a right of entry if a reverter occurred or one of them if there be more than one, shall by himself or herself, or by his or her attorney, agent, guardian, conservator, or parent have filed in the town or city clerk’s office or recorder of deeds office for the town or city in which the land is situated, a statement in writing, duly sworn to, describing the land, the nature of the right, the deed or other instrument creating it, and where it may be found, and naming the person or persons appearing of record to own the fee subject to the right or possibility.
    2. This statement shall be received and recorded upon payment of the fee required by law and shall be indexed in the grantor index under the person or persons named.
  2. This section shall apply to all rights described in subsection (a) whether or not the holder of the rights is under any disability or out of the state, and it shall apply notwithstanding any recitals in any recorded deed or other instrument unless a statement is filed as provided in subsection (a).
  3. Nothing in this section shall be construed to extend the period of any other applicable statute of limitations, or to authorize the bringing of any proceeding to enforce any right which has been or may be barred by lapse of time or for any other reason.

History of Section. P.L. 1981, ch. 109, § 1; P.L. 1982, ch. 236, § 1; P.L. 1987, ch. 524, § 1.

Cross References.

Notice by legal owner to possessor of lands regarding owner’s intent to dispute any rights arising from possessor’s claim or use, § 34-7-6 .

Collateral References.

Validity of statute cancelling, destroying, nullifying, or limiting enforcement of possibilities of reverter or rights of re-entry for condition broken. 87 A.L.R.3d 1011.

34-4-25. Invalidity of certain restrictive covenants.

Since many mentally retarded and mentally disabled individuals are able to live in the community with some assistance, it is the public policy of the state of Rhode Island to establish community residences in residential areas. Therefore, any restrictive covenant or other private legal impediment which directly or indirectly prevents or restricts the establishment of licensed community residences as defined in § 40.1-24-1 for eight (8) or fewer mentally retarded or mentally disabled persons shall be void and unenforceable as to those community residences.

History of Section. P.L. 1985, ch. 275, § 1.

34-4-26. Expiration of recorded rights affecting real estate.

  1. Any recorded contract, deed or other instrument entered into which creates a preemptive right, right to repurchase, or a right of first refusal to purchase real estate, other than housing restrictions as set forth in § 34-39.1-3 , and conservation restrictions and preservation restrictions as set forth in §§ 34-39-3 and 34-39-4 , which by its own terms, does not provide for a specific expiration date, shall expire ten (10) years after the date of execution, or ten (10) years after recording, if no date of execution is contained in the instrument. If these rights are created under a lease, then the rights shall expire on the termination or expiration of the lease.
  2. Any rights created prior to the passage of this act may be extended for a period of ten (10) years by refiling a Notice of Intention to extend said rights in the Land Evidence Records prior to July 1, 1991.

History of Section. P.L. 1989, ch. 374, § 1; P.L. 2006, ch. 368, § 1; P.L. 2006, ch. 464, § 1.

NOTES TO DECISIONS

In General.

R.I. Gen. Laws § 34-4-26 is not a notice statute, as notice statutes distinguish between those with notice of another’s interest in property and those without such notice, while § 34-4-26 applies only to recorded instruments affecting real estate, and the world is therefore on notice of all instruments within § 34-4-26’s reach. Fatulli v. Bowen's Wharf Co., 56 A.3d 436, 2012 R.I. LEXIS 142 (2012).

Applicability.

Pursuant to R.I. Gen. Laws § 34-4-26 (a), defendant’s right of first refusal with respect to a parcel of land, a dock, and a lobster business expired 10 years after the agreement in which it appeared was executed; that the right of first refusal involved “mixed property” did not preclude the application of § 34-4-26 . Fatulli v. Bowen's Wharf Co., 56 A.3d 436, 2012 R.I. LEXIS 142 (2012).

34-4-27. Title to real estate — Trusts.

  1. Property to be held in trust shall be conveyed to the trustees of the subject trust. An affidavit or memorandum of trust may be recorded in connection with the creation, amendment, restatement, or revocation of a trust. Any transfer or mortgage of trust property by the trustees shall require the recording of the trust instrument as amended or restated, or, in the alternative, the recording of the affidavit or memorandum of trust. An affidavit or memorandum of trust shall be executed either by each settlor of the trust, or by each current trustee and shall include the following information:
    1. Name of the trust, including the name of each settlor, the name of each original trustee, and the date of the original instrument and of each amendment or restatement;
    2. Names of the current trustees;
    3. Statement as to whether the trustees have the power to perform discretionary acts as trustees without the consent, concurrence, or direction of the beneficiaries;
    4. Statement as to the trustee’s authority to convey, mortgage, lease, or grant restrictions or easements or any other interest in the real estate, with a copy of the relevant provisions of the trust attached to the affidavit or memorandum;
    5. Statement as to whether anything in the trust derogates from the power of the trustees to convey, mortgage, lease, or grant restrictions or easements or any other interest in real estate;
    6. Statement as to whether the trust has been revoked or has otherwise terminated and, if the trust has been revoked or has otherwise terminated, a statement as to the trustees’ power to convey trust property to effect such revocation or termination;
    7. Statement as to the manner in which the trustees are replaced and successor trustees are appointed;
    8. Statement regarding the time and manner in which the trust terminates as well as a statement as to whether the trust is revocable and, if revocable, the circumstances under which it becomes irrevocable; and
    9. Statement regarding the date and place of death of the settlor (if applicable).
  2. Any third party without actual knowledge to the contrary may rely on the validity of the statements contained in the affidavit or memorandum of trust.
  3. Any amendment or revocation of a trust or an affidavit or memorandum thereof must be recorded to constitute notice to third parties.
  4. The provisions of this section shall apply to all transactions regarding all trusts and recorded instruments pertaining to real property recorded on or after the effective date of this act.

History of Section. P.L. 1994, ch. 106, § 1; P.L. 1995, ch. 314, § 1.

34-4-28. Title to real estate — Trusts — Conveyance to named trust.

Notwithstanding the provisions of § 34-4-27 , title to real estate derived from a conveyance to a named trust by an instrument in which the trustees are not named as grantees is not on that account defective, and the conveyance shall be deemed to vest title to the real estate in the trustees of the named trust.

History of Section. P.L. 2000, ch. 357, § 1; P.L. 2000, ch. 502, § 1.

34-4-29. Governmental covenants and restrictions.

Notwithstanding anything in this chapter to the contrary, nothing in this chapter shall be deemed to limit the duration of expiration of any restriction, whether recorded or not, that is contained in the written decision of any governmental body, agency, or permit-granting authority. If said covenant or restriction is unlimited in time in the decision, then it shall be deemed to be a perpetual covenant or restriction.

History of Section. P.L. 2006, ch. 368, § 2; P.L. 2006, ch. 464, § 2.

34-4-30. Conveyance to or by nominee trust.

  1. Notwithstanding the provisions of § 34-4-27 , title to real estate conveyed to a nominee trust or to the trustee of a nominee trust and conveyances of real estate by a trustee of a nominee trust are not on that account defective, and the conveyance shall be deemed valid so long as the following shall have occurred:
    1. A memorandum of trust pursuant to § 34-4-27 shall have been properly prepared and recorded; and
    2. The trustee of the nominee trust shall include in the memorandum of trust a statement to the effect that the trustee has received the consent of each of the beneficiaries authorizing the action of the trustee as required by the nominee trust.
  2. A trustee executing a memorandum of trust and representing that they have obtained the consent of the beneficiaries shall be subject to personal liability to each of the beneficiaries as well as the grantees and the grantees’ successors and/or assigns under the instrument purported to be executed with the consent of the beneficiaries, in the event such consent was not obtained.
  3. A nominee trust is defined as a trust in which the trustee(s) is/are not granted discretionary authority to act without the consent, concurrence, or direction of the beneficiaries.

History of Section. P.L. 2016, ch. 58, § 1; P.L. 2016, ch. 59, § 1.

Compiler’s Notes.

P.L. 2016, ch. 58, § 1, and P.L. 2016, ch. 59, § 1 enacted identical versions of this section.

Applicability.

P.L. 2016, ch. 58, § 2 provides that this section takes effect upon passage [June 8, 2016], and applies retroactively to prior deeds from and to a nominee trust.

P.L. 2016, ch. 59, § 2 provides that this section takes effect upon passage [June 8, 2016], and applies retroactively to prior deeds from and to a nominee trust.

Chapter 5 Disclaimer of Certain Property Interests

34-5-1. Definitions.

The following words as used in this chapter shall have these meanings:

  1. “Beneficiary” means any person to whom, and any estate, trust, corporation, or other legal entity to which, an interest in property would pass in any manner described in § 34-5-2 , except for the execution and filing of a disclaimer in accordance with the provisions of this chapter.
  2. An “interest in property” which may be disclaimed shall include:
    1. Any legal or equitable interest or estate, whether present, future, or contingent, in any real or personal property, or in any fractional part, share, or portion thereof, or in any dollar amount thereof, or in any specific asset or assets thereof;
    2. Any fractional part, share or portion of any interest described in subdivision (i), or remainder or life estate or other lesser estate therein.

History of Section. P.L. 1980, ch. 392, § 2.

Repealed Sections.

Repealed Chapters. The former chapter (G.L., 557, §§ 24-34, as enacted by P.L. 1947, ch. 1974, § 1; G.L. 1956, §§ 34-5-1 — 34-5-1 2), concerning disclaimer of estates, was repealed by P.L. 1980, ch. 392, § 1.

Cross References.

Disclaimer of powers, §§ 34-22-1 , 34-22-2 .

NOTES TO DECISIONS

Relationship to Bankruptcy Estate.

Chapter 7 trustee was permitted to proceed with a sale of the debtor’s one-quarter remainder interest in certain residential real property because the trustee was authorized under 11 U.S.C.S. § 363 to conduct the proposed sale and the objectors failed to satisfy their burden to establish otherwise. The debtor was not permitted to disclaim her interest under R.I. Gen. Laws § 34-5-1(2) because the debtor’s disclaimer rights under that statute were vested in the debtor’s bankruptcy estate and, in any event, a post-petition disclaimer by the debtor would be subject to avoidance under 11 U.S.C.S. § 549. In re Corse, 486 B.R. 241, 2013 Bankr. LEXIS 330 (Bankr. D.R.I. 2013), aff'd, 2014 U.S. Dist. LEXIS 22888 (D.R.I. Feb. 19, 2014).

Collateral References.

Charge of legacy upon land devised, rights of legatee in case of, as against the land, as affected by nonacceptance of devise. 116 A.L.R. 23; 134 A.L.R. 364.

Renounced legacy or devise as falling within residuary clause of will. 155 A.L.R. 1420.

Renunciation of benefits under statute of descent and distribution. 170 A.L.R. 435.

Right to accept one devise or bequest under will and renounce another. 91 A.L.R. 607.

When beneficiary deemed to have accepted or renounced bequest or devise in will. 93 A.L.R.2d 8.

34-5-2. Disclaimer of interest in estate.

  1. Unless barred by the provisions of § 34-5-9 , a beneficiary may disclaim any interest in property which, except for the execution and filing of a disclaimer in accordance with the provisions of this chapter, would pass to the beneficiary:
    1. By intestate succession, devise, legacy, bequest; as beneficiary of a testamentary trust or beneficiary of a testamentary gift to a nontestamentary trust; by succession in any manner described in this subdivision to a disclaimed interest; or in any other manner not specified above under a testamentary instrument or by operation of any statute or rule of law governing devolution or disposition of property upon or after a person’s death.
    2. As donee, grantee, beneficiary of an inter vivos trust, beneficiary of an insurance or annuity contract, or as surviving joint tenant or tenant by the entirety, except that a surviving joint tenant or tenant by the entirety may not disclaim that portion of an interest in joint property or property held by the entirety which is allocable to amounts contributed by him or her to the interest in that property; under any deed, assignment, or other nontestamentary instrument of conveyance or transfer; by succession in any manner described in this subdivision to a disclaimed interest; or in any other manner not specified above under a nontestamentary instrument or by operation of any statute or rule of law.
  2. Disclaimer may be made as provided in § 34-5-3 by the duly appointed guardian or conservator of a beneficiary or by the legal representative of a deceased beneficiary’s estate.

History of Section. P.L. 1980, ch. 392, § 2.

Collateral References.

Renunciation of inheritance, devise, or legacy as affecting state inheritance, estate, or succession tax. 27 A.L.R.3d 1354.

34-5-3. Disclaimer by fiduciaries.

The probate court having jurisdiction of the estate of a beneficiary is empowered to authorize the duly appointed guardian or conservator of the beneficiary or the legal representative of the estate of a deceased beneficiary to execute and file a disclaimer on behalf of the beneficiary or deceased beneficiary’s estate in accordance with the provisions of this chapter. This authority shall be granted, notwithstanding any diminution in the size of the estate of the beneficiary or of the deceased beneficiary by virtue of the proposed disclaimer, upon finding that the proposed disclaimer is not detrimental to the interests of the beneficiary or of the estate of the deceased beneficiary, as the case may be.

History of Section. P.L. 1980, ch. 392, § 2.

34-5-4. Form of disclaimer.

A disclaimer shall be in writing, shall describe the interest in property being disclaimed, shall declare the disclaimer and the extent of the disclaimer, shall be clear and unequivocal, and shall be signed by the beneficiary, the duly appointed guardian or conservator of a beneficiary or the legal representative of a deceased beneficiary’s estate.

History of Section. P.L. 1980, ch. 392, § 2.

34-5-5. Time for filing disclaimer.

  1. A disclaimer shall be executed and filed pursuant to the provisions of this chapter at any time after the creation of the interest in property being disclaimed, but in any event:
    1. If a present interest, not later than nine (9) months:
      1. After the death of the deceased owner in the case of a testamentary disposition, or
      2. After the effective date of the instrument creating the interest in the case of a nontestamentary disposition, or
    2. If a future interest, not later than nine (9) months after the event determining that the taker of the interest is in possession of it, or
    3. In the case of a beneficiary who is a surviving joint tenant or tenant by the entirety, not later than nine (9) months after the death of the other joint tenant, tenants, or tenant by the entirety, or
    4. Notwithstanding the foregoing provisions, in the case of a beneficiary under the age of twenty-one (21) at the creation of the interest, not later than nine (9) months after his or her attainment of that age; provided, that any court having jurisdiction of the property, an interest in which is being disclaimed, may, upon petition filed by the beneficiary, the duly appointed guardian or conservator of a beneficiary, or the legal representative of a deceased beneficiary’s estate, permit an extension of time to execute and file a disclaimer, for any further period of time as the court in its discretion deems advisable.
  2. The effective date of a revocable instrument is the date on which the grantor no longer has the power to revoke it or to transfer to himself or herself or another the entire legal and equitable ownership of the interest.

History of Section. P.L. 1980, ch. 392, § 2; P.L. 1984, ch. 81, § 8; P.L. 1996, ch. 395, § 1; P.L. 2011, ch. 363, § 13.

34-5-6. Filing and service of disclaimer.

  1. The original of the disclaimer or an attested copy of the disclaimer, if filing is required to be made with more than one office, shall be filed:
    1. In the case of personal property, in the office of the clerk of probate court that had jurisdiction of the estate of the decedent at the time of his or her death, if the interest was created by will, or if the interest was created by an inter vivos instrument in the office of the clerk of the superior court for the county of which the donor or grantor was a resident at the time of the creation of the grant or trust or if the donor or grantor was not a resident of Rhode Island in the office of the clerk of the Superior Court for Providence County.
    2. In the case of real estate, in the office of the person having charge of the recording of deeds in the city or town in which the real estate is situated; and if probate proceedings have been commenced in the estate of the decedent prior to the filing, this disclaimer shall also be filed in the office of the clerk of the probate court in which these proceedings are instituted.
  2. A copy of the disclaimer shall be served by delivering in hand or by mailing by certified mail to the last known address of the person or persons or other legal entity or entities having legal title to or possession of the property, an interest in which is being disclaimed. Failure to comply with these requirements of service shall not affect the validity of the disclaimer.

History of Section. P.L. 1980, ch. 392, § 2.

34-5-7. Reliance on disclaimer.

  1. No person or other legal entity having legal title to or possession of the property, an interest in which is being or has been disclaimed, shall be liable for any distribution or other disposition made prior to the delivery to him, her, or it of a copy of the disclaimer, pursuant to the requirements of § 34-5-6 ; and no person or other legal entity shall be liable for any good faith distribution or other disposition made in reliance upon a disclaimer, the form of which is in accordance with the requirements of § 34-5-4 ; and a copy of which has been delivered to him, her, or it pursuant to the requirements of § 34-5-6 .
  2. If a disclaimer certifies, with particularity, that none of the contingencies specified in § 34-5-9 , which would result in waiver or bar of the beneficiary’s right to disclaim, are applicable, any person or other legal entity having legal title to or possession of the property, and any third party purchaser of the property, an interest in which is being or has been disclaimed, shall be entitled to rely without further inquiry upon the certifications.

History of Section. P.L. 1980, ch. 392, § 2.

34-5-8. Disposition of disclaimed interest.

  1. A disclaimer complying with all the applicable requirements of this chapter shall be effective according to its terms, and shall be irrevocable, upon execution in accordance with the provisions of § 34-5-4 , and filing in accordance with the provisions of § 34-5-6 .
  2. Unless the will or inter vivos instrument creating the interest in property so disclaimed provides for another disposition of the interest, the interest shall pass in the same manner as if the disclaimant had died immediately preceding the event determining that he, she, or it is the beneficiary of the interest. If a disclaimer relates to an interest disposed of by a particular provision of the will or inter vivos instrument, then the interest so disclaimed shall pass in the same manner as if the disclaimant had died immediately preceding the event determining that he, she, or it is the beneficiary of that interest, but only for the purposes of that provision and the interest may pass to or for the benefit of the disclaimant under other provisions of the will or inter vivos instrument. A future interest that takes effect in possession or enjoyment at or after the termination of the disclaimed interest shall take effect in the same manner as it would have if the disclaimant had died immediately preceding the event determining that he, she, or it is the beneficiary of the disclaimed interest. The disclaimer shall relate back for all purposes to that date.
  3. The interest in property being disclaimed shall never vest in the beneficiary.

History of Section. P.L. 1980, ch. 392, § 2; P.L. 1988, ch. 259, § 1.

Collateral References.

Devolution of legacy or devise renounced during life of testator. 47 A.L.R.3d 1277.

Relinquishment of interest by life beneficiary in possession as accelerating remainder of which there is substitutional gift in case primary remainderman does not survive life beneficiary. 7 A.L.R.4th 1084.

34-5-9. Waiver or bar to right to disclaim.

  1. The right to disclaim an interest in property shall be barred by:
    1. Assignment, conveyance, encumbrance, pledge, transfer or other disposition of the interest, or any contract therefor, by the beneficiary;
    2. Sale or other disposition of the interest pursuant to judicial process made before the beneficiary has disclaimed the interest as provided in this chapter;
    3. A written waiver of the right to disclaim this interest pursuant to the provisions of this chapter, signed by the beneficiary, the duly appointed guardian or conservator of a beneficiary, or the legal representative of a deceased beneficiary’s estate.
    4. Acceptance of the interest by the beneficiary; if the beneficiary, having knowledge of the existence of the interest, receives without objection a benefit from that interest, such receipt shall be deemed to constitute acceptance of the interest.
  2. The assignment, conveyance, encumbrance, pledge, transfer or other disposition or any contract therefor, sale or other disposition pursuant to judicial process, written waiver of the right to disclaim, or acceptance of a part of an interest in property shall not bar the right to disclaim any other part of the interest.

History of Section. P.L. 1980, ch. 392, § 2.

34-5-10. Spendthrift provisions.

The right to disclaim pursuant to the provisions of this chapter shall exist irrespective of any limitation in the nature of an express or implied spendthrift provision, other similar restraint on alienation, or forfeiture provision imposed by any instrument, statute, rule of law or otherwise on the interest in property being disclaimed.

History of Section. P.L. 1980, ch. 392, § 2.

34-5-11. Effect on other laws.

Except for the provisions of § 34-5-9 , this chapter shall not abridge the right of any person to disclaim, waive, release, renounce, or abandon any interest in property under any other statute or rule of law.

History of Section. P.L. 1980, ch. 392, § 2.

Chapter 6 Release of Money Charges

34-6-1. Sale of real estate free of charges — Provisions for payment of sums charged.

When real estate is charged with the payment of money, either in fixed sums or in annuities for a life or lives or for years, the superior court may, upon the petition of the persons holding title thereto subject to the charge of such payment, and after notice and hearing, authorize them to sell and to convey by private sale or public auction the whole or any portion of the real estate in fee simple and free from the charge whether present or future, certain or contingent; and the court shall in that case provide by its decree for the payment of the sums charged upon the real estate (1) by placing the whole or any portion of the proceeds of the sale thereof in the hands of a trustee to be appointed by it, (2) by the purchase of annuities for the persons entitled to receive the sums so charged, or (3) by any other means which shall be deemed just and reasonable. The trustee shall give bond in such sum as the court may order and shall, under the direction of the court, manage and account for the trust fund and shall distribute the income thereof according to its decree. In case of appointment of a trustee, the court shall have power to remove him and appoint another in his stead, and to fill a vacancy in the trusteeship, whenever occasion may require.

History of Section. G.L. 1896, ch. 201, § 21; C.P.A. 1905, §§ 1220, 1229; G.L. 1909, ch. 252, § 21; G.L. 1923, ch. 296, § 21; G.L. 1938, ch. 440, § 1; G.L. 1956, § 34-6-1 .

Comparative Legislation.

Release of charges:

Mass. Ann. Laws ch. 183, § 52.

Chapter 7 By Possession and Prescription

34-7-1. Conclusive title by peaceful possession under claim of title.

Where any person or persons, or others from whom he, she, or they derive their title, either by themselves, tenants or lessees, shall have been for the space of ten (10) years in the uninterrupted, quiet, peaceful and actual seisin and possession of any lands, tenements or hereditaments for and during that time, claiming the same as his, her or their proper, sole and rightful estate in fee simple, the actual seisin and possession shall be allowed to give and make a good and rightful title to the person or persons, their heirs and assigns forever; and any plaintiff suing for the recovery of any such lands may rely upon the possession as conclusive title thereto, and this chapter being pleaded in bar to any action that shall be brought for the lands, tenements or hereditaments, and the actual seisin and possession being duly proved, shall be allowed to be good, valid and effectual in law for barring the action.

History of Section. G.L. 1896, ch. 205, § 2; G.L. 1909, ch. 256, § 2; P.L. 1912, ch. 798, § 1; G.L. 1923, ch. 300, § 2; G.L. 1938, ch. 438, § 2; G.L. 1956, § 34-7-1 .

Cross References.

Limitation of actions, §§ 9-1-14 to 9-1-24 .

Presumption of lost grant in proceeding to quiet title, §§ 34-16-7 , 34-16-8 .

Comparative Legislation.

Adverse possession:

Conn. Gen. Stat. § 52-575.

Mass. Ann. Laws ch. 260, §§ 21, 22, 28-31.

NOTES TO DECISIONS

In General.

A person claiming by adverse possession is not barred by § 44-9-31 from raising the question in a tax foreclosure sale. Picerne v. Sylvestre, 113 R.I. 598 , 324 A.2d 617, 1974 R.I. LEXIS 1214 (1974).

Defendants may not assert the weakness of plaintiffs’ claim in relation to a third party as a means of strengthening their own position. Taffinder v. Thomas, 119 R.I. 545 , 381 A.2d 519, 1977 R.I. LEXIS 2058 (1977).

In order to prevail on a claim of adverse possession, a claimant must establish his or her own title and may not rely upon a defect in the title of another. Locke v. O'Brien, 610 A.2d 552, 1992 R.I. LEXIS 163 (1992).

Adverse Possession of Easement.

Merely obstructing access to an easement does not constitute adverse possession of that easement. Thomas v. Ross, 477 A.2d 950, 1984 R.I. LEXIS 524 (1984).

Like private parties, the government can acquire an easement by prescription or title by adverse possession over property that was otherwise privately owned during the period of taking. Reitsma v. Pascoag Reservoir & Dam, LLC, 774 A.2d 826, 2001 R.I. LEXIS 166 (2001).

Burden of Proof.

The person claiming title by adverse possession has the burden of proof thereon. Parrillo v. Riccitelli, 84 R.I. 276 , 123 A.2d 248, 1956 R.I. LEXIS 56 (1956).

The burden of proof that an open, notorious and continuous dominion over the land has been exercised requires strict proof, and the term “strict proof ” means proof by a preponderance of the clear and positive evidence. Sherman v. Goloskie, 95 R.I. 457 , 188 A.2d 79, 1963 R.I. LEXIS 25 (1963).

The burden of strict proof required of claimants is satisfied when the proof is by a preponderance of the clear and positive evidence or by evidence that is unambiguous and affirmative in its character. Finocchiaro v. Francescone, 97 R.I. 371 , 198 A.2d 37, 1964 R.I. LEXIS 91 (1964).

In order to create an easement by prescription, claimants have the burden of establishing actual, open, notorious, hostile, and continuous use under a claim of right for ten years, as required by this section. Altieri v. Dolan, 423 A.2d 482, 1980 R.I. LEXIS 1858 (1980).

One who claims an easement by prescription has the burden of establishing actual, open, notorious, hostile, and continuous use under a claim of right for ten years; and each of these elements must be established by strict proof, that is, by clear and satisfactory evidence. Palisades Sales Corp. v. Walsh, 459 A.2d 933, 1983 R.I. LEXIS 866 (1983).

The adverse nature of the possession must be actual, open, notorious, hostile, under claim of right, continuous, and exclusive. In order to succeed with a claim of adverse possession, the claimant must establish each of the above elements by a preponderance of clear and convincing evidence. Walsh v. Cappuccio, 602 A.2d 927, 1992 R.I. LEXIS 17 (1992).

Summary judgment was precluded where, although the record showed that the property in dispute was a grassy field for many years and was used primarily for the cultivation of hay, there remained disputed facts about who mowed and where, the nature and extent of the contested area’s use, and whether the defendant ever was aware of a land swap or had acquiesced in the new boundary line between lots. DelSesto v. Unknown Heirs, Devisees and/or Assigns of Lewis, 754 A.2d 91, 2000 R.I. LEXIS 154 (R.I. 2000).

Alleged landowners did not prove in a quiet title action their adverse possession claim pursuant to R.I. Gen. Laws § 34-7-1 by clear and convincing evidence and, thus, they were not entitled to the disputed property under that theory. They did not show that the use of property was actual, open, notorious, hostile, under a claim of right, continuous, and exclusive for at least 10 years, as that statute required. Corrigan v. Nanian, 950 A.2d 1179, 2008 R.I. LEXIS 70 (2008).

Claim by Grantor Barred.

In light of the covenants of quiet enjoyment and future defense of title mandated by § 34-11-16 , an individual who conveys a parcel of Rhode Island real estate to another by warranty deed cannot at some later date claim title to the identical parcel against the grantee’s successor by way of adverse possession. Lewicki v. Marszalkowski, 455 A.2d 307, 1983 R.I. LEXIS 787 (1983).

Condominiums.

The owner of a separate residential unit in a condominium, who thereby enjoyed possession of an undivided interest in the unit, held an ownership interest in the common elements of the condominium and thus could not claim adverse possession. St. Jean Place Condo. Ass'n v. DeLeo, 745 A.2d 738, 2000 R.I. LEXIS 23 (2000).

Consideration of Evidence.

Where uncontradicted evidence showed possession for the necessary period, judge could not disregard or reject such testimony unless he considered such testimony impeached and gave some reason for such impeachment. Jackowitz v. Deslauriers, 91 R.I. 269 , 162 A.2d 528, 1960 R.I. LEXIS 78 (1960).

Trial justice misconstrued the claim-of-right doctrine when the justice ruled that the adverse claimants and their predecessors failed to satisfy the elements of adverse possession; furthermore, the trial court should not have weighed the record-title holder’s out-of-state residence as a factor in deciding that the claimants failed to meet the strict standard of proof required in adverse possession cases. Finally, the trial justice erred in determining that a predecessor of the claimants had engaged in inequitable conduct by attempting to bootstrap himself into owning the property after the predecessor discovered that the predecessor did not hold record title. Tavares v. Beck, 814 A.2d 346, 2003 R.I. LEXIS 29 (2003), overruled in part, Cahill v. Morrow, 11 A.3d 82, 2011 R.I. LEXIS 8 (2011).

When a neighbor claimed adverse possession of a parcel to which a landowner held title, it was error for a trial court to hold that the neighbor’s offers to buy the parcel did not affect the neighbor’s claim because the offers outwardly declared to the parcel’s owner the viability of the owner’s title and fully admitted the neighbor’s subservient interest to that title, interrupting the neighbor’s claim’s accrual, as (1) the offers did not merely show the neighbor knew the neighbor was not the record owner, and (2) the offers were not made to make peace in an ongoing dispute, destroying the elements of hostility and claim of right, so any incidents of ownership by the neighbor after the neighbor’s first offer interrupted the neighbor’s claim could not be considered. Cahill v. Morrow, 11 A.3d 82, 2011 R.I. LEXIS 8 (2011).

When a neighbor claimed adverse possession of a parcel to which a landowner held title, it was error for a trial court to assume the neighbor’s offers to purchase the parcel from the landowner’s predecessor did not destroy the viability of the neighbor’s claim based on the passage of time prior to the offers because the offers were relevant to determining the neighbor’s claim of right and hostile possession during the statutory period. Cahill v. Morrow, 11 A.3d 82, 2011 R.I. LEXIS 8 (2011).

When a neighbor’s adverse possession claim was remanded to a trial court, the trial court had to determine if the neighbor adequately claimed possession of the entire subject parcel because the neighbor’s initial letter to the owner asserting adverse possession claimed only “a 20-foot strip,” which was less than half the entire parcel. Cahill v. Morrow, 11 A.3d 82, 2011 R.I. LEXIS 8 (2011).

Neighbor did not establish, by clear and convincing evidence, that the neighbor’s alleged adverse possession of a real estate parcel was open and notorious because, when the neighbor laid crushed stone on the parcel, planted trees on the parcel, and hired someone to keep the parcel clear of debris, these actions were not of sufficient magnitude to put the world on notice of the neighbor’s claim of ownership, since the neighbor did not mow the parcel or erect a fence or other structure, and the parcel was described as “wild and wooded” prior to the neighbor’s actions. McGarry v. Coletti, 33 A.3d 140, 2011 R.I. LEXIS 150 (2011).

Dedicated Property.

Title to land previously dedicated or given for a charitable use to a portion of the public may be acquired by adverse possession. Mowry v. Providence, 10 R.I. 52 , 1871 R.I. LEXIS 11 (1871).

Title to land offered but not accepted for a highway could be obtained by adverse possession. Parrillo v. Riccitelli, 84 R.I. 276 , 123 A.2d 248, 1956 R.I. LEXIS 56 (1956); Gammons v. Caswell, 447 A.2d 361, 1982 R.I. LEXIS 894 (1982).

Where street is delineated on plat plan and lots are sold with reference to the plat but there is no acceptance of street dedication by public user or by appropriate action by public authorities, right-of-way flowing to owners of other property listed on plat is extinguishable by adverse possession of owners of property abutting on plat. Gammons v. Caswell, 447 A.2d 361, 1982 R.I. LEXIS 894 (1982).

Defective Conveyance.

Where grantee took under a deed by husband and wife purporting to convey the whole estate but that was defective as to wife’s fee, though effective as to husband’s curtesy, the statute began to run against the wife when the grantee took possession, rather than when the curtesy estate terminated. Union Sav. Bank v. Taber, 13 R.I. 683 , 1882 R.I. LEXIS 71 (1882).

Disputed Boundary.

Adjoining landowners cannot dispute a boundary line which has been recognized and acquiesced in by them for the length of time prescribed by this section. O'Donnell v. Penney, 17 R.I. 164 , 20 A. 305, 1890 R.I. LEXIS 65 (1890); Rosa v. Oliveira, 115 R.I. 277 , 342 A.2d 601, 1975 R.I. LEXIS 1150 (1975).

Existence of fence between adjacent landowners for more than ten years did not establish adverse possession where right to occupy such land had not been claimed continuously for more than ten years. Ungaro v. Mete, 68 R.I. 419 , 27 A.2d 826, 1942 R.I. LEXIS 76 (1942).

Defendant who entered on premises under a deed describing premises including disputed strip and who claimed possession of all of the premises including disputed strip was not restricted in her claim to that portion actually occupied. Daniels v. Blake, 81 R.I. 103 , 99 A.2d 7, 1953 R.I. LEXIS 20 (1953).

Where witnesses agreed that the cleared area then possessed by plaintiff was the same as it had been throughout the statutory period, their inability to agree on an estimate of the lot’s length in feet was immaterial and plaintiff’s adverse claim was held to extend the entire length of the cleared area. Russo v. Stearns Farms Realty, 117 R.I. 387 , 367 A.2d 714, 1977 R.I. LEXIS 1706 (1977).

Defendant’s contention that trial judge used his personal view of the property as evidence to be considered in modifying the surveyor’s boundaries was without merit, where sufficient evidence apart from the view supported modification and where judge disclaimed any intention to use his view as evidence. Russo v. Stearns Farms Realty, 117 R.I. 387 , 367 A.2d 714, 1977 R.I. LEXIS 1706 (1977).

Acquiescence is the equivalent of an agreement as to the boundary line and bars further agreement. Taffinder v. Thomas, 119 R.I. 545 , 381 A.2d 519, 1977 R.I. LEXIS 2058 (1977).

Where a person mistakes his boundary, but continuously asserts dominion over it for the statutory period, he has been a hostile occupant of the land. Taffinder v. Thomas, 119 R.I. 545 , 381 A.2d 519, 1977 R.I. LEXIS 2058 (1977).

Where plaintiffs possessed the property in question under a mistaken claim of right based upon a deed, the record established that this claim was reinforced by their own observations and by the grantor’s designation of the boundary lines, the plaintiffs used the parcel openly and exclusively for recreational purposes, employed a handyman to build a road across it, and granted an easement through it to the power and the telephone companies without interference from the actual owners for a period of 19 years, these acts were deemed sufficient to establish title by adverse possession. Lee v. Raymond, 456 A.2d 1179, 1983 R.I. LEXIS 816 (1983).

In a boundary line dispute, the required elements of adverse possession were satisfied since there was undisputed evidence of the cultivation of the land in controversy by planting trees, maintaining a lawn, and making other improvements, including the erection of a rabbit hutch and two cold frames. Anthony v. Searle, 681 A.2d 892, 1996 R.I. LEXIS 212 (1996).

Since the 1969 hedgerow was a line of demarcation between land parcels and landowners assented to its location, this triggered the doctrine of acquiescence which operated to vest title to the property on the landowner’s side of the hedgerow in the neighbor’s, notwithstanding that the landowners were the record owner. DeCosta v. DeCosta, 819 A.2d 1261, 2003 R.I. LEXIS 81 (2003).

The plaintiff’s testimony satisfied the elements of adverse possession under R.I. Gen. Laws § 34-7-1 ; the use of land was open and notorious since plaintiff used the disputed area as any owner of such residential land would have, plaintiff acted under a claim of right and with the requisite hostility for plaintiff’s own purposes in a manner that was inconsistent with defendant’s predecessors record ownership of the land, the use was actual and exclusive since there were no claims to the land by any other parties and was no evidence that anyone besides plaintiff’s family used the property, and the use was for the entire time that plaintiff owned the property, longer than the requisite 10 years. Acampora v. Pearson, 899 A.2d 459, 2006 R.I. LEXIS 96 (2006).

Easements by Prescription.

One who claims an easement by prescription must establish open, adverse and continuous use under a claim of right by strict proof—that is, by a clear and satisfactory evidence. Greenwood v. Rahill, 122 R.I. 759 , 412 A.2d 228, 1980 R.I. LEXIS 1470 (1980).

An easement may be acquired by prescription to drain surface water collected upon the land of one (1) person over the lands of an adjacent proprietor. Greenwood v. Rahill, 122 R.I. 759 , 412 A.2d 228, 1980 R.I. LEXIS 1470 (1980).

Once the state had acquired a prescriptive easement to drain the surface runoff water upon plaintiffs’ land, no act of plaintiffs could divest the state of that right since such an easement conveys a good and rightful title forever. Greenwood v. Rahill, 122 R.I. 759 , 412 A.2d 228, 1980 R.I. LEXIS 1470 (1980).

Seasonal use of a rural path does not impair a defendant’s claim of an easement by prescription because it is well settled that even in adverse-possession cases where stricter standards are applied, it is only necessary to show that the claimant has acted toward the land in question as would an average owner, taking properly into account the geophysical nature of the land. Palisades Sales Corp. v. Walsh, 459 A.2d 933, 1983 R.I. LEXIS 866 (1983).

Unlike the establishment of title by adverse possession, exclusivity is not a necessary element for a valid claim to an easement by prescription; the claimant only has to use the property under a claim of right independently of others. Palisades Sales Corp. v. Walsh, 459 A.2d 933, 1983 R.I. LEXIS 866 (1983).

One who claims an easement by prescription has the burden of establishing actual, open, notorious, hostile and continuous use under a claim of right for ten years. Donnelly v. Cowsill, 716 A.2d 742, 1998 R.I. LEXIS 277 (1998).

All elements of a claimed easement by prescription must be established by clear and convincing evidence. Donnelly v. Cowsill, 716 A.2d 742, 1998 R.I. LEXIS 277 (1998).

Where the period for a prescriptive easement had expired prior to the termination of defendant’s lease, well before the plaintiff filed notice of her intent to dispute adverse possession, and where there was no evidence that the plaintiff objected to defendant’s installation of a water line or its continuous use prior to the expiration of the lease, there was no suggestion that the pipe, although installed in full view of the plaintiff, was installed with her permission. Burke-Tarr Co. v. Ferland Corp., 724 A.2d 1014, 1999 R.I. LEXIS 52 (1999).

Town was not entitled to summary judgment on the ground that it had acquired a prescriptive easement for a drainage ditch because the question of whether the ten year prescriptive period in R.I. Gen. Laws § 34-7-1 continued to run or was substantially interrupted after plaintiff property owner took title to the land was unanswered. Ciampi v. Zuczek, 598 F. Supp. 2d 257, 2009 U.S. Dist. LEXIS 10820 (D.R.I. 2009).

Plaintiff’s claim of a prescriptive easement over defendant’s right of way was properly denied, as plaintiff failed to establish hostility and possession under a claim of right, since the evidence established that his use of the right-of-way was permissive. Drescher v. Johannessen, 45 A.3d 1218, 2012 R.I. LEXIS 108 (2012).

Plaintiff’s claim to a prescriptive easement over defendant’s right-of-way failed because, inter alia, plaintiff’s submission of proposed subdivision plans that did not indicate access to that right-of-way was evidence that he recognized defendant’s preeminent title to the right-of-way. Drescher v. Johannessen, 45 A.3d 1218, 2012 R.I. LEXIS 108 (2012).

Where plaintiff intermittently used defendant’s right-of-way for almost 25 years to access his property, his claim to a prescriptive easement over the right-of-way failed because he did not establish by clear and satisfactory evidence that his intermittent use, which did not approach regularity until a few years before trial—was open, notorious, and continuous for a period of 10 years. Drescher v. Johannessen, 45 A.3d 1218, 2012 R.I. LEXIS 108 (2012).

In holding that plaintiff had a prescriptive easement over defendant’s property, the trial court erred by failing to distinguish between pedestrian and vehicular use when it found that plaintiff’s predecessors had continuously accessed their lot by vehicle for 10 years. R.I. Mobile Sportfishermen, Inc. v. Nope's Island Conservation Ass'n, 59 A.3d 112, 2013 R.I. LEXIS 24 (2013).

Estoppel.

Quitclaim deed of adjoining land by grantor did not estop such grantor from claiming title to disputed strip of land by adverse possession, where it was shown that it was not the intention of such grantor to convey title to the disputed strip by the quitclaim deed. Malone v. O'Connell, 86 R.I. 167 , 133 A.2d 756, 1957 R.I. LEXIS 74 (1957).

Initial Permissive Use.

Mere occupancy and payment of taxes unaccompanied by a repudiation or disclaimer, either made known expressly to the owner or clearly indicated by unequivocal actions, will not convert possession, originally permissive in nature, into a claim of right that will ripen into an acquisition of title by adverse possession. Martineau v. King, 120 R.I. 265 , 386 A.2d 1117, 1978 R.I. LEXIS 661 (1978).

To rebut the presumption that initial permissive use continued to be so demands a showing of some affirmative action constituting notice that the claimant’s occupancy is hostile to the title of the true owner and that he is claiming title as his own. Martineau v. King, 120 R.I. 265 , 386 A.2d 1117, 1978 R.I. LEXIS 661 (1978).

Upon the finding by a trial justice that a fence or other divider existed for the requisite period of time and was acquiesced in by both parties, and their predecessors in title if necessary, the fence or other divider becomes the new boundary line between the two (2) properties. Peloquin v. Ciaccia, 413 A.2d 799, 1980 R.I. LEXIS 1515 (1980).

In an adverse possession action, the trial court properly entered judgment for defendants on the basis that plaintiffs failed to prove their use of the disputed parcel was hostile, as the parties’ indemnification agreement, made after the statutory 10-year period, granting plaintiffs the right to use the parcel to hang a hammock in exchange for their promise to hold defendants harmless from any injury that might result, was an acknowledgment by plaintiffs of defendants’ superior title in that parcel. DiPippo v. Sperling, 63 A.3d 503, 2013 R.I. LEXIS 49 (2013).

Nature of Possession.

The possession required to acquire title under this section must be actual, open, notorious, hostile, under claim of right, continuous and exclusive. Sherman v. Goloskie, 95 R.I. 457 , 188 A.2d 79, 1963 R.I. LEXIS 25 (1963); Finocchiaro v. Francescone, 97 R.I. 371 , 198 A.2d 37, 1964 R.I. LEXIS 91 (1964).

Where the land under consideration is wild land or remote, unimproved, rural land, the courts take the view generally that if the possession has been maintained in the manner in which owners of like land in similar locations make use thereof, it will suffice. Sherman v. Goloskie, 95 R.I. 457 , 188 A.2d 79, 1963 R.I. LEXIS 25 (1963).

Adverse possession was not established by one whose grantor was the administrator of the estate of one who had lived on land adjoining that claimed and whose only acts of dominion during his lifetime had been occasional cutting of wood on the land, who had stated that he owned the land and granted permission to certain witnesses to cut holly branches on it, but on other occasions had identified others as the owners thereof. Chace v. Anarumo, 104 R.I. 48 , 241 A.2d 628, 1968 R.I. LEXIS 612 (1968).

To establish title under this section, possession must be actual, open, notorious, hostile, under claim of right, continuous and exclusive; and claimants must establish each of these elements by strict proof, i.e., proof by a preponderance of the clear and positive evidence. Russo v. Stearns Farms Realty, 117 R.I. 387 , 367 A.2d 714, 1977 R.I. LEXIS 1706 (1977); Taffinder v. Thomas, 119 R.I. 545 , 381 A.2d 519, 1977 R.I. LEXIS 2058 (1977).

To establish continuity of possession it is not necessary to show continuity of use, so long as the use to which the land has been put is similar to that which would ordinarily be made of like land by the owners thereof. Russo v. Stearns Farms Realty, 117 R.I. 387 , 367 A.2d 714, 1977 R.I. LEXIS 1706 (1977).

Where the tenant used the parcel of land in question as a private parking lot, put up a no parking sign, requested defendant’s tenants to remove their vehicles and both tenant and plaintiffs maintained the property, the court properly found that plaintiffs, on their own and through the tenant, had exercised dominion over the parcel openly, continuously, under claim of right, and to the exclusion of others. Taffinder v. Thomas, 119 R.I. 545 , 381 A.2d 519, 1977 R.I. LEXIS 2058 (1977).

The true owner will be charged with knowledge of whatever occurs upon his land in an open manner. Taffinder v. Thomas, 119 R.I. 545 , 381 A.2d 519, 1977 R.I. LEXIS 2058 (1977).

In adverse possession, strict proof of all its elements is required; Martineau v. King, 120 R.I. 265 , 386 A.2d 1117 (1978), hostility of possession necessary to establish adverse possession implies the denial of the owner’s title, and possession, however open and long it may be, is not adverse without the denial of the owner’s title; thus, this section was never intended to allow the possessor of property to mask his intent and then acquire the property by concealing the true situation from the record owner. Picerne v. Sylvestre, 122 R.I. 85 , 404 A.2d 476, 1979 R.I. LEXIS 2068 (1979).

Even though various acts of hostility did occur, including the painting of the house’s exterior, the installation of aluminum door and combination windows, and replacement of the front stairs, none of these affirmative acts occurred until three years into the 10-year period relied upon by the adverse claimants, thus the requisite period of hostility was not shown, and the claim was denied. Picerne v. Sylvestre, 122 R.I. 85 , 404 A.2d 476, 1979 R.I. LEXIS 2068 (1979).

No particular act to establish an intention to claim ownership is required. It is sufficient if one goes upon the land openly and uses it adversely to the true owner, the owner being chargeable with knowledge of what is done openly on his land. Greenwood v. Rahill, 122 R.I. 759 , 412 A.2d 228, 1980 R.I. LEXIS 1470 (1980).

Plaintiffs must show some affirmative act constituting notice to defendant that their occupancy was hostile to the owner and that they were claiming the property as their own. Altieri v. Dolan, 423 A.2d 482, 1980 R.I. LEXIS 1858 (1980).

In order to find that property was not used exclusively, there must be evidence indicating that the defendants or others had made improvements to the land or at least had used the land in a more significant fashion than merely walking across it. Gammons v. Caswell, 447 A.2d 361, 1982 R.I. LEXIS 894 (1982).

Cultivating land, planting trees, and making other improvements in such a manner as is usual for comparable land may be relied on as proof of the required possession. Gammons v. Caswell, 447 A.2d 361, 1982 R.I. LEXIS 894 (1982).

Evidence of an ouster and the erection of a physical barrier are not required in the typical adverse-possession case. Gammons v. Caswell, 447 A.2d 361, 1982 R.I. LEXIS 894 (1982).

A person is a hostile occupant of land when he mistakes his boundary but continuously asserts dominion over the property for the statutory period. Lee v. Raymond, 456 A.2d 1179, 1983 R.I. LEXIS 816 (1983).

Review of the record failed to reveal any evidence from which the trial justice could have found that the defendants took affirmative action during the ten years preceding their suit to indicate to the plaintiffs that they were occupying a portion of the parcel in a manner hostile to the plaintiffs’ interest. Locke v. O'Brien, 610 A.2d 552, 1992 R.I. LEXIS 163 (1992).

Summary judgment for plaintiffs was not appropriate since, although defendants did nothing overtly hostile to the rights of other owners in a subdivision until they erected a fence in a period considerably less than the 10-year statutory requirement, they did submit other evidence indicating that the disputed strip of land had been used by them as a lawn and as the site of family activities. M & B Realty, Inc. v. Duval, 767 A.2d 60, 2001 R.I. LEXIS 63 (2001).

The trial court erred by failing to find that the state’s act of openly placing a permanent boat ramp on another’s property without the true owner’s permission, and the maintaining of it there for 32 years without any objection on the part of the owner, was itself an action that was so inconsistent with the true ownership of that property that it was therefore notorious, adverse, hostile, and under claim of right as a matter of law. Reitsma v. Pascoag Reservoir & Dam, LLC, 774 A.2d 826, 2001 R.I. LEXIS 166 (2001).

Since a true owner is chargeable with knowledge of what is done openly on his property, in the absence of evidence of a knowing trespass or of express permission from any owner, the construction and maintenance of a physical structure on another’s property will be deemed to be accomplished under a claim of right. Reitsma v. Pascoag Reservoir & Dam, LLC, 774 A.2d 826, 2001 R.I. LEXIS 166 (2001).

Owner of a parcel of land may be charged with knowledge of another’s adverse use of his or her land even when the activities are obscured by dense vegetative barriers. In a counterclaim for adverse possession, neighbors were charged with knowledge of the possessor’s adverse use even though her activities were obscured by dense vegetative barriers where the possessor was acting under a claim of right as would an owner of comparable land, by mowing, maintaining the vegetation, and maintaining the fencing. Carnevale v. Dupee, 853 A.2d 1197, 2004 R.I. LEXIS 116 (2004).

Pleadings.

The plaintiffs’ complaint did not put defendants on fair notice of an adverse possession claim since it failed to set forth that the plaintiffs’ possession was actual, open, notorious, hostile, under claim of right, continuous, and exclusive; and since the plaintiffs failed to provide notice, their request to amend was properly denied and did not constitute an abuse of judicial discretion. Bresnick v. Baskin, 650 A.2d 915, 1994 R.I. LEXIS 288 (1994).

In a dispute arising from use of an unimproved parcel of land, plaintiffs’ amended complaint provided defendant with fair and adequate notice that plaintiffs claimed they possessed a prescriptive easement in the parcel; plaintiffs sufficiently pleaded a claim for a prescriptive easement. Gardner v. Baird, 871 A.2d 949, 2005 R.I. LEXIS 79 (2005).

Pleadings.

As R.I. Gen. Laws § 34-7-9 was not enacted until years after plaintiff sued a nonprofit conservation association, claiming the right to use the association’s beachfront property to access its land, § 34-7-9 did not bar plaintiff’s claim; although the original complaint did not use the words “prescriptive easement,” it put the association on sufficient notice that plaintiff was claiming such an easement. R.I. Mobile Sportfishermen, Inc. v. Nope's Island Conservation Ass'n, 59 A.3d 112, 2013 R.I. LEXIS 24 (2013).

Possession Adverse to Co-Tenant.

Conveyance of the land to a stranger by warranty deed is sufficient to show adverse possession against a co-tenant. Union Sav. Bank v. Taber, 13 R.I. 683 , 1882 R.I. LEXIS 71 (1882).

Sale of a part of the land and unchallenged occupation and use of the products of the remaining land were sufficient to prove adverse possession against a co-tenant. Tiffany v. Babcock, 51 R.I. 350 , 154 A. 784, 1931 R.I. LEXIS 51 (1931).

Stronger evidence, particularly of ouster and disseisin, is required to prove adverse possession against a co-tenant than is required of strangers to the title. Providence v. Devine, 58 R.I. 204 , 192 A. 212, 1937 R.I. LEXIS 31 (1937).

Conveyance of the whole lot to another is sufficient evidence of adverse possession against a co-tenant, even though the lot has subsequently been reconveyed to the grantor. Providence v. Devine, 58 R.I. 204 , 192 A. 212, 1937 R.I. LEXIS 31 (1937).

Possession Against Decedent’s Estate.

Adverse possession of a husband against his wife’s estate did not begin to run until the time that an heir could have aliened the property as prescribed by § 33-13-3 . Davis v. Girard, 80 R.I. 235 , 95 A.2d 847, 1953 R.I. LEXIS 57 (1953).

Possession Against Mortgagee.

Where mortgagee made no claim of lien or demand for payment and no payment was made to validate mortgage for more than twenty years, during which time, owner of the fee had been in possession, owner was entitled to perpetual injunction against foreclosure of mortgage, as this section transfers the title itself whenever the conditions have been completely fulfilled. Radican v. Radican, 22 R.I. 405 , 48 A. 143, 1901 R.I. LEXIS 22 (1901).

Possession by Dowress.

Widow entitled to dower, but to whom dower had not been assigned, could hold her husband’s property adversely to the heirs. Astle v. Card, 52 R.I. 357 , 161 A. 126, 1932 R.I. LEXIS 72 (1932).

Possession by Guardian.

Guardian cannot hold adversely to wards so as to set in operation the statute of limitations against the wards by virtue of her possession as guardian during minority of wards. Searle v. Laraway, 27 R.I. 557 , 65 A. 269, 1906 R.I. LEXIS 44 (1906).

Possession by Lessee.

Landowner claiming an easement by prescription in a driveway on adjoining land could not tack on time during which he, as lessee of previous owner, had used the driveway, where the previous owner had not claimed an easement. Bell v. Bomes, 78 R.I. 37 , 78 A.2d 362, 1951 R.I. LEXIS 30 (1951).

A term of adverse use of an easement by a tenant, under a lease which does not expressly mention the easement can be tacked onto that of the landlord where circumstances establish that the easement was impliedly within the terms of the lease. Jerry Brown Farm Ass'n v. Kenyon, 119 R.I. 43 , 375 A.2d 964, 1977 R.I. LEXIS 1856 (1977).

Prescriptive rights cannot be claimed through a tenant unless the area in question is either expressly or impliedly within the terms of the lease. Taffinder v. Thomas, 119 R.I. 545 , 381 A.2d 519, 1977 R.I. LEXIS 2058 (1977).

Possession by Predecessor in Title.

Where the evidence established use and occupation of the tract in dispute by plaintiff ’s predecessor for an uninterrupted period of more than ten years before his death, he had acquired title by adverse possession and plaintiff succeeded to this title. Vingi v. Read, 70 R.I. 5 , 36 A.2d 152, 1944 R.I. LEXIS 11 (1944).

The owner may tack on the period of possession of his predecessor from whom he derived title. Taffinder v. Thomas, 119 R.I. 545 , 381 A.2d 519, 1977 R.I. LEXIS 2058 (1977).

Where claimants by adverse possession had entered into possession eight years before the conflict over the parcel of land arose, they had the burden of proving that their grantor had also claimed the parcel and was in quiet possession at least two years previous to the grant. Taffinder v. Thomas, 119 R.I. 545 , 381 A.2d 519, 1977 R.I. LEXIS 2058 (1977).

Statements made to claimants by adverse possession by their grantor that he believed the bounds of his property to include the parcel in question were properly admitted to show the nature and extent of his occupation. Taffinder v. Thomas, 119 R.I. 545 , 381 A.2d 519, 1977 R.I. LEXIS 2058 (1977).

Based on the findings of the trial justice, none of which were clearly wrong, there was not a 10-year period of actual, open, notorious, hostile, continuous, and exclusive use of property under a claim of right across the four predecessors in title to plaintiffs in which all of the required elements of adverse possession were met. The Supreme Court perceived no error in the trial justice’s ultimate conclusion that plaintiffs had not demonstrated ownership of the entire waterfront lot by adverse possession. Clark v. Buttonwoods Beach Ass'n, 226 A.3d 683, 2020 R.I. LEXIS 26 (2020).

Practice and Procedure.

Hearing justice erred by granting summary judgment on property owners’ adverse possession claim against their neighbors because the hearing justice’s bench decision was devoid of any proper adverse possession analysis and was conclusory in nature, particularly as the dimensions of the claimed land were in dispute. Without a clear demarcation of the boundary lines, and without clear and convincing evidence of the areas that were adversely possessed, there could be no summary judgment. Coscina v. Dipetrillo, 186 A.3d 590, 2018 R.I. LEXIS 88 (2018).

Private Right-Of-Way.

Private right-of-way obtained by owners of property purchased with reference to plat plan is extinguishable by adverse possession. Gammons v. Caswell, 447 A.2d 361, 1982 R.I. LEXIS 894 (1982).

Adjoining landowner failed to show that right-of-way referenced in deed conveying property to the landowner had been extinguished where the access area was used primarily for parking by the landowner’s tenants, particularly since it was shown that the owner of the dominant estate could use the right-of-way without depriving the tenants of parking if only the cars were parked at different angles. Frenchtown Five L.L.C. v. Vanikiotis, 863 A.2d 1279, 2004 R.I. LEXIS 181 (2004).

Scope of Review.

In cases involving claims of title through adverse possession, as in other cases, the findings of fact of a trial justice sitting without a jury will be given great weight and will not be disturbed on appeal unless it can be shown that such findings are clearly wrong or that the trial justice misconceived or overlooked material evidence. Raheb v. Lemenski, 115 R.I. 576 , 350 A.2d 397, 1976 R.I. LEXIS 1561 (1976); Taffinder v. Thomas, 119 R.I. 545 , 381 A.2d 519, 1977 R.I. LEXIS 2058 (1977); Altieri v. Dolan, 423 A.2d 482, 1980 R.I. LEXIS 1858 (1980); Hilley v. Simmler, 463 A.2d 1302, 1983 R.I. LEXIS 1021 (1983).

Where the trial justice exercised his fact-finding power and determined that the state had sustained its burden of proving its claim to a prescriptive easement by clear and convincing evidence, his findings of fact would be upheld unless they were clearly wrong or unless the trial justice had misconceived or overlooked material evidence. Greenwood v. Rahill, 122 R.I. 759 , 412 A.2d 228, 1980 R.I. LEXIS 1470 (1980).

Where complainants show by clear and positive evidence that they have used a roadway openly under a claim of right, adversely and continuously for more than 20 years, they have acquired an easement by prescription. Carpenter v. Dos Santos, 96 R.I. 334 , 191 A.2d 282, 1963 R.I. LEXIS 91 (1963).

The findings of adverse possession by a trial court sitting without a jury are entitled to great weight and will not be overturned unless the factual finding is clearly wrong or unless the trial court overlooked or misconceived material evidence. Walsh v. Cappuccio, 602 A.2d 927, 1992 R.I. LEXIS 17 (1992).

Time.

The filing of an action to quiet title terminates the running of the period for establishing adverse possession. To hold otherwise would be to ignore the requirements of this section that the possession be “uninterrupted, quiet and peaceful” and would permit adverse claimants to acquire title through the artifice of protracted litigation. Cumberland Farms v. Mayo Corp., 694 A.2d 752, 1997 R.I. LEXIS 177 (1997).

Title Limited by Possession.

Landowner claiming an easement for a driveway was entitled to an easement over only that portion of the adjoining lot which he had used adversely. Foley v. Lyons, 85 R.I. 86 , 125 A.2d 247, 1956 R.I. LEXIS 122 (1956).

Collateral References.

Abstract of title, right to rely upon adverse possession to supplement. 52 A.L.R. 1487.

Abstract showing title, covenants to furnish, sufficiency of proof of title by adverse possession. 7 A.L.R. 1174.

Acquisition of title to land by adverse possession by state or other governmental unit or agency. 18 A.L.R.3d 678.

Action discontinued without decision on merits, time covered by pendency of, as included in computation of period of adverse possession. 80 A.L.R. 439.

Adverse possession as against vendor by one who enters under executory contract. 1 A.L.R. 1329.

Adverse possession based on encroachment of building or other structure. 2 A.L.R.3d 1005.

Adverse possession between cotenants who are unaware of cotenancy. 27 A.L.R.4th 420.

Attempt during period of adverse holding to change, or make more specific, the tract claimed, effect of. 115 A.L.R. 1299.

Boundary, mistake as to, adverse possession due to, as requiring actual possession. 97 A.L.R. 98.

Burial lot, adverse possession in respect of, as affected by mistake as to boundary. 107 A.L.R. 1294.

Cemetery or graveyard authorities, acquisition of title to ground through adverse possession by. 41 A.L.R.2d 925.

Cloud on title, claim of title by adverse possession as. 78 A.L.R. 57.

Common, adverse possession of. 9 A.L.R. 1373.

Consent informally of owner subsequent to hostile entry, effect of. 65 A.L.R. 128.

Crops, interval between, as affecting continuity of adverse possession. 76 A.L.R. 1492.

Dower as affected by adverse possession. 41 A.L.R. 1115.

Executor or administrator or his vendee, adverse possession of, as continuous with that of ancestor and heirs. 43 A.L.R.2d 1061.

Extent of, and permissible variations in, use of prescriptive easements of way. 79 A.L.R.4th 604.

Grantor’s possession as adverse possession against grantee. 39 A.L.R.2d 353.

Grazing of livestock or gathering of natural crop as fulfilling traditional elements of adverse possession. 48 A.L.R.3d 818.

Judicial sale, time when period of adverse possession of real estate commences to run against or in favor of purchaser at. 118 A.L.R. 946.

Landlord, adverse possession of, as affected by tenant’s recognition of title of third person. 38 A.L.R.2d 826.

May adverse possession be predicated upon use or occupancy by one spouse of real property of other. 74 A.L.R. 138.

Mines or minerals, acquisition of right or title to, by adverse possession. 35 A.L.R.2d 124.

Mortgagee, adverse possession by stranger as against. 136 A.L.R. 782.

Mortgagee before foreclosure, adverse possession by. 7 A.L.R.2d 1131.

Open and notorious character of possession as element of adverse possession under parol gift of land. 43 A.L.R.2d 6.

Owner’s surveying of land as entry thereon tolling running of statute of limitations for purposes of adverse possession. 76 A.L.R.3d 1202.

Possession by stranger claiming under conveyance by co-tenant as adverse to other co-tenants. 32 A.L.R.2d 1214.

Possession of mortgagor or successor in interest as adverse to purchaser at foreclosure sale. 38 A.L.R.2d 348.

Private nuisance, acquisition of property right by prescription, predicated upon acts amounting to. 152 A.L.R. 343.

Public use of property as affecting acquisition of title by adverse possession. 2 A.L.R. 1368.

Purchase, or offer to purchase or to settle, outstanding title, interest or claim as interrupting continuity of adverse possession as regards another title, interest or claim. 125 A.L.R. 825.

Recording statutes as affecting title by adverse possession. 9 A.L.R.2d 850.

Religious society, adverse possession by. 4 A.L.R.2d 123.

Scope and application of doctrine that one cannot successfully claim adverse possession under color of title where he has deprived himself or been deprived of the color relied on. 84 A.L.R. 1114; 136 A.L.R. 1349.

Scope of prescriptive easement for access (easement of way). 79 A.L.R.4th 604.

Seasonal possession other than for agricultural or logging purposes, sufficiency of adverse possession as regards continuity. 24 A.L.R.2d 632.

Tacking adverse possession of area not within description of deed or contract. 17 A.L.R.2d 1128.

Tax title invalid, necessity of actual possession to give title by adverse possession. 22 A.L.R. 550.

Taxes, right of co-tenant paying, to contribution from his co-tenants as affected by adverse possession of the property. 48 A.L.R. 593.

Tenant’s adverse possession or use of third person’s land not within description in lease as inuring to landlord’s benefit. 105 A.L.R. 1187.

Timber, adverse possession as affecting rights of co-tenants inter se as to. 2 A.L.R. 1000; 41 A.L.R. 584.

Timber, cutting of, as adverse possession 170 A.L.R. 887.

Trespass as interrupting adverse possession. 22 A.L.R. 1458.

Use of property by public as affecting acquisition of title by adverse possession. 56 A.L.R.3d 1182.

Wall or other structure, adverse possession based on projection or inclination of. 2 A.L.R.3d 1005.

Writing as essential to color of title in adverse occupant of land. 2 A.L.R. 1457.

34-7-2. Absentees and persons under disability — Reversioners and remaindermen.

Nothing in this chapter shall be so construed, deemed or taken, as to extend to prejudice the rights and claims of persons under age, persons of unsound mind, or persons imprisoned or beyond the limits of the United States, if they bring their suits within the space of ten (10) years next after the impediment is removed; nor to bar any person or persons having any estate in reversion or remainder, expectant or depending, in any lands, tenements or hereditaments, after the end or determination of the estate for years, life or lives, the person or persons pursuing his or their title by due course of law within ten (10) years after his, her, or their right of action shall accrue.

History of Section. G.L. 1896, ch. 205, § 3; G.L. 1909, ch. 256, § 3; G.L. 1923, ch. 300, § 3; G.L. 1938, ch. 438, § 3; G.L. 1956, § 34-7-2 .

Cross References.

Married woman, effect of coverture on adverse possession cases, § 15-4-15 .

NOTES TO DECISIONS

Disability at Commencement of Possession.

This section applies only if the person entitled to the estate had one of the enumerated disabilities at the commencement of the adverse possession. Clarke v. Cross, 2 R.I. 440 , 1853 R.I. LEXIS 16 (1853).

Effect of Guardianship on Disability.

The statute does not run with respect to a person non compos mentis even though such person has guardians who might have sued for him. Bourne v. Hall, 10 R.I. 139 , 1872 R.I. LEXIS 2 (1872).

Ignorance of Claim.

Mere ignorance by owners of their claims would not prevent the running of the statute against them. Astle v. Card, 52 R.I. 357 , 161 A. 126, 1932 R.I. LEXIS 72 (1932).

Remaindermen.

The provision as to remaindermen applies when possession is claimed under the life tenant as well as when the possession is adverse to the life tenant. Union Sav. Bank v. Taber, 13 R.I. 683 , 1882 R.I. LEXIS 71 (1882).

Succeeding Disabilities.

As to persons under disability, the statute begins to run at the time the disability existing at the time possession started is removed, even though a new disability exists at that time. Clarke v. Cross, 2 R.I. 440 , 1853 R.I. LEXIS 16 (1853); Union Sav. Bank v. Taber, 13 R.I. 683 , 1882 R.I. LEXIS 71 (1882).

Collateral References.

Cestui que trust also remainderman, adverse possession as against. 2 A.L.R. 55.

Deed of life tenant purporting to convey fee as rendering grantee’s possession adverse to remaindermen during life estate. 112 A.L.R. 1042.

Life tenant, right of remainderman or reversioner to tack his possession to that of. 150 A.L.R. 557.

Prescription or adverse possession as against one under disability of infancy. 43 A.L.R. 941; 147 A.L.R. 236.

Tax sale of property subject to successive estates or different interests as affecting title acquired by adverse possession. 75 A.L.R. 438.

Third party or stranger, adverse possession by, or property held in trust. 2 A.L.R. 41.

Widow’s possession after extinguishment of dower as adverse to heirs or their privies. 75 A.L.R. 147.

Widow’s possession under right of quarantine as adverse. 126 A.L.R. 821.

34-7-3. Easement of light and air denied.

Whoever has erected or may erect any house or other building near the land of another person, with windows overlooking the land, shall not, by mere continuance of the windows, acquire any easement of light or air so as to prevent the erection of any building thereon.

History of Section. G.L. 1896, ch. 205, § 4; G.L. 1909, ch. 256, § 4; G.L. 1923, ch. 300, § 4; G.L. 1938, ch. 438, § 4; G.L. 1956, § 34-7-3 .

34-7-4. Right of footway denied.

No right of footway, except claimed in connection with a right to pass with carriages, shall be acquired by prescription or adverse use for any length of time.

History of Section. G.L. 1896, ch. 205, § 5; G.L. 1909, ch. 256, § 5; G.L. 1923, ch. 300, § 5; G.L. 1938, ch. 438, § 5; G.L. 1956, § 34-7-4 .

Cross References.

Highways by user, § 24-2-1 et seq.

NOTES TO DECISIONS

Foot Passers.

Right of public way over strip of land could not be established by occasional use of strip by foot passers. Daniels v. Blake, 81 R.I. 103 , 99 A.2d 7, 1953 R.I. LEXIS 20 (1953).

In holding that plaintiff had a prescriptive easement over defendant’s property, the trial court erred by failing to distinguish between pedestrian and vehicular use when it found that plaintiff’s predecessors had continuously accessed their lot by vehicle for 10 years. R.I. Mobile Sportfishermen, Inc. v. Nope's Island Conservation Ass'n, 59 A.3d 112, 2013 R.I. LEXIS 24 (2013).

34-7-5. Utility rights-of-way not acquired by enjoyment.

No enjoyment by any persons, companies or corporations, for any length of time, of the privilege of maintaining telegraph, telephone, electric, or other posts, wires or apparatus in, upon or over any lands or buildings of other persons or corporations, shall thereby confer any right to the continued enjoyment of the easement or raise any presumption of a grant thereof.

History of Section. G.L. 1896, ch. 205, § 9; G.L. 1909, ch. 256, § 9; G.L. 1923, ch. 300, § 9; G.L. 1938, ch. 438, § 9; G.L. 1956, § 34-7-5 .

Cross References.

Railroads, adverse possession, §§ 39-6-9 , 39-6-10 .

NOTES TO DECISIONS

Construction.

The language of this section is conspicuously devoid of any reference to subterranean water lines, and was inapplicable to a claim for establishment of a prescriptive easement over such a water line. Burke-Tarr Co. v. Ferland Corp., 724 A.2d 1014, 1999 R.I. LEXIS 52 (1999).

Collateral References.

Railroad right-of way, adverse possession of. 50 A.L.R. 303; 127 A.L.R. 517.

34-7-6. Notice of intent to dispute interrupting adverse possession.

Whenever the legal owner of any lands anticipates that any other person or persons may obtain the title to those lands, or any way, easement or privilege therein, by possession under the provisions of this chapter, he or she may give notice in writing to the person claiming or using the lands, way, easement, or privilege, of his or her intention to dispute any right arising from that claim or use; and the notice, served and recorded as hereinafter provided, shall be deemed an interruption of the use and prevent the acquiring of any right thereto by the continuance of the use for any length of time thereafter. The notice, signed by the owner of the lands, his guardian or agent, may be served by any disinterested person, making return under oath, on the party so claiming or using the property, his or her agent or guardian, if within this state, otherwise, on the tenant or occupant, if there be any; and the notice, with the return thereon, shall be recorded within three (3) months thereafter in the records of land evidence in the town in which the land is situated, and a copy of the record, certified by the recording officer to be a true copy of the record of the notice, and the return thereon, shall be evidence of the notice and of the service of the same.

History of Section. G.L. 1896, ch. 205, § 6; G.L. 1909, ch. 256, § 6; G.L. 1923, ch. 300, § 6; G.L. 1938, ch. 438, § 6; G.L. 1956, § 34-7-6 .

Cross References.

Entry or recording requisite for maintenance of certain actions based on claim of right of entry for condition broken or possibility of reverter to which land is subject, § 34-4-24 .

NOTES TO DECISIONS

Adequacy of Notice.

Although a developer surveyed and subdivided disputed land and filed the survey with the city planning board, and the city notified the claimant of the subdivision, these actions were not sufficient to interrupt the claimant’s adverse possession by serving her with written “notice of intent to dispute” pursuant to R.I. Gen. Laws § 34-7-6 . Carnevale v. Dupee, 783 A.2d 404, 2001 R.I. LEXIS 221 (2001).

Effect of Notice.

Attorney and his law firm, who represented the neighbors of a developer, were entitled to summary judgment in the developer’s slander of title claim because the attorney’s filing of a notice of intent protected the title to the neighbors’ property and did not contain any false statement about the developer’s ownership of real property. Beauregard v. Gouin, 66 A.3d 489, 2013 R.I. LEXIS 90 (2013).

Attorney and his law firm, who represented the neighbors of a developer, were entitled to summary judgment with respect to the developer’s intentional interference with prospective advantage claim because in filing a notice of intent, the attorney alleviated the neighbors’ concerns about potential adverse possession claims and asserted the neighbors’ right to their own property, and the notice did not constitute an “improper act of interference.” Beauregard v. Gouin, 66 A.3d 489, 2013 R.I. LEXIS 90 (2013).

Timeliness of Notice.

Notice under this section is of no importance when it is served after the time required to obtain title by adverse possession had elapsed. Louttit v. Alexander, 44 R.I. 257 , 116 A. 882, 1922 R.I. LEXIS 33 (1922).

Where the period for a prescriptive easement had expired prior to the termination of defendant’s lease, well before the plaintiff filed notice of her intent to dispute adverse possession, and where there was no evidence that the plaintiff objected to defendant’s installation of a water line or its continuous use prior to the expiration of the lease, there was no suggestion that the pipe, although installed in full view of the plaintiff, was installed with her permission. Burke-Tarr Co. v. Ferland Corp., 724 A.2d 1014, 1999 R.I. LEXIS 52 (1999).

The fact that the state attempted to take property through eminent domain had no bearing on the establishment of a prescriptive easement, since the ten-year statutory period had expired before that action and the easement had already been acquired. Burke-Tarr Co. v. Ferland Corp., 724 A.2d 1014, 1999 R.I. LEXIS 52 (1999).

34-7-7. Action by claimant in possession after notice of intent to dispute.

Whenever notice is given to prevent the acquisition of lands or way, privilege or other easement, the notice shall be considered so far a disturbance of the right or claim as to enable the party claiming to bring an action for disturbing the same, in order to try the right; and if the plaintiff in the suit prevails, he or she shall recover full costs.

History of Section. G.L. 1896, ch. 205, § 7; G.L. 1909, ch. 256, § 7; G.L. 1923, ch. 300, § 7; G.L. 1938, ch. 438, § 7; G.L. 1956, § 34-7-7 .

Cross References.

Venue of actions, § 9-4-2 .

34-7-8. Shore rights preserved — Prospective applicability.

Nothing herein contained shall affect any rights of the shore to which the people of this state are now entitled under the charter, the constitution or by the law, or be construed to apply to any preceding action.

History of Section. G.L. 1896, ch. 205, § 8; G.L. 1909, ch. 256, § 8; G.L. 1923, ch. 300, § 8; G.L. 1938, ch. 438, § 8; G.L. 1956, § 34-7-8 .

Cross References.

Constitutional protection of shore rights, R.I. Const., art. 1, § 17 .

NOTES TO DECISIONS

Adverse Possession.

Private individuals cannot adversely possess shoreline or waterfront property located within the state because such property is maintained for public use. However, this prohibition on adverse possession applies to all public lands owned by state governments and, therefore, is not limited to shoreline property. Hall v. Nascimento, 594 A.2d 874, 1991 R.I. LEXIS 140 (1991).

34-7-9. Land preserved for open space, conservation or cemetery purposes.

Any land held or preserved by a nonprofit corporation or nonprofit association for purposes of conservation, open space, or a cemetery is not subject to adverse possession or prescription.

History of Section. P.L. 2008, ch. 63, § 1; P.L. 2008, ch. 67, § 1; P.L. 2012, ch. 277, § 1; P.L. 2012, ch. 288, § 1.

Compiler’s Notes.

P.L. 2012, ch. 277, § 1, and P.L. 2012, ch. 288, § 1 enacted identical amendments to this section.

NOTES TO DECISIONS

Applicability.

As R.I. Gen. Laws § 34-7-9 was not enacted until years after plaintiff sued a nonprofit conservation association, claiming the right to use the association’s beachfront property to access its land, § 34-7-9 did not bar plaintiff’s claim; although the original complaint did not use the words “prescriptive easement,” it put the association on sufficient notice that plaintiff was claiming such an easement. R.I. Mobile Sportfishermen, Inc. v. Nope's Island Conservation Ass'n, 59 A.3d 112, 2013 R.I. LEXIS 24 (2013).

Chapter 8 Rhode Island Coordinate System

34-8-1. Adoption of ocean and geodetic survey systems.

The two (2) systems of plane coordinates which have been established by the national ocean/national geodetic survey, or its successors, for defining and stating the geographic positions or locations of points on the surface of the earth within the state are hereafter to be known and designated as the “Rhode Island coordinate system of 1927” and the “Rhode Island coordinate system of 1983”.

History of Section. P.L. 1945, ch. 1653, § 1; G.L. 1956, § 34-8-1 ; P.L. 1983, ch. 241, § 1.

Comparative Legislation.

Coordinate system:

Conn. Gen. Stat. § 13a-255.

Mass. Ann. Laws ch. 97, § 8 et seq.

34-8-2. Use of term in documents.

The use of the term “Rhode Island coordinate system of 1927” or “Rhode Island coordinate system of 1983” on any map, report of survey, or other document, shall be limited to coordinates based on the Rhode Island coordinate system as defined in this chapter.

History of Section. P.L. 1945, ch. 1653, § 5; G.L. 1956, § 34-8-2 ; P.L. 1983, ch. 241, § 1.

34-8-3. Location of point by coordinates.

The plane coordinate values for a point on the earth’s surface, to be used to express the geographic position or location of such point on the Rhode Island coordinate system, shall consist of two (2) distances, expressed in U.S. survey feet and decimals of a survey foot when using the Rhode Island coordinate system of 1927, and expressed in meters and decimals of a meter when using the Rhode Island coordinate system of 1983. One of these distances, to be known as the “x-coordinate”, shall give the position in an east and west direction; the other, to be known as the “y-coordinate”, shall give the position in a north and south direction. These coordinates shall be made to depend upon and conform to plane rectangular coordinate values for the monumented points of the North American horizontal geodetic control network as published by the national ocean survey/national geodetic survey or its successors, and whose plane coordinates have been computed on the systems defined in this chapter. Any such station may be used for establishing a survey connection to either Rhode Island coordinate system set forth in § 34-8-1 of this chapter.

History of Section. P.L. 1945, ch. 1653, § 2; G.L. 1956, § 34-8-3 ; P.L. 1983, ch. 241, § 1.

34-8-4. Technical definition of systems — Origin of coordinates.

  1. For purposes of more precisely defining the Rhode Island coordinate system of 1927, the following definition by the national ocean survey/national geodetic survey is adopted:

    The Rhode Island coordinate system of 1927 is a transverse Mercator projection of the Clarke spheroid of 1866, having a central meridian 71° 30´ west of Greenwich, on which meridian the scale is set at one part in one hundred sixty thousand (160,000) too small. The origin of coordinates is at the intersection of the meridian 71° 30´ west of Greenwich and the parallel 41° 05´ north latitude. This origin is given the coordinates: x = 500,000 feet and y = 0 feet.

  2. For the purposes of more precisely defining the Rhode Island coordinate system of 1983, the following definition by the national ocean survey/national geodetic survey is adopted:

    The Rhode Island coordinate system of 1983 is a transverse Mercator projection of the North American datum of 1983 having a central meridian 71° 30´ west of Greenwich, on which meridian the scale is set at one part in one hundred sixty thousand (160,000) too small. The origin of coordinates is at the intersection of the meridian 71° 30´ west of Greenwich and the parallel 41° 05´ north latitude. This origin is given the coordinates: x = 100,000 meters, and y = 100,000 meters, and y = 0 meters.

History of Section. P.L. 1945, ch. 1653, § 3; G.L. 1956, § 34-8-4 ; P.L. 1983, ch. 241, § 1.

34-8-5. Repealed.

History of Section. P.L. 1945, ch. 1653, § 4; G.L. 1956, § 34-8-5 ; Repealed by P.L. 1983, ch. 241, § 2.

Compiler’s Notes.

Former § 34-8-5 concerned use of triangulation or traverse stations for establishing connections with the R.I. co-ordinate system.

34-8-6. Proximity to established station required for use of coordinates in public records.

No coordinates based on either Rhode Island coordinate system, purporting to define the position of a point on land boundary, shall be presented to be recorded in any public land records or deed records unless such point is within one kilometer of a monumented horizontal control station and unless minimum THIRD ORDER — class II procedures are used in conformity with the standards of accuracy and specifications prepared and published by the federal geodetic control committee established in conformity with the standards of accuracy and specifications for first — or second-order geodetic surveying as prepared and published by the federal geodetic control committee (FGCC) of the United States department of commerce. Standards and specifications of the FGCC or its successor in force on date of the survey shall apply. The publishing of the existing control stations, or the acceptance with intent to publish the newly established control stations, by the national ocean survey/national geodetic survey will constitute evidence of adherence to the FGCC specifications. Above limitations may be modified by the Rhode Island department of transportation land surveying section to meet local conditions.

History of Section. P.L. 1945, ch. 1653, § 4; G.L. 1956, § 34-8-6 ; P.L. 1983, ch. 241, § 1.

34-8-7. Reliance on system not required — Describing location of survey system or land boundary corner.

  1. Nothing contained in this chapter shall require any purchaser or mortgagee of real property to rely wholly on a land description, any part of which depends exclusively upon either Rhode Island coordinate system.
  2. For purposes of describing the location of any survey station or land boundary corner in the state it shall be considered a complete, legal, and satisfactory description of such location to give the position of the survey station or land boundary corner on the system of plane coordinates defined in this chapter.

History of Section. P.L. 1945, ch. 1653, § 6; G.L. 1956, § 34-8-7 ; P.L. 1983, ch. 241, § 1.

34-8-8. Severability.

If any provision of this chapter shall be declared invalid such invalidity shall not affect any other portion of this chapter which can be given effect without the invalid provision, and to this end the provisions of this chapter are declared to be severable.

History of Section. P.L. 1945, ch. 1653, § 7; G.L. 1956, § 34-8-8 .

34-8-9. Use of coordinate systems.

The Rhode Island coordinate system of 1927 may be used up to and including December 31, 1989, but shall not be used thereafter. The Rhode Island coordinate system of 1983 may be used up to and including December 31, 1989, and shall be the exclusive Rhode Island coordinate system thereafter.

History of Section. P.L. 1983, ch. 241, § 3.

34-8-10. Meter-to-foot conversion.

For purposes of this chapter, and for purposes of conversion between the two (2) systems set forth in § 34-8-1 of this chapter, one meter equals 3.2808-1/3 survey feet.

History of Section. P.L. 1983, ch. 241, § 3.

Chapter 9 Boundary Line Determination

34-9-1. Petition for determination of boundaries covered by tidewater.

Any person having any interest in land bordering on public tidewater, whenever a harbor line shall have been confirmed and established in front of or adjacent to the land, may apply by petition to the supreme court for the settlement and determination of the lines and boundaries of his interest and of the interests of all others in the land covered by public tidewater within such harbor line.

History of Section. G.L. 1896, ch. 266, § 1; C.P.A. 1905, § 1166; G.L. 1909, ch. 331, § 1; G.L. 1923, ch. 382, § 1; G.L. 1938, ch. 593, § 1; G.L. 1956, § 34-9-1 .

Cross References.

Jurisdiction of superior court, § 8-2-14 .

Venue of actions, § 9-4-2 .

Comparative Legislation.

Determination of boundaries:

Conn. Gen. Stat. § 47-34.

NOTES TO DECISIONS

Land.

Although this chapter grants the Supreme Court jurisdiction in the determination of boundaries covered by tidewater, the superior court has jurisdiction in the determination of title to land, whether covered by tidewater or not. Providence & Worcester Co. v. Exxon Corp., 116 R.I. 470 , 359 A.2d 329, 1976 R.I. LEXIS 1297 (1976).

Collateral References.

Sufficiency of showing, in establishing boundary by parol agreement, that boundary was uncertain or in dispute before agreement. 72 A.L.R.4th 132.

34-9-2. Appointment of commissioners — Report — Recording.

Upon such petition the court may appoint three (3) commissioners to make a survey of the land within and adjacent to the harbor line, covering the area of land as the commissioners may deem necessary, to include the interests of all persons whose rights may be affected by the determination of the lines; and the commissioners, being first sworn to a faithful discharge of their duties, shall determine the boundary lines of the interests of all the persons whose rights may be affected by the determination of the lines, and shall report to the court the boundaries so established, with a plat of the land, within and adjacent to the harbor line, showing the lines established for each person having an interest therein, which plat, after its approval by the court, shall by order of the court be recorded in the records of land evidence in the town where such land lies and in the office of the director of environmental management.

History of Section. G.L. 1896, ch. 266, § 2; G.L. 1909, ch. 331, § 2; G.L. 1923, ch. 382, § 2; G.L. 1938, ch. 593, § 2; G.L. 1956, § 34-9-2 .

Cross References.

Injury to boundary or line markers, penalty, § 11-44-11 .

Collateral References.

Fence as factor in fixing location of boundary line — modern cases. 7 A.L.R.4th 53.

34-9-3. Notice and hearing by commissioners — Effect of report.

Before proceeding to make a survey and to establish the lines according to § 34-9-2 , the commissioners shall notify all persons whose rights may be affected by the determination of the lines, in the manner as the court shall direct, to appear at a time and place named to be heard in relation to the survey. The report and plan of the commissioners, when approved by the court and recorded as provided in § 34-9-2 , shall forever fix and determine the rights of all persons and parties, except when definite boundary lines have been established by parties legally authorized so to do.

History of Section. G.L. 1896, ch. 266, § 3; G.L. 1909, ch. 331, § 3; G.L. 1923, ch. 382, § 3; G.L. 1938, ch. 593, § 3; G.L. 1956, § 34-9-3 .

Collateral References.

Necessary or proper parties to suit or proceeding to establish private boundary line. 73 A.L.R.3d 948.

34-9-4. [Obsolete.]

34-9-5. Expense of proceedings.

The just charges and expenses of the commissioners shall be ascertained and allowed by the court; any further costs of the proceedings shall be taxed in the usual manner; and all the costs and expenses shall be apportioned by the court upon all parties interested as aforesaid, in such proportions or amounts as the court shall deem equitable.

History of Section. G.L. 1896, ch. 266, § 5; G.L. 1909, ch. 331, § 5; G.L. 1923, ch. 382, § 5; G.L. 1938, ch. 593, § 5; G.L. 1956, § 34-9-5 .

NOTES TO DECISIONS

Proceeding to Determine Lines.

Costs in a proceeding to determine lines may be fairly divided between parties in direct proportion to the area of land involved. Taber v. Hall, 24 R.I. 88 , 52 A. 686, 1902 R.I. LEXIS 25 (1902).

34-9-6. Persons acquiring title during proceedings.

Any person who shall acquire, during the pendency of such proceedings, an interest in, or title to, any lands covered by public tidewater within such harbor line, which are the subject matter of such proceedings, may, by order of the court, be made a party to such proceedings, and chargeable with a share of the costs and expenses thereof, in such manner and to such extent as the court may prescribe.

History of Section. G.L. 1896, ch. 266, § 6; G.L. 1909, ch. 331, § 6; G.L. 1923, ch. 382, § 6; G.L. 1938, ch. 593, § 6; G.L. 1956, § 34-9-6 .

34-9-7. State interest unaffected.

No proceedings under the provisions of this chapter shall affect any right or title of the state to any lands, unless it consents to become a party to the proceedings.

History of Section. G.L. 1896, ch. 266, § 7; G.L. 1909, ch. 331, § 7; G.L. 1923, ch. 382, § 7; G.L. 1938, ch. 593, § 7; G.L. 1956, § 34-9-7 .

Chapter 9.1 Maintenance of Private Easements and Rights-Of-Way

34-9.1-1. Definitions.

As used in this chapter:

  1. “Benefited property” or “property that benefits” means and includes residential real property enjoying the use of an easement or right-of-way;
  2. “Burdened property” means and includes residential real property over which the easement runs;
  3. “Easement” or “right-of-way” means a private appurtenant easement or right-of-way; and
  4. “Residential real property” means one- to four-family (4) residential real estate located in this state, but does not include property owned by the state or any political subdivision thereof.

History of Section. P.L. 2018, ch. 142, § 1; P.L. 2018, ch. 241, § 1.

Compiler’s Notes.

P.L. 2018, ch. 142, § 1, and P.L. 2018, ch. 241, § 1 enacted identical versions of this chapter.

34-9.1-2. Maintenance of private easement and rights-of-way.

  1. In the absence of an enforceable, written agreement to the contrary, the owner of any residential real property that benefits from an easement or right-of-way, the purpose of which is to provide access to the residential real property, shall be responsible for the cost of maintaining the easement or right-of-way in good repair and the cost of repairing or restoring any damaged portion of the easement or right-of-way. The maintenance shall include, but not be limited to, the removal of snow from the easement or right-of-way.
  2. In the absence of an enforceable, written agreement, the cost of maintaining and repairing or restoring the easement or right-of-way shall be shared by each owner of a benefited property in proportion to the benefit received by each property; provided, that the market value or assessed valuation of each such property shall not be taken into consideration in the calculation of benefit received.
  3. Notwithstanding the provisions of subsections (a) and (b) of this section, any owner of a benefited property or any owner of a burdened property who directly or indirectly damages any portion of the easement or right-of way shall be solely responsible for repairing or restoring the portion damaged by that owner.
  4. If any owner of a benefited or burdened property refuses to repair or restore a damaged portion of an easement or right-of-way in accordance with this section, or fails, after a demand in writing, to pay the owner’s proportion of the cost of maintaining or repairing or restoring the easement or right-of-way in accordance with subsection (b), an action for specific performance or contribution may be brought in the superior court against the owner by other owners of benefited or burdened properties, either jointly or severally.
  5. In the event of any conflict between the provisions of this section and an agreement described in subsections (a) or (b) of this section, the terms of the agreement shall control.

History of Section. P.L. 2018, ch. 142, § 1; P.L. 2018, ch. 241, § 1.

Chapter 10 Fences

34-10-1. Lawful fences defined.

The following fences shall be adjudged to be lawful fences:

  1. A hedge with a ditch shall be three feet (3´) high upon the bank of the ditch, well staked, at the distance of two feet and a half (21/2´), bound together at the top and sufficiently filled to prevent small stock from creeping through; and the bank of the ditch shall not be less than one foot (1´) above the surface of the ground.
  2. A hedge without a ditch shall be four feet (4´) high, staked, bound and filled, as a hedge with a ditch.
  3. A post-and-rail fence on the bank of a ditch shall be four (4) rails high, each well set in posts, and not less than four feet and a half (41/2´) high.
  4. A stone wall fence shall be four feet (4´) high, with a flat stone hanging over the top thereof or a good rail or pole thereon, well staked or secured with crotches or posts.
  5. A stone wall without flat stones, rails or posts on the top, shall be four feet and a half (41/2´) high.
  6. A woven wire fence of wire not less than number nine, firmly fastened to posts not more than sixteen feet (16´) apart, constructed of not less than eleven (11) horizontal wires, the top wire not less than fifty-four inches (54") from the ground, the bottom wire not more than two inches (2") from the ground and with stays or uprights not more than six inches (6") apart.
  7. All other kinds of fences not herein particularly described shall be four feet and a half (41/2´) high.

History of Section. G.L. 1896, ch. 126, § 1; G.L. 1909, ch. 152, § 1; P.L. 1916, ch. 1386, § 1; G.L. 1923, ch. 182, § 1; G.L. 1938, ch. 645, § 1; G.L. 1956, § 34-10-1 .

Comparative Legislation.

Fences:

Conn. Gen. Stat. § 47-43 et seq.

Mass. Gen. Laws Ann., ch. 49, § 1 et seq.

Collateral References.

Constitutionality of fencing and stock laws. 6 A.L.R. 212; 18 A.L.R. 67.

Restrictive covenants as affecting fences, or walls or hedges similar thereto. 23 A.L.R.2d 937; 13 A.L.R.4th 1346; 75 A.L.R.3d 1095.

34-10-2. Consent of adjoining owner to barbed-wire fence.

No fence shall be constructed wholly or in part of barbed wire, as a line fence between adjoining owners, without the consent in writing of the adjoining owners.

History of Section. P.L. 1906, ch. 1364, § 1; G.L. 1909, ch. 152, § 2; G.L. 1923, ch. 182, § 2; G.L. 1938, ch. 645, § 2; G.L. 1956, § 34-10-2 .

Collateral References.

Liability for personal injury by barbed wire. 36 A.L.R. 545.

“Owner,” scope and import of term, in statutes relating to fences. 2 A.L.R. 800; 95 A.L.R. 1098.

34-10-3. Removal of barbed-wire fence.

Any adjoining owner who shall not have given his or her consent as provided in § 34-10-2 may complain of the fence to any fence viewer of the town where the fence is located, and may advance to the fence viewer the reasonable expense necessary to remove and store the fence. It shall then be the duty of the fence viewer to notify in writing the other adjoining owner to forthwith remove the fence. If the fence shall not be removed within fifteen (15) days after the giving of the notice, then it shall be the duty of the fence viewer to remove the fence and to store the materials removed. He or she shall deliver the fence materials removed to the owner upon demand.

History of Section. P.L. 1906, ch. 1364, § 2; G.L. 1909, ch. 152, § 3; G.L. 1923, ch. 182, § 3; G.L. 1938, ch. 645, § 3; G.L. 1956, § 34-10-3 .

34-10-4. Expense of removal of barbed-wire fence.

The fence viewer or the adjoining owner who has advanced the necessary expense to remove and store the fence may recover all of the expense in an action of debt from the person or persons who caused or suffered the fence to be built.

History of Section. P.L. 1906, ch. 1364, § 3; G.L. 1909, ch. 152, § 4; G.L. 1923, ch. 182, § 4; G.L. 1938, ch. 645, § 4; G.L. 1956, § 34-10-4 .

34-10-5. Barbed-wire fences through woodland — Fences existing before 1906.

The provisions of §§ 34-10-2 — 34-10-4 shall not apply to line fences running through woodland nor to barbed-wire fences constructed before April 20, 1906.

History of Section. P.L. 1906, ch. 1364, § 4; G.L. 1909, ch. 152, § 5; G.L. 1923, ch. 182, § 5; G.L. 1938, ch. 645, § 5; G.L. 1956, § 34-10-5 .

34-10-6. Maintenance of water fences.

Coterminous owners or possessors of land adjoining water, whenever their land is under improvement, shall make and maintain a sufficient water fence to prevent trespass by cattle in the same manner as other partition fences are directed to be made by this chapter.

History of Section. G.L. 1896, ch. 126, § 7; G.L. 1909, ch. 152, § 11; G.L. 1923, ch. 182, § 11; G.L. 1938, ch. 645, § 11; G.L. 1956, § 34-10-6 .

34-10-7. Marshland exempt.

All tracts of marshland so situated and exposed to the flow and wash of the sea as to render it impracticable for the several owners thereof to keep up partition fences around the respective shares or lots, shall be exempted from the operation of this chapter.

History of Section. G.L. 1896, ch. 126, § 14; G.L. 1909, ch. 152, § 18; G.L. 1923, ch. 182, § 18; G.L. 1938, ch. 645, § 18; G.L. 1956, § 34-10-7 .

34-10-8. Remedies of marshland owner to trespass.

If any person shall permit any cattle, sheep, horses or hogs, to him or her belonging, to run upon any tract of marshland, the owner of the marshland shall, for every trespass, have all the remedies provided in other cases by chapter 14 of title 4.

History of Section. G.L. 1896, ch. 126, § 15; G.L. 1909, ch. 152, § 19; G.L. 1923, ch. 182, § 19; G.L. 1938, ch. 645, § 19; G.L. 1956, § 34-10-8 .

34-10-9. Placement of partition fences — Maintenance throughout year.

All partition fences shall run on the dividing line, and the owners shall have the right to place one-half (1/2) of the width thereof on the land of each adjoining proprietor. The fences shall be kept up and maintained in good order through the year, unless the parties concerned shall otherwise agree.

History of Section. G.L. 1896, ch. 126, § 2; G.L. 1909, ch. 152, § 6; G.L. 1923, ch. 182, § 6; G.L. 1938, ch. 645, § 6; G.L. 1956, § 34-10-9 .

Cross References.

Malicious injury, penalty, § 11-44-2 .

Surveyor of highways undermining wall or fence, § 24-5-24 .

NOTES TO DECISIONS

Illustrative Cases.

In an action construing a city ordinance, a fence erected one inch from the division line was held not to be a partition fence. Piccirilli v. Groccia, 114 R.I. 36 , 327 A.2d 834, 1974 R.I. LEXIS 1057 (1974).

Collateral References.

Constitutionality of laws relating to division or line fence. 6 A.L.R. 213; 18 A.L.R. 67.

Interlocutory mandatory injunction in connection with line fence contest to compel surrender of possession. 15 A.L.R.2d 213.

Removal or rebuilding, rights as to. 8 A.L.R. 1644.

34-10-10. Partition fences between lands under improvement.

Partition fences between lands under improvement shall be made and maintained in equal halves in length and quality, by the proprietors or possessors of those lands respectively.

History of Section. G.L. 1896, ch. 126, § 3; G.L. 1909, ch. 152, § 7; G.L. 1923, ch. 182, § 7; G.L. 1938, ch. 645, § 7; G.L. 1956, § 34-10-10 .

Cross References.

Animals breaking through fence, § 4-14-19 .

Collateral References.

Validity of statutes requiring the construction of fences — modern cases. 87 A.L.R.4th 1129.

34-10-11. Partition fences between improved and unimproved lands.

In case any proprietor of land shall improve his or her land, the land adjoining being unimproved, and shall make the whole partition fence, the proprietor or possessor of the land adjoining and unimproved shall, upon improvement thereof, pay for one-half (1/2) of the partition fence, according to the value thereof at that time, and shall keep up and maintain the same ever afterwards, whether he or she shall continue to improve the land or not.

History of Section. G.L. 1896, ch. 126, § 4; G.L. 1909, ch. 152, § 8; G.L. 1923, ch. 182, § 8; G.L. 1938, ch. 645, § 8; G.L. 1956, § 34-10-11 .

34-10-12. Payment for previously constructed fence.

Whenever the whole or more than one-half (1/2) of any partition fence shall have been made by the proprietor or possessor of the land on one side of the fence, the proprietor or possessor of the land adjoining, when he or she improves the land, shall pay to the proprietor or possessor who made the fence the value of so much of the fence erected as the fence may exceed one-half (1/2) of the fence on the whole line; and in case of his or her refusal so to do, the value shall be ascertained by any fence viewer of the town where the land is situated, on application to him or her for that purpose.

History of Section. G.L. 1896, ch. 126, § 10; G.L. 1909, ch. 152, § 14; G.L. 1923, ch. 182, § 14; G.L. 1938, ch. 645, § 14; G.L. 1956, § 34-10-12 .

Cross References.

Election and qualification of viewer, § 45-4-1 et seq.

Impersonation of viewer, penalty, § 11-14-2 .

34-10-13. Viewing and division of fence — Award of cost.

The fence viewer, on an application, shall cite the parties in interest on the dividing line, at a convenient time, to view the fence; shall ascertain the value of the whole, and award the one-half (1/2) of the sum against the proprietor or possessor so refusing, with costs, and divide the whole fence between the parties, and make report into the office of the town clerk, which division shall be permanent; and if any person against whom report shall be made as aforesaid shall refuse to pay the sum so reported, the sum, with costs, shall be recovered by the party aggrieved, against that person, by action of debt.

History of Section. G.L. 1896, ch. 126, § 11; G.L. 1909, ch. 152, § 15; G.L. 1923, ch. 182, § 15; G.L. 1938, ch. 645, § 15; G.L. 1956, § 34-10-13 .

34-10-14. Holding and improving partition fences — Agreements between owners.

In all cases where partition fences are erected as one-half (1/2) of the partition fence between proprietors or possessors of adjoining lands, or where the fence may be hereafter erected by the agreement of the parties in interest or other lawful manner, the proprietors of the fences in either of the cases erected, their heirs, successors, or assigns, shall hold and improve the fences without molestation; and shall be forever afterwards excused from making other fence on such dividing line in all cases whatever, except by the special agreement of the parties to the contrary; and all agreements which shall be made relating to the partition fences shall be registered in the office of the town clerk in the town where such lands shall lie.

History of Section. G.L. 1896, ch. 126, § 9; G.L. 1909, ch. 152, § 13; G.L. 1923, ch. 182, § 13; G.L. 1938, ch. 645, § 13; G.L. 1956, § 34-10-14 .

NOTES TO DECISIONS

Recorded Agreements.

A recorded agreement or covenant to maintain a partition fence which imposes the obligation upon plaintiff, his heirs and assigns, is all the security which the defendant is entitled to demand for performance since by virtue of the covenant or agreement the obligation will be imposed upon the successive owners of the land. Thayer v. Smith, 7 R.I. 164 , 1862 R.I. LEXIS 10 (1862).

34-10-15. Complaint of neglect to maintain fence.

  1. Whenever any proprietor, possessor or owner of land shall neglect or refuse to repair, build, or rebuild any partition fence or shall withdraw his or her fence from any division line, the aggrieved party may complain to any fence viewer of the town, who, after ten (10) days’ notice to the proprietor, possessor, or owner, shall attend and view the same; the notice, if the address of the owner is not known to the fence viewer, to be given by posting up the same in three (3) or more public places in the town where the lands lie, and if he or she shall find the complaint to be true, he or she shall in writing order the delinquent party to repair, build, or rebuild the same within such time as he or she shall therein appoint, not exceeding fifteen (15) days, and shall lodge a copy of the order in the office of the town clerk of the town in which the land is situated.
  2. Whenever any vegetation overgrows and damages a partition fence, the proprietor, possessor or owner of the land from which the vegetation originates shall be liable for the removal of all of the overgrown vegetation and the necessary repairs to the partition fence caused by the overgrown vegetation.

History of Section. G.L. 1896, ch. 126, § 5; P.L. 1902, ch. 992, § 1; G.L. 1909, ch. 152, § 9; G.L. 1923, ch. 182, § 9; G.L. 1938, ch. 645, § 9; G.L. 1956, § 34-10-15 ; P.L. 2007, ch. 373, § 1.

NOTES TO DECISIONS

Applicability.

This section does not authorize the fence viewer to order a new fence built, but applies only to rebuilding or putting in repair a fence which formerly existed. Howland v. Howland, 14 R.I. 560 , 1884 R.I. LEXIS 56 (1884).

Section Requirements.

In order for the fence viewer to order a person to build or repair a fence or pay damages for his failure or neglect to do so, there must be a complaint filed charging his neglect. Franklin v. Wells, 6 R.I. 422 , 1860 R.I. LEXIS 7 (1860).

34-10-16. Construction or repair of fence by complainant — Action for cost and penalties.

If the order shall not be complied with the complainant may build, repair, or rebuild the fence in the manner set forth in the order, and when the fence shall be completed to the satisfaction of such fence viewer he or she shall ascertain the cost thereof and give a certificate of the same, including also his or her fees, to the complainant, who shall be entitled to demand and recover of the party delinquent double the sum in the certificate mentioned, and interest at the rate of twelve per cent (12%) per annum. The fence viewer shall lodge a like certificate, to be signed by him or her, in the town clerk’s office of the town in which the land lies, and the double sum above-mentioned shall be a lien on the land of the delinquent party, and shall attach at and from the time of the filing of the order in the town clerk’s office, as provided in § 34-10-15 , and may be recovered in a civil action. If the defendant cannot be found within the state, the writ shall be served by leaving an attested copy thereof in the clerk’s office of the town wherein the land is situated, and the judgment in the action may be satisfied by an execution issued thereon, levied and served in the same manner as provided for the levy and service of executions in actions at law.

History of Section. G.L. 1896, ch. 126, § 6; P.L. 1902, ch. 992, § 1; G.L. 1909, ch. 152, § 10; G.L. 1923, ch. 182, § 10; G.L. 1938, ch. 645, § 10; G.L. 1956, § 34-10-16 .

NOTES TO DECISIONS

Costs.

An adjoining landowner is not required to contribute to the cost of a fence which is not built on a recognized or undisputed boundary line, but rather is built within the plaintiff’s land, even though the adjoining landowner may benefit from the fence, since the fence viewers have no power to establish a new boundary line when the parties do not agree. Howland v. Howland, 14 R.I. 560 , 1884 R.I. LEXIS 56 (1884).

Notice.

Although the statute by its terms does not require notice to be given to the defendant, general principles require notice to him before he may be charged with damages. Franklin v. Wells, 6 R.I. 422 , 1860 R.I. LEXIS 7 (1860).

34-10-17. Settlement of controversies by viewer.

Whenever any controversy or dispute shall arise about the rights of the respective occupants or owners in division lines or partition fences and their obligations to maintain the same, either party may apply to a fence viewer of the town where the lands lie, who, after ten-days’ notice to each party, to be given as provided in § 34-10-15 , may in writing determine the division line and assign to each his or her part of the partition fence, and direct the time within which each party shall erect, build, or repair his or her part of the fence, which line and assignment being recorded in the office of the town clerk, shall be binding on the parties and all succeeding owners and occupants of the lands, and they shall always thereafter maintain their respective parts of the fence, until the rights of the respective parties shall be differently determined in some proper action.

History of Section. G.L. 1896, ch. 126, § 8; P.L. 1902, ch. 992, § 1; G.L. 1909, ch. 152, § 12; G.L. 1923, ch. 182, § 12; G.L. 1938, ch. 645, § 12; G.L. 1956, § 34-10-17 .

NOTES TO DECISIONS

In General.

The fence viewer has no authority under this section to enforce compliance with his findings. Franklin v. Wells, 6 R.I. 422 , 1860 R.I. LEXIS 7 (1860).

A plaintiff is not entitled to any special remedy under this section if the fence viewer does not direct the time within which the parties should erect or repair their respective portions of the fence. Howland v. Howland, 14 R.I. 560 , 1884 R.I. LEXIS 56 (1884).

Collateral References.

Sufficiency of showing, in establishing boundary by parol agreement, that boundary was uncertain or in dispute before agreement. 72 A.L.R.4th 132.

34-10-18. Viewer’s fees.

Every fence viewer shall be allowed six dollars ($6.00) per day for viewing any fence on complaint made to him or her for that purpose, which fees shall be paid in the first instance by the person complaining to him or her; and in case there shall appear to be good cause of complaint, may be by him or her recovered back of the person complained against.

History of Section. G.L. 1896, ch. 126, § 13; G.L. 1909, ch. 152, § 17; G.L. 1923, ch. 182, § 17; P.L. 1923, ch. 469, § 1; G.L. 1938, ch. 645, § 17; G.L. 1956, § 34-10-18 .

34-10-19. Neglect of duty by viewer.

If any fence viewer, to whom complaint shall be made against any person for a violation of any of the provisions imposed on him or her by this chapter, shall neglect or refuse to do the duty enjoined on him or her to do, the fence viewer so refusing shall forfeit five dollars ($5.00) for every instance of neglect, to be recovered by any person who shall sue for instances of neglect in the town where the fence viewer shall live.

History of Section. G.L. 1896, ch. 126, § 12; G.L. 1909, ch. 152, § 16; G.L. 1923, ch. 182, § 16; G.L. 1938, ch. 645, § 16; G.L. 1956, § 34-10-19 .

34-10-20. Spite fences.

A fence or other structure in the nature of a fence which unnecessarily exceeds six feet (6´) in height and is maliciously erected or maintained for the purpose of annoying the owners or occupants of adjoining property, shall be deemed a private nuisance, and any owner or occupant who is injured, either in the comfort or enjoyment of his or her estate thereby, may have an action to recover damages for the injury.

History of Section. G.L. 1896, ch. 126, § 16, as enacted by P.L. 1909, ch. 416, § 1; G.L. 1923, ch. 182, § 20; G.L. 1938, ch. 645, § 20; G.L. 1956, § 34-10-20 .

Law Reviews.

For 2004 Survey of Rhode Island Law: Case: Property Law, see 10 Roger Williams U. L. Rev. 901 (2005).

NOTES TO DECISIONS

Illustrative Cases.

A wood fence 51/2 feet high, erected on the builder’s own land and about 2 feet from retaining wall of 5 to 7 feet in height which separated builder’s land from that of another, did not constitute a private nuisance under this section and could not be enjoined. Musumeci v. Leonardo, 77 R.I. 255 , 75 A.2d 175, 1950 R.I. LEXIS 78 (1950).

Neighbor’s planting of four 40-foot high western arborvitae trees constituted a spite fence entitling property owner to injunctive relief; the neighbor’s claim that the fence was installed to enhance privacy lacked credibility. Dowdell v. Bloomquist, 847 A.2d 827, 2004 R.I. LEXIS 48 (2004).

Collateral References.

Nuisance as entitling owner or occupant of real estate to recover damages for personal inconvenience, discomfort, annoyance, anguish, or sickness, distinct from, or in addition to, damages for depreciation in value of property or its use. 25 A.L.R.5th 568.

Spite fences and other spite structures, statutory prohibition of. 133 A.L.R. 704.

Chapter 11 Form and Effect of Conveyances

34-11-1. Conveyances required to be in writing and recorded.

Every conveyance of lands, tenements or hereditament absolutely, by way of mortgage, or on condition, use or trust, for any term longer than one year, and all declarations of trusts concerning the conveyance, shall be void unless made in writing duly signed, acknowledged as hereinafter provided, delivered, and recorded in the records of land evidence in the town or city where the lands, tenements or hereditaments are situated; provided, however, that the conveyance, if delivered, as between the parties and their heirs, and as against those taking by gift or devise, or those having notice thereof, shall be valid and binding though not acknowledged or recorded. A lease for the term of one year or less shall be valid although made by parol. Leases for terms of more than one year may be recorded with a memorandum of lease in writing rather than the original lease; provided, however, that the memorandum shall contain the names of the parties to be charged, a description of the real estate, the duration of the lease, including renewal options and purchase options.

History of Section. G.L. 1896, ch. 202, § 2; G.L. 1909, ch. 253, § 2; G.L. 1923, ch. 297, § 2; G.L. 1938, ch. 435, § 1; G.L. 1956, § 34-11-1 ; P.L. 1979, ch. 231, § 1; P.L. 1981, ch. 380, § 1.

Cross References.

Co-ordinates, use in land description, § 34-8-2 .

Creation of conservation and preservation restrictions as conveyance of real estate, § 34-39-4 .

Executor, administrator or guardian, conveyances by, § 33-19-15 .

Forgery and counterfeiting, penalty, § 11-17-1 .

Voidable conveyances, § 6-16-1 .

Infant trustee, conveyance by, § 18-4-6 .

Master’s conveyance, § 9-14-26 .

Prisoner, conveyance by, § 13-6-3 .

Statute of frauds, § 9-1-4 .

Stealing of deed as larceny, § 11-41-1 .

Comparative Legislation.

Form and effect of conveyances:

Conn. Gen. Stat. § 47-5 et seq.

Mass. Ann. Laws ch. 183, § 1 et seq.

NOTES TO DECISIONS

Applicability.

The recording statute was inapplicable where a developer could not convey any interest in property to which it no longer had title due to the fact that its ownership interest had been extinguished a year earlier. St. Jean Place Condo. Ass'n v. DeLeo, 745 A.2d 738, 2000 R.I. LEXIS 23 (2000).

Agency.

A lease for longer than one year signed by the plaintiff’s son “acting on behalf of” the plaintiff was not valid in the absence of evidence that he was ever authorized in writing to sign such lease; moreover, subsequent ratification did not bind plaintiff. Bourne v. Campbell, 21 R.I. 490 , 44 A. 806, 1899 R.I. LEXIS 113 (1899).

Bankruptcy.

Failure to record a mortgage does not, in the absence of other circumstances, show fraud between bankrupt and mortgagee, hence mortgage is valid as between the mortgagee and the bankrupt and can be validly assigned by the mortgagee. In re Anderson, 252 F. 272, 1918 U.S. Dist. LEXIS 939 (D.R.I. 1918).

Breach of Trust.

The statute of frauds did not apply to prevent the enforcement of an oral promise to reconvey real property where the parties had agreed that plaintiff would convey her property to defendant and that defendant would maintain plaintiff as long as she lived and defendant breached such agreement. Del Greco v. Del Greco, 87 R.I. 435 , 142 A.2d 714, 1958 R.I. LEXIS 77 (1958).

Conveyances Required to Be in Writing.
— Assignment of Mortgage.

Purchaser was entitled to have assignment of a mortgage removed as a cloud on title where record at the time of the purchase showed a release by mortgagee, and assignment of mortgage was recorded after deed of purchase was recorded. Winnerman v. Angell, 26 R.I. 278 , 58 A. 882, 1904 R.I. LEXIS 69 (1904).

— Easements.

The word “tenements” includes incorporate rights, so that the grant of a perpetual easement cannot be enforced unless the grant complies with the requirements of this section. Foster v. Browning, 4 R.I. 47 , 1856 R.I. LEXIS 10 (1856).

— Leases.

Unacknowledged lease to run so long as a certain building stood was ineffective, as against a subsequent bona fide purchaser, except to create a tenancy from year to year. Thurber v. Dwyer, 10 R.I. 355 , 1872 R.I. LEXIS 36 (1872).

— Mortgages.

An attachment on real estate made without notice of an unrecorded mortgage thereon would take precedence. McDuff Estate v. Kost, 52 R.I. 136 , 158 A. 373, 1932 R.I. LEXIS 8 (1932).

In a case alleging an invalid foreclosure in which the defendants moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), by and through their conduct, the plaintiffs had validated the mortgage. As such, they failed to allege sufficient facts that the mortgage was not properly executed on which relief can be granted and therefore their first argument under count I for interim relief was rejected. Lister v. Bank of Am., N.A., 8 F. Supp. 3d 74, 2014 U.S. Dist. LEXIS 42609 (D.R.I. 2014), aff'd on other grounds, 790 F.3d 20, 2015 U.S. App. LEXIS 9869 (1st Cir. 2015).

— Restrictive Covenants.

Vendor’s agreement to restrict the use of adjoining land was not binding where it was not included in the deed to the vendee or in any other writing. Ham v. Massasoit Real Estate Co., 42 R.I. 293 , 107 A. 205, 1919 R.I. LEXIS 39 (1919).

— Sale of Timber.

A sale of standing timber with license to the purchaser to remove the same within a specified time is an executory contract for the sale of chattels which is revocable by a later conveyance of the land to a third person, so that the license to remove the timber is void as to such third person. Fish v. Capwell, 18 R.I. 667 , 29 A. 840, 1894 R.I. LEXIS 49 (1894).

Duty of Recorder.

Where a deed is executed in accordance with the statute, the recorder must record the instrument without adding extraneous words which in any way tend to affect its validity. Redelsperger v. Redelsperger, 71 R.I. 203 , 43 A.2d 305, 1945 R.I. LEXIS 39 (1945).

Notarization.

In an action seeking to determine the proper disposition of insurance proceeds, even if a mortgage lacked proper notarization, it would not have been rendered void, pursuant to the terms of this section. Even if a mortgage was not properly notarized, it still constituted a valid agreement between a borrower and a lender. R.I. Joint Reinsurance Ass'n v. Santana-Sosa, 92 A.3d 192, 2014 R.I. LEXIS 86 (2014).

Notice to Subsequent Purchaser.

Mortgagee could obtain reformation of the mortgage to attach the necessary seals, even though the property had been attached previously, where the attaching creditor had actual notice of the mortgage. Bullock v. Whipp, 15 R.I. 195 , 2 A. 309, 1885 R.I. LEXIS 23 (1885).

Judgment creditor of grantee in unrecorded deed could subject the property to payment of his debt, even though there was a later recorded deed to another, where the circumstances indicated that the grantee in the later deed may have had knowledge of the earlier deed and where the consideration given by the grantee in the later deed was doubtful. Sundlun v. Volpe, 63 R.I. 441 , 9 A.2d 41, 1939 R.I. LEXIS 109 (1939).

Advertising the foreclosure sale did not provide notice, constructive or otherwise, under Rhode Island law to a subsequent bona fide purchaser. In re Burns, 183 B.R. 670, 1995 Bankr. LEXIS 917 (Bankr. D.R.I. 1995).

Since the deed in question was neither acknowledged nor recorded until two years after the purported transaction, the deed was insufficient to prevent a good faith purchaser from acquiring superior title before that time. United States v. Lombardi, 924 F. Supp. 361, 1996 U.S. Dist. LEXIS 6706 (D.R.I. 1996).

Although a recording error existed with respect to a public utility company easement, a property owner was not a bona fide purchaser for value without notice under R.I. Gen. Laws § 34-11-1 because the owner made judicial admissions that he had actual notice of the easement; the owner requested permission from the company to construct a car wash partially on the easement prior to his purchase of the property. Grady v. Narragansett Elec. Co., 962 A.2d 34, 2009 R.I. LEXIS 7 (2009).

— Assignment of Lease.

Reference in recorded assignment of lease put purchaser on notice that there was an unrecorded lease, so that he should have inquired as to the terms of the lease, particularly where lessee was in open possession of the property. Durepo v. May, 73 R.I. 71 , 54 A.2d 15, 1947 R.I. LEXIS 64 (1947).

— One Signature.

A mortgage document duly recorded in the appropriate land evidence records gives constructive notice of a significant interest in the property to a bona fide purchaser five years later, despite the failure of one of the two joint mortgagors to execute a mortgage document. In re Barnacle, 623 A.2d 445, 1993 R.I. LEXIS 115 (1993).

— Probate Records.

The record of a will devising specific property does not give notice to a subsequent purchaser that there is an unrecorded deed to the testator. Harris v. Arnold, 1 R.I. 125 , 1848 R.I. LEXIS 4 (1848).

Signatures.

Unacknowledged deeds that had printed names on signature lines were not invalidated under R.I. Gen. Laws § 34-11-1 because cursive signatures were not required and the grantor had admitted, in his deposition, that he intended to convey his interest in property to his mother. Carrozza v. Carrozza, 944 A.2d 161, 2008 R.I. LEXIS 39 (2008).

Standing.

Appellant lacked standing to challenge the mortgage assignments as they were not void since they were distinguished by signature, notarization, delivery, and recordation, and the parties to the assignments treated them as valid; although appellant questioned whether the assignors possessed the requisite authority to execute the assignments, the summary judgment record did not contain sufficient evidence to create a fact issue in that regard. Summers v. Fin. Freedom Acquisition LLC, 807 F.3d 351, 2015 U.S. App. LEXIS 18507 (1st Cir. 2015).

Testamentary Disposition.

In the absence of a testamentary devise or a conveyance or declaration of trust signed by testator, a child will not take despite oral declarations made by testator prior to death. Industrial Trust Co. v. McLaughlin, 44 R.I. 350 , 117 A. 428, 1922 R.I. LEXIS 53 (1922).

Collateral References.

Construction and effect of provision in contract for sale of realty by which purchaser agrees to take property “as is” or in its existing condition. 8 A.L.R.5th 312.

Satisfaction of statute of frauds by e-mail. 110 A.L.R.5th 277.

Specificity of description of premises as affecting enforceability of contract to convey real property — modern cases. 73 A.L.R.4th 135.

Sufficiency of showing, in establishing boundary by parol agreement, that boundary was uncertain or in dispute before agreement. 72 A.L.R.4th 132.

34-11-1.1. Signing and printing names.

The signatories and notaries public to all deeds, mortgages, transfers, assignments, and discharges of mortgages, leases, rental agreements, rescissions or assignments thereof, and contracts for the sale of land shall have their names typed or printed immediately beneath or adjacent to their signatures. Failure to comply herewith shall not affect the validity of any such instrument, but the recording fee for the instrument shall be increased by two dollars ($2.00).

History of Section. P.L. 1979, ch. 231, § 1.

34-11-1.2. Name and address of grantee — Recording.

Every deed presented for record shall contain or have endorsed upon it the name, residence and/or post office address of the grantee and that address shall be recorded as part of the deed. Failure to comply with this section shall not affect the validity of any deed. A city or town clerk may decline to accept a deed for recording which is not in compliance with the requirements of this section.

History of Section. P.L. 1979, ch. 393, § 1.

Collateral References.

Specificity of description of premises as affecting enforceability of contract to convey real property — modern cases. 73 A.L.R.4th 135.

Sufficiency of showing, in establishing boundary by parol agreement, that boundary was uncertain or in dispute before agreement. 72 A.L.R.4th 132.

34-11-1.3. Name and address of mortgagor and mortgagee — Recording.

Every mortgage deed presented for record shall contain or have endorsed upon it the name and address of the mortgagor and mortgagee and the address shall be recorded as part of the mortgage deed. Failure to comply with this section shall not affect the validity of any mortgage deed, but the city or town clerk may charge an additional two dollars ($2.00) for a recording fee if the name and address does not appear on the instrument. The purpose of including the mortgagee’s address is to facilitate in the eventual discharge thereof, and also for purpose of any notice that may be sent to the mortgagor and mortgagee.

History of Section. P.L. 1983, ch. 282, § 1; P.L. 1993, ch. 146, § 1.

34-11-1.4. Sale price recording.

Every deed presented for recording due to the sale of property, which results in the transfer in ownership of the property, shall contain or have endorsed upon it the total dollar amount of the actual sale, which shall be recorded as part of the deed. A city or town clerk may decline to accept a deed for recording if the deed is not in compliance with this section. Failure to comply with this section shall not affect the validity of any deed.

History of Section. P.L. 2006, ch. 309, § 1; P.L. 2007, ch. 340, § 6.

34-11-1.5. Historical cemeteries.

Every deed presented for recording a transfer in ownership of property that has located on it a historical cemetery registered pursuant to § 23-18-10.1 shall have endorsed upon the deed, in capital letters, a notation that a historical cemetery is located on the property. Failure to comply with this section shall not affect the validity of any deed.

History of Section. P.L. 2011, ch. 117, § 3; P.L. 2011, ch. 126, § 3.

Compiler’s Notes.

P.L. 2011, ch. 117, § 3, and P.L. 2011, ch. 126, § 3 enacted identical versions of this section.

34-11-2. Seal not required in conveyances.

No seal shall be required to any instrument conveying lands, tenements or hereditaments; and any instrument purporting to convey lands, tenements or hereditaments may be referred to as, and shall be, a deed, though no seal be affixed thereto; and the word “covenant” used in any deed or instrument to which no seal is affixed, shall have the same effect as though a seal had been affixed thereto.

History of Section. G.L. 1896, ch. 202, § 4; G.L. 1909, ch. 253, § 4; G.L. 1923, ch. 297, § 4; G.L. 1938, ch. 435, § 3; G.L. 1956, § 34-11-2 .

NOTES TO DECISIONS

Application of Section.

This section applies to corporations as well as to individuals. Wooddell v. Hollywood Homes, 105 R.I. 280 , 252 A.2d 28, 1969 R.I. LEXIS 751 (1969).

Form of Action.

Where the word “covenants” was used merely as descriptive of agreements which were not covenants, and the character of the instrument was not such as to imply a seal, suit for enforcement was properly filed in assumpsit instead of covenant. Providence Tel. Pub. Co. v. Crahan Engraving Co., 24 R.I. 175 , 52 A. 804, 1902 R.I. LEXIS 30 (1902).

This section did not change common law pleadings as to suits on sealed instruments, hence action of assumpsit could not be maintained on a lease executed under seal. Crandall v. Johnson, 26 R.I. 250 , 58 A. 765, 1904 R.I. LEXIS 58 (1904).

Leases.

Lease containing an agreement to purchase does not fall within the class of instruments deemed by the statute to be sealed instruments without a seal, as it is not an “instrument conveying lands, tenements or hereditaments.” Nowell v. Waterman, 53 R.I. 16 , 163 A. 402, 1932 R.I. LEXIS 108 (1932).

Promissory Note.

This section applies only to instruments otherwise required to be under seal; thus, a promissory note to which no seal is affixed is not made an instrument under seal merely by the words, “Witness our hands and seals.” Wallbaum v. Martin, 103 R.I. 10 , 234 A.2d 369, 1967 R.I. LEXIS 569 (1967).

34-11-3. Creation of co-tenancies by deed — Conveyances between husband and wife.

  1. In deeds hereafter made, lands, tenements and hereditaments, or a thing in action, may be conveyed by a person to him or herself jointly with another person by the like means by which it might be conveyed by him or her to another person; and may in like manner, be conveyed by a husband to his wife and by a wife to her husband, alone or jointly with another person; and may also in like manner, be conveyed by a husband to himself and to his wife and by a wife to herself and to her husband as tenants by the entirety; and may also in like manner be conveyed by co-tenants to any one of the co-tenants.
  2. A husband and his wife or any two (2) or more persons may convey real estate or interests therein to themselves as co-tenants under any tenancy allowable between them by law. This subsection shall not be construed so as to invalidate any deed of real estate or interest therein heretofore given by a husband and his wife or any two (2) or more persons to themselves as co-tenants under any tenancy allowable between them by law.

History of Section. G.L. 1896, ch. 202, § 20; G.L. 1909, ch. 253, § 20; G.L. 1923, ch. 297, § 20; G.L. 1938, ch. 435, § 17; P.L. 1947, ch. 1915, § 1; P.L. 1955, ch. 3616, § 1; G.L. 1956, § 34-11-3 ; P.L. 1990, ch. 506, § 1.

Cross References.

Divorce from bed and board, disposal of real estate after, § 15-5-10 .

Married woman, conveyance of property to or from husband, § 15-4-4 .

Tenancy in common, §§ 34-3-1 , 34-3-2 .

NOTES TO DECISIONS

Estate by Entirety.

The married women’s act, when considered in the light of this section, did not abolish estates by the entirety. Bloomfield v. Brown, 67 R.I. 452 , 25 A.2d 354, 1942 R.I. LEXIS 17 (1942).

Exercise of Power of Disposition.

Conveyance by wife of whole estate to herself and husband as joint tenants constituted, as to half interest not previously owned by her, an exercise of a power previously given to her to dispose of the estate. Pyne v. O'Donnell, 77 R.I. 240 , 75 A.2d 21, 1950 R.I. LEXIS 72 (1950).

Gift to Spouse.

When a husband takes title to a parcel of real estate in his own name and that of his wife, the transaction is presumed to be a gift or advancement for the benefit of the wife. Matracia v. Matracia, 119 R.I. 431 , 378 A.2d 1388, 1977 R.I. LEXIS 2102 (1977).

Joint Tenancy.

A husband seised of real estate in fee simple can deed the real estate to himself and his wife as joint tenants. Lawton v. Lawton, 48 R.I. 134 , 136 A. 241, 1927 R.I. LEXIS 26 (1927).

Collateral References.

Cotenant taking cotenancy property constitutes larceny. 17 A.L.R.3d 1394.

Estate created by deed to persons described as husband and wife but not legally married. 9 A.L.R.4th 1189.

Instrument purporting to convey one’s own title or interest to himself and another, character of tenancy created by. 44 A.L.R.2d 595.

34-11-4. Delivery of conveyance sufficient to pass title.

Any form of conveyance in writing, duly signed and delivered by the grantor, or the attorney of the grantor duly authorized, shall be operative to convey to the grantee all the possession, estate, title and interest, claim, demand or right of entry or action, of the grantor, absolutely in and to the land conveyed, unless otherwise expressly limited in estate, condition, use or trust, and if otherwise expressly limited, shall convey such property for the time or estate or on the condition, use or trust as declared, without any other act or ceremony; and if also duly acknowledged and recorded, shall be operative as against third parties.

History of Section. G.L. 1896, ch. 202, § 11; G.L. 1909, ch. 253, § 11; G.L. 1923, ch. 297, § 11; P.L. 1926, ch. 839, § 2; G.L. 1938, ch. 435, § 10; G.L. 1956, § 34-11-4 .

NOTES TO DECISIONS

Condemned Land.

Landowners convey away the totality of their rights in condemned land, and have no statutory right to repurchase, when they execute quitclaim deeds and releases to the state, which deeds convey all of the “right, title and interest” to the properties, and which contain no express limitations on the estates conveyed. Lapre v. Flanders, 465 A.2d 214, 1983 R.I. LEXIS 1094 (1983).

Ejectment of Tenant.

Where a tenant remains in possession after the expiration of the lease without paying rent, and the lessor conveys the premises by a quitclaim deed, the grantee acquires the lessor’s right of possession and right of entry. North Smithfield Volunteer Fire Dep't v. Kollet, 70 R.I. 182 , 38 A.2d 141, 1944 R.I. LEXIS 34 (1944).

Where prospective purchaser orally informed tenant that she was purchasing the property and later gave notice after the purchase, she was vested with all the rights of the grantor and was entitled to eject the tenant. Graboyes v. Shatz, 74 R.I. 495 , 62 A.2d 512, 1948 R.I. LEXIS 104 (1948).

Executory Limitations.

A grantor may by condition reserve the power to revoke a voluntary conveyance during his life as such reservation is not inconsistent with the conveyance but only creates an executory limitation. Bradish v. Sullivan, 54 R.I. 434 , 173 A. 117, 1934 R.I. LEXIS 87 (1934).

Right to right-of-way under written agreement for exchange of real estate terminated where agreement specified that right to right-of-way terminated unless proposed road was completed within the two year period and this was not accomplished. Moulson v. Iannuccilli, 84 R.I. 85 , 121 A.2d 662, 1956 R.I. LEXIS 22 (1956).

Rights of Lessee.

A lessee for years has a right to bring trespass and ejectment actions against strangers under § 34-20-2 . Heroux v. Katt, 76 R.I. 122 , 68 A.2d 25, 1949 R.I. LEXIS 82 (1949).

Warranty Deed.

Since, absent fraud or mistake, the warranty deed is presumed to be the final agreement between the parties and conveys full rights to the property, any right to reconveyance that might have been reserved by the prior purchase and sale agreement was lost when the warranty deed was given. Russo v. Cedrone, 118 R.I. 549 , 375 A.2d 906, 1977 R.I. LEXIS 1497 (1977).

Collateral References.

Conclusiveness of manual delivery of deed to grantee as an effective legal delivery. 141 A.L.R. 305.

Delivery of deed as conditioned on obtaining signature of another as grantor. 140 A.L.R. 265.

Delivery of deed by one or more but not all of the grantors. 162 A.L.R. 892.

Delivery of deed to third person to be delivered to grantee after grantor’s death. 52 A.L.R. 1222.

Delivery of deed without manual transfer or record. 129 A.L.R. 11; 87 A.L.R.2d 787.

Gift by deed, delivery as essential to. 63 A.L.R. 539; 48 A.L.R.2d 1405.

Joining in subsequent instrument as ratification of prior deed ineffective for failure of delivery. 7 A.L.R.2d 294.

34-11-5. Releases and discharges effective without seal.

Any instrument purporting to be a release of all claims and demands, or of any special demand, whatever be the consideration expressed therefor, and any discharge of mortgage in whole or in part, shall be construed to have that effect although no seal shall be affixed thereto.

History of Section. G.L. 1896, ch. 202, § 12; G.L. 1909, ch. 253, § 12; G.L. 1923, ch. 297, § 12; G.L. 1938, ch. 435, § 11; G.L. 1956, § 34-11-5 .

NOTES TO DECISIONS

Instructions to Jury.

Instruction to the effect that receipt not under seal was inferior to a release under seal was misleading in that it might lead jury to accord less weight than appropriate to receipt. Earle v. Berry, 27 R.I. 221 , 61 A. 671, 1905 R.I. LEXIS 83 (1905).

Where evidence included a receipted bill, the court properly refused to instruct the jury that any instrument purporting to be a release of any special demand shall be construed to have that effect, although no seal be affixed thereto, such instruction being irrelevant to an ordinary receipt. Eagle Brewing Co. v. Colaluca, 38 R.I. 224 , 94 A. 680, 1915 R.I. LEXIS 39 (1915).

Parol Evidence.

A receipt for a sum of money in full settlement for damages sustained in an accident, where unambiguous, could not be varied by parol evidence and constituted a release of defendants from all liability, even though not sealed. Vaughan v. Mason, 23 R.I. 348 , 50 A. 390, 1901 R.I. LEXIS 145 (1901).

Receipts.

A receipted bill was not a release within the meaning of this section and was only prima facie evidence of payment, thus it could not be explained or contradicted by parol evidence. Eagle Brewing Co. v. Colaluca, 38 R.I. 224 , 94 A. 680, 1915 R.I. LEXIS 39 (1915).

34-11-6. Use of word “grant” not required.

The use of the word “grant” is not necessary in order to convey tenements and hereditaments, corporeal or incorporeal.

History of Section. G.L. 1896, ch. 202, § 19; G.L. 1909, ch. 253, § 19; G.L. 1923, ch. 297, § 19; G.L. 1938, ch. 435, § 16; G.L. 1956, § 34-11-6 .

34-11-7. Warranties and rights of reentry not implied.

The words, “give”, “grant”, or “exchange”, in any conveyance, shall imply no covenant, warranty, or right of reentry.

History of Section. G.L. 1896, ch. 202, § 13; G.L. 1909, ch. 253, § 13; G.L. 1923, ch. 297, § 13; G.L. 1938, ch. 435, § 12; G.L. 1956, § 34-11-7 .

NOTES TO DECISIONS

“Devise.”

Where there is an express covenant in a lease, no other covenants will be implied from the use of the word “devise.” Vican v. Lederer Realty Corp., 43 R.I. 164 , 110 A. 594, 1920 R.I. LEXIS 45 (1920).

34-11-8. Form of grants in tail.

In a deed hereafter made, it shall be sufficient, in the limitation of an estate in tail, to use the words “heirs of the body”, or the words “in tail” without the words “heirs of the body”; and in the limitation of an estate in tail male or in tail female, to use the words “heirs male of the body”, or “heirs female of the body”, or the words “in tail male”, or “in tail female”, as the case requires, without the words “heirs male of the body”, or “heirs female of the body”.

History of Section. G.L. 1896, ch. 202, § 21; G.L. 1909, ch. 253, § 21; G.L. 1923, ch. 297, § 21; P.L. 1927, ch. 1056, § 7; G.L. 1938, ch. 435, § 18; G.L. 1956, § 34-11-8 .

NOTES TO DECISIONS

Stock.

Devise of income from stocks to named person for life and the principal of the stocks to the heirs of his body created an estate tail and resulted in an absolute gift of the stock to the first taker. In re Tillinghast's Account, 25 R.I. 338 , 55 A. 879, 1903 R.I. LEXIS 80 (1903).

34-11-9. Words importing failure of issue.

In any limitation of real or personal estate by deed, will or other instrument in writing, hereafter executed, the words “die without issue”, or “die without leaving issue”, or “leave no issue”, or “die without heirs of the body”, or any other words that may import either a want or failure of issue of any person in his or her lifetime or at the time of his or her death, or an indefinite failure of his or her issue, shall be construed to mean a want or failure of issue in the lifetime or at the death of such person, and not an indefinite failure of his or her issue, unless a contrary intention shall clearly appear by the instrument containing such limitations.

History of Section. G.L. 1896, ch. 202, § 24; G.L. 1909, ch. 253, § 24; G.L. 1923, ch. 297, § 24; G.L. 1938, ch. 435, § 20; G.L. 1956, § 34-11-9 .

NOTES TO DECISIONS

In General.

The words “if there is no surviving issue of my descent” in a gift over of real estate meant failure of issue during the lifetime of the testator and not indefinite failure of issue. In re Johnson, 23 R.I. 111 , 49 A. 695, 1901 R.I. LEXIS 107 (1901).

34-11-10. Takers not party to indenture — Conveyance purporting to be indenture.

Under an indenture hereafter executed, an immediate estate or interest in any tenements or hereditaments, and the benefit of a condition or covenant respecting any tenements or hereditaments, may be taken, although the taker thereof be not named a party to that indenture; also any conveyance purporting to be an indenture shall have the effect of an indenture although not actually indented.

History of Section. G.L. 1896, ch. 201, § 22; G.L. 1909, ch. 252, § 22; G.L. 1923, ch. 296, § 22; G.L. 1938, ch. 435, § 22; G.L. 1956, § 34-11-10 .

34-11-11. Use of statutory forms.

The forms set forth in § 34-11-12 may be used, and shall be sufficient for their respective purposes. They shall be known as “statutory forms” and may be referred to as such. They may be altered as circumstances require, and the authorization of such forms by this chapter shall not preclude the use of other forms.

History of Section. P.L. 1927, ch. 1056, § 1; P.L. 1928, ch. 1171, § 1; G.L. 1938, ch. 436, § 1; G.L. 1956, § 34-11-11 .

34-11-12. Statutory forms set out.

The statutory forms referred to in § 34-11-11 are as follows:

  1. WARRANTY DEED. of for consideration paid, grant to of with warranty covenants (description, and encumbrances, if any) Witness hand this day of (Here add acknowledgment.) (2) QUITCLAIM DEED. of for consideration paid, grant to of with quitclaim covenants, (description, and encumbrances, if any) Witness hand this day of (Here add acknowledgment.) (3) DEED OF EXECUTOR, ADMINISTRATOR, TRUSTEE, GUARDIAN, CONSERVATOR, RECEIVER, OR COMMISSIONER. executor of the will of administrator of the estate of trustee under guardian of conservator of receiver of the estate of commissioner by the power conferred by and by every other power me thereunto enabling, for dollars paid, grant to (description, and encumbrances, if any) Witness hand this day of (Here add acknowledgment.) (4) MORTGAGE DEED. of for consideration paid, grant to of with mortgage covenants, to secure the payment of dollars in years with interest at per cent per annum, payable semiannually , as provided in a certain negotiable promissory note of even date herewith, (description, and encumbrances, if any) This mortgage is made upon the statutory condition and with the statutory power of sale. Witness hand this day of (Here add acknowledgment.) (5) PARTIAL RELEASE OF MORTGAGE. the holder of a mortgage by to     dated recorded in the records of deeds in in book no. at page , for consideration paid, release to all interest acquired under the mortgage in the following described portion of the mortgaged premises: (description) Witness hand this day of (Here add acknowledgment.) (6) ASSIGNMENT OF MORTGAGE. holder of a mortgage by to dated recorded in the records of deeds in in book no. at page , for consideration paid, assign the mortgage and the note and claim secured thereby to Witness hand this day of (Here add acknowledgment.) (7) FORECLOSURE DEED UNDER POWER OF SALE IN MORTGAGE. holder of a mortgage by to dated recorded in the records of deeds in in book no. at page , by the power conferred by the mortgage and by every other power me thereunto enabling, for dollars paid, grant to the premises conveyed by the mortgage. Witness hand this day of (Here add acknowledgment.) (8) AFFIDAVIT OF SALE UNDER POWER OF SALE OF MORTGAGE. named in the foregoing deed, make oath and say that the principal interest obligation mentioned in the mortgage above referred to was not paid or tendered or performed when due or prior to the sale, that I have mailed notice to the mortgagor as required by law and by the mortgage and that I published on the days of in the , a public newspaper published in , in accordance with the provisions of the mortgage, a notice of which the following is a true copy: (insert copy of advertisement.) Pursuant to the notice, at the time and place there appointed, I sold the mortgaged premises at public auction by an auctioneer, to above-named, for dollars, bid by him or her, being the highest bid made for the premises at said auction. Sworn to by on this day of , before me, (9) DISCHARGE OF MORTGAGE. The undersigned, having received full payment and satisfaction of the within mortgage recorded in the of in the state of Rhode Island, in the in book no. page , hereby cancel and discharge the same. And covenant to and with the payer that the present owner of the mortgage. Witness, this day of 20

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History of Section. P.L. 1927, ch. 1056, § 17; P.L. 1928, ch. 1171, § 2; G.L. 1938, ch. 436, § 16; G.L. 1956, § 34-11-12 ; P.L. 1992, ch. 224, § 2; P.L. 1993, ch. 377, § 1.

Cross References.

Form of deed on execution sale, § 9-26-19 .

Collateral References.

Specificity of description of premises as affecting enforceability of contract to convey real property — modern cases. 73 A.L.R.4th 135.

34-11-13. Construction of terms.

  1. Whenever the phrase “incorporation by reference” is used in §§ 34-11-14 — 34-11-31 , the method of incorporation as indicated in the forms shall be sufficient, but this shall not be construed to preclude other methods.
  2. Whenever the words “his heirs, executors and administrators” or “his executors, administrators” are used in §§ 34-11-14 — 34-11-31 , they shall be construed, in the case of a corporation, to mean “its successors”; and whenever the words “his heirs and assigns” are so used, they shall be construed, in the case of a corporation, to mean “its successors and assigns.”

History of Section. P.L. 1927, ch. 1056, § 1; P.L. 1928, ch. 1171, § 1; G.L. 1938, ch. 436, § 1; G.L. 1956, § 34-11-13 .

Collateral References.

Description of land in deed or mortgage by reference to map, plat, plan, sketch or diagram, as prevailing over description by words. 130 A.L.R. 643.

Inconsistency between description of land in instrument conveying same and description in another instrument referred to therein. 134 A.L.R. 1041.

Reference in deed to proportion of larger tract, inconsistent with other terms descriptive of property covered. 127 A.L.R. 1040.

Risk of loss by casualty pending contract for conveyance of real property — modern cases. 85 A.L.R.4th 233.

34-11-14. Conveyances to which rules of construction apply.

For the purpose of avoiding the unnecessary use of words in deeds or other instruments relating to real estate, whether the statutory forms or other forms are used, the rules and definitions contained in §§ 34-11-15 — 34-11-22 and in §§ 34-11-24 — 34-11-28 shall apply to all such instruments executed or delivered on or after the first day of July in the year 1927.

History of Section. P.L. 1927, ch. 1056, § 2; P.L. 1928, ch. 1171, § 1; G.L. 1938, ch. 436, § 2; G.L. 1956, § 34-11-14 .

34-11-15. Effect of warranty deed.

A deed substantially following the form entitled “Warranty Deed” shall, when duly executed, have the force and effect of a deed in fee simple to the grantee and his or her heirs and assigns, to his or her and their own use, with covenants on the part of the grantor, for himself or herself and for his or her heirs, executors, and administrators, with the grantee and his or her heirs and assigns,

  1. That at the time of the delivery of such deed he or she is lawfully seised in fee simple of the granted premises,
  2. That the granted premises are then free from all incumbrances,
  3. That he or she has then good right, full power, and lawful authority to sell and convey the same to the grantee and his or her heirs and assigns,
  4. That the grantee and his or her heirs and assigns shall at all times after the delivery of such deed peaceably and quietly have and enjoy the granted premises, and
  5. That the grantor will, and his or her heirs, executors, and administrators shall, warrant and defend the granted premises to the grantee and his or her heirs and assigns forever against the lawful claims and demands of all persons.

History of Section. P.L. 1927, ch. 1056, § 3; G.L. 1938, ch. 436, § 3; G.L. 1956, § 34-11-15 .

NOTES TO DECISIONS

Adverse Possession Claims.

This section bars grantors who conveyed by warranty deeds from commencing adverse possession claims against their grantees. Locke v. O'Brien, 610 A.2d 552, 1992 R.I. LEXIS 163 (1992).

Grantor who conveyed property to a grantee could not claim title later to that real property by adverse possession against the grantee’s successor. A warranty deed’s covenants of quiet enjoyment and future defense of title precluded the grantor from setting up any claim of adverse possession against the grantee’s successors. Carrozza v. Carrozza, 944 A.2d 161, 2008 R.I. LEXIS 39 (2008).

Attorneys’ Fees.

Real estate buyers were not entitled to an award of attorneys’ fees against a seller for defending the title to the buyers’ property, under R.I. Gen. Laws § 34-11-15(5) , against the seller’s claim of an easement, because (1) the warranty to defend was limited to successful attacks on the buyers’ title, which did not occur, since the buyers successfully defended against the seller’s attack, and (2) there was no reason to create an exception to the general rule that warranty covenants did not entitle a grantee to recover attorneys’ fees from a grantor for a successful defense of a title. Nunes v. Meadowbrook Dev. Co., 24 A.3d 539, 2011 R.I. LEXIS 108 (2011).

Breach of Covenants.

The covenants of seisin, freedom from encumbrances, and authority to sell are covenants in praesenti which, if broken at all, are broken at the time of the delivery of the deed. Lewicki v. Marszalkowski, 455 A.2d 307, 1983 R.I. LEXIS 787 (1983).

When a buyer of real property brought breach of warranty claims against the seller, summary judgment on the breach of warranty claims was improperly granted to the seller. To the extent that neighbors adversely possessed a road, a claim that the trial court had not yet determined, the seller might have breached the warranty covenants. Bitting v. Gray, 897 A.2d 25, 2006 R.I. LEXIS 65 (2006).

Final Agreement.

Since, absent fraud or mistake, the warranty deed is presumed to be the final agreement between the parties and conveys full rights to the property, any right to reconveyance that might have been reserved by the prior purchase and sale agreement was lost when the warranty deed was given. Russo v. Cedrone, 118 R.I. 549 , 375 A.2d 906, 1977 R.I. LEXIS 1497 (1977).

Collateral References.

Award of Attorney’s Fees for Breach of Covenant of Quiet Enjoyment. 31 A.L.R.7th Art. 5 (2018).

Award of Punitive Damages for Breach of Covenant of Quiet Enjoyment. 31 A.L.R.7th Art. 6 (2018).

34-11-16. Meaning of warranty covenants.

In any conveyance of real estate the words “with warranty covenants” shall have the full force, meaning, and effect of the following words: “The grantor, for himself or herself and for his or her heirs, executors and administrators, covenants with the grantee and his or her heirs and assigns, that he or she is lawfully seised in fee simple of the granted premises; that the premises are free from all incumbrances; that he or she has good right, full power and lawful authority to sell and convey the premises to the grantee and his or her heirs and assigns; that the grantee and his or her heirs and assigns shall at all times hereafter peaceably and quietly have and enjoy the granted premises; and that the grantor will, and his or her heirs, executors and administrators shall, warrant and defend the premises to the grantee and his or her heirs and assigns forever against the lawful claims and demands of all persons.”

History of Section. P.L. 1927, ch. 1056, § 9; G.L. 1938, ch. 436, § 8; G.L. 1956, § 34-11-16 .

NOTES TO DECISIONS

Breach of Covenants.

The covenants of seisin, freedom from encumbrances, and authority to sell are covenants in praesenti which, if broken at all, are broken at the time of the delivery of the deed. Lewicki v. Marszalkowski, 455 A.2d 307, 1983 R.I. LEXIS 787 (1983).

When a buyer of real property brought breach of warranty claims against the seller, summary judgment on the breach of warranty claims was improperly granted to the seller. To the extent that neighbors adversely possessed a road, a claim that the trial court had not yet determined, the seller might have breached the warranty covenants. Bitting v. Gray, 897 A.2d 25, 2006 R.I. LEXIS 65 (2006).

Final Agreement.

Since, absent fraud or mistake, the warranty deed is presumed to be the final agreement between the parties and conveys full rights to the property, any right to reconveyance that might have been reserved by the prior purchase and sale agreement was lost when the warranty deed was given. Russo v. Cedrone, 118 R.I. 549 , 375 A.2d 906, 1977 R.I. LEXIS 1497 (1977).

Collateral References.

Covenant as aid in interpretation of deed as to quantum of estate granted. 47 A.L.R. 872.

Deed to railroad company as conveying fee or easement. 6 A.L.R.3d 973.

Dower, outstanding right of, as breach of covenant. 141 A.L.R. 486.

Statute excluding testimony of one person because of death of another as applied to testimony in respect of lost or destroyed instrument. 18 A.L.R.3d 606.

34-11-17. Effect of quitclaim deed.

A deed substantially following the form entitled “Quitclaim Deed” shall, when duly executed, have the force and effect of a deed in fee simple to the grantee and his or her heirs and assigns, to his, her, and their own use, with covenants on the part of the grantor, for himself or herself and for his or her heirs, executors, and administrators, with the grantee and his or her heirs and assigns, that he or she will, and his or her heirs, executors, and administrators shall, warrant and defend the granted premises to the grantee and his or her heirs and assigns forever against the lawful claims and demands of all persons claiming by, through, or under the grantor.

History of Section. P.L. 1927, ch. 1056, § 4; G.L. 1938, ch. 436, § 4; G.L. 1956, § 34-11-17 .

Cross References.

Tax deed, rights conveyed to purchaser, § 44-9-12 .

NOTES TO DECISIONS

Condemned Land.

Landowners convey away the totality of their rights in condemned land, and have no statutory right to repurchase, when they execute quitclaim deeds and releases to the state, which deeds convey all of the “right, title and interest” to the properties, and which contain no express limitations on the estates conveyed. Lapre v. Flanders, 465 A.2d 214, 1983 R.I. LEXIS 1094 (1983).

Right of Redemption.

Once premises are conveyed by a quitclaim deed, absent any limitations in the deed specifying that redemption applied only to a particular tax deed, all of the conveyor’s interest in the property is extinguished, including the ability to foreclose the right of redemption. Finnegan v. L.K. Goodwin Co., 768 A.2d 422, 2001 R.I. LEXIS 77 (2001).

Since a conveyor of premises by quitclaim deed made a unilateral mistake by omitting an amount due for a tax deed, the redemption deed was not invalidated, and the motion justice properly determined that foreclosure of the right of redemption in respect to a tax sale was not permitted. Finnegan v. L.K. Goodwin Co., 768 A.2d 422, 2001 R.I. LEXIS 77 (2001).

Collateral References.

Grantee or mortgagee by quitclaim deed or mortgage in quitclaim form as within protection of recording laws. 59 A.L.R. 632.

Quitclaim deed, rights or interests covered by. 44 A.L.R. 1266; 162 A.L.R. 556.

Quitclaim or absolute conveyance, test of. 3 A.L.R. 945.

34-11-18. Meaning of quitclaim covenants.

In any conveyance of real estate the words “with quitclaim covenants” shall have the full force, meaning, and effect of the following words: “The grantor, for himself or herself and for his or her heirs, executors and administrators, covenants with the grantee and his or her heirs and assigns, that he or she will, and his or her heirs, executors and administrators shall, warrant and defend the granted premises to the grantee and his or her heirs and assigns forever against the lawful claims and demands of all persons claiming by, through, or under the grantor.”

History of Section. P.L. 1927, ch. 1056, § 10; G.L. 1938, ch. 436, § 9; G.L. 1956, § 34-11-18 .

NOTES TO DECISIONS

Condemned Land.

Landowners convey away the totality of their rights in condemned land, and have no statutory right to repurchase, when they execute quitclaim deeds and releases to the state, which deeds convey all of the “right, title and interest” to the properties, and which contain no express limitations on the estates conveyed. Lapre v. Flanders, 465 A.2d 214, 1983 R.I. LEXIS 1094 (1983).

Right of Redemption.

Once premises are conveyed by a quitclaim deed, absent any limitations in the deed specifying that redemption applied only to a particular tax deed, all of the conveyor’s interest in the property is extinguished, including the ability to foreclose the right of redemption. Finnegan v. L.K. Goodwin Co., 768 A.2d 422, 2001 R.I. LEXIS 77 (2001).

Since a conveyor of premises by quitclaim deed made a unilateral mistake by omitting an amount due for a tax deed, the redemption deed was not invalidated, and the motion justice properly determined that foreclosure of the right of redemption in respect to a tax sale was not permitted. Finnegan v. L.K. Goodwin Co., 768 A.2d 422, 2001 R.I. LEXIS 77 (2001).

34-11-19. Contents and effect of short-form mortgage deed.

A deed substantially following the form entitled “Mortgage Deed” shall, when duly executed, have the force and effect of a mortgage deed to the mortgagee and his or her heirs and assigns, to his or her and their own use, with mortgage covenants and upon the statutory condition and with the statutory power of sale, as defined in §§ 34-11-20 — 34-11-22 inclusive, to secure the payment of the money and the performance of any obligation or obligations therein specified or referred to; provided, however, that any other lawful covenant, agreement, condition or power may be inserted or incorporated by reference in such mortgage deed and any of the terms and provisions of the mortgage covenants, statutory condition and statutory power of sale may be changed, amended, deleted or supplemented by any lawful agreement, covenant, condition or power specified or incorporated by reference in such mortgage deed.

History of Section. P.L. 1927, ch. 1056, § 11; G.L. 1938, ch. 436, § 10; G.L. 1956, § 34-11-19 ; R. P.L. 1957, ch. 112, § 1.

Collateral References.

Change of deed intended as mortgage by subsequent agreement into an absolute deed. 65 A.L.R. 771.

34-11-20. Meaning of mortgage covenants.

In any conveyance of real estate the words “with mortgage covenants” shall have the full force, meaning, and effect of the following words, and shall be applied and construed accordingly: “The mortgagor, for himself or herself and for his or her heirs, executors, and administrators, covenants with the mortgagee and his or her heirs and assigns, that he or she is lawfully seised in fee simple of the mortgaged premises; that the same are free from all incumbrances; that he or she has good right, full power, and lawful authority to sell and convey the same to the mortgagee and his or her heirs and assigns; that the mortgagee and his or her heirs and assigns shall at all times hereafter peaceably and quietly have and enjoy the mortgaged premises and that the mortgagor will, and his or her heirs, executors, and administrators shall, warrant and defend the premises to the mortgagee and his or her heirs and assigns forever against the lawful claims and demands of all persons, and that the mortgagor and his or her heirs and assigns, in case a sale shall be made under the power of sale, will, upon request, execute, acknowledge, and deliver to the purchaser or purchasers such deed or deeds confirmatory of the sale as may be required; and that insurance against loss by fire shall be kept and maintained on the buildings, if any, on the mortgaged premises in such office or offices as the mortgagee or his or her heirs, executors, administrators, or assigns shall approve, in a sum not less than the amount secured by the mortgage deed, or as otherwise provided herein, and that the policy or policies of such insurance shall be delivered to and held by the mortgagee and assigned and transferred, or made payable in case of loss, to the mortgagee or his or her heirs, executors, administrators or assigns, as collateral security hereto, and in default thereof, that the mortgagee or his or her heirs, executors, administrators or assigns may effect such insurance in the name of the mortgagor or his or her heirs or assigns, payable in case of loss to the mortgagee or his or her heirs, executors, administrators or assigns, and that the premium or premiums paid therefor shall be a further charge upon the mortgaged premises.”

History of Section. P.L. 1927, ch. 1056, § 12; P.L. 1928, ch. 1171, § 1; G.L. 1938, ch. 436, § 11; G.L. 1956, § 34-11-20 .

NOTES TO DECISIONS

Interest of Mortgagee.

Where a portion of a piece of property has been condemned, and a mortgagee has foreclosed upon its mortgage on the remaining mortgaged property not condemned, the mortgagee is entitled to the condemnation proceeds to the full amount of any deficiency that exists after foreclosure. In re D'Ellena, 640 A.2d 530, 1994 R.I. LEXIS 113 (1994).

First mortgage did not require a mortgagor to insure the property due to the statutory mortgage covenants because the first mortgage did not include a requirement that the property be insured against the sort of damage that occurred, and the first mortgagees were not entitled to an equitable lien on the insurance proceedings. R.I. Joint Reinsurance Ass'n v. O'Sullivan, 91 A.3d 824, 2014 R.I. LEXIS 85 (2014).

Collateral References.

Covenant in mortgage, restricting use of property, duration of, when not expressly stated. 95 A.L.R. 461.

34-11-21. Statutory mortgage condition.

The following condition shall be known as the “statutory condition”, and may be incorporated in any mortgage by reference:

(Condition)

Provided, nevertheless, and this conveyance is made upon the express condition, that if the mortgagor or his or her heirs, executors, administrators or assigns shall pay to the mortgagee or his or her heirs, executors, administrators, or assigns the principal and interest of that certain promissory note bearing even date with this deed and secured by this deed, and shall perform every other obligation secured by this deed, at the time provided in the promissory note or in this deed, and shall also pay all taxes and assessments of every kind levied or assessed upon or in respect of the mortgaged premises, then this deed, as also the promissory note, shall become and be absolutely void to all intents and purposes whatsoever.

History of Section. P.L. 1927, ch. 1056, § 13; G.L. 1938, ch. 436, § 12; G.L. 1956, § 34-11-21 .

NOTES TO DECISIONS

Evidence Insufficient.

A mortgagee’s affidavit that it was the intention of the parties to include the statutory condition prescribed by this section in a mortgage without averring the acts and statements of the mortgagor, from which such intention was concluded, was insufficient to support a summary judgment reforming the mortgage to include such statutory condition. Gordon v. Ide, Inc., 107 R.I. 9 , 264 A.2d 332, 1970 R.I. LEXIS 730 (1970).

Foreclosure.

Nominee of a mortgage lender, who held legal title to a mortgage, but who was not the holder of the accompanying promissory note, could exercise the statutory power of sale and foreclose on the mortgage because the nominee was attempting to enforce the mortgage on behalf of the owner of the note, a party that was unquestionably entitled to enforce the obligation which the mortgage secured. Bucci v. Lehman Bros. Bank, 68 A.3d 1069, 2013 R.I. LEXIS 52 (2013).

Collateral References.

Debts included in provision of mortgage purporting to cover unspecified future or existing debts. 3 A.L.R.4th 690.

Extension of existing real estate mortgage or deed of trust by subsequent agreement to cover additional indebtedness. 76 A.L.R. 574.

Future advances, limit of amount specified in mortgage for, as affected by repayment of part of advances. 152 A.L.R. 1182.

Omission of amount of debt in mortgage, effect of. 145 A.L.R. 369.

Validity and construction of provision of mortgage or other real-estate financing contract prohibiting prepayment for a fixed period of time. 81 A.L.R.4th 423.

34-11-22. Statutory power of sale in mortgage.

The following power shall be known as the “statutory power of sale” and may be incorporated in any mortgage by reference:

(Power)

But if default shall be made in the performance or observance of any of the foregoing or other conditions, or if breach shall be made of the covenant for insurance contained in this deed, then it shall be lawful for the mortgagee or his, her or its executors, administrators, successors or assigns to sell, together or in parcels, all and singular the premises hereby granted or intended to be granted, or any part or parts thereof, and the benefit and equity of redemption of the mortgagor and his, her or its heirs, executors, administrators, successors and assigns therein, at public auction upon the premises, or at such other place, if any, as may be designated for that purpose in this deed, or in the published notice of sale first by mailing written notice of the time and place of sale by certified mail, return receipt requested, to the mortgagor, at his or her or its last known address, at least twenty (20) days for mortgagors other than individual consumer mortgagors, and at least thirty (30) days for individual consumer mortgagors, prior to first publishing the notice, including the day of the mailing in the computation; second, by publishing the same at least once each week for three (3) successive weeks in a public newspaper published daily in the city in which the mortgaged premises are situated; and if there be no public newspaper published daily in the city in which the mortgaged premises are situated, or if the mortgaged premises are not situated in a city, then (1) if the mortgaged premises are situated in the city of Central Falls, in a public newspaper published daily in the city of Pawtucket; (2) if the mortgaged premises are situated in the town of North Providence, in a public newspaper published daily in either the city of Providence or the city of Pawtucket; (3) if the mortgaged premises are situated in any of the towns of Cumberland, Lincoln, Smithfield or North Smithfield, in a public newspaper published daily in either the city of Pawtucket or Woonsocket; (4) if the mortgaged premises are situated in the county of Providence elsewhere than in the above-named cities and towns, in a public newspaper published daily in the city of Providence; (5) if the mortgaged premises are situated in the county of Newport, in a public newspaper published daily in the city of Newport; but if there be no such public newspaper so published, then in some public newspaper published anywhere in the county of Newport; (6) if the mortgaged premises are situated in any of the counties of Bristol, Kent or Washington, in a public newspaper published daily in the city or town in which the mortgaged premises are situated; but if there be no public newspaper so published, in some public newspaper published or previously published in the county and presently distributed daily in the county in which the mortgaged premises are situated or in a public newspaper published daily in the city of Providence; provided however if the mortgaged premises are situated in the town of New Shoreham then in addition to publication in a public newspaper published daily as required above, it shall also be published in a public newspaper published in the town of New Shoreham, and, in the event there is no public newspaper published in the town of New Shoreham, then in a public newspaper distributed in the town of New Shoreham; with power to adjourn such sale from time to time, provided that publishing of the notice shall be continued, together with a notice of the adjournment or adjournments, at least once each week in that newspaper; and in his, her or its or their own name or names, or as the attorney or attorneys of the mortgagor, for that purpose by these presents duly authorized and appointed with full power of substitution and revocation to make, execute and deliver to the purchaser or purchasers at that sale a good and sufficient deed or deeds of the mortgaged premises in fee simple, and to receive the proceeds of such sale or sales, and from such proceeds to retain all sums hereby secured whether then due or to fall due thereafter, or the part thereof then remaining unpaid, and also the interest then due on the proceeds, together with all expenses incident to the sale or sales, or for making deeds hereunder, and for fees of counsel and attorneys, and all costs or expenses incurred in the exercise of such powers, and all taxes, assessments, and premiums for insurance, if any, either theretofore paid by the mortgagee or his or her executors, administrators or assigns, or then remaining unpaid, upon the mortgaged premises, rendering and paying the surplus of the proceeds of sale, if any there be, over and above the amounts so to be retained as aforesaid, together with a true and particular account of the sale or sales, expenses and charges, to the mortgagor, or his, her or its heirs, executors, administrators, successors or assigns; which sale or sales made as aforesaid shall forever be a perpetual bar against the mortgagor and his, her or its heirs, executors, administrators, successors and assigns, and all persons claiming the premises, so sold, by, through or under him or her, them or any of them.

History of Section. P.L. 1927, ch. 1056, § 14; P.L. 1932, ch. 1952, § 1; P.L. 1934, ch. 2120, § 1; G.L. 1938, ch. 436, § 13; P.L. 1940, ch. 944, § 1; P.L. 1943, ch. 1325, § 1; P.L. 1955, ch. 3589, § 1; G.L. 1956, § 34-11-22 ; P.L. 1988, ch. 138, § 1; P.L. 1989, ch. 154, § 1; P.L. 1992, ch. 224, § 2; P.L. 1993, ch. 377, § 1; P.L. 1994, ch. 372, § 1; P.L. 2003, ch. 233, § 1; P.L. 2003, ch. 358, § 1; P.L. 2014, ch. 272, § 1; P.L. 2014, ch. 324, § 1.

Compiler’s Notes.

P.L. 2014, ch. 272, § 1, and P.L. 2014, ch. 324, § 1 enacted identical amendments to this section.

Applicability.

P.L. 2003, ch. 233, § 3, provides that the amendment to this section by that act takes effect on November 1, 2003, and that the minimum thirty day notice requirement for individual consumer mortgagors shall be applicable only with regard to notices mailed to those mortgagors on and after November 1, 2003.

P.L. 2003, ch. 358, § 3, provides that the amendment to this section by that act takes effect on November 1, 2003, and the minimum thirty day notice requirement for individual consumer mortgagors shall be applicable only with regard to notices mailed to those mortgagors on and after November 1, 2003.

NOTES TO DECISIONS

In General.

A mortgagee’s affidavit that it was the intention of the parties to include the statutory power of sale provided by this section in a mortgage without averring the acts and statements of the mortgagor evidencing such intention was insufficient to support a summary judgment reforming the mortgage to include such statutory power of sale. Gordon v. Ide, Inc., 107 R.I. 9 , 264 A.2d 332, 1970 R.I. LEXIS 730 (1970).

Defendants, second mortgage owners, would be liable to plaintiffs, for whatever surplus there was after the payment of the mortgage debt and the legal expenses of the foreclosure sale despite the fact that no money was actually paid by the purchaser to defendants. O'Brien v. Slefkin, 88 R.I. 264 , 147 A.2d 183, 1958 R.I. LEXIS 122 (1958).

Superior court erred by invalidating a tax sale for lack of notice to the record owner under the provisions of R.I. Gen. Laws § 44-9-10 , as R.I. Gen. Laws § 34-11-22 provided that a foreclosure conducted by statutory power of sale was a bar against the mortgagor, and thus, any interest that may have reposed in the record owner was forever barred by the foreclosure sale that occurred two days before the tax sale because the record owner was the successor in interest to the mortgagor; at the time of the tax sale, the record owner no longer held an interest in the property and could not have claimed a right to notice under R.I. Gen. Laws § 44-9-10 . 140 Reservoir Ave. Assocs. v. Sepe Invs., LLC, 941 A.2d 805, 2007 R.I. LEXIS 134 (2007).

U.S. District Court for the District of Rhode Island did not err when it found that it did not have jurisdiction under 42 U.S.C.S. § 1983 to hear a mortgagor’s claim that a credit union violated her right to due process of law under federal and state law when it invoked its statutory power of sale and began nonjudicial foreclosure proceedings against her property after she failed to make payments on a note she signed; the fact that the Rhode Island Legislature had enacted R.I. Gen. Laws § 34-11-22 , which allowed nonjudicial foreclosures, was not the type of state action that created jurisdiction under § 1983. Grapentine v. Pawtucket Credit Union, 755 F.3d 29, 2014 U.S. App. LEXIS 11269 (1st Cir. 2014).

Daily Newspapers.

Paper circulated six days a week, excluding Sundays and holidays, was a “daily newspaper” within the requirement of this section. Beaufort v. Warwick Credit Union, 437 A.2d 1375, 1981 R.I. LEXIS 1417 (1981).

Nominee of a mortgage lender, who held legal title to a mortgage, but who was not the holder of the accompanying promissory note, could exercise the statutory power of sale and foreclose on the mortgage because the nominee was attempting to enforce the mortgage on behalf of the owner of the note, a party that was unquestionably entitled to enforce the obligation which the mortgage secured. Bucci v. Lehman Bros. Bank, 68 A.3d 1069, 2013 R.I. LEXIS 52 (2013).

Disposition of Proceeds of Sale.

Where property was sold subject to prior mortgages on the foreclosure by the holder of the third mortgage without objection or intervention by holders of the senior mortgages, the proceeds of the sale after satisfying the third mortgage were paid to the mortgagor. Armand's Eng'g v. Town & Country Club, 113 R.I. 515 , 324 A.2d 334, 1974 R.I. LEXIS 1205 (1974).

Notice.

The notice requirements of this section and § 34-27-4 were satisfied by the publication of the notice on one day during each of the three calendar weeks preceding the sale. Beaufort v. Warwick Credit Union, 437 A.2d 1375, 1981 R.I. LEXIS 1417 (1981).

Adjourned foreclosure sale was lawfully noticed because the mortgagor received proper notice from the mortgagee of the original foreclosure sale, and notice of the adjourned sale was continuously published in the newspaper on a weekly basis, with the last notice appearing the day before the sale actually took place. McGovern v. Bank of Am., N.A., 91 A.3d 853, 2014 R.I. LEXIS 83 (2014).

Place of Publication.

The place of publication of a newspaper is the home office of the paper. Beaufort v. Warwick Credit Union, 437 A.2d 1375, 1981 R.I. LEXIS 1417 (1981).

Neither the Pawtuxet Valley Daily Times nor the Providence Journal’s West Bay Edition is “published” within the city of Warwick for purposes of this section. Consequently, the Kent-County-publication proviso of this section is triggered for property located in the city of Warwick. Beaufort v. Warwick Credit Union, 437 A.2d 1375, 1981 R.I. LEXIS 1417 (1981).

Standing.

Plaintiff mortgagor did not lack standing to bring the mortgage foreclosure suit against defendants, although she was not a party to the assignment documents that her lawsuit challenged, because the statute provided a Rhode Island mortgagor with the right to ensure that any foreclosure was done appropriately. Cosajay v. Mortgage Elec. Registration Sys., 980 F. Supp. 2d 238, 2013 U.S. Dist. LEXIS 160294 (D.R.I. 2013).

Collateral References.

Assignee of mortgage or mortgage debt, power of sale as passing to. 56 A.L.R. 226.

Exchange as included in power of sale. 63 A.L.R. 1003.

Foreclosure suit, exercise of power of sale during pendency of. 107 A.L.R. 721.

Inadequacy of price as affecting sale under power in mortgage or trust deed. 8 A.L.R. 1001.

Misstatement in trustee’s or mortgagee’s report as to amount for which property has been sold under power of sale. 22 A.L.R.2d 979.

Power to mortgage as authorizing insertion of power of sale in mortgage. 72 A.L.R. 158.

Public sale, what constitutes. 4 A.L.R.2d 575.

Receiver, leave of court as essential to foreclosure of mortgage under power of sale on property in hands of. 43 A.L.R. 1358.

Soldiers’ and Sailors’ Civil Relief Act of 1940, as amended, as affecting foreclosure of mortgages and trust deeds. 40 A.L.R.2d 1262.

Trustee exercising power of sale, duty and liability of, to mortgagor, subsequent purchaser, or lienor. 117 A.L.R. 1054.

34-11-23. Mortgage to secure future loans.

A mortgage deed to secure present and future loans, as authorized and provided for in § 34-25-1 , may be in statutory form if in the form provided in “(4) Mortgage Deed” of § 34-11-12 , and if in addition it is entitled at the beginning “Mortgage to secure present and future loans under §§ 34-25-1 — 34-25-5 ” and contains in its provisions the provision required by § 34-25-1. A mortgage in statutory form, so entitled and containing those provisions shall, subject to the provisions of §§ 34-25-1 — 34-25-5 have the full force and effect provided in this chapter for a mortgage deed in statutory form, except that the “statutory condition” in such mortgage shall be construed to include payment of all additional or future loans made on the security as aforesaid of the mortgage as well as the payment and performance of every other obligation now provided for in the “statutory condition”.

History of Section. G.L. 1938, ch. 436, § 23; P.L. 1952, ch. 3018, § 2; G.L. 1956, § 34-11-23 .

Collateral References.

Future advances, limit of amount specified in mortgage for, as affected by repayment of part of advances. 152 A.L.R. 1182.

Future debts, what included in provision of mortgage purporting to cover when unspecified. 3 A.L.R.4th 690.

34-11-24. Effect of assignment of mortgage.

An assignment of mortgage substantially following the form entitled “Assignment of Mortgage” shall, when duly executed, have the force and effect of granting, bargaining, transferring and making over to the assignee, his or her heirs, executors, administrators, and assigns, the mortgage deed with the note and debt thereby secured, and all the right, title and interest of the mortgagee by virtue thereof in and to the estate described therein, to have and to hold the mortgage deed with the privileges and appurtenances thereof to the assignee, his or her heirs, executors, administrators and assigns in as ample manner as the assignor then holds the same, thereby substituting and appointing the assignee and his or her heirs, executors, administrators and assigns as the attorney or attorneys irrevocable of the mortgagor under and with all the powers in the mortgage deed granted and contained.

History of Section. P.L. 1927, ch. 1056, § 15; G.L. 1938, ch. 436, § 14; G.L. 1956, § 34-11-24 .

NOTES TO DECISIONS

Form Substantially Followed.

Creditor that had been assigned a mortgage had standing to request relief from stay in order to foreclose on the mortgage. Its witness had fully addressed and explained the purported deficiencies in the signing or execution of the various allonges; furthermore, the form entitled “Assignment of Mortgage” was substantially followed, regardless of whether paper clips, staples, or Scotch tape was used, or whether duplicate allonges existed for the convenience of the servicing agents. In re Perretta, 2011 Bankr. LEXIS 4913 (Bankr. D.R.I. Dec. 16, 2011).

Collateral References.

Prior debt, one taking assignment of mortgage in payment of or as collateral security for, as a bona fide purchaser. 80 A.L.R. 395.

Quitclaim deed by mortgagee to third person as an assignment of the mortgage. 44 A.L.R. 1273; 162 A.L.R. 563.

Taxation, assigning mortgage to third person to evade, as affecting its validity and enforceability. 21 A.L.R. 396.

34-11-25. Use of “assign” sufficient to transfer mortgage.

In any assignment of a mortgage of real estate the word “assign” shall be sufficient word to transfer the mortgage, without the words “transfer and set over”.

History of Section. P.L. 1927, ch. 1056, § 16; G.L. 1938, ch. 436, § 15; G.L. 1956, § 34-11-25 .

34-11-26. Use of word “grant” sufficient.

In any conveyance of real estate the word “grant” shall be a sufficient word of conveyance without the use of any of the words “give”, “bargain”, “sell”, and “convey”; and no covenant or warranty shall be implied from the use of any of the words “grant”, “grantor”, and “grantee”.

History of Section. P.L. 1927, ch. 1056, § 5; G.L. 1938, ch. 436, § 5; G.L. 1956, § 34-11-26 .

Collateral References.

Risk of loss by casualty pending contract for conveyance of real property — modern cases. 85 A.L.R.4th 233.

34-11-27. Words of inheritance not required — Fee simple presumed.

In any conveyances or reservation of real estate the terms “heirs”, “assigns”, or other technical words of inheritance shall not be necessary to convey or reserve an estate in fee simple. A deed or reservation of real estate shall be construed to convey or reserve an estate in fee simple, unless a different intention appears in such deed or reservation.

History of Section. P.L. 1927, ch. 1056, § 6; G.L. 1938, ch. 436, § 6; G.L. 1956, § 34-11-27 .

Collateral References.

Fee simple absolute as created by grant to one and heirs if donee should have any heirs. 16 A.L.R.2d 670.

Fee simple conditional, conveyance of, by grantee after birth of issue, as passing fee simple title. 114 A.L.R. 612.

Grant to one and his children. 161 A.L.R. 612.

Inheritance, effect of omission of words of, from reservation, exception, or provision for forfeiture in deed. 34 A.L.R. 695.

34-11-28. Rights, privileges, and appurtenances included in grant.

In any conveyance of real estate all rights, privileges, and appurtenances belonging or appertaining to the granted estate shall be included in the conveyance, unless a different intention shall clearly appear in the deed, and it shall be unnecessary to enumerate or mention them either generally or specifically.

History of Section. P.L. 1927, ch. 1056, § 8; G.L. 1938, ch. 436, § 7; G.L. 1956, § 34-11-28 .

NOTES TO DECISIONS

Easement.

When a developer granted an adjoining landowner an easement over the developer’s property, then subsequently bought the adjoining landowner’s property, reserving the easement, but, when it sold the burdened property to another, did not specifically reserve the easement in the deed, under the merger doctrine the easement was extinguished. Nunes v. Meadowbrook Dev. Co., 824 A.2d 421, 2003 R.I. LEXIS 144 (2003).

Developer did not show an easement by necessity over an adjoining landowner’s property because access to the developer’s lots, without using the easement, was feasible, and the developer sought access by way of the easement merely to avoid inconvenience and expense. Nunes v. Meadowbrook Dev. Co., 824 A.2d 421, 2003 R.I. LEXIS 144 (2003).

Although the hearing justice correctly stated that an easement appurtenant would pass by deed of the dominant tenement even if not specifically mentioned and that the owner of a dominant estate could extinguish an easement appurtenant only by specifically excluding it from the conveyance of the dominant tenement, summary judgment was not appropriate as the justice prematurely determined that property owners enjoyed an easement to access a beach. The justice should have first determined whether an implied easement or easement by necessity existed. McElroy v. Stephens, 226 A.3d 1288, 2020 R.I. LEXIS 31 (2020).

— Divided Estate.

In the event that property is added to a unified dominant estate, such an estate in its entirety would receive the benefit of the right-of-way attached to the dominant estate; if the dominant estate is later divided, the owner or assignee of any portion of the dominant estate might claim the easement so far as it is applicable to his part of the property as long as an unreasonable burden is not imposed upon the servient estate. Such a result occurs without the necessity of a specific mention of the term “appurtenances.” Manish v. Potvin, 472 A.2d 1220, 1984 R.I. LEXIS 472 (1984).

Littoral and Riparian Rights.

An ordinary deed conveys all appurtenances, including both littoral and riparian rights. Geller Assoc., Inc. v. Lee's Wharf Realty Co., 606 A.2d 1313, 1992 R.I. LEXIS 85 (1992).

Quit-Claim Deeds.

Landowners convey away the totality of their rights in condemned land, and have no statutory right to repurchase, when they execute quit-claim deeds and releases to the state, which deeds convey all of the “right, title and interest” to the properties and which contain no express limitations on the estates conveyed. Lapre v. Flanders, 465 A.2d 214, 1983 R.I. LEXIS 1094 (1983).

Collateral References.

Exception or reservation in deed of life estate in favor of grantor’s spouse. 129 A.L.R. 310.

Exception or reservation, statement as to use being made or intended to be made of lands excepted or reserved from conveyance as limiting effect of. 139 A.L.R. 1339.

Uncertainty of description of excepted area as affecting deed. 162 A.L.R. 288.

34-11-29. Newspapers eligible for publication of notice.

Whenever it is required under this chapter that any notice or publication shall be published in a public newspaper, the newspaper shall be held to mean a public newspaper that has been regularly published for at least six (6) months prior to the first publication of the notice, or a merged or consolidated public newspaper formed by the merger or consolidation of two (2) or more public newspapers, one of which has been regularly published for a least six (6) months prior to the first publication of notice.

History of Section. P.L. 1927, ch. 1056, § 21; P.L. 1934, ch. 2120, § 2; G.L. 1938, ch. 436, § 20; G.L. 1956, § 34-11-29 .

34-11-30. Validation of deeds executed under defective law.

Notwithstanding the error in § 1 of chapter 1056 of the public laws of 1927, in which reference was erroneously made to § 16 thereof instead of to § 17 thereof, and notwithstanding the error in § 2 of chapter 1056 in which reference is erroneously made to § 15 thereof instead of to § 16 thereof, all instruments executed on any day between July 1, 1927, and April 19, 1928, both inclusive, in which any of the statutory forms authorized by chapter 1056 have been substantially followed are hereby declared of the same force and effect as if chapter 1056 as originally enacted had not contained those errors.

History of Section. P.L. 1928, ch. 1172, § 2; G.L. 1938, ch. 436, § 21; G.L. 1956, § 34-11-30 .

34-11-31. Application of previous deeds to successors.

All instruments executed at any time during the period specified in § 34-11-30 , in which any of the statutory forms authorized by chapter 1056 have been substantially followed are hereby declared of the same force and effect as if chapter 1056 as originally enacted had contained the words “his or her heirs, executors, administrators and successors” wherever it contains the words “his or her heirs, executors and administrators” and had contained the words “his or her executors, administrators, successors” whenever it contains the words “his or her executors, administrators” and had contained the words “his or her heirs, successors and assigns” wherever it contains the words “his or her heirs and assigns.”

History of Section. P.L. 1928, ch. 1172, § 3; G.L. 1938, ch. 436, § 22; G.L. 1956, § 34-11-31 .

34-11-32. Application of covenants to successors in interest.

A covenant hereafter made relating to land of inheritance shall be deemed to be made with the covenantee, his or her heirs and assigns, and shall have effect as if heirs and assigns were expressed; a covenant hereafter made relating to land not of inheritance shall be deemed to be made with the covenantee, his or her executors, administrators, successors and assigns, and shall have effect as if executors, administrators, successors and assigns where expressed; provided, in either case, that no express provision be made to the contrary.

History of Section. G.L. 1896, ch. 202, § 23; G.L. 1909, ch. 253, § 23; G.L. 1923, ch. 297, § 23; G.L. 1938, ch. 435, § 19; G.L. 1956, § 34-11-32 .

Collateral References.

Covenant restricting use of land, made for purpose of guarding against competition, as running with land. 25 A.L.R.3d 897.

Validity, construction, and effect of contractual provision regarding future revocation or modification of covenant restricting use of real property. 4 A.L.R.3d 570.

34-11-33. Liability on covenant against incumbrances.

Whoever hereafter conveys real estate by deed or mortgage containing a covenant that it is free from all incumbrances when an incumbrance appears of record to exist thereon, whether known or unknown to him or her, shall be liable to the grantee, his or her heirs, executors, administrators, successors or assigns, for all damages and expenses sustained by reason of or in removing the incumbrance.

History of Section. G.L. 1896, ch. 202, § 14; G.L. 1909, ch. 253, § 14; G.L. 1923, ch. 297, § 14; G.L. 1938, ch. 435, § 13; G.L. 1956, § 34-11-33 .

Collateral References.

Radio or television aerials, antennas, towers, or satellite dishes or discs as within terms of covenant restricting use, erection, or maintenance of such structures upon residential property. 76 A.L.R.4th 498.

34-11-34. Conveyances executed by attorney — Recording of power.

Any conveyance executed by attorney shall be as valid as if executed by the grantor himself, providing that a power of attorney be given by such grantor for this purpose; which power and the deed executed by the attorney thereunder shall be signed, acknowledged, delivered and recorded with like formalities prescribed by law concerning deeds from grantors in person.

History of Section. G.L. 1896, ch. 202, § 16; G.L. 1909, ch. 253, § 16; G.L. 1923, ch. 297, § 16; G.L. 1938, ch. 435, § 15; G.L. 1956, § 34-11-34 .

Collateral References.

Execution by donee of power, of deed not referring to power, as exercise thereof. 91 A.L.R. 433; 127 A.L.R. 248.

Power of attorney under which deed or mortgage is executed, necessity of recording. 114 A.L.R. 660.

Sufficiency of execution of deed by agent or attorney in fact in name of principal without his own name appearing. 96 A.L.R. 1252.

34-11-35. Delivery of recorded instrument, when presumed.

When a duly signed and acknowledged instrument recorded on or after May 8, 1969 purporting to affect the title to real estate has been on record for a period of six (6) years, and, as to instruments recorded prior to May 8, 1969, for a period of six (6) years including two (2) years after May 8, 1969, it shall be conclusive evidence, in favor of purchasers and encumbrancers for value without notice claiming thereunder, that such instrument was in fact duly delivered by the person, persons, party, or parties executing the instrument to the person, persons, party, or parties, if any, named in the instrument as the grantee(s), mortgagee(s), or other recipient(s) thereof.

History of Section. G.L., § 34-11-35 , as enacted by P.L. 1969, ch. 71, § 1.

34-11-36. Defective acknowledgments.

Any acknowledgment of or upon any instrument used in conveying, directly or indirectly, any interest in real estate in this state, including power of attorney, where the instrument has been on record for a period of ten (10) years, shall be construed to be a valid acknowledgment in accordance with the requirements of chapter 12 of this title; provided, nevertheless, that if, within the period of ten (10) years, a proceeding is commenced in superior court relative to the validity of the acknowledgment, and a notice of lis pendens is duly recorded and indexed with the appropriate records of land evidence, the instrument shall be subject to the further order of the court involved in any such proceeding.

History of Section. P.L. 1980, ch. 147, § 1.

34-11-37. Indefinite references to “trustee”.

The word “trustee” or the words “as trustee” or words of similar meaning, following the name of the grantee of real estate or any interest therein conveyed, transferred or assigned by an instrument duly executed and recorded, wherein the instrument fails to set forth the terms of the trust, or to specify a recorded instrument which sets forth its terms and the place in the public records where the instrument is recorded, shall not affect the right of such grantee to sell or otherwise dispose of the real estate or interest therein in the same manner as if the word “trustee” or the words “as trustee” had not been used in the instrument, and any person to whom the real estate or interest therein has been transferred by the grantee shall not be liable for the claim of any undisclosed beneficiary or for the application of any money which may have been paid by the person therefor.

History of Section. P.L. 1981, ch. 254, § 1.

34-11-38. Rule against perpetuities reform.

The common law rule against perpetuities shall no longer be deemed to be in force and/or of any effect in this state, provided, the provisions of this section shall not be construed to invalidate or modify the terms of any interest which would have been valid prior to the effective date of this act, and, provided further, that the provisions of this section shall apply to both legal and equitable interests.

History of Section. P.L. 1983, ch. 214, § 1; P.L. 1999, ch. 403, § 1.

NOTES TO DECISIONS

Prior Judicial Rule.

This section is a codification of a policy employed by the supreme court prior to the statutory adoption of rule-against-perpetuities reform by the legislature. Fleet Nat'l Bank v. Colt, 529 A.2d 122, 1987 R.I. LEXIS 540 (1987).

Reformation Rules.

Through this section, the legislature has adopted both the “wait-and-see” approach and the “cy pres doctrine” as reformation of the rule against perpetuities. Fleet Nat'l Bank v. Colt, 529 A.2d 122, 1987 R.I. LEXIS 540 (1987).

— “Wait-and-See” Approach.

When applying the wait-and-see approach to the rule against perpetuities, the court examines the vesting of an interest at the time the contingency upon which it depends occurs. If the facts as they exist at that time allow for vesting within a life or lives in being plus 21 years, the gift is valid and the various possibilities that may have prevented vesting when viewed at the death of the testator are irrelevant. Fleet Nat'l Bank v. Colt, 529 A.2d 122, 1987 R.I. LEXIS 540 (1987).

Collateral References.

Lease renewal provision as violating rule against perpetuities or restraints on alienation. 99 A.L.R.6th 591.

34-11-39. Penalty for sale of lands in West Warwick subject to sewer assessment.

Whoever, being the owner, or agent of the owner, of any property located in West Warwick which is or may be subject to a sewer assessment, transfers, sells, or negotiates to sell any land without a written disclosure contained in the purchaser’s sales agreement to the effect that all or part of the land has been so previously determined to be subject to a sewer assessment by the town of West Warwick shall be subject to a penalty of one hundred dollars ($100) for each lot or part thereof so transferred, sold, or negotiated for sale without written disclosure. The disclosure shall indicate that sewer assessments in the town are assessed according to the value of the land rather than by a flat fee per lot or by the frontage of any lot. The purchaser may recover the penalty by civil action in any court of competent jurisdiction.

History of Section. P.L. 1988, ch. 32, § 1.

34-11-40. Repealed.

History of Section. P.L. 1991, ch. 59, § 1; Repealed by P.L. 1992, ch. 425, § 7, effective June 1, 1993.

Compiler’s Notes.

Former § 34-11-40 concerned the location of individual sewage disposal systems.

34-11-41. Reimposition of restrictive covenants.

The mere recital in a deed or other instrument of conveyance to the effect that the conveyance is subject to restrictive covenants or other restrictions shall not operate to impose, reimpose, or recreate the restrictive covenants or other restrictions which have expired according to their terms or which have ceased to be valid and operative by virtue of the provisions of § 34-4-21 , unless the intent to make the imposition, reimposition, or recreation is expressly stated in the instrument of conveyance, or unless the instrument whereby the restrictive covenants or other restrictions were created provides for automatic renewal or extension of the covenants.

History of Section. P.L. 1991, ch. 359, § 1.

34-11-42. Transfer fees prohibited.

No person or business entity who sells real property shall charge, collect, receive, or be entitled to a fee based solely on the subsequent resale or transfer of said property. This prohibition includes, but is not limited to, fees or charges imposed by a real estate developer based upon the subsequent resale or transfer of said real property. Any housing development that is covered by the definition in § 45-53-3(9) is exempt from this section. Further, any fee or charge connected with the transfer of properties with a conservation restriction as defined in § 34-39-2(a) is exempt from the provisions of this section. Further, community associations, including, but not limited to, condominium associations, homeowners associations and cooperative associations, are exempt from this section. Any covenant recorded on or after July 1, 2012, imposing any charge or fee inconsistent with this section shall be void and unenforceable against any subsequent owner, purchaser or mortgagee.

History of Section. P.L. 2012, ch. 274, § 1; P.L. 2012, ch. 286, § 1.

Compiler’s Notes.

P.L. 2012, ch. 274, § 1, and P.L. 2012, ch. 286, § 1 enacted identical versions of this section.

34-11-43. Effect of special warranty deed.

A deed entitled “special warranty deed” shall, when duly executed, have the force and effect of a deed in fee simple to the grantee and his or her heirs and assigns, to his, her, and their own use, with covenants on the part of the grantor, for himself or herself and for his or her heirs, executors, and administrators, with the grantee and his or her heirs and assigns, that he or she will, and his or her heirs, executors, and administrators shall, warrant and defend the granted premises to the grantee and his or her heirs and assigns forever against the lawful claims and demands of all persons claiming by, through, or under the grantor.

History of Section. P.L. 2016, ch. 113, § 1; P.L. 2016, ch. 122, § 1.

Compiler’s Notes.

P.L. 2016, ch. 113, § 1, and P.L. 2016, ch. 122, § 1 enacted identical versions of this section.

Applicability.

P.L. 2016, ch. 113, § 2, provides that this section takes effect upon passage [June 22, 2016] and shall apply to all deeds with the words “special warranty” in their title, and/or the words “special warranty covenants” in the body thereof.

P.L. 2016, ch. 122, § 2, provides that this section takes effect upon passage [June 22, 2016] and shall apply to all deeds with the words “special warranty” in their title, and/or the words “special warranty covenants” in the body thereof.

34-11-44. Meaning of special warranty covenants.

In any deed of conveyance of real estate, the use of the words “special warranty” in the title of said deed, and/or use of the words “special warranty covenants” in the body of said deed shall have the full force, meaning, and effect of the following words: “The grantor, for himself or herself and for his or her heirs, executors and administrators, covenants with the grantee and his or her heirs and assigns, that he or she will, and his or her heirs, executors, and administrators shall, warrant and defend the granted premises to the grantee and his or her heirs and assigns forever against the lawful claims and demands of all persons claiming, by, through, or under the grantor.”

History of Section. P.L. 2016, ch. 113, § 1; P.L. 2016, ch. 122, § 1.

Compiler’s Notes.

P.L. 2016, ch. 113, § 1, and P.L. 2016, ch. 122, § 1 enacted identical versions of this section.

Applicability.

P.L. 2016, ch. 113, § 2, provides that this section takes effect upon passage [June 22, 2016] and shall apply to all deeds with the words “special warranty” in their title, and/or the words “special warranty covenants” in the body thereof.

P.L. 2016, ch. 122, § 2, provides that this section takes effect upon passage [June 22, 2016] and shall apply to all deeds with the words “special warranty” in their title, and/or the words “special warranty covenants” in the body thereof.

Chapter 12 Acknowledgments and Notarial Acts

34-12-1. Form of acknowledgment — Foreign acknowledgments.

Acknowledgment of any instrument hereafter made need not be in any set form, but shall be made by all the parties executing the instrument and the certificate thereof shall express the ideas that the parties were each and all known to the magistrate taking the acknowledgment, and known by the magistrate to be the parties executing the instrument, and that they acknowledge the instrument to be their free act and deed; provided, however, that in case of any such instrument executed without this state, and within the limits of the United States or of any dependency thereof, if the instrument is acknowledged or proved in the manner prescribed by the law of the state, District of Columbia, territory or such dependency, where executed, it shall be deemed to be legally executed, and acknowledged and shall have the same effect as if executed and acknowledged in the mode above prescribed, including an acknowledgment by less than all parties if made in a jurisdiction the laws of which permit acknowledgments in that manner; provided, however, that instruments requiring acknowledgments by parties having opposing interests must be acknowledged by at least one party of each interest.

History of Section. G.L. 1896, ch. 202, § 5; G.L. 1909, ch. 253, § 5; G.L. 1923, ch. 297, § 5; P.L. 1928, ch. 1221, § 1; G.L. 1938, ch. 435, § 4; G.L. 1956, § 34-12-1 ; P.L. 1982, ch. 233, § 1.

Cross References.

Married women, deeds and letters of attorney, § 15-4-5 .

Comparative Legislation.

Acknowledgments:

Conn. Gen. Stat. § 47-5 et seq.

Mass. Ann. Laws ch. 183, § 29 et seq.

NOTES TO DECISIONS

In General.

Conveyance in which the transferor’s last name was missing from the acknowledgment (although it appeared elsewhere in the document) and the words “free act and deed” were not included was nonetheless effective upon registration to put a good faith purchaser on notice of the transaction; therefore, the four-year statute of limitations for an effort to have the conveyance set aside as a fraudulent conveyance began to run at that point, and summary judgment was properly entered in favor of the transferee, on timeliness grounds, when such an action was commenced five years after the conveyance. Duffy v. Dwyer, 847 A.2d 266, 2004 R.I. LEXIS 86 (2004).

One Signature Notice.

A mortgage document duly recorded in the appropriate land evidence records gives constructive notice of a significant interest in the property to a bona fide purchaser five years later, despite the failure of one of the two joint mortgagors to execute a mortgage document. In re Barnacle, 623 A.2d 445, 1993 R.I. LEXIS 115 (1993).

Collateral References.

Admissibility, in action against notary public, of evidence as to usual business practice of notary public of identifying person seeking certificate of acknowledgment. 59 A.L.R.3d 1327.

Alteration in deed or mortgage with consent of parties thereto after acknowledgment or attestation as affecting notice from record thereof. 67 A.L.R. 366.

Construction of regulations as to subdivision maps or plats with respect to signing and acknowledging plat or certificate. 11 A.L.R.2d 524.

Duress exercised by third person as affecting acknowledgment. 4 A.L.R. 869; 62 A.L.R. 1477.

Formal acknowledgment of instrument by one whose name is signed thereto by another as an adoption of the signature. 57 A.L.R. 525.

Identity, proof of, upon which officer certifying to an acknowledgment is justified in acting. 10 A.L.R. 871.

Joining in instrument as ratification of, or estoppel as to, prior instrument affecting real property ineffective for want, or insufficiency, of acknowledgment. 7 A.L.R.2d 294.

Liability of notary public or his bond for negligence in performance of duties. 44 A.L.R.3d 555.

Liability of notary public or his bond for willful or deliberate misconduct in performance of duties. 44 A.L.R.3d 1243.

Measure of damages for false or incomplete certificate by notary public. 13 A.L.R.3d 1039.

Noncompliance with statutory requirements concerning form of execution or acknowledgment as affecting validity or enforceability of written antenuptial agreement. 16 A.L.R.3d 370.

Record of instrument insufficiently acknowledged as notice. 59 A.L.R.2d 1229.

Sufficiency of certificate of acknowledgment. 29 A.L.R. 919; 25 A.L.R.2d 1124.

Telephone, acknowledgment over. 12 A.L.R. 538; 58 A.L.R. 604.

Will or deed, effect of acknowledgment of instrument on determination of its character. 11 A.L.R. 23; 31 A.L.R.2d 532.

Witness to will, officer authorized to take acknowledgments who attaches his official certificate. 8 A.L.R. 1075.

34-12-2. Officers authorized to take acknowledgments.

Acknowledgment of any instrument required by any statute of this state to be acknowledged shall be made:

  1. Within this state, before any state senator, any state representative, judge, justice of the peace, clerk or assistant clerk of the superior court, mayor, notary public, town clerk or recorder of deeds.
  2. Without this state and within the limits of United States or any dependency thereof, before any judge or justice of a court of record or other court, justice of the peace, mayor or notary public, of the state, District of Columbia, territory or such dependency, in which such acknowledgment is made, or before any commissioner appointed by the governor of this state, or before any officer authorized by law to take acknowledgments of deeds in the place in which the acknowledgment is made.
  3. Without the limits of the United States, before any of the following officers acting within his territorial jurisdiction or within that of the court of which he or she is an officer:
    1. An ambassador, envoy, minister, chargé d’affaires, secretary of legation, consul-general, consul, vice-consul, consular agent, vice-consular agent, or any other diplomatic or consular agent or representative of the United States, appointed or accredited to, and residing within the country where the acknowledgment or proof is taken.
    2. A judge or other presiding officer of any court having a seal or the clerk or other certifying officer thereof.
    3. A mayor or other chief civil officer of any city or other political subdivision.
    4. A notary public.
    5. A person residing in, or going to, the country where the acknowledgment or proof is to be taken, and specially authorized for that purpose by a commission issued to him or her under the seal of the superior court.
    6. Any person authorized, by the laws of the country where the acknowledgment or proof is made, to take acknowledgments of conveyances of real estate or to administer oaths in proof of the execution thereof.

History of Section. G.L. 1896, ch. 202, § 8; G.L. 1909, ch. 253, § 8; G.L. 1923, ch. 297, § 8; P.L. 1928, ch. 1221, § 2; G.L. 1938, ch. 435, § 7; P.L. 1941, ch. 1010, § 1; G.L. 1956, § 34-12-2 ; P.L. 1959, ch. 112, § 1; P.L. 1963, ch. 142, § 1.

Cross References.

Commissioners, powers, § 42-31-3 .

Collateral References.

Attorney, relationship of, to person taking oath or making acknowledgment, as disqualifying official empowered to administer oaths or take acknowledgments. 21 A.L.R.3d 483.

Corporate stockholder or member of association, qualification of, to take acknowledgment of, or attest as notary, instrument to which corporation or association is a party. 51 A.L.R. 1529.

Disqualification of attorney, otherwise qualified, to take oath or acknowledgment from client. 21 A.L.R.3d 483.

34-12-3. Acknowledgments in good faith before person claiming to be authorized — Penalty for misrepresentation.

Any acknowledgment made in good faith before a person claiming to be one of the foregoing officials authorized to take acknowledgments within the respective jurisdictions as above, shall be valid, although the official before whom the acknowledgment is made was not duly qualified in that office; but every person who shall, within this state, wilfully take and certify to the taking of any such acknowledgment, without being lawfully qualified thereunto, shall be liable in a criminal proceeding to a fine not exceeding fifty dollars ($50.00), one-half (1/2) to the use of the complainant and the other half thereto to the use of this state.

History of Section. G.L. 1896, ch. 202, § 9; G.L. 1909, ch. 253, § 9; G.L. 1923, ch. 297, § 9; G.L. 1938, ch. 435, § 8; G.L. 1956, § 34-12-3 .

Cross References.

Forgery or counterfeiting, penalty, § 11-17-1 .

Collateral References.

Measure of damages for false or incomplete certificate by notary public. 13 A.L.R.3d 1039.

34-12-4. Instruments executed by diplomatic officials outside United States.

Every instrument requiring acknowledgment, executed without the limits of the United States, concerning lands lying within this state, in which instrument any ambassador, minister, charge d’affaires, consul general, vice-consul general, consul, vice-consul, consular agent, commercial agent, of the United States, or commissioner appointed by the governor of this state, shall be grantor, may be executed in the presence of two (2) witnesses; and when so executed, an official certificate under the hand and official seal of the grantor that such instrument is his act and deed shall be equivalent to an acknowledgment of such instrument in the manner required by law.

History of Section. G.L. 1896, ch. 202, § 10; G.L. 1909, ch. 253, § 10; G.L. 1923, ch. 297, § 10; G.L. 1938, ch. 435, § 9; G.L. 1956, § 34-12-4 .

34-12-5. Power of armed forces officers to take acknowledgments.

In addition to the acknowledgment of instruments and the performance of other notarial acts in the manner and form and as otherwise authorized by law, instruments may be acknowledged, documents attested, oaths and affirmations administered, depositions and affidavits executed, and other notarial acts performed, before or by any commissioned officer in active service of the armed forces of the United States with the rank of second lieutenant or higher in the army, air force, or marine corps, or with the rank of ensign or higher in the navy or coast guard, or with equivalent rank in any other component part of the armed forces of the United States, by any person without the limits of the United States, and to any person who is a member of the armed forces who is within or without the limits of the United States and their lawful dependents.

History of Section. P.L. 1944, ch. 1391, § 1; G.L. 1956, § 34-12-5 ; P.L. 1963, ch. 79, § 1; P.L. 1967, ch. 221, § 1; P.L. 1968, ch. 260, § 1.

34-12-6. Effect of acknowledgment before armed forces officer.

An acknowledgment of instruments, attestation of documents, administration of oaths and affirmations, execution of depositions and affidavits, and performance of other notarial acts, made or taken before an armed forces officer, are hereby declared legal, valid, and binding, and instruments and documents so acknowledged, authenticated, or sworn to shall be admissible in evidence and eligible to be recorded in this state under the same circumstances and with the same force and effect as if the acknowledgment, attestation, oath, affirmation, deposition, affidavit, or other notarial act had been made or taken within this state before or by a duly qualified officer or official as otherwise provided by law.

History of Section. P.L. 1944, ch. 1391, § 1; G.L. 1956, § 34-12-6 .

34-12-7. Contents of certificate of armed forces officer.

In the taking of acknowledgments and the performing of other notarial acts requiring certification, a certificate endorsed upon or attached to the instrument or documents, which shows the date of the notarial act and which states, in substance that the person appearing before the officer acknowledged the instrument as his or her act or made or signed the instrument or document under oath, shall be sufficient for all intents and purposes. The instrument or document shall not be rendered invalid by the failure to state the place of execution or acknowledgment.

History of Section. P.L. 1944, ch. 1391, § 1; G.L. 1956, § 34-12-7 .

34-12-8. Proof of authority of armed forces officer.

If the signature, rank, and branch of service or subdivision thereof, of any such commissioned officer appear upon such instrument or document or certificate, no further proof of authority of the officer so to act shall be required and the action by the commissioned officer shall be prima facie evidence that the person making the oath or acknowledgment is within the purview of §§ 34-12-5 — 34-12-7 .

History of Section. P.L. 1944, ch. 1391, § 1; G.L. 1956, § 34-12-8 .

34-12-9. Validation of prior acknowledgments before foreign notary public.

Any acknowledgment taken or made prior to April 27, 1928, of or upon any instrument used in conveying, directly or indirectly, any interest in real estate in this state, including power of attorney, and any other instruments heretofore acknowledged prior to April 27, 1928, before any notary public in any foreign country or territory without the United States, which instrument appears of record to have been duly recorded in any of the records of land evidence in this state, and the acknowledgment therein appearing was taken before a notary public outside the United States, which notary public was duly commissioned in the foreign place where the acknowledgment was taken, to take the acknowledgment, and the acknowledgment is accredited, approved or affirmed, or the commission of the foreign notary public is attested or certified by any ambassador, minister, charge d’affaires, consul general, vice-consul general, consul, vice consul, or consular agent of the United States, or any commissioned officer in active service of the armed forces of the United States with the rank of second lieutenant or higher in the army, air force, or marine corps, or with the rank of ensign or higher in the navy or coast guard, or with equivalent rank in any other component of the armed forces of the United States, duly establishing the fact that the notary public was at the time of taking the acknowledgment duly authorized by the law, rules, or regulations of his or her particular country or territorial section thereof, in which the acknowledgment was taken, to duly administer oaths or take acknowledgments, then the acknowledgment and conveyance in connection with which the acknowledgment was taken shall, for the purpose of the acknowledgment and execution thereof, be deemed a valid acknowledgment, and shall have the same effect as if acknowledged before a notary public in this state.

History of Section. P.L. 1934, ch. 2132, § 1; G.L. 1938, ch. 437, § 1; G.L. 1956, § 34-12-9 ; P.L. 1967, ch. 212, § 1.

Chapter 13 Recording of Instruments

34-13-1. Instruments eligible for recording.

Any of the following instruments shall be recorded or filed by the town clerk or recorder of deeds, in the manner prescribed by law, on request of any person and on payment of the lawful fees therefor:

  1. Letters of attorney.
  2. All contracts for sale of land.
  3. Bonds for title or covenants or powers concerning lands, tenements and hereditaments.
  4. All notices to be filed under the provisions of § 9-4-9 .
  5. All notices and process to be filed under other statutory provisions, and all decrees in equity and judgments at law affecting the title to land.
  6. All instruments evidencing or relating to a security interest in personal property or fixtures that may be filed pursuant to chapter 9 of title 6A.
  7. All instruments required by statute to be recorded, including deeds, mortgages and transfers and discharges thereof, leases or memoranda thereof, and transfers and cancellations thereof, and the covenants, conditions, agreements and powers therein contained.
  8. Instruments of defeasance.
  9. Instruments (excepting wills) creating trusts.
  10. All instruments and notices, affecting, or purporting to affect, the title to land or any interest therein or giving or terminating the right to sever any building or part thereof or fixture, when signed and acknowledged as required for deeds.
  11. All affidavits as to family facts, including dates of birth, marriage, and death, which relate or purport to relate to title to land.
  12. All affidavits as to bounds and monuments of land.
  13. All certificates of the secretary of state as to change of corporate name.
  14. All original linen and/or original mylar maps, plats, surveys, and drawings, whether or not attached to, or a part of, another recordable instrument, Provided, however, That those requiring the approval of any council; commission, officer, or other body by law shall not be recorded without such approval.

    All survey plans received for recording shall be drawn on archival mylar or linen, those of which shall not exceed a size of 24" x 36" and shall be recorded as originally drafted. Said plans shall contain as a minimum all items set forth in the “Procedural and Technical Standards for the practice of Land Surveying in the State of Rhode Island and Providence Plantations” as adopted by the Rhode Island Board of Registration of Professional Land Surveyors effective April 1, 1994 and any amendments or modifications thereof. Further, all plans must be able to be reproduced so that the contents of said plans are legible.

    Indexes of survey plans shall be maintained indicating (a) the title of the plan; and (b) the street(s) or road(s) on which the subject property abuts. Such plans shall include a separate listing, in or attached to the legend on the plan, of all streets and roads on which the subject property abuts.

  15. All declarations of restrictions and covenants in connection with a plat of record or to be recorded or with a tract or parcel of land which is to be subdivided.
  16. Statements of covenants, conditions, and powers of sale which are intended to be incorporated in mortgages by reference.

History of Section. G.L. 1896, ch. 202, § 6; C.P.A. 1905, § 1139; G.L. 1909, ch. 253, § 6; G.L. 1923, ch. 297, § 6; G.L. 1938, ch. 435, § 5; G.L. 1956, § 34-13-1 ; P.L. 1956, ch. 3750, § 1; P.L. 1960, ch. 147, § 3; P.L. 1981, ch. 380, § 2; P.L. 1992, ch. 318, § 1; P.L. 1997, ch. 303, § 1.

Cross References.

Assignment for benefit of creditors, § 10-4-4 .

Attachment of real estate, § 10-5-9 .

Attachment of real estate remaining without action, certificate, § 10-5-44 .

Condemnation papers for road purposes, § 37-6-14 .

Creation of conservation and preservation restrictions as conveyance of real estate, § 34-39-4 .

Execution against real estate, § 9-26-14 .

Flood control and navigation projects, description of land taken for, § 46-2-14 .

Foreign will passing title to real property, §§ 33-7-20 , 33-7-21 .

Forgery or counterfeiting, penalty, § 11-17-1 .

Guardian, petition for appointment, § 33-15-13 .

Honorable discharges, § 30-18-1 .

Housing authority maps and surveys, § 45-29-16 .

Housing authority resolution in eminent domain proceedings, § 45-29-3 .

Housing project, description of land to be taken for, § 45-29-19 .

Lis pendens, § 9-4-9 .

Mechanic’s lien account or demand, § 34-28-7 .

Mortgages of personal property, §§ 6A-9-302 , 6A-9-403 .

Port facilities, description of land taken for, § 46-5-2 .

Power of attorney by trustee, § 18-3-5 .

Redevelopment agency resolution in eminent domain proceedings, § 45-32-27 .

Referees’ report involving real estate, § 9-15-8 .

Tax deed, § 44-9-12 .

Transfers of land between state agencies, § 37-7-7 .

Trust property, decree of appointment of trustee, § 18-2-9 .

Wage assignments, § 28-15-5 .

Will passing title to real property, §§ 33-6-31 , 33-7-20 , 33-7-21 .

Comparative Legislation.

Recording:

Conn. Gen. Stat. § 7-23 et seq., § 47-10 et seq.

Mass. Ann. Laws ch. 183, § 29 et seq.; ch. 184, § 17A; ch. 185, § 1 et seq.

NOTES TO DECISIONS

In General.

A recorder of deeds is a purely ministerial officer who, when presented with a deed executed in compliance with controlling statutes, must receive and record the instrument. Bionomic Church v. Gerardi, 414 A.2d 474, 1980 R.I. LEXIS 1555 (1980).

Act of a proposed buyer of real estate, who is unable to obtain financing, in recording his purchase-and-sale agreement for the purpose of preventing the owner from selling the property to others is a proper subject of mandatory preliminary injunctive relief barring such misuse of the recording statutes. Industrial Nat'l Bank v. Searles, 442 A.2d 436, 1982 R.I. LEXIS 813 (1982).

Mortgagee was not entitled to bona fide purchaser (BFF) status, as it was charged with constructive notice of a debtor’s adverse claim to property under R.I. Gen. Laws §§ 34-13-2 and 34-13-1 . It had knowledge that the debtor conveyed the property for clearly inadequate consideration to the grantee/mortgagor and then remained in possession, it had knowledge that the grantee had signed a prior mortgage covenant in which he declared his intention to reside at the property, and a mortgage broker’s successful effort to prevent an interior inspection should have triggered an obligation of further inquiry. Lima v. Conlon (In re Lima), 2012 Bankr. LEXIS 3499 (Bankr. D.R.I. July 30, 2012).

Requirements for Recording of Deeds.

The recorder of deeds has no option but to accept for recording only an original or certified copy of a deed containing the documentary stamps required by law to appear in the register. Bionomic Church v. Gerardi, 414 A.2d 474, 1980 R.I. LEXIS 1555 (1980).

Collateral References.

Agreement between real estate owners restricting use of property as within contemplation of recording laws. 4 A.L.R.2d 1419.

Appointment of substitute trustee under deed of trust securing bonds, necessity of recording. 98 A.L.R. 1159.

Assignment of future rents as within recording laws. 75 A.L.R. 270.

Assignments of mortgages on real estate, recording laws as applied to. 89 A.L.R. 171; 104 A.L.R. 1301.

Character of an instrument as a will or deed, effect of recording on determination. 31 A.L.R.2d 532.

Executory contracts for sale of real estate, record of. 26 A.L.R. 1546.

Extension of mortgage or deed of trust by subsequent agreement to cover additional indebtedness, necessity of recording. 76 A.L.R. 589.

Failure to record or file or refile conveyance or mortgage executed by decedent, right of executor or administrator of insolvent estate to take advantage of. 91 A.L.R. 299.

Failure to record, title lost by as cloud on title. 78 A.L.R. 116.

Grantee or mortgagee by quitclaim deed or mortgage in uniform form as within protection of recording laws. 59 A.L.R. 632.

Life tenant’s deed purporting to convey fee, recording of, as rendering vendee’s possession adverse to remainderman during life estate. 112 A.L.R. 1047.

Neglect or fault of recording or filing officer, effect of. 70 A.L.R. 595.

Oil and gas lease, necessity that mortgage covering be recorded as real estate mortgage, and/or filed or recorded as chattel mortgage. 34 A.L.R.2d 902.

Power of attorney under which deed or mortgage is executed, as instrument entitled to record. 114 A.L.R. 660.

Protection of one claiming through heir, devisee or personal representative against unrecorded conveyance or mortgage by ancestor or testator. 65 A.L.R. 360.

Record of instrument which comprises or includes an interest or right that is not a proper subject of record. 3 A.L.R.2d 577.

Subrogation to prior lien of one who advances money to discharge it and takes new mortgage as affected by recording of intervening lien. 70 A.L.R. 1407.

Sufficiency of designation of taxpayer in recorded notice of federal tax lien. 3 A.L.R.3d 633.

Tax deed, necessity of recording to protect title as against interest derived from former owner. 65 A.L.R. 1015.

Trustee’s duty to record mortgage securing bondholders. 90 A.L.R.2d 501.

34-13-2. Recording as constructive notice.

A recording or filing under § 34-13-1 shall be constructive notice to all persons of the contents of instruments and other matters so recorded, so far as they are genuine.

History of Section. G.L. 1896, ch. 202, § 7; G.L. 1909, ch. 253, § 7; G.L. 1923, ch. 297, § 7; G.L. 1938, ch. 435, § 6; G.L. 1956, § 34-13-2 .

NOTES TO DECISIONS

Bankruptcy.

Beneficiaries of a deceased restaurant co-owner, who with debtor/co-owner guaranteed the restaurant’s obligations under a lease, obtained a valid and perfected judicial lien on the debtor’s real property when they recorded their pre-judgment writ of attachment and, as holders of a perfected judicial lien, were secured creditors for purposes of the bankruptcy law with respect to the real property attached; the bankruptcy trustee could not use his powers to avoid their claim, and the beneficiaries were allowed relief from the automatic stay to allow them to reduce their claim to judgment and levy on the property. In re Giordano, 188 B.R. 84, 1995 U.S. Dist. LEXIS 16127 (D.R.I. 1995).

Constructive Notice.

In an action for specific performance and damages charging defendants conspired to deprive the plaintiffs of an opportunity to exercise an option to purchase a parcel of real estate, the failure to disclose the right of first refusal to purchase the land described in the lease was not fraudulent where such right was referred to in the lease which was recorded in the land records of the county and thus gave constructive notice to all persons of the recorded document. Davies v. Little, 111 R.I. 496 , 304 A.2d 661, 1973 R.I. LEXIS 1235 (1973).

Mortgagee was not entitled to bona fide purchaser (BFF) status, as it was charged with constructive notice of a debtor’s adverse claim to property under R.I. Gen. Laws §§ 34-13-2 and 34-13-1 . It had knowledge that the debtor conveyed the property for clearly inadequate consideration to the grantee/mortgagor and then remained in possession, it had knowledge that the grantee had signed a prior mortgage covenant in which he declared his intention to reside at the property, and a mortgage broker’s successful effort to prevent an interior inspection should have triggered an obligation of further inquiry. Lima v. Conlon (In re Lima), 2012 Bankr. LEXIS 3499 (Bankr. D.R.I. July 30, 2012).

Duties of Title Examiner.

Title examiner which correctly reported first mortgage to prospective second mortgagee was not required to inform second mortgagee of delinquency in payments on first mortgage or on taxes, interest and insurance incident thereto. Case v. Mortgage Guarantee & Title Co., 52 R.I. 155 , 158 A. 724, 1932 R.I. LEXIS 17 (1932).

False Representations.

Action for deceit and false representation of ownership inducing plaintiff to contract to furnish heating apparatus for a house was not barred by plaintiff’s failure to examine land records, because contractor had a right to rely on positive assertion of existing fact and was not put upon inquiry, even though a recorded deed is constructive notice of true state of title to land. Hunt v. Barker, 22 R.I. 18 , 46 A. 46, 1900 R.I. LEXIS 42 (1900).

Filing Equivalent to Recording.

Filing deed with clerk is equivalent to entry in record, so far as necessary to perfect title, since filing is implied direction to record, and failure of clerk to make record entry does not affect grantee’s title. Nichols v. Reynolds, 1 R.I. 30 , 1835 R.I. LEXIS 2 (1835).

One Signature Notice.

A mortgage document duly recorded in the appropriate land evidence records gives constructive notice of a significant interest in the property to a bona fide purchaser five years later, despite the failure of one of the two joint mortgagors to execute a mortgage document. In re Barnacle, 623 A.2d 445, 1993 R.I. LEXIS 115 (1993).

Restrictive Covenants.

A purchaser of lots without a restrictive clause in his conveyance is not bound by restrictive covenants in deeds to other property within the plat where the plat itself does not provide for the restrictions in question. Beetchenow v. Arter, 45 R.I. 133 , 119 A. 758, 1923 R.I. LEXIS 19 (1923).

Only if the grantor has engaged in fraudulent conduct or deceit will the recording of restrictive covenants fail to serve as constructive notice of their content. De Wolf v. Usher Cove Corp., 721 F. Supp. 1518, 1989 U.S. Dist. LEXIS 11609 (D.R.I. 1989).

Restrictive covenants imposed in furtherance of a building or development scheme will generally be enforced against anyone with actual or constructive notice of the restrictions. De Wolf v. Usher Cove Corp., 721 F. Supp. 1518, 1989 U.S. Dist. LEXIS 11609 (D.R.I. 1989).

Collateral References.

Acknowledgment, record of instrument without, or insufficiently acknowledged, as notice. 59 A.L.R.2d 1299.

Actual notice of unrecorded instrument to purchaser from one without notice, effect of. 63 A.L.R. 1367.

Adverse character of grantee’s possession, record of deed to co-tenant as notice to other co-tenants of. 82 A.L.R.2d 5.

Adverse possession by one claiming under or through deed by co-tenant as affected by record of deed. 27 A.L.R. 24; 32 A.L.R.2d 1214.

Alteration in deed or mortgage with consent of parties thereto after acknowledgment or attestation as affecting notice from record thereof. 67 A.L.R. 366.

Amount of debt, omission of, in record of mortgage, as affecting its operation as notice to third person. 145 A.L.R. 375.

Covenant or easement affecting another parcel owned by grantor, record of deed or contract for conveyance of one parcel with, as constructive notice to subsequent purchaser or encumbrancer of second parcel. 16 A.L.R. 1013.

Diminutive or nickname, use of, as affecting operation of record as notice. 45 A.L.R. 557.

Executory land contract not recorded, rights of vendee as against subsequent deed or mortgage by vendor. 87 A.L.R. 1515.

Extrinsic instrument referred to in recorded instrument, record as charging one with notice of provisions of. 89 A.L.R.3d 901.

Failure to properly index conveyance or mortgage of realty as affecting constructive notice. 63 A.L.R. 1057.

Fixtures, right of seller retaining title thereto, or a lien thereon, as against prior mortgagee of realty as affected by record of the mortgage. 88 A.L.R. 1335; 111 A.L.R. 381; 141 A.L.R. 1283.

Fraudulent conveyance, registration as notice to creditor of, which will start running of limitation. 76 A.L.R. 869; 100 A.L.R.2d 1094.

Improper insertion or omission of middle initial of one’s name as affecting constructive notice from public records. 122 A.L.R. 909.

Improvements, right to compensation for, as affected by constructive notice by record of true title or interest. 68 A.L.R. 288; 82 A.L.R. 921.

Life tenant’s deed purporting to convey fee, recording of, as rendering vendee’s possession adverse to remainderman during life estate. 112 A.L.R. 1047.

Nonpayment of all or part of consideration at time of receiving notice, actual or constructive, of a prior instrument, as affecting right of one otherwise protected by recording law against prior unrecorded deed or mortgage. 109 A.L.R. 163.

Optional advances under mortgage and lien intervening between giving of the mortgage and making the advance, record notice as affecting priority between. 138 A.L.R. 566.

Priority where senior instrument is recorded after execution but before recording of junior instrument. 32 A.L.R. 344.

Recorded real property instrument as charging third party with constructive notice of provisions of extrinsic instrument referred to therein. 89 A.L.R.3d 901.

Reformation of instrument against third persons, record of incorrect instrument as notice of intended contents. 44 A.L.R. 97; 79 A.L.R.2d 1180.

Statute of limitations, public records as notice of facts starting running of, against action based on fraud. 137 A.L.R. 268; 152 A.L.R. 461.

34-13-3. Affidavits as to acts under power of sale.

Whenever any administrator, executor, guardian, receiver, sheriff, mortgagee or any person acting under a power of sale in any mortgage deed, deed of trust or other conveyance, sells or causes to be sold any real estate lying within this state, the title to which will in any manner depend upon notice of sale to be published in any newspaper, if the person or persons causing the sale to be made causes a copy of the advertisement, in pursuance of which the sale is made, to be attached to the deed given thereunder, together with his, her or their affidavit, or, if a corporation, the affidavit of its duly authorized officer, stating when, how many times and in what newspaper or newspapers the advertisement was published, and the manner, time and place of making the sale, the copy and affidavit shall be recorded with the deed to which they are attached, and the record thereof shall be prima facie evidence of the truth of the matters and things therein stated, but the omission of the copy and affidavit shall not affect the validity of the conveyance if otherwise valid.

History of Section. G.L. 1896, ch. 202, § 15; G.L. 1909, ch. 253, § 15; G.L. 1923, ch. 297, § 15; G.L. 1938, ch. 435, § 14; G.L. 1956, § 34-13-3 .

34-13-4. Entry of time of presentation for recording — Receiving book.

Whenever any instrument entitled to be recorded shall be presented for recording, the town clerk or recorder of deeds, as the case may be, immediately upon its presentment, shall cause to be entered in writing on the instrument the day, the hour, and the minute when the instrument was presented for recording, and shall enter this information, in the order of presentment, in a receiving book to be kept for that purpose.

History of Section. G.L. 1896, ch. 202, § 3; G.L. 1909, ch. 253, § 3; G.L. 1923, ch. 297, § 3; G.L. 1938, ch. 435, § 2; G.L. 1956, § 34-13-4 .

Cross References.

Drafting of instruments by recorders, § 11-27-11 .

Collateral References.

Fixtures, right of seller, retaining title thereto, or a lien thereon, as against prior mortgagee of realty as affected by record of mortgage. 13 A.L.R. 470; 111 A.L.R. 381; 141 A.L.R. 1292.

Maps or plats of subdivisions, construction and application of regulations as to filing or recording. 11 A.L.R.2d 524.

Marketability of title as affected by defect in record, or incomplete record, of deed. 57 A.L.R. 1472.

Withdrawal of paper after delivery to proper officer as affecting question whether it is filed. 37 A.L.R. 670.

34-13-5. Index of instruments recorded.

  1. It shall be the duty of the clerk or recorder of deeds of each city and town within the state to make and keep a separate alphabetical general index of all deeds, mortgages, and other instruments recorded in the office of the city or town clerk or recorder of deeds, which indices shall refer to the book and page of the records wherein the deeds, mortgages, and other instruments are recorded. Mortgage discharges and assignments of mortgage shall be indexed under the names of all parties to the original mortgage instrument and all subsequent assignees of parties to the original instrument.
  2. The provisions of §§ 45-13-7 — 45-13-10 shall not apply to this section.

History of Section. G.L., ch. 41, § 6; P.L. 1899, ch. 663, § 1; G.L. 1909, ch. 51, § 6; G.L. 1923, ch. 52, § 6; G.L. 1938, ch. 334, § 6; G.L. 1956, § 34-13-5 ; P.L. 1986, ch. 323, § 1; P.L. 1993, ch. 226, § 1.

Collateral References.

Failure to properly index conveyance or mortgage of realty as affecting constructive notice. 63 A.L.R. 1057.

34-13-6. Recording of certified copies.

If any instrument has been recorded or filed by a city or town clerk, or recorder of deeds, in the manner prescribed by law, a copy thereof duly certified by the proper official may be recorded or filed in the office of any city or town clerk or recorder of deeds, wherein the original might properly have been recorded or filed, and, when so recorded or filed, shall have the same effect as a recording or filing of the original instrument.

History of Section. G.L. 1923, ch. 297, § 25; P.L. 1933, ch. 2044, § 1; G.L. 1938, ch. 435, § 21; G.L. 1956, § 34-13-6 .

NOTES TO DECISIONS

Construction.

This section cannot be construed to change the requirement of § 44-25-3 that documentary stamps must appear on the recorded deed. Bionomic Church v. Gerardi, 414 A.2d 474, 1980 R.I. LEXIS 1555 (1980).

34-13-7. General recording fees.

  1. The fees to the recording officers for recording the following described instruments relating to real estate shall be as follows:

    Click to view

  2. The recording officers shall be allowed to charge a rate of one dollar ($1.00) for each additional page or fraction over.
  3. Ten percent (10%) of the recording fees provided for in this section shall be utilized by each city or town for the purposes of document preservation and technological upgrades.
  4. Notwithstanding the foregoing, the recording fee for lis pendens and/or bail property liens recorded by bailbondsmen and the recording fee to discharge lis pendens and/or bail property liens recorded by bailbondsmen shall be ten dollars ($10.00).

Warranty deed $80.00 Quitclaim deed 80.00 Deed of executor, administrator, trustee, conservator, receiver, or commissioner 80.00 Mortgage 60.00 Partial release of mortgage 45.00 Assignment of mortgage 45.00 Foreclosure deed under power of sale with affidavit 80.00 Lease 60.00 General assignment 45.00 Discharge of mortgage 45.00 Discharge of attachment or execution 45.00 Any other instrument not otherwise expressly provided for by statute 45.00 Lien – Federal tax 7.25 Lien – Federal tax, discharge of 7.25 Maps, plats, surveys, drawings (not attached to or a part of another recordable instrument) 45.00 Bill of sale 45.00 Power of attorney 45.00 Lis pendens 80.00 Writ of attachment or execution affecting title to real estate 10.00 Writ of attachment or lien affecting title to mobile and manufactured homes 2.00 Notice of intention under the mechanics’ lien law 8.00 Account under mechanics’ lien law 10.00

History of Section. P.L. 1927, ch. 1056, § 18; G.L. 1938, ch. 436, § 17; P.L. 1955, ch. 3568, § 1; G.L. 1956, § 34-13-7 ; P.L. 1960, ch. 147, § 3; P.L. 1970, ch. 205, § 1; P.L. 1972, ch. 63, § 1; P.L. 1985, ch. 86, § 1; P.L. 1986, ch. 325, § 1; P.L. 1987, ch. 33, § 1; P.L. 1989, ch. 209, § 1; P.L. 2003, ch. 376, art. 7, § 10; P.L. 2004, ch. 448, § 1; P.L. 2009, ch. 137, § 1; P.L. 2009, ch. 143, § 1; P.L. 2010, ch. 90, § 1; P.L. 2010, ch. 112, § 1; P.L. 2012, ch. 374, § 1; P.L. 2012, ch. 396, § 1.

Compiler’s Notes.

P.L. 2012, ch. 374, § 1, and P.L. 2012, ch. 396, § 1 enacted identical amendments to this section.

Collateral References.

Tax or assessment paid to procure recording of deed, recovery of. 64 A.L.R. 117; 84 A.L.R. 294.

34-13-8. Repealed.

History of Section. P.L. 1927, ch. 1056, § 19; G.L. 1938, ch. 436, § 18; P.L. 1955, ch. 3568, § 1; G.L. 1956, § 34-13-8 ; P.L. 1970, ch. 205, § 1; P.L. 1986, ch. 79, § 1; P.L. 1986, ch. 331, § 3; P.L. 1989, ch. 209, § 1; Repealed by P.L. 2012, ch. 374, § 2; P.L. 2012, ch. 396, § 2, effective June 21, 2012.

Compiler’s Notes.

Former § 34-13-8 concerned fees for attachments, executions, and mechanics’ lien accounts.

34-13-9. Fees for copies of record.

Recording officers shall charge one dollar and fifty cents ($1.50) per page and three dollars ($3.00) for certifying of the record of any instrument described in this chapter.

History of Section. P.L. 1927, ch. 1056, § 20; G.L. 1938, ch. 436, § 19; G.L. 1956, § 34-13-9 ; P.L. 1970, ch. 205, § 1; P.L. 1971, ch. 174, § 1; P.L. 1985, ch. 86, § 1; P.L. 1989, ch. 209, § 1; P.L. 1990, ch. 156, § 1; P.L. 1990, ch. 323, § 1.

34-13-10. Return of recorded documents.

Any instrument presented for recording in the records of land evidence, which original is intended to be returned to the person recording or to an address previously indicated, shall be forwarded within one hundred eighty (180) days of the date the instrument was actually recorded.

History of Section. P.L. 1985, ch. 290, § 1.

Repealed Sections.

The former section (G.L. 1896, ch. 295, § 6; G.L. 1909, ch. 364, § 6; P.L. 1920, ch. 1886, § 1; G.L. 1923, ch. 417, § 6; G.L. 1938, ch. 633, § 6; G. 1956, § 34-13-10 ), concerning fees for certifying and searching records, was repealed by P.L. 1970, ch. 205, § 2.

34-13-11. Change in name or status of owner of real estate.

Any person, corporation or limited liability company owning real estate or having an interest therein whose name has been changed, any corporation which has been merged into or consolidated with another, and any general or limited partnership which has converted to a limited liability company, shall, within sixty (60) days after the change, merger, consolidation, or conversion file with the city or town clerk or the recorder of deeds of the city or town in which the real estate is located a certificate, duly acknowledged, notarized, giving the name before and after the change, merger, consolidation or conversion and the city or town clerk or recorder of deeds shall record and index the certificate in the land records.

History of Section. P.L. 1999, ch. 417, § 1.

34-13-12. Conveyance of property acquired prior to change of name.

Any person or corporation who conveys property acquired prior to a change of name shall state in the instrument of conveyance the name under which that person or corporation acquired the property, and the city or town clerk or recorder of deeds shall index the record of the instrument in the name under which the property was acquired and in the name under which it was transferred.

History of Section. P.L. 1999, ch. 417, § 1.

Chapter 13.1 Marketable Record Title

Compiler’s Notes.

P.L. 1995, ch. 241, § 1 and P.L. 1995, ch. 299, § 1 enacted identical versions of this chapter.

34-13.1-1. Marketable record title — Definitions.

As used in this chapter:

  1. “Marketable record title” means a title of record which operates to extinguish such interest and claims, existing prior to the effective date of the root of title as are stated in § 34-13.1-4 .
  2. “Person dealing with land” includes a purchaser of any estate or interest therein, a mortgagee, an attaching or judgment creditor, or any other person seeking to acquire an estate or interest therein, or impose a lien thereon;
  3. “Recorded” means recorded as provided by chapter 13 of this title;
  4. “Records” means the Land Evidence Records of the town or city where the particular land is located;
  5. “Root of title” means that conveyance or other title transaction in the chain of title of a person, purporting to create or containing language sufficient to transfer the interest claimed by such person, upon which he relies as a basis for the marketability of his title, and which was the most recent to be recorded as of a date forty (40) years prior to the time when marketability is being determined. The effective date of the root of title is the date on which it is recorded;
  6. “Title transaction” means any transaction affecting title to any interest in land, including, but not limited to, title by will or descent, title by tax deed, by public sale, by trustee’s, referee’s, guardian’s, executor’s, administrator’s, conservator’s, Tax collector’s, sheriff’s, commissioner’s, constable’s warranty or quitclaim deed, by mortgagee’s deed or by decree of any court.

History of Section. P.L. 1995, ch. 241, § 1; P.L. 1995, ch. 299, § 1; P.L. 2011, ch. 363, § 14.

NOTES TO DECISIONS

Applicability.

Marketable Record Title Act did not apply when plaintiff’s right-of-way in a road was established by a 1953 conveyance to plaintiff’s predecessor in title, where the grantors made an incipient dedication of the road by selling lots with reference to a recorded plat. Plaintiff’s right-of-way did not depend on a reservation in the deed to the 1953 buyers. Bitting v. Gray, 897 A.2d 25, 2006 R.I. LEXIS 65 (2006).

34-13.1-2. Chain of title for not less than forty years creates marketable record title.

Any person having legal capacity to own land in this state, who has an unbroken chain of title to any interest in land for forty (40) years or more, shall be deemed to have a marketable record title to that interest, subject only to the matters stated in § 34-13.1-3 . A person has such an unbroken chain of title when the land records of the town in which the land is located disclose a conveyance or other title transaction, of record not less than forty (40) years at the time the marketability is to be determined, which conveyance or other title transaction purports to create such interest in land, or which contains language sufficient to transfer the interest, either in the person claiming that interest, or some other person from whom, by one or more conveyances or other title transactions of record, the purported interest has become vested in the person claiming the interest; with nothing appearing of record, in either case, purporting to divest the claimant of the purported interest.

History of Section. P.L. 1995, ch. 241, § 1; P.L. 1995, ch. 299, § 1.

34-13.1-3. Interest to which title is subject.

Such marketable record title is subject to: (1) All interest and defects which are created by or arise out of the muniments of which the chain of record title is formed; provided a general reference in the muniments, or any of them, to easements, use restriction, encumbrances or other interests created prior to the root of title are not sufficient to preserve them, unless specific identification is made therein of a recorded title transaction which creates the easement, use restriction, encumbrance or other interest; (2) all interests preserved by the recording of proper notice or by possession by the same owner continuously for a period of forty (40) years or more, in accordance with § 34-13.1-5 ; (3) the rights of any person arising from a period of adverse possession or use, which was in whole or in part subsequent to the effective date of the root of title; (4) any interest arising out of a title transaction which has been recorded subsequent to the effective date of the root of title from which the unbroken chain of title of record started; provided such recording shall not revive or give validity to any interest which has been extinguished prior to the time of the recording by the operation of § 34-13.1-4 ; (5) the exceptions stated in § 34-13.1-7 as to rights of reversioners in leases, as to apparent easements and interests in the nature of easements, and as to interests of the United States, this state and political subdivisions thereof, public service companies and natural gas companies; and (6) the rights or interests arising out of any conservation or preservation restriction and or easement, created either: (i) if executed and recorded subsequent to the effective date of chapter 39 of this title entitled “Conservation and Preservation Restrictions on Real Property”, any conservation or preservation easement or restriction granted or reserved in accordance with and pursuant to the terms and provisions thereof; or (ii) if executed and recorded prior to the effective date of chapter 39 of this title, a conservation and/or preservation easement or restriction granted or reserved for the same, or substantially the same, stated purposes as those set forth in § 34-39-2 , although executed and recorded prior thereto, and which is held by an entity duly recognized in chapter 39 of this title to hold such restrictions and/or easements.

History of Section. P.L. 1995, ch. 241, § 1; P.L. 1995, ch. 299, § 1; P.L. 1998, ch. 330, § 1.

Compiler’s Notes.

This section is set out to correct a typographical error in the reference to § 34-13.1-17 which has been changed to 34-13.1-7 .

34-13.1-4. Prior interest void.

Subject to the matters stated in § 34-13.1-3 such marketable record title shall be held by its owner and such shall be taken by any person dealing with the land free and clear of all interests, claims or charges whatsoever, the existence of which depends upon any act, transaction, event or omission that occurred prior to the effective date of the root title. All such interests, claims or charges, however, denominated, whether legal or equitable, present or future, whether those interests, claims or charges are asserted by a person sui juris or under a disability, whether that a person is within or without the state, whether that person is natural or corporate is private or governmental, are hereby declared to be null and void.

History of Section. P.L. 1995, ch. 241, § 1; P.L. 1995, ch. 299, § 1.

34-13.1-5. Notice of claim filed within forty (40) year period.

  1. Any person claiming an interest of any kind in land may preserve and keep effective that interest by recording, during the forty (40) year period immediately following the effective date of the root title of the person whose record title would otherwise be marketable, a notice in writing, duly verified by oath, setting forth the nature of the claim. No disability or lack of knowledge of any kind on the part of anyone suspends the running of the forty (40) year period. Such notice may be recorded by the claimant or by any other person acting on behalf of any claimant who is: (1) Under a disability (2) unable to assert a claim on his or her own behalf or (3) one of a class, but whose identity cannot be established or is uncertain at the time of filing such notice of claim record.
  2. If the same record owner of any possessory interest in land has been in possession of that land continuously for a period of forty (40) years or more, during which period no title transaction with respect to the interest appears of record in his or her chain of title and no notice has been recorded by him or her on his or her behalf as provided in subsection (a) of this section, and the possession continues to the time when marketability is being determined, that period of possession shall be deemed equivalent to the recording of the notice immediately preceding the termination of the forty (40) year period described in subsection (a) of this section.

History of Section. P.L. 1995, ch. 241, § 1; P.L. 1995, ch. 299, § 1.

34-13.1-6. Contents of notice — Recording — Indexing.

  1. To be effective and to be entitled to recordation, the notice referred to in § 34-13.1-5 shall contain an accurate and full description of all land affected by the notice, which description shall be set forth in particular terms and not by general inclusions; but, if the claim asserted under § 34-13.1-5 is founded upon a recorded instrument, the description in the notice may be the same as that contained in the recorded instrument. In addition, each notice shall clearly state the then owner or owners of record of the property involved.
  2. Each notice shall be recorded in the land records of the town where the land described there is located. The notice shall be indexed in the grantors’ index under the name or names of the owners of record as listed in the notice and in the grantees’ index under the name of the claimant appearing in the notice.

History of Section. P.L. 1995, ch. 241, § 1; P.L. 1995, ch. 299, § 1.

34-13.1-7. Excepted interests.

This chapter shall not be applied to bar any lessor or is or her successor as a reversioner of his or her right to possession on the expiration of any lease or to bar or extinguish any easement or interest in the nature of an easement, or any rights granted, excepted or reserved by the instrument creating such easement or interest, including any right for future use, if the existence of such easement or interest is evidenced by the location beneath, upon or above any part of the land described in such instrument of any pipe, valve, road, wire, cable, conduit, duct, sewer, track, hole, tower or other physical facility and whether or not the existence of such facility is observable, or to bar, extinguish or otherwise affect any interest of the United States, of this state or any political subdivision thereof, of any public utility company as defined in § 39-1-2 .

History of Section. P.L. 1995, ch. 241, § 1; ch. 299, § 1.

34-13.1-8. Other statutes not affected.

Nothing contained in this chapter shall be construed to extend the period for bringing an action or for doing any other required act under any statute of limitation, nor, except as herein specifically provided, to affect the operation of any statute governing the effect of the recording or the failure to record any instrument affecting land.

History of Section. P.L. 1995, ch. 241, § 1; P.L. 1995, ch. 299, § 1.

34-13.1-9. Notice not to be recorded to slander title damages.

No person may use the privilege of recording notices under §§ 34-13.1-5 and 34-13.1-6 for the purpose of slandering the title to land. In any action brought for the purpose of quieting title to land, if the court finds that any person has recorded a claim for that purpose only, the court shall award the plaintiff all the costs of the action, including such attorneys’ fees as the court may allow to the plaintiff, and in addition, shall decree that the defendant asserting the claim shall pay to the plaintiff all damages the plaintiff may have sustained as the result of such notice of claim having been so recorded.

History of Section. P.L. 1995, ch. 241, § 1; P.L. 1995, ch. 299, § 1.

34-13.1-10. Construction.

This chapter shall be liberally construed to effect the legislative purpose of simplifying and facilitating land title transactions by allowing persons to rely on a record chain of title as described in § 34-13.1-2 subject only to such limitations as appear in § 34-13.1-3 .

History of Section. P.L. 1995, ch. 241, § 1; P.L. 1995, ch. 299, § 1.

34-13.1-11. Forty year period extended to all for recording of notice.

If the forty (40) year period specified in this chapter has expired, or would expire, prior to two (2) years after the effective date of this statute, such period shall be extended two (2) years after the effective date of this statute to allow for the recording of notice pursuant to this chapter.

History of Section. P.L. 1995, ch. 241, § 1; P.L. 1995, ch. 299, § 1.

Chapter 13.2 Uniform Real Property Electronic Recording Act

34-13.2-1. Short title.

This chapter shall be known and may be cited as the “Uniform Real Property Electronic Recording Act.”

History of Section. P.L. 2018, ch. 101, § 1; P.L. 2018, ch. 113, § 1.

Compiler’s Notes.

P.L. 2018, ch. 101, § 1, and P.L. 2018, ch. 113, § 1 enacted identical versions of this chapter.

Effective Dates.

P.L. 2018, ch. 101, § 2, provides that this chapter takes effect on July 1, 2019.

P.L. 2018, ch. 113, § 2, provides that this chapter takes effect on July 1, 2019.

34-13.2-2. Definitions.

As used in this chapter:

  1. “Document” means information that is:
    1. Inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form; and
    2. Eligible to be recorded in the land records maintained by the recorder of deeds.
  2. “Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
  3. “Electronic document” means a document that is received by the recorder of deeds in an electronic form.
  4. “Electronic signature” means an electronic sound, symbol, or process attached to or logically associated with a document and executed or adopted by a person with the intent to sign the document.
  5. “Jurisdiction” means any municipality, city, or town incorporated in the state of Rhode Island.
  6. “Person” means an individual, corporation, business trust, estate, trust, partnership, limited-liability company, association, joint venture, public corporation, government, or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.
  7. “Recorder of deeds” means the officer who has authority under state law to accept documents for recording in the land records office. This could include such officers as the “registrar”, “clerk”, and/or the “recorder”.
  8. “State” means the state of Rhode Island.

History of Section. P.L. 2018, ch. 101, § 1; P.L. 2018, ch. 113, § 1.

34-13.2-3. Validity of electronic documents.

  1. If a law requires, as a condition for recording, that a document be an original, be on paper or another tangible medium, or be in writing, the requirement is satisfied by an electronic document satisfying this chapter.
  2. If a law requires, as a condition for recording, that a document be signed, the requirement is satisfied by an electronic signature.
  3. A requirement that a document or a signature associated with a document be notarized, acknowledged, verified, witnessed, or made under oath is satisfied if the electronic signature of the person authorized to perform that act, and all other information required to be included, is attached to or logically associated with the document or signature. A physical or electronic image of a stamp, impression, or seal need not accompany an electronic signature.

History of Section. P.L. 2018, ch. 101, § 1; P.L. 2018, ch. 113, § 1.

34-13.2-4. Recording of documents.

  1. In this section, “paper document” means a document that is received by the recorder of deeds in a form that is not electronic.
  2. A recorder of deeds:
    1. Who implements any of the functions listed in this section shall do so in compliance with the most recent standards and best practices.
    2. May receive, index, store, archive, and transmit electronic documents.
    3. May provide for access to, and for search and retrieval of, documents and information by electronic means.
    4. Who accepts electronic documents for recording shall continue to accept paper documents as authorized by state law and shall place entries for both types of documents in the same index.
    5. May convert paper documents accepted for recording into electronic form.
    6. May convert into electronic form information recorded before the recorder of deeds began to record electronic documents.
    7. May accept electronically any fee or tax that the recorder of deeds is authorized to collect pursuant to § 34-13-7 .
    8. May agree with other officials of other cities or towns within the state on procedures or processes to facilitate the electronic satisfaction of prior approvals and conditions precedent to recording and the electronic payment of fees and taxes.

History of Section. P.L. 2018, ch. 101, § 1; P.L. 2018, ch. 113, § 1.

34-13.2-5. Administration and standards.

To keep the standards and practices of recorder of deeds in this state in harmony with other jurisdictions in this state, the recorder of deeds, so far as is consistent with the purposes, policies, and provisions of this chapter, in adopting, amending, and repealing standards, shall consider the following:

  1. Standards and practices of other jurisdictions;
  2. Best practices that are accepted or prescribed as being correct or most effective;
  3. The views of interested persons and governmental officials and entities;
  4. The needs of municipalities of varying size, population, and resources; and
  5. Standards requiring adequate information security protection to ensure that electronic documents are accurate, authentic, adequately preserved, and resistant to tampering.

History of Section. P.L. 2018, ch. 101, § 1; P.L. 2018, ch. 113, § 1.

34-13.2-6. Relation to electronic signatures in global and national commerce act.

This chapter modifies, limits, and supersedes the federal Electronic Signatures in Global and National Commerce Act (15 U.S.C. § 7001 et seq.), but does not modify, limit, or supersede § 101(c) of that act (15 U.S.C. § 7001(c)) or authorize electronic delivery of any of the notices described in § 103(b) of that chapter (15 U.S.C. § 7003(b)).

History of Section. P.L. 2018, ch. 101, § 1; P.L. 2018, ch. 113, § 1.

Chapter 14 Waste and Estrepement

34-14-1. Liability of tenant for life or years to reversioner or remainderman.

Every person seised of any real estate for the term of his or her own life, or for the life or lives of any other person or persons, or as a tenant for years, who commits or suffers any waste on such estate, shall forfeit his or her estate in the place so wasted and double the amount of the waste so done or suffered, to be recovered in an action of waste by the person entitled to the next estate in remainder or reversion in the place so wasted.

History of Section. G.L. 1896, ch. 268, § 1; G.L. 1909, ch. 333, § 1; G.L. 1923, ch. 384, § 1; G.L. 1938, ch. 587, § 1; G.L. 1956, § 34-14-1 .

Comparative Legislation.

Waste:

Conn. Gen. Stat. § 52-563.

Mass. Ann. Laws ch. 242, § 1 et seq.

NOTES TO DECISIONS

Failure to Pay Taxes.

The failure by a life tenant to pay taxes on property is not waste where the failure to do so was predicated upon payment by another party in possession who got to the tax collector first and then denied possession to the life tenant; also, since the remainderman has made repairs to the property, the property has not suffered any lasting damage. Reniere v. Gerlach, 752 A.2d 480, 2000 R.I. LEXIS 135 (2000).

Fire.

A life tenant could not be compelled to rebuild premises destroyed by accidental fire under the doctrine of permissive waste. Sampson v. Grogan, 21 R.I. 174 , 42 A. 712, 1899 R.I. LEXIS 14 (1899).

A life tenant who took under a devise containing a direction to keep premises in repair did not, by acceptance of such devise, impliedly agree to rebuild premises accidentally destroyed by fire, as the duty to repair imposed by such devise was no greater than that imposed by law on every life tenant. Sampson v. Grogan, 21 R.I. 174 , 42 A. 712, 1899 R.I. LEXIS 14 (1899).

Collateral References.

Anticipation or enjoyment of principal, life tenant’s power of, as affecting liability for waste. 2 A.L.R. 1285; 27 A.L.R. 1384; 69 A.L.R. 830; 114 A.L.R. 951.

Forfeiture of life estate for waste. 16 A.L.R.3d 1344.

Repairs, action by remainderman founded on permissive waste because of life tenant’s failure to make. 128 A.L.R. 225; 175 A.L.R. 1442.

Right of contingent remainderman to maintain action for damages for waste. 56 A.L.R.3d 677.

34-14-2. Liability of co-tenant.

Every joint tenant, tenant in common, or co-parcener who commits any waste on any estate he or she holds in joint tenancy, tenancy in common, or co-parcenary, without the consent of the other joint tenants, tenants in common, or co-parceners, shall forfeit double the amount of the waste so done, to be recovered by the other joint tenants, tenants in common, or co-parceners, to their own use.

History of Section. G.L. 1896, ch. 268, § 2; G.L. 1909, ch. 333, § 2; G.L. 1923, ch. 384, § 2; G.L. 1938, ch. 587, § 2; G.L. 1956, § 34-14-2 .

Collateral References.

Accountability of co-tenant for minerals and timber removed from property, basis of computation. 5 A.L.R.2d 1368.

Timber, rights of co-tenants inter se as to. 2 A.L.R. 993; 41 A.L.R. 582.

34-14-3. Action in name of co-tenants.

In a case of waste as described in § 34-14-2 , any one or more of the other joint tenants, tenants in common, or co-parceners, may commence an action for waste in the name of all the joint tenants, tenants in common, or co-parceners.

History of Section. G.L. 1896, ch. 268, § 3; G.L. 1909, ch. 333, § 3; G.L. 1923, ch. 384, § 3; G.L. 1938, ch. 587, § 3; G.L. 1958, § 34-14-3 .

Cross References.

Survival of action, § 9-1-6 .

Venue of actions, § 9-4-2 .

NOTES TO DECISIONS

Section Cumulative.

Trespass on the case for waste was a proper remedy, since the statutory action of waste under this section does not exclude the common law action of case for injury to the reversion but is merely cumulative. Thackeray v. Eldigan, 21 R.I. 481 , 44 A. 689, 1899 R.I. LEXIS 103 (1899).

Collateral References.

Contingent or defeasible future interests, right of owner of, to maintain action for waste. 144 A.L.R. 769.

34-14-4. Failure of person joined as plaintiff to appear.

If any person named as plaintiff without his or her consent neglects to appear, after being duly notified in such manner as the court shall direct, his or her name shall be stricken from the writ and pleadings, and the other persons named as plaintiffs may prosecute the action to final judgment and execution in their own names and for their own use.

History of Section. G.L. 1896, ch. 268, § 4; G.L. 1909, ch. 333, § 4; G.L. 1923, ch. 384, § 4; G.L. 1938, ch. 587, § 4; G.L. 1956, § 34-14-4 .

34-14-5. Issuance of writ of estrepement.

The superior court for any county, on the application of the plaintiff, in an action for ejectment, partition, or waste, may issue a writ of estrepement, under the provisions following, directed to the division of sheriffs, requiring the deputy sheriff to stay all the waste on the estate that shall be described in the writ of estrepement.

History of Section. G.L. 1896, ch. 268, § 5; C.P.A. 1905, § 1222; G.L. 1909, ch. 333, § 5; G.L. 1923, ch. 384, § 5; G.L. 1938, ch. 587, § 5; G.L. 1956, § 34-14-5 ; P.L. 2012, ch. 324, § 64.

34-14-6. Power of sheriff to stay waste.

The members of the division of sheriffs, charged with the service of a writ of estrepement, shall have power to stay all waste, as shall be directed in the writ, and to take such aid as shall be necessary for that purpose.

History of Section. G.L. 1896, ch. 268, § 6; G.L. 1909, ch. 333, § 6; G.L. 1923, ch. 384, § 6; G.L. 1938, ch. 587, § 6; P.L. 1939, ch. 659, § 2; G.L. 1956, § 34-14-6 ; P.L. 2012, ch. 324, § 64.

34-14-7. Notice and hearing on estrepement.

Upon the application of any person for a writ of estrepement, the court, before issuing the writ, shall cause the person whose interests may be affected thereby, to be notified of the pendency of the application, in such manner as the court shall deem proper, to the end that the person so to be affected by, as well as the person applying for the writ, may be heard in the premises. Upon the hearing, the court may, in its discretion, issue or refuse to issue the writ, in the same manner as courts grant or refuse to grant injunctions in like cases.

History of Section. G.L. 1896, ch. 268, § 7; G.L. 1909, ch. 333, § 7; G.L. 1923, ch. 384, § 7; G.L. 1938, ch. 587, § 7; G.L. 1956, § 34-14-7 .

34-14-8. Estrepement bond.

The court may, on the hearing, and before the issuing of the writ, require of the party applying for the writ a bond, with sufficient surety, in such sum as the court shall prescribe, to make good to the party whose interest may be affected by the writ all loss and damage which he or she may suffer by reason of the issuing of the writ, if the court, in its discretion, judges that the circumstances of the case or the rights of the parties require a bond to be given.

History of Section. G.L. 1896, ch. 268, § 8; G.L. 1909, ch. 333, § 8; G.L. 1923, ch. 384, § 8; G.L. 1938, ch. 587, § 8; G.L. 1956, § 34-14-8 .

34-14-9. Return date of writ.

A writ of estrepement shall be made returnable at such time as the court shall direct.

History of Section. G.L. 1896, ch. 268, § 9; G.L. 1909, ch. 333, § 9; G.L. 1923, ch. 384, § 9; G.L. 1938, ch. 587, § 9; G.L. 1956, § 34-14-9 .

Chapter 15 Partition

34-15-1. Cotenants of estates of inheritance.

All joint tenants, coparceners, and tenants in common, who now are or hereafter may be actually seised or possessed of any estate of inheritance in any lands, tenements or hereditaments, whether in their own right or as receiver appointed by any state or federal court, or as trustee in bankruptcy, may be compelled to make partition between them of those lands, tenements, and hereditaments by civil action.

History of Section. G.L. 1896, ch. 265, § 2; G.L. 1909, ch. 330, § 2; G.L. 1923, ch. 381, § 2; G.L. 1938, ch. 586, § 2; P.L. 1956, ch. 3730, § 1; G.L. 1956, § 34-15-1 .

Cross References.

Accounting for joint property, § 10-2-1 et seq.

Machinery and apparatus, partition, § 34-17-3 .

Receivers of income from joint or common property, § 10-15-1 et seq.

Tenancy in common, §§ 34-3-1 , 34-3-2 .

Comparative Legislation.

Partition:

Conn. Gen. Stat. § 52-495 et seq.

Mass. Ann. Laws ch. 241, § 1 et seq.

NOTES TO DECISIONS

Divorce Proceedings.

Although the superior court and the family court may have concurrent jurisdiction over the partition of real estate in instances in which divorce or separation proceedings have been commenced, when a complaint for partition is addressed to the superior court under circumstances in which a divorce decree of the family court constitutes an impediment to the partition of the real estate, the superior court either may properly dismiss the complaint without prejudice pending application to the family court for modification of the decree constituting the impediment or, in the alternative, may stay proceedings pending such application by the plaintiff to the family court. However, the superior court may not grant partition as though such decree did not exist. Frazier v. Frazier, 472 A.2d 1227, 1984 R.I. LEXIS 475 (1984).

Parties.

Upon a bill for partition by tenants in common, the court would not order joinder of mortgagee whose lien extended over the entire tract, such incumbrancer not being a necessary party, as no relief could be decreed against him. Updike v. Adams, 22 R.I. 432 , 48 A. 384, 1901 R.I. LEXIS 26 (1901).

Trustee in bankruptcy is not a proper party to maintain an action for partition under this section, since it is intended to exclude those who have merely the legal title but are not actually seised or possessed of any estate in their own right. Adelson v. McKenna, 55 R.I. 363 , 181 A. 799, 1935 R.I. LEXIS 39 (1935) (decision prior to 1956 amendment.).

Procedure.

Since a bill in equity for partition of jointly owned realty is a statutory proceeding the strict rules of equity pleading are applicable and respondent should have replied by a demurrer, plea or answer within thirty days after the return day. Dunn v. Dunn, 90 R.I. 386 , 158 A.2d 276, 1960 R.I. LEXIS 28 (1960).

Right to Partition.

Tenant in common could enforce partition in equity against co-tenants, where no legal objection existed to complainant’s title, even though the result would work hardship on respondents, as partition in equity is a matter of right and not discretionary. Updike v. Adams, 22 R.I. 432 , 48 A. 384, 1901 R.I. LEXIS 26 (1901).

Where division by metes and bounds was not practicable, this section did not apply insofar as it made partition between joint tenants a matter of right, and the court had discretion under § 34-15-16 as to whether sale would be decreed. Bianchini v. Bianchini, 76 R.I. 30 , 68 A.2d 59, 1949 R.I. LEXIS 89 (1949).

R.I. Gen. Laws § 34-15-12 abrogates the common law right of survivorship in a joint tenancy when an action for partition is pending; when a joint tenant commences a civil action for partition but dies before the case terminates, the statute clearly requires that the action continue to judgment with the heirs or devisees of the decedent, in the same manner as might have been done had the heirs or devisees been original parties in the action. Butler v. Gavek, 245 A.3d 750, 2021 R.I. LEXIS 11 (2021).

Collateral References.

Contractual provisions as affecting right to judicial partition. 37 A.L.R.3d 962.

Co-tenant’s right to partition of oil and gas. 40 A.L.R. 1408; 91 A.L.R. 210.

Devise or bequest of property as compensation for services, claim under contract as to, as affecting right to partition of heirs of promissor. 69 A.L.R. 87; 106 A.L.R. 753.

Different tracts of land, right to partition of, in same proceeding. 65 A.L.R. 893.

Dower right as affecting partition proceedings. 159 A.L.R. 1129.

Joint tenancy, termination by commencing partition action. 64 A.L.R.2d 918; 39 A.L.R.4th 1068.

Judgment creditor of co-tenant, right to maintain partition. 25 A.L.R. 105.

Lack of final settlement of intestate’s estate as affecting heir’s right to partition of realty. 92 A.L.R.3d 473.

Lease as affecting partition. 151 A.L.R. 388.

Mineral or oil and gas land, right to partition in kind of. 143 A.L.R. 1092.

Minerals in place, partition of undivided interests in. 173 A.L.R. 854.

Partnership real property, partition of. 77 A.L.R. 300.

Possessory requirements for co-tenant’s suit for partition. 171 A.L.R. 932.

Pre-existing mortgage or other lien on undivided interest, partition as affecting. 93 A.L.R. 1267.

Pretermitted child’s right to maintain partition proceedings. 123 A.L.R. 1092.

Probate of will as condition precedent to suit for partition by devisees. 141 A.L.R. 1311.

Protection, in partition, of grantee in deed purporting to convey a definite parcel by part only of co-tenants. 77 A.L.R.2d 1376.

Severance of estate in mineral from estate in surface by one or more of co-tenants as affecting right to partition. 39 A.L.R. 741.

Testamentary provision operating to prohibit or postpone partition. 85 A.L.R. 1321.

Timber rights as subject to partition. 21 A.L.R.2d 618.

34-15-2. Cotenants of estates for life or years.

All joint tenants, coparceners, and tenants in common, who now are or hereafter may be actually seised or possessed of any estate for life or years in any lands, tenements, or hereditaments, may be compelled to make the partition between them of such lands, tenements, and hereditaments, to continue until the estate of some of the parties to the lands, tenements, or hereditaments shall determine, and no longer, by civil action.

History of Section. G.L. 1896, ch. 265, § 3; G.L. 1909, ch. 330, § 3; G.L. 1923, ch. 381, § 3; G.L. 1938, ch. 586, § 3; G.L. 1956, § 34-15-2 .

Collateral References.

Cestui que trust (or one claiming through or under him), right to maintain suit for partition. 126 A.L.R. 1009.

Contractual provisions as affecting right to judicial partition. 37 A.L.R.3d 962.

Fee simple conditional estate, partition of. 114 A.L.R. 615.

Lack of final settlement of intestate’s estate as affecting heir’s right to partition of realty. 92 A.L.R.3d 473.

Massachusetts or business trust, partition of property of. 156 A.L.R. 103.

34-15-3. Cotenants of estates of inheritance and for life or years.

All joint tenants, coparceners, and tenants in common, who now are or hereafter may be actually seised or possessed of any estate for life or years in any lands, tenements, or hereditaments, with others who have estates of inheritance in possession in the same lands, tenements, and hereditaments, may compel or be compelled to make partition of those lands, tenements, and hereditaments, to continue until the estate of some of the parties shall determine, and no longer, by civil action.

History of Section. G.L. 1896, ch. 265, § 4; G.L. 1909, ch. 330, § 4; G.L. 1923, ch. 381, § 4; G.L. 1938, ch. 586, § 4; G.L. 1956, § 34-15-3 .

NOTES TO DECISIONS

Common Law.

For a discussion of the common law history of and right to partition, see Duffy v. Maciag, 431 A.2d 1233, 1981 R.I. LEXIS 1183 (1981).

Persons Entitled to Partition.

Widow whose dower had been assigned to her by metes and bounds was not entitled to maintain a proceeding for partition. Newell v. Willmarth, 30 R.I. 529 , 76 A. 433, 1910 R.I. LEXIS 54 (1910).

Requirements for Partition.

The traditional requirement of an estate in possession is fairly common among current statutes as a prerequisite to compulsory partition. Duffy v. Maciag, 431 A.2d 1233, 1981 R.I. LEXIS 1183 (1981).

Collateral References.

Contractual provisions as affecting right to judicial partition. 37 A.L.R.3d 962.

Lack of final settlement of intestate’s estate as affecting heir’s right to partition of realty. 92 A.L.R.3d 473.

34-15-4. Action by executor or administrator as tenant in common.

An executor or administrator with the will annexed, having, by the terms of the testator’s will, power to sell any undivided interest in any real estate of which his or her testator died seised, shall have the power to bring an action to effect a partition of the real estate in accordance with the provisions of this chapter. “Tenant in common” as used in this chapter shall include an executor or administrator acting under this section.

History of Section. G.L., ch. 586, § 31, as enacted by P.L. 1942, ch. 1147, § 1; G.L. 1956, § 34-15-4 .

Cross References.

Jurisdiction of probate court, § 8-9-9 .

Jurisdiction of superior court, § 8-2-14 .

Venue of actions, § 9-4-2 .

Collateral References.

Executor or administrator, right of, to bring proceeding for partition of real property. 57 A.L.R. 573.

Trustee holding legal title, right to maintain partition suit. 103 A.L.R. 455.

34-15-5. Joinder of reversioner or remainderman with tenant for life or years.

If the tenant in reversion or remainder in fee joins with the tenant for life or years in compelling partition of any lands, tenements, or hereditaments, against the other co-tenants, the partition shall be of the whole estate, and binding on the heirs and assigns of all parties. No action for partition under this section shall abate by the death of the tenant for life or years or the expiration of the term for years, but the surviving plaintiff may prosecute the action to final judgment and execution.

History of Section. G.L. 1896, ch. 265, § 5; G.L. 1909, ch. 330, § 5; G.L. 1923, ch. 381, § 5; G.L. 1938, ch. 586, § 5; G.L. 1956, § 34-15-5 .

NOTES TO DECISIONS

Common Law.

For a discussion of the common law history of and right to partition, see Duffy v. Maciag, 431 A.2d 1233, 1981 R.I. LEXIS 1183 (1981).

Collateral References.

Contractual provisions as affecting right to judicial partition. 37 A.L.R.3d 962.

34-15-6. Venue when land situated in two (2) or more counties.

Partition of real estate held in joint tenancy or in common, and situated in two (2) or more counties in the state, may be sued for in any county in which any of the real estate is situated.

History of Section. G.L. 1896, ch. 265, § 6; C.P.A. 1905, § 1164; G.L. 1909, ch. 330, § 6; G.L. 1923, ch. 381, § 6; G.L. 1938, ch. 586, § 6; G.L. 1956, § 34-15-6 .

NOTES TO DECISIONS

Parties.

This section does not require the parties to a partition or sale to be cotenants. De Lisi v. Caito, 463 A.2d 167, 1983 R.I. LEXIS 1020 (1983).

34-15-7. Notice to absent or unknown parties.

In actions for partition of real estate, in which it may be alleged or may appear that any party or person interested therein, not a party plaintiff, is not a resident of the state, or where it is alleged or may appear that any person interested has left the state and it is not known where that person is or whether alive or dead, and, if dead, whether that person has left children, or whether some person unknown to the plaintiff is interested therein, the court before whom the action is pending may order notice to be given to any such party or person, by ordering a copy of its order to be published in some newspaper published in this state for such length of time as it may deem proper, and may also, in its discretion, order letters, postpaid and directed to the party or person, to be deposited in the post office; and where notice is given as ordered by the court, it may proceed and render judgment in the action in the same manner and with the same effect as if the party or person had received actual or personal notice or had appeared and answered to the action.

History of Section. G.L. 1896, ch. 265, § 7; G.L. 1909, ch. 330, § 7; G.L. 1923, ch. 381, § 7; G.L. 1938, ch. 586, § 7; G.L. 1956, § 34-15-7 .

Collateral References.

Contingent remainderman not in esse, necessity that living members of the same class be parties to give court jurisdiction, under doctrine of representation, in respect of interests of. 120 A.L.R. 876.

Court’s interference with decision of commissioners because of failure to give notice. 46 A.L.R. 355.

34-15-8. Notice to absentee by service on tenant in possession.

If a person named defendant in a complaint for partition, being an inhabitant of this state, is temporarily absent from the state, so that, although it may be known where the person is, the complaint or subpoena cannot be personally served upon him or her, legal service may be made by leaving a copy of the complaint or subpoena with the tenant in possession of the estate whereof partition is demanded, if there is a tenant.

History of Section. G.L. 1896, ch. 265, § 8; G.L. 1909, ch. 330, § 8; G.L. 1923, ch. 381, § 8; G.L. 1938, ch. 586, § 8; G.L. 1956, § 34-15-8 .

34-15-9. Continuance on failure of absentee to appear — Appointment of agent.

If the defendant does not appear to answer the partition action, the cause shall be continued or delayed until his or her return, provided the defendant on or before the expiration of three (3) months from the time when the proceeding shall have been commenced, at which time, if the defendant does not appear to answer the action, the court shall appoint some discreet and disinterested person as agent of the defendant, who shall defend the action, and in case judgment is rendered for partition, shall attend to the partition to be made and take care of the interest of the person for whom he or she has been appointed agent as aforesaid.

History of Section. G.L. 1896, ch. 265, § 9; G.L. 1909, ch. 330, § 9; G.L. 1923, ch. 381, § 9; G.L. 1938, ch. 586, § 9; G.L. 1956, § 34-15-9 .

34-15-10. Summons of party omitted from original process.

In any action for partition, if any person who ought to be a party to the action is omitted, the action shall not be thereby abated; but if the omission of the party is pleaded, a summons shall issue to the person thus omitted, which summons shall be served in the manner prescribed by law at least twenty (20) days before trial, and the person may come in and defend in the same manner as though he or she had been originally made a party to the action, and if the person thus summoned appears or neglects to appear, his or her name may be inserted in the process by the court, and judgment shall be rendered in the action in the same manner as if the person had been originally a party.

History of Section. G.L. 1896, ch. 265, § 10; G.L. 1909, ch. 330, § 10; G.L. 1923, ch. 381, § 10; G.L. 1938, ch. 586, § 10; G.L. 1956, § 34-15-10 .

Collateral References.

Estoppel of one not party to partition by failure to disclose his interest on the property. 50 A.L.R. 791.

Lessee as necessary or proper party to partition proceedings. 151 A.L.R. 396.

Mortgagee or other holder of lien upon an undivided interest as a necessary or proper party. 126 A.L.R. 414.

34-15-11. Appointment of guardian ad litem.

If, in any such action, the defendant is an infant, of unsound mind or otherwise incapacitated to take care of his or her right and estate, the court before which such action shall be pending shall appoint some discreet and disinterested person as guardian to defend the infant, person of unsound mind, or person otherwise incapacitated, against the action, and in case of judgment for partition, to attend to the partition to be made, and take charge of the interest of the person for whom he or she is appointed guardian.

History of Section. G.L. 1896, ch. 265, § 11; G.L. 1909, ch. 330, § 11; G.L. 1923, ch. 381, § 11; G.L. 1938, ch. 586, § 11.

34-15-12. Death of party — Substitution of heirs or devisees.

No action for partition shall be abated by the decease of either of the parties plaintiff or defendant in the action. In case of the decease of either of the plaintiffs or defendants in the action, the court shall cause the heirs at law or devisees of the deceased party to be notified of the pendency of the action in the same manner as if they had been parties in the original action, and may, after the notice has been given, render judgment in the action in the same manner as might have been done had the heirs or devisees been original parties in the action.

History of Section. G.L. 1896, ch. 265, § 12; G.L. 1909, ch. 330, § 12; G.L. 1923, ch. 381, § 12; G.L. 1938, ch. 586, § 12; G.L. 1956, § 34-15-12 .

NOTES TO DECISIONS

Construction.

Hearing justice erred in granting joint tenants’ motion to dismiss a decedent’s partition action without considering the effect of R.I. Gen. Laws § 34-15-12 because the statute abrogated the common law right of survivorship in a joint tenancy when an action for partition was pending; given that the statutory language was clear and unambiguous, the Supreme Court had to interpret the statute literally and had to give the words of the statute their plain and ordinary meanings. Butler v. Gavek, 245 A.3d 750, 2021 R.I. LEXIS 11 (2021).

R.I. Gen. Laws § 34-15-12 abrogates the common law right of survivorship in a joint tenancy when an action for partition is pending; when a joint tenant commences a civil action for partition but dies before the case terminates, the statute clearly requires that the action continue to judgment with the heirs or devisees of the decedent, in the same manner as might have been done had the heirs or devisees been original parties in the action. Butler v. Gavek, 245 A.3d 750, 2021 R.I. LEXIS 11 (2021).

Applicability.

This section is not applicable in divorce actions. Keidel v. Keidel, 119 R.I. 726 , 383 A.2d 264, 1978 R.I. LEXIS 610 (1978).

Appeal.

Estate’s appeal of an order granting joint tenants’ motion to dismiss a partition action on the ground that the decedent’s demise terminated her interest in a joint tenancy was properly before the Supreme Court because the estate was clearly aggrieved; if the dismissal was upheld, the estate would be left with no interest in the property. Butler v. Gavek, 245 A.3d 750, 2021 R.I. LEXIS 11 (2021).

Under R.I. Gen. Laws § 34-15-12 , the fact that an executrix was never formally substituted as a party to a decedent’s partition action was not fatal to her ability to appeal from the final judgment of dismissal because the decedent’s decease did not abate her action for partition; thus, her death did not end the litigation, thereby necessitating its “revival” by her estate, since the litigation remained pending. Butler v. Gavek, 245 A.3d 750, 2021 R.I. LEXIS 11 (2021).

34-15-13. Voluntary appearance by heirs or devisees of deceased party.

If the deceased person’s heirs or devisees voluntarily appear in court without notice as provided in § 34-15-12 , the court may proceed without further delay to try, render judgment, and proceed in the action.

History of Section. G.L. 1896, ch. 265, § 13; G.L. 1909, ch. 330, § 13; G.L. 1923, ch. 381, § 13; G.L. 1938, ch. 586, § 13; G.L. 1956, § 34-15-13 .

34-15-14. Joint or several answers.

In actions for partition against several defendants, each of the defendants may answer severally, or any two (2) or more may answer jointly, and in their answers set forth the right or interest which they and each of them have in the estate for the partition of which the action is commenced.

History of Section. G.L. 1896, ch. 265, § 14; G.L. 1909, ch. 330, § 14; G.L. 1923, ch. 381, § 14; G.L. 1938, ch. 586, § 14; G.L. 1956, § 34-15-14 .

34-15-15. Order to set off share of party.

In actions for partition, the court may order the share of any plaintiff or of any defendant, or of any two (2) or more of the parties plaintiff and defendant, to be set off to the party or parties, dividing the remainder or leaving it undivided, in its discretion.

History of Section. G.L. 1896, ch. 265, § 15; G.L. 1909, ch. 330, § 15; G.L. 1923, ch. 381, § 15; G.L. 1938, ch. 586, § 15; G.L. 1956, § 34-15-15 .

Collateral References.

Adjustment on partition of improvements made by tenant in common. 1 A.L.R. 1189; 122 A.L.R. 234.

Building, division of. 28 A.L.R. 727.

Dower and homestead rights, allotment in partition suit. 159 A.L.R. 1129.

Mortgage or other lien upon premises, co-tenant’s right to allowance in partition in respect of amount paid to discharge, as affected by statute of limitations or laches. 117 A.L.R. 1442.

Pleading, right under general prayer to relief inconsistent with prayer for specific relief. 30 A.L.R. 1183.

Power to decree pecuniary sum as owelty to equalize shares of parties in partition. 65 A.L.R. 352.

Protection, in partition, of grantee in deed purporting to convey a definite parcel by part only of co-tenants. 77 A.L.R.2d 1376.

Respective rights of owners of different parcels into which land subject to an oil and gas lease has been divided. 5 A.L.R. 1162.

Taxes or local improvement assessment, right of purchaser at invalid sale for, to secure reimbursement from owner in action for partition. 86 A.L.R. 1232.

34-15-16. Order of sale.

In an action for partition, the superior court may, in its discretion, upon motion of any party to the action, order the whole premises sought to be divided, or any particular lot, portion, or tract thereof or the interest of the plaintiff or plaintiffs or of the defendant or defendants in the whole premises, or in any particular lot, portion, or tract thereof, to be sold, either at public auction or by private contract, under the direction of the court, by the commissioner or commissioners appointed to divide or sell the same; provided, that if the sale is made by private contract, it shall not be made for less than the sum fixed by the court in its decree authorizing the sale by private contract.

History of Section. G.L. 1896, ch. 265, § 16; C.P.A. 1905, § 1220; G.L. 1909, ch. 330, § 16; P.L. 1914, ch. 1084, § 1; G.L. 1923, ch. 381, § 16; G.L. 1938, ch. 586, § 16; G.L. 1956, § 34-15-16 .

NOTES TO DECISIONS

In General.

The intention of this statute is to provide for equitable partition of lands if this is at all possible, but if not then the court has discretionary power to order a sale of the property and distribute the proceeds. Lannon v. Lannon, 40 R.I. 60 , 99 A. 819, 1917 R.I. LEXIS 8 (1917).

Where property could not be partitioned by metes and bounds, court was required under this section to exercise sound discretion and to consider all facts before it allowed partition by sale. De Bartolo v. Di Battista, 117 R.I. 349 , 367 A.2d 701, 1976 R.I. LEXIS 1636 (1976).

Division by Metes and Bounds.

Where property could not be partitioned by metes and bounds, court was required under this section to exercise sound discretion and to consider all facts before it allowed partition by sale. Bianchini v. Bianchini, 76 R.I. 30 , 68 A.2d 59, 1949 R.I. LEXIS 89 (1949).

The trial court’s finding that it would be impractical to divide by metes and bounds property consisting of a single house with separate apartments on the first and second floors located on a single parcel of land was upheld. Matracia v. Matracia, 119 R.I. 431 , 378 A.2d 1388, 1977 R.I. LEXIS 2102 (1977).

Hardship to Parties.

Trial judge abused his discretion by failing to consider plaintiff’s property rights and denying partition solely because of the hardship it would cause defendant. De Bartolo v. Di Battista, 117 R.I. 349 , 367 A.2d 701, 1976 R.I. LEXIS 1636 (1976).

Inconvenience or difficulty in making the partition or hardship or substantial loss or injury to some of the parties does not affect the right of the court to exercise its discretion in ordering partition. Matracia v. Matracia, 119 R.I. 431 , 378 A.2d 1388, 1977 R.I. LEXIS 2102 (1977).

Collateral References.

Dower and homestead rights as affecting sale in partition proceedings. 159 A.L.R. 1139.

Receiver, right to appointment of, in action between co-tenants for partition of property. 127 A.L.R. 1234.

34-15-17. Sale binding on parties to action.

No person interested in the estate and not a party to the action shall be bound by the sale, but the court may, upon motion, proceed to make all persons interested in the estate parties to the action, though nonresident, absent, or unknown, in the manner provided in this chapter; in which case, if the whole of their shares of the estate are ordered to be sold, the decree shall forever thereafter, in favor of the purchaser of the estate or shares, and of those claiming under or by virtue of the purchaser, be binding upon such nonresident, absent, or unknown person although not appearing to the action.

History of Section. G.L. 1896, ch. 265, § 17; G.L. 1909, ch. 330, § 17; G.L. 1923, ch. 381, § 17; G.L. 1938, ch. 586, § 17; G.L. 1956, § 34-15-17 .

Collateral References.

Confirmation of sale as affected by receipt of higher bid. 11 A.L.R. 399; 152 A.L.R. 530.

Legacy charged upon land devised, right of legatee to enforce payment of, as against purchaser at partition sale. 116 A.L.R. 35.

Purchaser at partition sale, rights and remedies of, where sale is void or is set aside because proceedings are imperfect or irregular, or where description of property is defective. 142 A.L.R. 310.

Relief of unsuccessful bidders from obligation to comply with bid, grounds, other than defects as to title of land, resale, or irregularity in sale. 63 A.L.R. 974.

Trust arising from parole agreement to bid in property sold at partition sale for person having an interest therein. 42 A.L.R. 109; 27 A.L.R.2d 1285.

34-15-18. Division of proceeds of sale — Share set aside for absent or unknown parties.

In case of a sale under this chapter, the proceeds of the sale shall be divided, under the direction of the court, between the parties entitled thereto, in lieu of their interest in the estate ordered or decreed to be sold, and the portion of the proceeds of sale to which any party or person absent from the state or unknown and not appearing to claim the proceeds, may be entitled, may be invested for that person by the commissioners, under the direction of the court, and in such name as the court may direct, after deducting from that portion the reasonable share of the costs and expenses of partition of the party or persons, to be allowed by the court to those entitled thereto. In all cases the investment and the further disposition of the proceeds, and the deposit and disposition to be made of the evidence thereof, shall be subject only to the order and control of the court.

History of Section. G.L. 1896, ch. 265, § 18; G.L. 1909, ch. 330, § 18; G.L. 1923, ch. 381, § 18; G.L. 1938, ch. 586, § 18; G.L. 1956, § 34-15-18 .

Collateral References.

Clerk of court or sureties, liability of, for proceeds of partition paid into court. 59 A.L.R. 64.

Retainer of indebtedness of heir, legatee or distributee from proceeds of partition sale. 1 A.L.R. 1023; 75 A.L.R. 884; 164 A.L.R. 740.

34-15-19. Adjudication of all claims.

Whenever in any action for partition of real estate it is alleged or it appears that any person claims or may claim any right, title, or interest in the estate adversely or otherwise to any party to the action, the court before whom the action is pending may order that person to appear and make his or her claim in writing therein within such time as shall be prescribed by the order, or in default thereof to be forever barred from all right, title, interest, and claim in and to the estate or any part thereof, service of the order, actual or constructive, by publication or otherwise, to be made upon the person as the court shall direct; and the court may thereupon proceed, and, if the person does not appear as required by the order, may adjudge that he or she has no right, title, interest, or claim in or to the estate, or, whether he or she appears or not, may itself, in such manner as it deems proper, or by a jury upon issues framed for that purpose, try and determine what, if any, right, title, interest, or claim he or she has therein, and adjudge accordingly, and the judgment in either event shall be final.

History of Section. G.L. 1896, ch. 265, § 19; G.L. 1909, ch. 330, § 19; G.L. 1923, ch. 381, § 19; G.L. 1938, ch. 586, § 19; G.L. 1956, § 34-15-19 .

34-15-20. Partition of lands of fee holders and of life tenants, reversioners, and remaindermen.

Partition may be made of any lands, tenements, or hereditaments between the person or persons who hold the fee of any share or shares thereof, and the person or persons who hold or are or may be entitled to any share or shares thereof, for life or in reversion or remainder, and whether the remainder is vested or contingent, and whether it is to persons in being and ascertained or to persons not in being or to be ascertained thereafter, or subject to be opened to let in those afterwards to come into being or having other interests whatsoever, vested or contingent, therein; provided, that all persons in being at the time of the commencement of the action for partition, interested in the estate, are made parties to the proceedings and their title or interest fully shown upon the record by the pleadings; and provided, also, that before final judgment or decree for partition or sale in any such case the court shall appoint some discreet person to represent the interest of persons, if any, not then in being, whose reasonable charges, as allowed by the court, shall be taxed in the costs and be a charge upon the share or shares of the estate in which the parties not in being shall or may be interested.

History of Section. G.L. 1896, ch. 265, § 20; G.L. 1909, ch. 330, § 20; G.L. 1923, ch. 381, § 20; G.L. 1938, ch. 586, § 20; G.L. 1956, § 34-15-20 .

NOTES TO DECISIONS

Common Law.

For a discussion of the common-law history of and right to partition, see Duffy v. Maciag, 431 A.2d 1233, 1981 R.I. LEXIS 1183 (1981).

Form of Partition.

This section authorizes voluntary, not compulsory, partition. Duffy v. Maciag, 431 A.2d 1233, 1981 R.I. LEXIS 1183 (1981).

Interest Required of Complainants.

Parties complainant, to obtain partition of land under this section, must together hold an absolute fee in possession as against those who have all the other estates and interests which may be present or future, in reversion or remainder, vested or contingent. Stanton v. Sullivan, 63 R.I. 216 , 7 A.2d 696, 1939 R.I. LEXIS 77 (1939).

Remaindermen to be determined as of date of death of survivor of two life tenants did not own sufficient estate under this section to bring partition action against the entire fee. Stanton v. Sullivan, 63 R.I. 216 , 7 A.2d 696, 1939 R.I. LEXIS 77 (1939).

Plaintiff, the holder of a nonpossessory reversionary interest, could not compel partition. Duffy v. Maciag, 431 A.2d 1233, 1981 R.I. LEXIS 1183 (1981).

This section does not require the parties to a partition or sale to be cotenants. De Lisi v. Caito, 463 A.2d 167, 1983 R.I. LEXIS 1020 (1983).

— Dowress as Complainant.

Widow whose dower had been assigned to her by metes and bounds was not entitled to maintain a proceeding for partition. Newell v. Willmarth, 30 R.I. 529 , 76 A. 433, 1910 R.I. LEXIS 54 (1910).

— Tenants in Tail.

The wives and husbands of first tenants in tail and the children of such tenants where the entail had not been barred were proper parties to bill for partition of real estate held by most of the parties as devisees in tail. Aylesworth v. Crocker, 21 R.I. 436 , 44 A. 308, 1899 R.I. LEXIS 92 (1899).

Life Tenancy and Remainder.

The probate court has no statutory authority to partition by sale a ward’s life tenancy and an heir’s remainder interest. De Lisi v. Caito, 463 A.2d 167, 1983 R.I. LEXIS 1020 (1983).

Collateral References.

Undivided interests held respectively in fee and in life estate with remainder, right to partition of. 12 A.L.R. 644; 134 A.L.R. 661.

34-15-21. Title vested by sale — Investment for benefit of reversioner or remainderman.

In the event of partition, by sale and division of the proceeds in any partition case under this chapter, the sale shall vest in the purchaser an absolute estate in fee simple in the lands, tenements, or hereditaments so sold, and the share or shares of the proceeds representing the share or shares of the estate subject to reversion or remainder after deducting and paying therefrom their proportional parts of the costs and expenses of partition, as determined by the court, shall be invested, under the order of the court, for the benefit of the person interested, or who may become interested in the proceeds, in the same manner as is provided in case of unknown parties in § 34-15-18 .

History of Section. G.L. 1896, ch. 265, § 21; G.L. 1909, ch. 330, § 21; G.L. 1923, ch. 381, § 21; G.L. 1938, ch. 586, § 21; G.L. 1956, § 34-15-21 .

Collateral References.

Life tenant’s interest in fund realized from partition sale of property, commutation of into estimated present value. 102 A.L.R. 969.

34-15-22. Apportionment of costs.

In an action for partition, the court before which the action may be pending may adjudge and determine, as to it shall appear equitable and just, relative to the apportionment of costs among the parties, plaintiff and defendant, by dividing the costs equally or subjecting either party to the payment of the whole or any part thereof.

History of Section. G.L. 1896, ch. 265, § 22; G.L. 1909, ch. 330, § 22; G.L. 1923, ch. 381, § 22; G.L. 1938, ch. 586, § 22; G.L. 1956, § 34-15-22 .

Cross References.

Apportionment of costs, § 9-22-6 .

NOTES TO DECISIONS

Counsel Fees.

Costs of partition as referred to in this section include attorney fees as well as the ordinary costs. Redecker v. Bowen, 15 R.I. 52 , 23 A. 62, 1885 R.I. LEXIS 58 (1885).

Decree could not be left open for the addition of extra counsel fees in the event of appeal where it appeared that such appeal, if taken, would be for the benefit of only some of the parties. Andreano v. Andreano, 66 R.I. 83 , 17 A.2d 465, 1941 R.I. LEXIS 5 (1941).

The trial justice is entitled in his discretion to allow counsel fees to the attorney for defendants if in his judgment their services were rendered in connection with the partition suit and for the benefit of all of the parties. Francis v. Francis, 81 R.I. 346 , 102 A.2d 872, 1954 R.I. LEXIS 91 (1954).

Pursuant to the plain language of R.I. Gen. Laws § 34-15-22 , a motion for attorney fees in a partition action had to be filed while the action was pending before the trial court, and, thus, the trial court did not err in denying the trust’s motion for attorney fees where the motion was filed nearly two years after final judgment had been entered in the partition action in the trial court. Moore v. Ballard, 914 A.2d 487, 2007 R.I. LEXIS 16 (2007).

Division of Costs.

Trial justice did not abuse his discretion in dividing costs equally between owner of three-fourths interests and owner of one-fourth interest where the owner of the larger interest had managed the property for many years without charge. Barney v. Barney, 83 R.I. 182 , 114 A.2d 399, 1955 R.I. LEXIS 35 (1955).

Voluntary Payment of Costs.

Party who voluntarily paid entire costs could not obtain judgments in personam against other parties for their proportional parts of the costs. Whipple v. Wales, 47 R.I. 487 , 134 A. 22, 1926 R.I. LEXIS 89 (1926).

34-15-23. Costs as lien on property.

In an action for partition, the costs of partition, in such proportion as the court trying the action shall adjudge to be paid by any party or parties to the action, shall be a lien upon the interest of any party or parties in the several shares assigned to the party or parties, and in addition to the mode of recovery now used, may be recovered by sale of the several shares upon execution, to be issued in due form therefor in favor of the party or parties who may, by payment of the costs, be entitled to recover the costs.

History of Section. G.L. 1896, ch. 265, § 23; G.L. 1909, ch. 330, § 23; G.L. 1923, ch. 381, § 23; G.L. 1938, ch. 586, § 23; G.L. 1956, § 34-15-23 .

NOTES TO DECISIONS

Applicability.

The remedy given by this section applies only to such costs as are included in the lower court’s judgment; thus if attorney’s fees are not included in the decree awarding costs, the attorney has no remedy under this section. Cozzens v. Whitney, 3 R.I. 79 , 1854 R.I. LEXIS 9 (1854).

34-15-24. Appointment of persons to make partition.

In actions for partition, after judgment for partition has been entered, the superior court on motion shall appoint and commission one or more discreet, impartial, and disinterested persons to make partition pursuant to such judgment, who shall be sworn to the faithful discharge of their trust.

History of Section. G.L. 1896, ch. 265, § 24; C. P. A. 1905, § 1165; G.L. 1909, ch. 330, § 24; G.L. 1923, ch. 381, § 24; G.L. 1938, ch. 586, § 24; G.L. 1956, § 34-15-24 .

34-15-25. Partition by persons appointed.

The persons so appointed, first giving reasonable notice to the respective parties, shall make partition between them according to their several rights, as ascertained by the judgment of the court ordering the partition.

History of Section. G.L. 1896, ch. 265, § 25; G.L. 1909, ch. 330, § 25; G.L. 1923, ch. 381, § 25; G.L. 1938, ch. 586, § 25; G.L. 1956, § 34-15-25 .

34-15-26. Notice by commissioners nonresidents and to absent or unknown parties.

In case nonresident, absent, or unknown parties or persons are interested in the partition, the court issuing the partition shall order such notice to be given to the parties or persons interested, by the commissioners appointed to make partition, as the court shall judge proper, and the notice, when given, shall for all purposes be as effectual as personal notice.

History of Section. G.L. 1896, ch. 265, § 26; G.L. 1909, ch. 330, § 26; G.L. 1923, ch. 381, § 26; G.L. 1938, ch. 586, § 26; G.L. 1956, § 34-15-26 .

34-15-27. Report of commissioners — Judgment — Recording.

In an action for partition, the commissioners appointed to make the partition shall report their proceedings, with a plat of the division by them made, to the court by which they have been appointed, and if no sufficient cause is shown for rejecting the report, judgment shall be rendered thereon in conformity thereto, and the report, plat, and judgment shall be recorded in the records of land evidence in the town or towns in which the estate is, the expense of which record shall be made a part of the costs in the action.

History of Section. G.L. 1896, ch. 265, §§ 27, 29; G.L. 1909, ch. 330, §§ 27, 28; G.L. 1923, ch. 381, §§ 27, 28; G.L. 1938, ch. 586, §§ 27, 28; G.L. 1956, §§ 34-15-27 , 34-15-28 .

Collateral References.

Commissioner or referee, power of court in partition proceedings to direct sale of property without aid of, or contrary to recommendation of. 95 A.L.R. 1330.

Interference by court with decision of commissioners in partition suit. 46 A.L.R. 348.

34-15-28. Vesting of title.

The recording of the plat and judgment pursuant to this chapter shall vest the legal title to the property therein described in the persons to or among whom the property is divided or allotted, and no conveyance shall be required to be executed for the purpose of vesting legal title in those persons.

History of Section. G.L. 1896, ch. 265, § 30; G.L. 1909, ch. 330, § 29; G.L. 1923, ch. 381, § 29; G.L. 1938, ch. 586, § 29; G.L. 1956, § 34-15-29 .

Collateral References.

Acquisition by one party, pending partition suit, of all outstanding joint or common interests as affecting power of court to determine questions of controverted title, remove clouds on title, etc. 162 A.L.R. 227.

Improvements made by tenant in common, method of making compensation for, as affected by question of title. 1 A.L.R. 1199; 122 A.L.R. 239.

Nature of relief in partition of minerals in place. 173 A.L.R. 854.

34-15-29. Subdivision and platting of lands.

  1. In all actions for partition, whenever the circumstances in the opinion of the court require that the land to be divided should be platted into lots and certain portions of land laid out for streets or gangways for the convenience of the lots, the decree may authorize the commissioners to take that course subject to the approval of the court on the return of their report.
  2. The action described in subsection (a) shall not be taken unless all the parties to the proceedings consent; provided that:
    1. If any party is an infant or person non compos mentis, the consent of the guardian ad litem of such infant or non compos shall be sufficient;
    2. If any party is a trustee, the consent of that trustee shall be sufficient to bind the trust estate; and
    3. Any party in interest, being a married woman, shall have the right to consent as if sole and unmarried.

History of Section. G.L. 1896, ch. 265, § 31; G.L. 1909, ch. 330, § 30; G.L. 1923, ch. 381, § 30; G.L. 1938, ch. 586, § 30; G.L. 1956, § 34-15-30.

Chapter 16 Quieting Title

34-16-1. Action brought by person claiming through sale or proceedings requiring notice.

Any person or persons claiming title to real estate, which title is based upon or has come through a deed of a tax collector or town or city treasurer upon sale of real estate for the collection of taxes, assessments, or municipal liens of any kind, or of a sheriff on execution sale, or any deed, grant, or conveyance given under judicial proceedings, or otherwise, the validity of which depends upon notice of any kind, may, although his or her title to the real estate is undisputed, bring a civil action against the person or persons whose title and interest, or either, were sold out under the sale or proceedings, and against any other persons that may be interested in the real estate because of the sale or proceedings, or the giving of such a deed to determine the validity of the title or estate of the person or persons therein, to remove any cloud thereon, and to affirm and quiet the possession and title of the person or persons; provided, however, that where a period of redemption is by statute provided, in which the real estate passing under any sale or proceedings described in this section may be redeemed, the period of redemption must have expired before the bringing of any action under this section.

History of Section. G.L. 1923, ch. 339, § 40; P.L. 1932, ch. 1906, § 1; G.L. 1938, ch. 528, § 26; G.L. 1956, § 34-16-1 .

Cross References.

Jurisdiction of superior court, § 8-2-14 .

Venue of actions, § 9-4-2 .

Comparative Legislation.

Action to quiet title:

Conn. Gen. Stat. § 47-31 et seq.

Mass. Ann. Laws ch. 240, § 1 et seq.

NOTES TO DECISIONS

Failure to Join or Notify Record Owners.

Defendant alleged she had an easement over plaintiffs’ property to enable her to more easily gain access to land she had acquired by adverse possession. As she did not provide notice to and join as necessary parties the record owners of the land pursuant to R.I. Gen. Laws § 34-16-1 et seq., the trial court properly declined to reach the merits of her adverse possession claim. Costa v. Silva, 996 A.2d 607, 2010 R.I. LEXIS 77 (2010).

Collateral References.

Common source of title doctrine. 5 A.L.R.3d 375.

Slander of title: sufficiency of plaintiff’s interest in real property to maintain action. 86 A.L.R.4th 738.

Tax sale and deed, action to set aside, as cloud on title when taxes had been paid prior to sale. 26 A.L.R. 629.

What constitutes cloud on title. 78 A.L.R. 24.

34-16-2. Examination of title — Notice to parties in interest.

Upon filing his or her complaint, the plaintiff shall thereafter, at his or her own cost, select, with the approval of the court, a title company or an attorney familiar with the examination of land titles, which company or attorney shall proceed to examine the title to the real estate described in the complaint, and when the examination is completed, shall deposit an abstract of title to the real estate in the court, together with a report of the status of the title and a list of the parties found interested therein, and who should, in the opinion of the company or attorney, be made parties to the action. Upon receipt of the abstract and report, the court shall order all persons not parties to the action but found by it to be necessary to the cause to be made parties defendant and shall order notice to be given to those defendants.

History of Section. G.L. 1923, ch. 339, § 40; P.L. 1932, ch. 1906, § 1; G.L. 1938, ch. 528, § 26; G.L. 1956, § 34-16-2 .

NOTES TO DECISIONS

Failure to Join or Notify Record Owners.

Defendant alleged she had an easement over plaintiffs’ property to enable her to more easily gain access to land she had acquired by adverse possession. As she did not provide notice to and join as necessary parties the record owners of the land pursuant to R.I. Gen. Laws § 34-16-1 et seq., the trial court properly declined to reach the merits of her adverse possession claim. Costa v. Silva, 996 A.2d 607, 2010 R.I. LEXIS 77 (2010).

Failure to Prepare Title Abstract.

Neighbor’s claim against landowners was properly dismissed because the neighbor did not comply with a court order, pursuant to R.I. Gen. Laws § 34-16-2 , to retain a professional title examiner to prepare a title abstract showing someone else held title to the land in question, despite the neighbor’s subjective belief that this was not a quiet title claim. Nye v. Brousseau, 102 A.3d 627, 2014 R.I. LEXIS 144 (2014).

34-16-3. Determination of title — Decree.

A cause of action under this chapter shall follow the course of equity so far as equity is applicable, and the court shall determine the validity of the title of the plaintiffs, and may affirm the title, or if it finds other parties to have any title and estate therein, it shall also determine the interest, title, and estate of those parties therein, and may remove any clouds on the title by reason of any deed, grant, or conveyance as described in § 34-16-1 or otherwise, and all decrees in the action shall forever thereafter be binding upon all parties thereto and those claiming by, through, under, or by virtue of them, or any of them.

History of Section. G.L. 1923, ch. 339, § 40; P.L. 1932, ch. 1906, § 1; G.L. 1938, ch. 528, § 26; G.L. 1956, § 34-16-3 .

34-16-4. Action brought by person claiming through conveyance, devise, or inheritance.

Any person or persons claiming title to real estate, or any interest or estate, legal or equitable, in real estate, including any warrantor in any deed or other instrument in the chain of title to the real estate, which title, interest, or estate is based upon, or has come through, a deed, grant, conveyance, devise, or inheritance, purporting to vest in the person or persons or his, her, or their predecessors in title the whole title to such real estate, or any fractional part thereof or any interest or estate therein, may bring a civil action against all persons claiming, or who may claim, and against all persons appearing to have of record any adverse interest therein, to determine the validity of his, her, or their title or estate therein, to remove any cloud thereon, and to affirm and quiet his, her, or their title to the real estate. The action may be brought under the provisions of this section whether the plaintiff may be in or out of possession and whether or not the action might be brought under the provisions of § 34-16-1 or under the provisions of any other statute.

History of Section. G.L. 1938, ch. 528, § 26; P.L. 1940, ch. 938, § 1; P.L. 1941, ch. 1005, § 1; G.L. 1956, § 34-16-4 .

NOTES TO DECISIONS

Applicability.

In a case alleging an invalid foreclosure in which the defendants moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), since the note was a negotiable instrument governed by Article Three of the Uniform Commercial Code, an action to quiet title pursuant to R.I. Gen Laws § 34-16-4 was an improper avenue to challenge its validity. Lister v. Bank of Am., N.A., 8 F. Supp. 3d 74, 2014 U.S. Dist. LEXIS 42609 (D.R.I. 2014), aff'd on other grounds, 790 F.3d 20, 2015 U.S. App. LEXIS 9869 (1st Cir. 2015).

Adverse Possession.

Contention of respondent that the court misconceived the law in that complainants were required to show that they acquired the limestone reservations by adverse possession and that there was no evidence to support such a claim, was wholly without merit, the court being of the opinion that the limestone rights conveyed to respondent were not connected with the land of complainant which was in question. Plante v. Conklin Limestone Co., 89 R.I. 64 , 151 A.2d 116, 1959 R.I. LEXIS 47 (1959).

Possession.

A bill under this chapter to establish title can be brought even though the complainant is out of possession. Davis v. Girard, 70 R.I. 291 , 38 A.2d 774, 1944 R.I. LEXIS 60 (1944).

Collateral References.

Apparent invalidity of pretended title or lien as affecting its character as cloud. 70 A.L.R. 62.

Contingent or defeasible future interest, right of owner of, to maintain action in equity to quiet title. 144 A.L.R. 799.

Fraud as affecting right of one not in possession to maintain suit to remove cloud on title. 36 A.L.R. 698.

Joinder of persons claiming separate parcels in suit to remove cloud or quiet title. 118 A.L.R. 1400.

Notice or demand for possession as condition of right or vendor in contract for sale or exchange of real property to bring action to quiet title as against vendee. 94 A.L.R. 1247.

Presentation of claim to executor or administrator as condition precedent to action to quiet title. 34 A.L.R. 383.

Remaindermen’s right to sue, during continuance of life estate, to remove cloud on title, as affecting character of possession of grantee under deed from life tenant purporting to convey fee as adverse during life estate. 11 A.L.R.3d 1276.

Return of payments as condition of cancelation of land contract as cloud on title. 35 A.L.R. 274.

Slander of title: sufficiency of plaintiff’s interest in real property to maintain action. 86 A.L.R.4th 738.

Timber, right of owner of land to have his title quieted as to timber remaining after the expiration of the time fixed in a timber contract for its removal. 15 A.L.R. 111; 31 A.L.R. 952; 42 A.L.R. 648; 71 A.L.R. 160; 164 A.L.R. 461.

34-16-5. Contents of complaint.

The complaint shall contain, among other things, to the extent known to plaintiff:

  1. A complete and accurate description of the real estate involved, and the right, title and interest of the plaintiff claimed therein and the character and source thereof;
  2. A recital of the character and source of claims adverse, or which may become adverse, whether asserted or unasserted, and, if unasserted, then of record;
  3. The names and last known addresses of those asserting, or who may assert, any adverse claims;
  4. The efforts made to ascertain and determine those claimants, who, or whose names and/or addresses, are unknown to plaintiff;
  5. The duration of ownership, occupation, possession, and enjoyment by the plaintiff, and when relevant, by his or her predecessors in title, of the estate involved, together with a recital of acts performed as a normal incident of the possession enjoyed and the title claimed.

History of Section. G.L. 1938, ch. 528, § 26; P.L. 1940, ch. 938, § 1; G.L. 1956, § 34-16-5 .

NOTES TO DECISIONS

Section Superseded.

To the extent that this section requires that plaintiff in an action to quiet title make an effort to name as defendants all persons who may have adverse claims, this requirement is superseded by Super. Ct. Civ. Rule 23 when the number of defendants is so great as to make it impracticable to bring them all before the court and when one or more named defendants will fairly ensure the adequate representation of all. Gammons v. Caswell, 447 A.2d 361, 1982 R.I. LEXIS 894 (1982).

34-16-6. Filing of abstract of title.

Upon the filing of the complaint the court may, in its discretion, require that the plaintiff file an abstract of title to the real estate as specified in § 34-16-2 .

History of Section. G.L. 1938, ch. 528, § 26; P.L. 1941, ch. 1005, § 1; G.L. 1956, § 34-16-6 .

34-16-7. Presumption of lost grant by adverse possession.

Open, adverse, exclusive, and uninterrupted possession and enjoyment by the plaintiff, or by his or her predecessors in title or both the plaintiff and predecessors together of the real estate or his, her, or their interest therein described in the complaint, for a period of at least ten (10) years, shall raise the rebuttable presumption in law and in fact of a lost grant, properly executed and delivered, effective to cure the defect or defects in plaintiff’s title, as set forth in the complaint and/or to remove the cloud thereon, as it concerns any party named or referred to in the cause.

History of Section. G.L. 1938, ch. 528, § 26; P.L. 1940, ch. 938, § 1; G.L. 1956, § 34-16-7 .

NOTES TO DECISIONS

Evidence.

In an action to quiet title to real property for the purpose of relieving it from a restrictive covenant, evidence was insufficient to support summary judgment where plaintiff’s allegations of adverse possession were devoid of factual support. Harold W. Merrill Post No. 16 American Legion v. Smith, 116 R.I. 646 , 360 A.2d 110, 1976 R.I. LEXIS 1318 (1976).

Right of Redemption.
— Adverse Possession.

A tax-sale purchaser and his successors in interest may extinguish the right of redemption by adverse possession if that possession continued for the statutory period of 10 years. Sleboda v. Heirs at Law of Harris, 508 A.2d 652, 1986 R.I. LEXIS 456 (1986).

34-16-8. Parties barred by presumption of lost grant.

Under § 34-16-7 , proof satisfactory to the court, and adequate to justify it, shall be effective to bar every claim of any party named or referred to in the cause adverse to plaintiff’s title, and every adverse and inconsistent right, title, and interest therein of any such party, whether as owner, tenant, joint tenant or tenant in common, mortgagee, creditor, lienholder, or otherwise and the heirs, executors, administrators, successors, and assigns of each of them, and all those in privity with them, who shall claim, or but for this provision might claim, an interest in the real estate involved, and to remove every cloud thereon; and the presumption provided in § 34-16-7 , unless rebutted, shall be conclusive.

History of Section. G.L. 1938, ch. 528, § 26; P.L. 1940, ch. 938, § 1; G.L. 1956, § 34-16-8 .

34-16-9. Inclusion of unknown defendants in complaint.

  1. The complaint may include as defendants in such cause, in addition to such persons as appear of record to have, or are known to have or to assert, or who may have or assert, some claim to, or interest in, the lands described in the complaint adverse to the plaintiff’s right, title or interest therein:
    1. All other persons unknown to, or unascertained by, the plaintiff, who claim, or may claim, any right, title or interest in such real estate; and
    2. All others in privity with them or whose interest does or may constitute a cloud upon the title of the plaintiff thereto, as described in the complaint.
  2. The complaint may include such unknown defendants in substantially the following language:

    “Also all other persons unknown and unascertained, claiming, or who may claim, any right, title, estate, lien, or interest in the real estate involved, which is, or might become, adverse to the plaintiff’s right, title, or interest therein as alleged or which does or may constitute any cloud upon plaintiff’s title thereto, as set forth in the complaint.”

History of Section. G.L. 1938, ch. 528, § 26; P.L. 1940, ch. 938, § 1; G.L. 1956, § 34-16-9 .

34-16-10. Service of process on residents.

Service of process upon known defendants residing or located in the state whose residence or place of business therein is known or can be ascertained by the plaintiff shall be made personally, as provided by law.

History of Section. G.L. 1938, ch. 528, § 26; P.L. 1940, ch. 938, § 1; G.L. 1956, § 34-16-10 .

34-16-11. Service on nonresidents.

A nonresident defendant whose place of residence or business is known to the plaintiff shall be served by sending the process registered or certified mail to the defendant postpaid, addressed to his or her residence or place of business last known to the plaintiff.

History of Section. G.L. 1938, ch. 528, § 26; P.L. 1940, ch. 938, § 1; impl. am. P.L. 1956, ch. 3717, § 1; G.L. 1956, § 34-16-11 .

34-16-12. Service on defendants unknown or with unknown addresses.

Service of process upon all unknown defendants, resident or nonresident, or others known, but whose names or addresses are unknown to, or unascertained by, the plaintiff shall be made by publication of an order of notice, to be entered by the court in some public newspaper published in this state, to be designated by the court, for such length of time as the court shall direct.

History of Section. G.L. 1938, ch. 528, § 26; P.L. 1940, ch. 938, § 1; G.L. 1956, § 34-16-12 .

34-16-13. Proof of service — Jurisdiction of parties.

The court shall be satisfied before proceeding to hear the cause on its merits that there has been full compliance with the requirements of this chapter with respect to the service of process and may accept the affidavit of any plaintiff or the plaintiff’s attorney of record as proof of service of process in cases where service has been ordered by mailing or publication. All persons served in accordance with the provisions of this chapter shall be and become parties defendant to the proceedings, and the service shall be valid, and complete and fully effectual to give jurisdiction over them for the purposes of adjudicating, determining, and/or forever barring their interest and those of all others representing or in privity with them notwithstanding the legal disabilities of those persons.

History of Section. G.L. 1938, ch. 528, § 26; P.L. 1940, ch. 938, § 1; G.L. 1956, § 34-16-13 .

NOTES TO DECISIONS

Failure to Join or Notify Record Owners.

Defendant alleged she had an easement over plaintiffs’ property to enable her to more easily gain access to land she had acquired by adverse possession. As she did not provide notice to and join as necessary parties the record owners of the land pursuant to R.I. Gen. Laws § 34-16-1 et seq., the trial court properly declined to reach the merits of her adverse possession claim. Costa v. Silva, 996 A.2d 607, 2010 R.I. LEXIS 77 (2010).

34-16-14. Proof of title — Judgment.

No decision, judgment, or decree, excepting decrees taking the matter as confessed, shall be entered by default, but proof satisfactory to the court shall be offered in support of plaintiff’s claim of title and of all claims known to be, or which may be, adverse thereto, and the court shall thereafter enter judgment in accordance with the law and the evidence. The judgment, when final, shall be conclusive against all persons served as herein required, both known and unknown, and whether under disability or not, and whether service was personal, by registered or certified mail, or by publication.

History of Section. G.L. 1938, ch. 528, § 26; P.L. 1940, ch. 938, § 1; impl. am. P.L. 1956, ch. 3717, § 1; G.L. 1956, § 34-16-14 .

34-16-15. Remedy cumulative.

The remedy provided by this chapter shall be cumulative and shall not exclude or prevent the exercise of any other right or remedy now allowed by law.

History of Section. G.L. 1938, ch. 528, § 26; P.L. 1940, ch. 938, § 1; G.L. 1956, § 34-16-15 .

Chapter 17 Fixtures

34-17-1. Factory equipment declared real estate.

The water wheels, steam engines, boilers, all shafting, whether upright or horizontal, and hangers for the same, except such as are used to drive a special machine, all drums, pulleys, wheels, gearing, steam pipes, gas pipes, gas fixtures, water pipes, and fixtures, kettles and vats, set and used in any mechanical or manufacturing establishment, are declared to be real estate whenever they belong to the owner of the real estate to which they are attached.

History of Section. G.L. 1896, ch. 200, § 1; G.L. 1909, ch. 251, § 1; G.L. 1923, ch. 295, § 1; G.L. 1938, ch. 430, § 1; G.L. 1956, § 34-17-1 .

Collateral References.

Cotton gin. 70 A.L.R. 1128.

Electronic computing equipment as fixture. 6 A.L.R.3d 497.

Engine. 39 A.L.R. 1049.

Shafting, belting and the like. 109 A.L.R. 1432.

Water heater. 52 A.L.R.2d 222.

What are “fixtures” within provision of property insurance policy expressly extending coverage to fixtures. 17 A.L.R.3d 1381.

34-17-2. Machinery and apparatus declared personal property.

All other machinery, tools, and apparatus of every description, including all the articles specified in § 34-17-1 whenever they belong to some person other than the owner of the real estate to which they are attached, used, or employed in any manufacturing establishment, are declared to be personal estate, and as such shall be considered in attachments, and in all cases whatsoever; except that in the assessment of taxes such property shall be assessed as provided in chapter 4 of title 44.

History of Section. G.L. 1896, ch. 200, § 2; G.L. 1909, ch. 251, § 2; G.L. 1923, ch. 295, § 2; G.L. 1938, ch. 430, § 2; G.L. 1956, § 34-17-2 ; P.L. 1995, ch. 323, § 27.

Cross References.

Fixtures declared real estate for tax purposes, § 44-4-3 .

NOTES TO DECISIONS

Legislative Intent.

The clause referring to taxes does not determine that fixtures are realty for tax purposes but was intended merely to accommodate this section to the tax statutes. Burgess v. Wilkinson, 7 R.I. 31 , 1861 R.I. LEXIS 12 (1861).

34-17-3. Partition of machinery and apparatus.

Partition of the property mentioned in § 34-17-2 may be compelled between the owners thereof in the same manner as though the property were real estate.

History of Section. G.L. 1896, ch. 200, § 3; G.L. 1909, ch. 251, § 3; G.L. 1923, ch. 295, § 3; G.L. 1938, ch. 430, § 3; G.L. 1956, § 34-17-3 .

34-17-4. Removal of fixtures annexed by life tenant.

Fixtures annexed to the freehold by a life tenant, or his or her assigns, may be removed during the continuance of the life estate, or within a reasonable time after its determination; and in determining what things so annexed are fixtures, the rules of the common law, which prevail as between the landlord and tenant for years, shall govern.

History of Section. G.L. 1896, ch. 201, § 10; G.L. 1909, ch. 252, § 10; G.L. 1923, ch. 296, § 10; G.L. 1938, ch. 430, § 4; G.L. 1956, § 34-17-4 .

Comparative Legislation.

Rights of life tenant:

Mass. Ann. Laws ch. 184, § 12.

34-17-5. Testamentary powers unaffected by § 34-17-4.

Section 34-17-4 shall not affect the right of the owner of land to make a different arrangement by will or otherwise as to the removal of fixtures, nor shall it in any way impair or affect the provisions of any will or other instrument by which an estate for life in land is created or limited.

History of Section. G.L. 1896, ch. 201, § 11; G.L. 1909, ch. 252, § 11; G.L. 1923, ch. 296, § 11; G.L. 1938, ch. 430, § 5; G.L. 1956, § 34-17-5 .

Chapter 18 Residential Landlord and Tenant Act

34-18-1. Short title.

This chapter shall be known and may be cited as the “Residential Landlord and Tenant Act”.

History of Section. P.L. 1986, ch. 200, § 2.

Repealed Sections.

The former chapter (G.L. 1896, ch. 269, §§ 1-14; G.L. 1909, ch. 334, §§ 1-14; G.L. 1923, ch. 385, §§ 1-14; P.L. 1926, ch. 856, § 1; G.L. 1938 ch. 403, § 7; G.L. 1938, ch. 453, §§ 1-7; G.L. 1938, ch. 454, §§ 1-8; P.L. 1948, ch. 2153, § 1; P.L. 1968, ch. 53, § 1; P.L. 1970, ch. 7, §§ 2, 3; P.L. 1974, ch. 11, § 1; P.L. 1977, ch. 82, § 1; P.L. 1977, ch. 163, § 1; P.L. 1982, ch. 360, § 1; P.L. 1983, ch. 181, § 1; P.L. 1984, ch. 338, § 1; P.L. 1985, ch. 391, § 1; G.L. 1956, §§ 34-18-1 — 34-18-9 , 34-18-9 .1, 34-18-1 0 — 34-18-21 ), concerning landlords and tenants, was repealed by P.L. 1986, ch. 200, § 1, effective January 1, 1987. Former § 34-18-8 (G.L. 1896, ch. 269, § 1; G.L. 1909, ch. 334, § 7; G.L. 1938, ch. 454, § 1; G.L. 1956, § 34-18-8 ) was previously repealed by P.L. 1970, ch. 7, § 1. Former § 34-18-19 (P.L. 1982, ch. 360, § 1; G.L. 1956, § 34-18-1) was repealed by P.L. 1986, ch. 417, § 1, effective June 25, 1986. Section 2 of P.L. 1986, ch. 200 enacted the present chapter, consisting of §§ 34-18-1 — 34-18-56 , concerning similar subject matter, effective January 1, 1987. Section 1 of P.L. 1986, ch. 222 enacts § 34-18-16.1 , effective July 1, 1986, which is not deemed repealed by P.L. 1986, ch. 200, § 1. Section 34-18-16.1 appears in this supplement as enacted by P.L. 1986, ch. 222, § 1.

NOTES TO DECISIONS

Preemption of Local Ordinances.

Rhode Island Residential Landlord and Tenant Act, R.I. Gen. Laws §§ 34-18-1 to 34-18-57 does not preempt Narragansett, R.I., Ordinance § 46-32 which authorizes local police officers to post a bright orange sticker at the front entrance of any residence found to have hosted an “unruly gathering.” URI Student Senate v. Town of Narragansett, 631 F.3d 1, 2011 U.S. App. LEXIS 141 (1st Cir. 2011).

Subrogation Actions.

State courts look to the terms of the lease between the landlord and tenant to see if an insurer, stepping into the landlord’s shoes, may maintain a subrogation action against the tenant for the tenant’s negligence. 56 Assocs. ex rel Paolino v. Frieband, 89 F. Supp. 2d 189, 2000 U.S. Dist. LEXIS 4150 (D.R.I. 2000).

Collateral References.

Coverage of leases under state consumer protection statutes. 89 A.L.R.4th 854.

Landlord’s liability for failure to protect tenant from criminal acts of third person. 43 A.L.R.5th 207.

Landlord’s liability to third person for injury resulting from attack off leased premises by dangerous or vicious animal kept by tenant. 89 A.L.R.4th 374.

Liability of landlord for injury or death occasioned by swimming pool maintained for tenants. 62 A.L.R.5th 475.

Provision in lease as to purpose for which premises are to be used as excluding other uses. 86 A.L.R.4th 259.

Specificity of description of premises as affecting enforceability of lease. 73 A.L.R.4th 236.

34-18-2. Purposes — Rules of construction.

  1. This chapter shall be liberally construed and applied to promote its underlying purposes and policies.
  2. Underlying purposes and policies of this chapter are to:
    1. Simplify, clarify, modernize and revise the law governing the rental of dwelling units and the rights and obligations of landlords and tenants;
    2. Encourage landlords and tenants to maintain and improve the quality and availability of housing;
    3. Make more uniform the law relating to residential landlord and tenant relations in those respects in which this chapter follows the “Uniform Residential Landlord — Tenant Act”.

History of Section. P.L. 1986, ch. 200, § 2.

NOTES TO DECISIONS

Common Law Rules Superseded.

The intended and actual effect of the Residential Landlord and Tenant Act is to supersede any common-law rules relating to residential tenants and landlords in conflict with its provisions. Errico v. LaMountain, 713 A.2d 791, 1998 R.I. LEXIS 210 (1998).

34-18-3. Supplementary principles of law applicable.

  1. Unless displaced by the provisions of this chapter, the principles of law and equity, including the law relating to capacity to contract, mutuality of obligations, principal and agent, real property, public health, safety, and fire prevention, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, or other validating or invalidating cause supplements its provisions.
  2. This chapter shall apply to any rental agreement involving public housing or any type of federally subsidized or regulated housing except where:
    1. A particular subject matter has been pre-empted by federal law, or;
    2. A landlord or tenant has any rights or responsibilities derived from federal law or regulations which directly conflict with the provisions of this chapter, in which case the rights and responsibilities derived from federal laws and regulations shall control.

History of Section. P.L. 1986, ch. 200, § 2.

34-18-4. Construction against implicit repeal.

This chapter being a general act intended as a unified coverage of its subject matter, no part of it is to be construed as impliedly repealed by subsequent legislation if that construction can reasonably be avoided. In the event of a conflict between the provisions of this chapter and the provisions of chapters 18.1, 19, or 20 of this title, the provisions of this chapter shall control.

History of Section. P.L. 1986, ch. 200, § 2.

NOTES TO DECISIONS

Source of Notice to Quit.

A notice to quit that contains the landlord’s name complies with this section because it clearly indicates that it emanates from the landlord. Tate v. Peter Charles Reynolds, Inc., 622 A.2d 449, 1993 R.I. LEXIS 91 (1993).

34-18-5. Administration of remedies — Enforcement.

  1. The remedies provided by this chapter shall be so administered that an aggrieved party may recover appropriate damages and injunctive relief, including temporary restraining orders, as set forth in § 34-18-6 . The aggrieved party has a duty to mitigate damages.
  2. Any right or obligation declared by this chapter is enforceable by action unless the provision declaring it specifies a different and limited effect.

History of Section. P.L. 1986, ch. 200, § 2.

Law Reviews.

John N. Mansella, The Rogue Landlord: Tenants’ Recourse Against Self-Help for Damages Following a Residential Lease Termination, 23 Roger Williams U. L. Rev. 445 (2018).

34-18-6. Temporary restraining orders — Ex parte proceedings.

  1. No temporary restraining order shall be granted without notice to the adverse party unless it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before notice can be served and a hearing had thereon. Every temporary restraining order granted without notice shall be endorsed with the date and hour of issuance; shall be filed forthwith in the clerk’s office and entered of record; and shall expire by its terms within such time after entry, not to exceed ten (10) days, as the court fixes, unless within the time so fixed, the order by consent or for good cause shown and after hearing of argument by the parties or counsel, is extended for an additional period. In case a temporary order is granted without notice, the motion for a preliminary injunction shall be set down for hearing at the earliest possible time and shall be given precedence over all matters except older matters of the same character; and when the motion comes on for hearing, the party who obtained the temporary restraining order shall proceed with the application for a preliminary injunction, and, if he or she does not do so, the court shall dissolve the temporary restraining order.
  2. On two (2) days’ notice to the party who obtained the temporary restraining order without notice, or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move its dissolution or modification, and in that event the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require.
  3. Every order granting an injunction and every restraining order shall be specific in terms; shall describe in reasonable detail the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, managers, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.

History of Section. P.L. 1986, ch. 200, § 2.

34-18-7. Application.

This chapter applies to, regulates and determines rights, obligations, and remedies under a rental agreement, wherever made, for a dwelling unit located within this state.

History of Section. P.L. 1986, ch. 200, § 2.

34-18-8. Exclusions from application of chapter.

Unless the parties expressly agree to be governed by the provisions of this chapter, the following arrangements are not governed by this chapter:

  1. Residence at an institution, public or private, if incidental to detention or the provision of medical, geriatric, educational, counseling, religious, or similar service;
  2. Occupancy under a contract of sale of a dwelling unit or the property of which it is a part, if the occupant is the purchaser or a person who succeeds to his or her interest;
  3. Occupancy by a member of a fraternal or social organization in the portion of a structure operated for the benefit of the organization;
  4. Transient occupancy in a hotel, motel, or other lodging as defined under § 44-18-7(11) , which is subject to the state sales and use tax, or lodgings tax as allowed by state enabling legislation;
  5. Occupancy by a paid employee of a landlord, whose right to occupancy is conditional upon employment substantially for services, maintenance, or repair of premises containing more than eleven (11) units;
  6. Occupancy by a holder of a proprietary lease in a cooperative;
  7. Commercial letting and any other estate governed by chapter 18.1 of this title;
  8. Residence at a transitional housing facility.

History of Section. P.L. 1986, ch. 200, § 2; P.L. 1992, ch. 87, § 1; P.L. 2003, ch. 210, § 1; P.L. 2003, ch. 301, § 1.

34-18-9. Jurisdiction.

The district or appropriate housing court of this state shall exercise jurisdiction in both law and equity over any landlord or tenant with respect to any conduct in this state governed by this chapter or with respect to any claim arising from a transaction subject to this chapter. In addition to any other method provided by rule or by statute, personal jurisdiction over a landlord or tenant may be acquired in a civil action or proceeding commenced in the court by the service of process in the manner provided by § 34-18-10(c) .

History of Section. P.L. 1986, ch. 200, § 2.

NOTES TO DECISIONS

Specific Cases.

After careful consideration of R.I. Gen. Laws §§ 8-8-3(a)(2) and 34-18-9 , the Supreme Court was of the opinion that the superior court hearing justice properly dismissed the case for lack of subject matter jurisdiction. The Supreme Court was satisfied that the acts and failings to act alleged in the complaint at issue fell within the statutory criteria and that the hearing justice properly ruled that the complaint should have been originally filed in the district court. Marzett v. Letendre, 246 A.3d 388, 2021 R.I. LEXIS 13 (2021).

34-18-10. Service of process for actions pursuant to chapter.

    1. In actions for nonpayment of rent, the summons for eviction for nonpayment of rent shall be in the form provided in § 34-18-56(g) . At the time of filing of the complaint, the clerk shall mark the date of hearing upon the summons, which shall be the ninth (9th) day after filing of the complaint, or the first court day following the ninth (9th) day. For the purposes of this section only, the time of filing of the complaint shall be the date upon which the clerk assigns a case number to the action and the filing fee is paid to the clerk. On the same day that the complaint is filed, the plaintiff ’s attorney or, if pro se, the plaintiff, or if more than one, the person filing the complaint shall mail a copy of the summons and complaint and a blank answer form as provided in § 34-18-56(j) by first class mail, to the defendant, shall complete the proof of service on a copy of the original summons and file the completed proof of service in the appropriate court. The clerk shall note on the docket the mailing date of the summons and complaint, and shall complete the proof of service on the original summons. The plaintiff shall deliver the original summons and a copy thereof, together with a copy of the complaint and a blank answer form to the division of sheriffs or any constable of the county in which the appropriate court is located. The officer receiving the copies shall serve them by:
      1. Handing them to the defendant; or
      2. Serving them at the defendant’s dwelling unit to a person of suitable age and discretion then residing therein; or
      3. If none be found, by posting them conspicuously on the door to defendant’s dwelling unit.
    2. The deputy sheriff or constable serving the summons and complaint shall make proof of service on the original summons and shall file it with the clerk of the appropriate court at or before the time of the hearing. The proof of service shall show the manner and the day, hour, and place of service, and shall show that the defendant was served no less than five (5) days before the hearing.
  2. In all actions pursuant to this chapter other than for nonpayment of rent, the procedure shall be as follows:
    1. The summons for eviction actions pursuant to §§ 34-18-36 and 34-18-38 shall be in the form provided in § 34-18-56(h) . A blank answer, in the form provided in § 34-18-56(j) shall be served together with this summons.
    2. The summons in all other actions pursuant to this chapter shall be in the form provided in § 34-18-56(i). Service shall be made pursuant to Rule 4 of the district court civil rules, or other appropriate rule of court.
  3. If a landlord or tenant is not a resident of this state or is a corporation not authorized to do business in this state and engages in any conduct in this state governed by this chapter, or engages in a transaction subject to this chapter, he or she may designate an agent upon whom service of process may be made in this state. The agent shall be a resident of this state or a corporation authorized to do business in this state. The designation shall be in writing and filed with the secretary of state. If no designation is made and filed or if the process cannot be served in this state upon the designated agent, process may be served upon the secretary of state, but service upon the secretary of state is not effective unless the plaintiff or petitioner forthwith mails a copy of the process and pleading by registered or certified mail to the defendant or respondent at his or her last reasonably ascertainable address. An affidavit of compliance with this subsection shall be filed with the clerk of the court on or before the return day of the process, if any, or within any further time the court allows.
  4. If at time of hearing it appears that the clerk failed to provide mail service as required by subsection (a), or that the mailed service was undeliverable, service shall nevertheless be deemed complete if proof of service reflects that service was accomplished in accordance with subsection (a)(1)(i) or (ii) of this section. If mailed service was defective and the tenant was prejudiced by shorter notice of the hearing, the tenant may seek the benefits of § 34-18-35(d) for late filing of discovery, if justice requires.

History of Section. P.L. 1986, ch. 200, § 2; P.L. 1989, ch. 381, § 1; P.L. 2012, ch. 324, § 65.

34-18-11. Definitions.

Subject to additional definitions contained in subsequent sections of this chapter which apply to specific sections thereof, and unless the context otherwise requires, in this chapter:

  1. “Abandonment” means the tenant has vacated the premises without notice to the landlord and has no intention of returning, as evidenced by nonpayment of rent for more than fifteen (15) days and removal of substantially all possessions from the premises;
  2. “Action” includes recoupment, counterclaim, set-off, suit in equity, and any other proceeding in which rights are determined, including an action for possession;
  3. “Building and housing codes” include any law, ordinance, or governmental regulation concerning fitness for habitation, or the construction, maintenance, operation, occupancy, use, or appearance of any premises of dwelling unit;
  4. “Dwelling unit” means a structure or part of a structure that is designed or intended to be used as a home, residence, or sleeping place by one or more persons;
  5. “Fair rental value” means rent which is of comparable value with that of other rental properties of similar size and condition within the contiguous neighborhood;
  6. “Good faith” means honesty in fact in the conduct of the transaction concerned;
  7. “Landlord” means the owner, lessor, or sublessor of the dwelling unit or the building of which it is a part, and it also means a manager of the premises who fails to disclose as required by § 34-18-20 ;
  8. “Ordinary wear and tear” means deterioration of the premises which is the result of the tenant’s normal nonabusive living and includes, but is not limited to, deterioration caused by the landlord’s failure to prepare for expected conditions or by the landlord’s failure to comply with his or her obligations;
  9. “Organization” includes a corporation, government, governmental subdivision or agency, business trust, estate, trust, partnership of association, two (2) or more persons having a joint or common interest, and any other legal or commercial entity;
  10. “Owner” shall mean any person who, alone or jointly or severally with others:
    1. Has legal title or tax title (pursuant to §§ 44-9-40 — 44-9-46 , inclusive, of the general laws) to any dwelling, dwelling unit or structure with or without accompanying actual possession thereof; or
    2. Has charge, care, or control of any dwelling, dwelling unit or structure as owner or agent of the owner, or an executor, administrator, trustee, or guardian of the estate of the owner. Any person representing the actual owner in this way shall be bound to comply with the provisions of this chapter and of rules and regulations adopted pursuant thereto to the same extent as if he or she were the owner.
  11. “Person” includes an individual or organization;
  12. “Premises” means a dwelling unit and the structure of which it is a part and facilities and appurtenances therein and grounds, areas, and facilities held out for the use of tenants generally, or the use of which is promised to the tenant;
  13. “Rent” means the payment or consideration that a tenant pays to a landlord for the use of the premises, whether money, services, property, or produce of the land;
  14. “Rental agreement” means all agreements, written or oral, and valid rules and regulations adopted under § 34-18-25 embodying the terms and conditions concerning the use and occupancy of a dwelling unit and premises, and also includes any terms required by law;
  15. “Roomer” means a tenant occupying a dwelling unit which consists of any room or group of rooms forming a single habitable unit used or intended to be used for living and sleeping, but not for cooking or eating purposes;
  16. “Security deposit” means a sum of money given by a tenant to a landlord at the outset of the tenancy or shortly thereafter, as a deposit against physical damages to the tenant’s dwelling unit during said tenancy;
  17. “Tenant” means a person entitled under a rental agreement to occupy a dwelling unit to the exclusion of others;
  18. “Transitional housing facility” means a facility which, for a period not to exceed two (2) years, provides its residents with appropriate social services for the purpose of fostering independence, self sufficiency, and eventual transition to a permanent living arrangement;
  19. “Willful” means that the act was performed intentionally, knowingly and purposely, not accidentally or inadvertently and without justifiable excuse.

History of Section. P.L. 1986, ch. 200, § 2; P.L. 1992, ch. 87, § 1.

NOTES TO DECISIONS

District Court Jurisdiction.

District court did not have exclusive jurisdiction over a city’s suit for a preliminary injunction barring homeless persons from camping on city land, under R.I. Gen. Laws § 8-8-3(a)(2) or (5), because (1) the parties had no consensual landlord-tenant relationship, and “other actions for possession of premises and estates” in R.I. Gen. Laws § 8-8-3(a)(2) meant suits between landlords and tenants, given the definition of “premises” in R.I. Gen. Laws § 34-18-11(12) , and (2) the city did not try to enforce an ordinance. City of Providence v. Doe, 21 A.3d 315, 2011 R.I. LEXIS 82 (2011).

34-18-12. Obligation of good faith.

Every duty under this chapter and every act which must be performed as a condition precedent to the exercise of a right or remedy under this chapter imposes an obligation of good faith in its performance or enforcement.

History of Section. P.L. 1986, ch. 200, § 2.

34-18-13. Unconscionability.

  1. If the court, as a matter of law, finds:
    1. A rental agreement or any provision thereof was unconscionable when made, the court may refuse to enforce the agreement, enforce the remainder of the agreement without the unconscionable provision, or limit the application of any unconscionable provision to avoid an unconscionable result; or
    2. A settlement in which a party waives or agrees to forego a claim or right under this chapter or under a rental agreement was unconscionable when made, the court may refuse to enforce the settlement, enforce the remainder of the settlement without the unconscionable provisions, or limit the application of any unconscionable provision to avoid an unconscionable result.
  2. If unconscionability is put into issue by a party or by the court upon its own motion, the parties shall be afforded a reasonable opportunity to present evidence as to the setting, purpose and effect of the rental agreement or settlement to aid the court in making the determination.

History of Section. P.L. 1986, ch. 200, § 2.

Law Reviews.

John N. Mansella, The Rogue Landlord: Tenants’ Recourse Against Self-Help for Damages Following a Residential Lease Termination, 23 Roger Williams U. L. Rev. 445 (2018).

34-18-14. Notice.

    1. A person has notice of a fact if:
      1. He or she has actual knowledge of it;
      2. He or she has received a notice or notification of it; or
      3. From all the facts and circumstances known to him or her at the time in question he or she has reason to know that it exists.
    2. A person “knows” or “has knowledge” of a fact if he or she has actual knowledge of it.
  2. A person “notifies” or “gives” a notice or notification to another person by taking steps reasonably calculated to inform the other in ordinary course whether or not the other actually comes to know of it. A person “receives” a notice or notification when:
    1. It comes to his or her attention; or
    2. It is delivered in hand or sent by first class mail to him or her at a place held out by him or her as the place for receipt of the communication, or in the absence of such designation, to his or her last known place of residence.
  3. “Notice,” knowledge or a notice or notification received by an organization, is effective for a particular transaction from the time it is brought to the attention of the individual conducting that transaction, and in any event from the time it would have been brought to his or her attention if the organization had exercised reasonable diligence.

History of Section. P.L. 1986, ch. 200, § 2.

NOTES TO DECISIONS

Construction.

R.I. Gen. Laws § 34-18-41 is the specific statute and when it is applicable, its mandate cannot be overcome by reference to R.I. Gen. Laws § 34-18-14 , the general notice statute. Warwick Hous. Auth. v. McLeod, 913 A.2d 1033, 2007 R.I. LEXIS 7 (2007).

34-18-15. Terms and conditions of rental agreement.

  1. A landlord and a tenant may include in a rental agreement terms and conditions not prohibited by this chapter or other rule of law, including rent, term of the agreement, and other provisions governing the rights and obligations of the parties.
  2. In absence of agreement, the tenant shall pay as rent the fair rental value for the use and occupancy of the dwelling unit.
  3. Rent is payable without demand or notice at the time and place agreed upon by the parties. Unless otherwise agreed, rent is payable at the dwelling unit and periodic rent is payable at the beginning of any term of one month or less and otherwise in equal monthly installments at the beginning of each month. Unless otherwise agreed, rent is uniformly apportionable from day-to-day.
  4. Unless the rental agreement fixes a definite term, the tenancy is week-to-week in case of a roomer who pays weekly rent, and in all other cases month to month.
  5. A tenant who is sixty-five (65) years of age or older or who will turn sixty-five (65) during the term of a rental agreement for a dwelling unit may terminate such a rental agreement in order to enter a residential care and assisted living facility, as defined in § 23-17.4-2 , a nursing facility, or a unit in a private or public housing complex designated by the federal government as housing for the elderly. The tenant may terminate the rental agreement by notice given in writing to the usual person to whom rental payments are made. The notice shall be accompanied by documentation of admission or pending admission to a facility or housing complex described in this section. Termination of the rental agreement shall be effective no earlier than forty-five (45) days after the first rental payment due date following delivery of written notice of termination.
    1. A lease of premises occupied, or intended to be occupied, by a servicemember or a servicemember’s dependents may be unilaterally terminated if:
      1. The lease is executed by or on behalf of a person who, thereafter, and during the term of the lease, enters military service; or
      2. The servicemember, while in military service, executes the lease and thereafter receives military orders for a change of permanent station or to deploy with a military unit, or as an individual in support of a military operation, for a period of not less than ninety (90) days; and
      3. The lessee delivers to the lessor (or the lessor’s grantee), or to the lessor’s agent (or the agent’s grantee), written notice of the termination, and a copy of the servicemember’s military orders.
    2. Effective date of lease termination.  In the event that a lease provides for monthly payment of rent, termination of the lease under this section is effective thirty (30) days after the first date on which the next rental payment is due and payable after the date on which the notice is delivered.
    3. In the case of any other lease, termination of the lease is effective on the last day of the month following the month in which the notice is delivered.
    4. The lessee shall be responsible for rent amounts of the lease that are unpaid for the period preceding the effective date of the lease termination on a prorated basis. The lessor may not impose an early termination charge, but any taxes, summonses, or other obligations and liabilities of the lessee in accordance with the terms of the lease, including reasonable charges to the lessee for excess wear, that are due and unpaid at the time of termination of the lease, shall be paid by the lessee.
    5. Rent paid in advance.  Rents or lease amounts paid in advance for a period after the effective date of the termination of the lease shall be refunded to the lessee by the lessor (or the lessor’s assignee or the assignee’s agent) within thirty (30) days of the effective date of the termination of the lease.
    6. A lessee’s termination of a lease pursuant to this section shall terminate any obligation a dependent of the lessee may have under the lease.

History of Section. P.L. 1986, ch. 200, § 2; P.L. 1993, ch. 291, § 1; P.L. 2013, ch. 191, § 2; P.L. 2013, ch. 237, § 2.

Compiler’s Notes.

P.L. 2013, ch. 191, § 2, and P.L. 2013, ch. 237, § 2 enacted identical amendments to this section.

NOTES TO DECISIONS

Fair Rental Value.

There was no meeting of the minds as to a landlord’s new rental agreement calling for a higher rent, because the tenant did not sign it. It was not clearly erroneous for the trial court, in determining the fair rental value of the rented premises, pursuant to R.I. Gen. Laws § 34-18-15(b) , to refer to the monthly rent the tenant previously paid, and to factor in continuing housing violations. Riley v. Stafford, 896 A.2d 701, 2006 R.I. LEXIS 53 (2006).

Particular Cases.

Where a residential tenant had a month-to-month lease, as her landlord prevented her from accessing the premises after October 6, in violation of R.I. Gen. Laws §§ 34-18-21 and 34-18-44 , she was not obliged to pay rent thereafter and was entitled to the return of her security deposit minus the unpaid, accrued rent for the period from October 1 through October 6. Furlan v. Farrar, 982 A.2d 581, 2009 R.I. LEXIS 120 (2009).

Where landlord lost rents because renters decided not to rent houses on which unruly gathering notices had been posted pursuant to a nuisance ordinance, the landlords’ interests in the lost rents were not protected under the Due Process Clause of the Fourteenth Amendment because R.I. Gen. Laws § 34-18-15(a) did not create a legitimate claim of entitlement to a desired rental value for an apartment or transform rental income into a government benefice. URI Student Senate v. Town of Narragansett, 707 F. Supp. 2d 282, 2010 U.S. Dist. LEXIS 6261 (D.R.I. 2010), aff'd, 631 F.3d 1, 2011 U.S. App. LEXIS 141 (1st Cir. 2011).

Collateral References.

Propriety of Landlord’s Imposition of Fee for Late Payment of Rent. 49 A.L.R.7th Art. 2 (2020).

34-18-16. Effect of unsigned or undelivered rental agreement.

  1. If the landlord does not sign and deliver a written rental agreement signed and delivered to him or her by the tenant, acceptance of rent without reservation by the landlord gives the rental agreement the same effect as if it had been signed and delivered by the landlord.
  2. If the tenant does not sign and deliver a written rental agreement signed and delivered to him or her by the landlord, acceptance of possession and payment of rent without reservation gives the rental agreement the same effect as if it had been signed and delivered by the tenant.
  3. If a rental agreement given effect by the operation of this section provides for a term longer than one year, it is effective for only one year.

History of Section. P.L. 1986, ch. 200, § 2.

NOTES TO DECISIONS

Unsigned Rental Agreement.

When a landlord sent a tenant a new rental agreement providing for higher rent and the tenant refused to sign the agreement or pay the higher rent until deficiencies were repaired, however, continued to pay the prior rent; the landlord’s proposed agreement was not given the same effect as if the tenant had signed it under R.I. Gen. Laws § 34-18-16(b) . Riley v. Stafford, 896 A.2d 701, 2006 R.I. LEXIS 53 (2006).

34-18-16.1. Rent increases — Notice requirements.

  1. Prior to an increase in rent being imposed by a landlord for a residential tenancy, notice of the increase shall be given in writing to any tenant by a landlord at least thirty (30) days prior to the effective date of the increase.
  2. A landlord must give sixty (60) days notice to month to month tenants over the age of sixty-two (62), before raising the rent.

History of Section. P.L. 1986, ch. 222, § 1; P.L. 2005, ch. 397, § 1.

34-18-17. Prohibited provisions in rental agreements.

  1. A rental agreement may not provide that the tenant:
    1. Agrees to waive or forego rights or remedies under this chapter;
    2. Authorizes any person to confess judgment on a claim arising out of the rental agreement;
    3. Agrees to pay the landlord’s attorney’s fees inconsistent with this chapter; or
    4. Agrees to the exculpation or limitation of any liability of the landlord arising under law or to indemnify the landlord for that liability or the costs connected with the liability.
  2. A provision prohibited by subsection (a) included in a rental agreement is unenforceable. If a landlord deliberately uses a rental agreement containing provisions known to be prohibited, the tenant may recover, in addition to his or her actual damages, an amount up to three (3) months periodic rent and reasonable attorney’s fees.

History of Section. P.L. 1986, ch. 200, § 2.

Collateral References.

Recovery of attorneys’ fees and costs of litigation incurred as result of breach of agreement not to sue. 9 A.L.R.5th 933.

34-18-18. Receipt of rent free of maintenance obligations forbidden.

A rental agreement, assignment, conveyance, trust deed, or security instrument may not permit the receipt of rent free of the obligation to comply with § 34-18-22(a) .

History of Section. P.L. 1986, ch. 200, § 2.

34-18-19. Security deposits.

  1. A landlord may not demand or receive a security deposit, however denominated, in an amount or value in excess of one month’s periodic rent.
  2. Upon termination of the tenancy, the amount of security deposit due to the tenant shall be the entire amount given by the tenant as a security deposit, minus any amount of unpaid accrued rent, the amount due, if any, for reasonable cleaning expenses, the amount due, if any, for reasonable trash disposal expenses and the amount of physical damages to the premises, other than ordinary wear and tear, that the landlord has suffered by reason of the tenant’s noncompliance with § 34-18-24 , all as itemized by the landlord in a written notice delivered to the tenant. The landlord shall deliver the notice, together with the amount of the security deposit due to the tenant, within twenty (20) days after the later of either termination of the tenancy, delivery of possession, or the tenant’s providing the landlord with a forwarding address for the purpose of receiving the security deposit.
  3. If the landlord fails to comply with subsection (b), the tenant may recover the amount due him or her, together with damages in an amount equal to twice the amount wrongfully withheld, and reasonable attorney fees.
  4. This section does not preclude the landlord or tenant from recovering other damages to which he or she may be entitled under this chapter.
  5. This section does not preclude any landlord who rents a furnished apartment from demanding or receiving a furniture security deposit if the replacement value of the furniture being furnished by the landlord valued at the time the lease is executed is five thousand dollars ($5,000) or greater, in which instance the landlord may charge a separate furniture security deposit of up to one month’s periodic rent.
  6. Upon termination of the tenancy, the amount of furniture security deposit due to the tenant shall be the entire amount given by the tenant as a furniture security deposit, minus the amount due, if any, for reasonable cleaning expenses and repair and the amount of physical damages to the furniture, other than ordinary wear and tear. The landlord shall deliver the notice, together with the amount of the furniture security deposit due to the tenant, within twenty (20) days after the later of either termination of the tenancy, delivery of possession, or the tenant’s providing the landlord with a forwarding address for the purpose of receiving the furniture security deposit.
  7. In the event the landlord transfers his or her interest in the premises, the holder of the landlord’s interest in the premises at the time of the termination of the tenancy is bound by this section.
  8. No rental agreement shall contain any waiver of the provisions of this section.

History of Section. P.L. 1986, ch. 200, § 2; P.L. 2015, ch. 125, § 1; P.L. 2015, ch. 134, § 1; P.L. 2018, ch. 229, § 1; P.L. 2018, ch. 260, § 1.

Compiler’s Notes.

P.L. 2015, ch. 125, § 1, and P.L. 2015, ch. 134, § 1 enacted identical amendments to this section.

P.L. 2018, ch. 229, § 1, and P.L. 2018, ch. 260, § 1 enacted identical amendments to this section.

34-18-20. Disclosure.

  1. A landlord or any person authorized to enter into a rental agreement on his or her behalf shall disclose to the tenant in writing, at or before the commencement of the tenancy, the name, address and number of:
    1. The person authorized to manage the premises; and
    2. An owner of the premises or a person authorized to act for and on behalf of the owner for the purpose of service of process and receiving and receipting for notices and demands.
  2. The information required to be furnished by this section shall be kept current. This section extends to and is enforceable against any successor landlord, owner, or manager.
  3. A person who fails to comply with subsection (a) of this section becomes an agent of each person who is a landlord for:
    1. Service of process and receiving and receipting for notices and demands; and
    2. Performing the obligations of the landlord under this chapter and under the rental agreement and expending or making available for the purpose of all rent collected from the premises.
  4. A landlord who becomes delinquent on a mortgage securing real estate upon which the dwelling unit is located for a period of one hundred twenty (120) days shall notify the tenant that the property may be subject to foreclosure; and until the foreclosure occurs the tenant must continue to pay rent to the landlord as provided under the rental agreement.

History of Section. P.L. 1986, ch. 200, § 2; P.L. 2014, ch. 486, § 1; P.L. 2014, ch. 513, § 1.

Compiler’s Notes.

P.L. 2014, ch. 486, § 1, and P.L. 2014, ch. 513, § 1 enacted identical amendments to this section.

34-18-21. Landlord to deliver possession of dwelling unit.

At the commencement of the term a landlord shall deliver possession of the premises to the tenant in compliance with the rental agreement and § 34-18-22 . The landlord may bring an action for possession against any person wrongfully in possession and may recover the damages provided in § 34-18-38(c) .

History of Section. P.L. 1986, ch. 200, § 2.

NOTES TO DECISIONS

Particular Cases.

Where a residential tenant had a month-to-month lease, as her landlord prevented her from accessing the premises after October 6, in violation of R.I. Gen. Laws §§ 34-18-21 and 34-18-44 , she was not obliged to pay rent thereafter and was entitled to the return of her security deposit minus the unpaid, accrued rent for the period from October 1 through October 6. Furlan v. Farrar, 982 A.2d 581, 2009 R.I. LEXIS 120 (2009).

Collateral References.

What constitutes tenant’s holding over of leased premises. 13 A.L.R.5th 169.

34-18-22. Landlord to maintain premises.

  1. A landlord shall:
    1. Comply with the requirements of applicable building and housing codes affecting health and safety;
    2. Make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition;
    3. Keep all common areas of the premises in a clean and safe condition;
    4. Maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating, air conditioning, and other facilities and appliances, including elevators, supplied or required to be supplied by the landlord;
    5. Provide and maintain appropriate receptacles and conveniences for the removal of ashes, garbage, rubbish, and other waste incidental to the occupancy of the dwelling unit as required by § 45-24.3-6 , or applicable local codes if more restrictive, and arrange for their removal;
    6. Supply running water and reasonable amounts of hot water at all times as required by § 45-24.3-7 , or applicable local codes if more restrictive, and reasonable heat as required by § 45-24.3-9 , or applicable local codes if more restrictive, between October 1 and May 1, except where the building that includes the dwelling unit is not required by law to be equipped for that purpose, or the dwelling unit is so constructed that heat or hot water is generated by an installation within the exclusive control of the tenant and supplied by a direct public utility connection; and
    7. Obtain and have in full force and effect a general liability insurance policy of at least one hundred thousand dollars ($100,000) for those persons injured on the premises due to the negligence of the landlord. The landlord shall provide a copy of the declaration page from the carrier showing the policy to the tenant with the written lease at the beginning of the tenancy and shall provide a new copy with each policy renewal to the tenant.
  2. If the duty imposed by subsection (a)(1) is greater than any duty imposed by any other paragraph of subsection (a) of this section, the landlord’s duty shall be determined by reference to subsection (a)(1).
  3. The landlord and tenant of a dwelling unit may agree in writing that the tenant perform specified repairs, maintenance tasks, alterations, and remodeling but only if:
    1. The agreement of the parties is entered into in good faith and set forth in a writing signed by the parties and supported by adequate consideration;
    2. The work is not necessary to cure noncompliance with subsection (a)(1); and
    3. The agreement does not diminish or affect the obligation of the landlord to other tenants in the premises.

History of Section. P.L. 1986, ch. 200, § 2; P.L. 2021, ch. 210, § 1, effective January 1, 2022; P.L. 2021, ch. 323, § 1, effective January 1, 2022.

Compiler's Notes.

P.L. 2021, ch. 210, § 1, and P.L. 2021, ch. 323, § 1 enacted identical amendments to this section.

Delayed Effective Dates.

P.L. 2021, ch. 210, § 2, provides that the amendment to this section by that act takes effect on January 1, 2022.

P.L. 2021, ch. 323, § 2, provides that the amendment to this section by that act takes effect on January 1, 2022.

NOTES TO DECISIONS

Duty to Repair and Maintain Premises.

Subdivision (2) imposed a duty on landlords to maintain a balcony railing in fit and habitable condition and, where the evidence showed that the landlords were negligent in failing to repair the railing, they were liable to a tenant who fell from the balcony when the railing collapsed. Errico v. LaMountain, 713 A.2d 791, 1998 R.I. LEXIS 210 (1998).

A landlord is prohibited from requiring a tenant, at the tenant’s expense, to restore existing properties to present code requirements, but the landlord may shift the responsibility for performing ordinary specified repairs and maintenance of the rented dwelling to the tenant, provided that the parties act in good faith, that they agree in writing, that the agreement is supported by adequate consideration, and that the agreement is not in violation of paragraph (c)(2) of this section. State Water Resources Bd. v. Howard, 729 A.2d 712, 1999 R.I. LEXIS 112 (1999).

The jury was entitled to conclude that a landlord had breached his duty of care to the plaintiff where the landlord’s own admissions showed that he knew or should have known about the defective condition of the elevator in his building and that he failed to take corrective action. Kay v. Menard, 754 A.2d 760, 2000 R.I. LEXIS 155 (2000).

Where a two-story apartment was fit and habitable and a housing authority did all that it reasonably could to accommodate a decedent’s request for a transfer to a single-story apartment, the housing authority was entitled to summary judgment under R.I. Super. Ct. R. Civ. P. 54 (b), as it fulfilled its duty as a landlord under under R.I. Gen. Laws § 34-18-22(2). Rodriguez v. Providence Hous. Auth., 824 A.2d 452, 2003 R.I. LEXIS 153 (2003).

Where an invitee failed to present evidence that a balcony was not properly maintained pursuant to R.I. Gen. Laws § 34-18-22(a)(2) or that a landlord had notice of any defect, but merely alleged that an injury was foreseeable, the invitee did not raise a triable issue of fact; thus, the landlord was entitled to summary judgment. Ramos v. Granajo, 822 A.2d 936, 2003 R.I. LEXIS 136 (2003).

Notice.

Defendant owed plaintiff a duty to keep the common areas, including the parking area, in a safe condition, there was testimony that plaintiff had complained to defendant at least twice about ice forming in the parking lot, and taking that testimony as true, defendant had notice of the dangerous, icy condition that existed; there was enough evidence to send the case to the jury, and the judgment granting defendant’s motion for judgment as a matter of law was vacated. Aubin v. Mag Realty, LLC, 161 A.3d 1143, 2017 R.I. LEXIS 85 (2017).

It would be impractical to burden a tenant with the responsibility to call his landlord every day to give notice of new patches of ice in order to satisfy the notice requirement of a premises liability claim. Rather, this burden is sustained by providing notice of the recurring condition. Aubin v. Mag Realty, LLC, 161 A.3d 1143, 2017 R.I. LEXIS 85 (2017).

Collateral References.

Liability of building owner, lessee, or manager for injury or death resulting from use of automatic passenger elevator. 99 A.L.R.5th 141.

Retaliatory eviction of tenant for reporting landlord’s violation of law. 23 A.L.R.5th 140.

34-18-22.1. Landlord’s duty to notify tenant of violation.

  1. A landlord, when cited by a state or local minimum housing code enforcement agency for a housing code violation, shall, within thirty (30) days of receipt of the notice, deliver a copy of the notice of violation to each residential tenant of the building affected by said violation, unless within said thirty (30) day period the landlord has corrected all violations set forth in the notice of violation to the satisfaction of the state or local minimum housing code enforcement agency which issued the notice of violation.
  2. A landlord, prior to entering into any residential rental agreement, shall inform a prospective tenant of any outstanding minimum housing code violations which exist on the building that is the subject of the rental agreement.

History of Section. P.L. 1988, ch. 596, § 1.

34-18-22.2. Landlord’s duty regarding compliance with zoning and minimum housing laws.

Whenever any landlord, either by his or her own labor or through the use of others acting on his or her behalf, undertakes physical alterations to an existing building which alterations create a residential apartment or apartments, and the landlord knew or should have known that the alterations would result in the construction of an apartment or apartments which violate the applicable state and/or local zoning laws and/or state or local minimum housing codes, the landlord shall be responsible to pay the moving costs of any tenants required to move from any of the apartments because of the nonconformity of the apartments with the law; provided, however, that the landlord will be required to pay such moving costs only to a place within the same city or town where the property in violation of the law is located.

History of Section. P.L. 1993, ch. 410, § 1.

34-18-22.3. Nonresident landlord to designate agent for service of process.

A landlord who is not a resident of this state shall designate and continuously maintain an agent upon whom service may be made of any process, notice, or demand required or permitted by law to be served, including, but not limited to, notices of minimum housing code violations. The agent shall be a resident of this state or a corporation authorized to do business in this state. The landlord’s designation shall be in writing, shall include the name and address of the agent, shall include the street address of each property designated to the agent, and shall be filed with the secretary of state and with the clerk of the city or town wherein the dwelling unit is located. Any landlord who fails to comply with the requirements of this section shall be subject to a civil fine of one hundred dollars ($100) per month up to a maximum of one thousand two hundred dollars ($1,200) in a calendar year or if the monthly rent exceeds one thousand two hundred dollars ($1,200), the civil fine shall be one month’s rent for the calendar year, payable to the municipality.

History of Section. P.L. 1996, ch. 336, § 1; P.L. 1998, ch. 444, § 1; P.L. 2018, ch. 213, § 1; P.L. 2018, ch. 265, § 1.

Compiler’s Notes.

P.L. 2018, ch. 213, § 1, and P.L. 2018, ch. 265, § 1 enacted identical amendments to this section.

Effective Dates.

P.L. 2018, ch. 213, § 2, provides that the amendment to this section by that act takes effect on September 1, 2018.

P.L. 2018, ch. 265, § 2, provides that the amendment to this section by that act takes effect on September 1, 2018.

NOTES TO DECISIONS

Construction of Former Statute.

Former tenant was not entitled to retroactively recover rent that the tenant had paid to a nonresident landlord for many years solely because the landlord had failed to comply with the requirement in this section that the landlord designate an in-state agent for service of process. The term “rent abates” in the former version of this section was ambiguous, and the appellate court would not interpret the statute to reach an absurd result, especially when the tenant did not allege any injury caused by the statutory violation (decided under version of this section before the 2018 amendment). Olsen v. DeMayo, 210 A.3d 431, 2019 R.I. LEXIS 90 (2019).

34-18-23. Limitation of liability upon sale or change of management.

    1. A landlord who conveys premises that include a dwelling unit subject to a rental agreement in a good faith sale to a bona fide purchaser is relieved of liability under the rental agreement and this chapter as to events occurring after written notice to the tenant of the conveyance. In no event may the relief from liability predate the conveyance itself.
    2. Written notice, for purposes of this section, must include the name(s), address, and telephone number of the person or persons purchasing the property and assuming liability. To be effective, the written notice must also certify compliance with § 45-24.3-17 that prohibits sale or lease of property until any outstanding housing code violations have been corrected or the seller or lessor has provided to the buyer or lessee, as well as to the enforcing officer, all notices regarding violations as required by the statute.
  2. A manager of premises that include a dwelling unit is relieved of liability under the rental agreement and this chapter as to events occurring after written notice to the tenant of the termination of his or her management. The written notice must include the name(s), address, and telephone number of the person or persons assuming management and/or the person or persons within the state exercising ownership or responsibility over the property.
  3. Nothing in this section shall be construed to affect the tenant’s rights and duties under an existing rental agreement, and the purchaser of property or any immediate successor in interest to a mortgagor, other than a third-party, bona fide purchaser, of a premises containing four (4) or fewer dwelling units takes title subject to the same rights and responsibilities toward the tenant that the seller or mortgagor had.

History of Section. P.L. 1986, ch. 200, § 2; P.L. 2014, ch. 486, § 1; P.L. 2014, ch. 513, § 1.

Compiler’s Notes.

P.L. 2014, ch. 486, § 1, and P.L. 2014, ch. 513, § 1 enacted identical amendments to this section.

NOTES TO DECISIONS

Landlord-Tenant Relationship.

Landlord-tenant relationship between tenants and purchasers existed because under this section the purchasers at a foreclosure auction took the property subject to the seller’s responsibilities toward the tenants. Gregoire v. Baird Props., LLC, 138 A.3d 182, 2016 R.I. LEXIS 58 (2016).

34-18-24. Tenant to maintain dwelling unit.

A tenant shall:

  1. Comply with all obligations primarily imposed upon tenants by applicable provisions of building and housing codes materially affecting health and safety;
  2. Keep that part of the premises that he or she occupies and uses as clean and safe as the condition of the premises permit;
  3. Dispose from his or her dwelling unit all ashes, garbage, rubbish, and other waste in a clean and safe manner;
  4. Keep all plumbing fixtures in the dwelling unit or used by the tenant as clean as their condition permits;
  5. Use in a reasonable manner all electrical, plumbing, sanitary, heating, ventilating, air-conditioning, and other facilities and appliances, including elevators, in the premises;
  6. Not deliberately or negligently destroy, deface, damage, impair, or remove any part of the premises or knowingly permit any person to do so;
  7. Conduct himself or herself, and require other persons on the premises with his or her consent to conduct themselves, in a manner that will not disturb his or her neighbors’ peaceful enjoyment of the premises;
  8. Refrain from using any part of the premises in a manner such as would constitute the maintaining of a narcotics nuisance under the provisions of § 21-28-4.06 ;
  9. Refrain from using any part of the premises or any public property adjacent thereto for the manufacture, sale, or delivery of a controlled substance or from possessing on the premises or any public property adjacent thereto with the intent to manufacture, sell, or deliver a controlled substance classified in schedule I or schedule II of chapter 28 of title 21; and
  10. Refrain from any crime of violence on the premises or on any public property adjacent to said premises. A “crime of violence” means and includes any of the following crimes or an attempt to commit any of the following crimes; murder, manslaughter, arson, rape, sexual assault, mayhem, kidnapping, assault with a dangerous weapon, assault or battery involving grave bodily injury, and a felony assault with intent to commit any offense.

History of Section. P.L. 1986, ch. 200, § 2; P.L. 1988, ch. 649, § 1; P.L. 1989, ch. 229, § 1.

Collateral References.

Landlord’s liability to third party for repairs authorized by tenant. 46 A.L.R.5th 1.

34-18-25. Rules and regulations.

  1. A landlord, from time to time, may adopt a rule or regulation, however described, concerning the tenant’s use and occupancy of the premises. It is enforceable against the tenant only if:
    1. Its purpose is to promote the convenience, safety, or welfare of the tenants on the premises, preserve the landlord’s property from abusive use, or make a fair distribution of services and facilities held out for the tenants generally;
    2. It is reasonably related to the purpose of which it is adopted;
    3. It is sufficiently explicit in its prohibition, direction, or limitation of the tenant’s conduct to fairly inform the tenant of what he or she must or must not do to comply;
    4. It applies to all tenants in the premises in a fair manner;
    5. It is not for the purpose of evading the obligations of the landlord; and
    6. The tenant has notice of it at the time he or she enters into the rental agreement, or when it is adopted.
  2. If a rule or regulation is adopted after the tenant enters into the rental agreement that works a substantial modification of his or her bargain, it is not valid unless the tenant consents to it in writing.

History of Section. P.L. 1986, ch. 200, § 2.

34-18-26. Access.

  1. A tenant shall not unreasonably withhold consent to the landlord to enter into the dwelling unit in order to inspect the premises, make necessary or agreed repairs, decorations, alterations, or improvements, supply necessary or agreed services, or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workers, or contractors.
  2. A landlord may enter the dwelling unit without consent of the tenant in case of emergency, or, during any absence of the tenant in excess of seven (7) days, if reasonably necessary for the protection of the property.
  3. A landlord shall not abuse the right of access or use it to harass the tenant. Except in case of emergency or unless it is impracticable to do so, the landlord shall give the tenant at least two (2) days’ notice of his or her intent to enter and may enter only at reasonable times.
  4. A landlord has no other right of access except:
    1. Pursuant to court order;
    2. As permitted by § 34-18-39 ; or
    3. Unless the tenant has abandoned or surrendered the premises.

History of Section. P.L. 1986, ch. 200, § 2.

Collateral References.

Notice or Consent Required for Landlord to Exercise Right to Entry for Inspection, Repair, or Maintenance. 49 A.L.R.7th Art. 4 (2020).

34-18-27. Tenant to use and occupy.

Unless otherwise agreed, a tenant shall occupy his or her dwelling unit only as a dwelling unit. The rental agreement may require that the tenant notify the landlord of any anticipated extended absence from the premises in excess of ten (10) days no later than the first day of the extended absence.

History of Section. P.L. 1986, ch. 200, § 2.

34-18-28. Noncompliance by the landlord in general.

  1. Except as provided by this chapter, if there is a noncompliance by the landlord with the rental agreement or a noncompliance with § 34-18-22 materially affecting health and safety, the tenant may deliver a written notice to the landlord specifying the acts and omissions constituting the breach and that the rental agreement will terminate upon a date not less than thirty (30) days after receipt of the notice if the breach is not remedied in twenty (20) days, and the rental agreement shall terminate as provided in the notice subject to the following:
    1. If the breach is remediable by repairs, the payment of damages or otherwise and the landlord adequately remedies the breach before the date specified in the notice, the rental agreement shall not terminate by reason of the breach.
    2. If substantially the same act or omission which constituted a prior noncompliance of which notice was given recurs within six (6) months, the tenant may terminate the rental agreement upon at least fourteen (14) days’ written notice specifying the breach and the date of termination of the rental agreement.
    3. The tenant may not terminate for a condition caused by the deliberate or negligent act or omission of the tenant, a member of his or her family, or other person on the premises with his or her consent.
  2. Except as provided in this chapter, the tenant may recover actual damages and obtain injunctive relief for noncompliance by the landlord with the rental agreement or § 34-18-22 . If the landlord’s noncompliance is willful, the tenant may recover reasonable attorney’s fees.
  3. The remedy provided in subsection (b) of this section is in addition to any right of the tenant arising under subsection (a).
  4. If the rental agreement is terminated, the landlord shall return all security recoverable by the tenant under § 34-18-19 and all prepaid rent.

History of Section. P.L. 1986, ch. 200, § 2.

34-18-29. Failure to deliver possession.

  1. If the landlord fails to deliver possession of the dwelling unit to the tenant as provided in § 34-18-21 , rent abates until possession is delivered and the tenant may:
    1. Terminate the rental agreement upon at least five (5) days’ written notice to the landlord, and, upon termination, the landlord shall return all prepaid rent and security; or
    2. Demand performance of the rental agreement by the landlord and, if the tenant elects, bring action for possession of the dwelling unit against the landlord.
  2. If a person’s failure to deliver possession is willful and not in good faith, an aggrieved person may recover from that person an amount not more than three (3) months’ periodic rent or threefold the actual damages sustained, whichever is greater, and reasonable attorney’s fees.

History of Section. P.L. 1986, ch. 200, § 2.

34-18-30. Self-help for limited repairs.

  1. If the landlord fails to comply with subsection of § 34-18-22(a)(1) , (2), (4), (5), or (6), and the reasonable cost of compliance is less than one hundred twenty-five dollars ($125), the tenant may cause repairs to be done in a skilled manner, in compliance with applicable state and local codes, and deduct from his or her rent the actual and reasonable cost or the fair and reasonable value of the repairs if:
    1. The tenant notifies the landlord of his or her intention to correct the condition at the landlord’s expense; and
    2. The landlord fails to comply within twenty (20) days, or fails to demonstrate ongoing, good faith efforts to comply, after being notified by the tenant in writing; or, in the case of emergency, the landlord either cannot be reached by the tenant, or the landlord fails to comply as promptly as conditions require; and
    3. The tenant submits an itemized statement to the landlord of the cost or the fair and reasonable value of the repairs made.
  2. A tenant may not repair at the landlord’s expense if the condition was caused by the deliberate or negligent act or omission of the tenant, a member of his or her family, or other person on the premises with his or her consent.

History of Section. P.L. 1986, ch. 200, § 2.

34-18-31. Wrongful failure to supply heat, water, hot water, or essential services.

  1. If, contrary to the rental agreement or § 34-18-22 , the landlord willfully or negligently fails to supply heat, running water, hot water, electric, gas, or other essential service, the tenant may give reasonable notice to the landlord specifying the breach and may:
    1. Take reasonable and appropriate measures to secure reasonable amounts of heat, running water, hot water, electric, gas, and other essential service during the period of the landlord’s noncompliance and deduct their actual and reasonable costs from the periodic rent; or
    2. Recover damages based upon the diminution in the fair rental value of the dwelling unit; or
    3. Procure reasonable substitute housing during the period of the landlord’s noncompliance, in which case the tenant is excused from paying rent for the period of the landlord’s noncompliance.
  2. In addition to the remedy provided in subsection (a)(3) of this section, the tenant may recover the actual and reasonable cost or fair and reasonable value of the substitute housing not in excess of an amount equal to the periodic rent, and in any case under subsection (a) of this section, may recover reasonable attorney’s fees.
  3. If the tenant proceeds under this section, he or she may not proceed under § 34-18-28 or § 34-18-30 as to that breach.
  4. Rights of the tenant under this section do not arise until he or she has given notice to the landlord, nor does this section apply if the condition was caused by the deliberate or negligent act or omission of the tenant, a member of his or her family, or other person on the premises with his or her consent.

History of Section. P.L. 1986, ch. 200, § 2.

34-18-32. Landlord’s noncompliance as defense to action for possession or rent.

  1. In an action for possession based upon nonpayment of rent or in an action for rent when the tenant is in possession, the tenant may counterclaim for any amount he or she may recover under the rental agreement or this chapter. In that event, the court, from time to time, may order the tenant to pay into court all or part of the rent accrued and thereafter accruing, and shall determine the amount due to each party. The party to whom a net amount is owed shall be paid first from the money paid into court, and the balance by the other party. If no rent remains due after application of this section, judgment shall be entered for the tenant in the action for possession. If the defense or counterclaim by the tenant is frivolous or without any basis in fact, the landlord may recover reasonable attorney’s fees.
  2. In an action for rent when the tenant is not in possession, he or she may counterclaim as provided in subsection (a) of this section, but is not required to pay any rent into court.

History of Section. P.L. 1986, ch. 200, § 2.

34-18-33. Fire or casualty damage.

  1. If the dwelling unit or premises are damaged or destroyed by fire or casualty to an extent that enjoyment of the dwelling unit is substantially impaired, the tenant may:
    1. Immediately vacate the premises and notify the landlord in writing within fourteen (14) days thereafter of his or her intention to terminate the rental agreement, in which case the rental agreement terminates as of the date of vacating; or
    2. If continued occupancy is lawful, vacate any part of the dwelling unit rendered unusable by the fire or casualty, in which case the tenants’ liability for rent is reduced in proportion to the diminution in the fair rental value of the dwelling unit.
  2. If the rental agreement is terminated the landlord shall return all security recoverable under § 34-18-19 and all prepaid rent. Accounting for rent in the event of termination or apportionment shall be made as of the date of the fire or casualty.
  3. This section shall not be construed to limit the right of the landlord to recover in an action in tort damages resulting from a fire or other casualty damage caused either negligently or deliberately by the tenant.

History of Section. P.L. 1986, ch. 200, § 2.

34-18-34. Tenant’s remedies for landlord’s unlawful ouster, exclusion, or diminution of service.

If a landlord unlawfully removes or excludes the tenant from the premises or willfully diminishes services to the tenant by interrupting or causing the interruption of heat, running water, hot water, electric, gas, or other essential service, the tenant may recover possession or terminate the rental agreement and, in either case, recover an amount not more than three (3) months periodic rent or threefold the actual damages sustained by him or her, whichever is greater, and reasonable attorney’s fees. If the rental agreement is terminated the landlord shall return all security recoverable under § 34-18-19 and all prepaid rent.

History of Section. P.L. 1986, ch. 200, § 2.

NOTES TO DECISIONS

Attorney’s Fees.

Attorney’s fee award under this section was undisturbed because (1) landlords did not adequately brief the issue, and (2) tenants’ counsel itemized counsel’s work and averred counsel’s billing rate, which a veteran litigator’s affidavit found fair and reasonable. Gregoire v. Baird Props., LLC, 138 A.3d 182, 2016 R.I. LEXIS 58 (2016).

Reprisal.

Judgment for a tenant on a claim of reprisal was error since the trial court failed to make a finding on whether the tenant had the benefit of the presumption of reprisal, the court concluded that the landlord’s objective in eviction litigation was to rid herself of the tenant, and there was no finding that the eviction proceedings were primarily intended as a penalty. Kingstown Mobile Home Park v. Strashnick, 774 A.2d 847, 2001 R.I. LEXIS 174 (2001).

Standing.

Girlfriend of tenant, who never signed a lease or paid a security deposit, but sometimes spent the night in the tenant’s apartment and took out the garbage, was not a tenant with standing to recover damages and attorneys’ fees in a wrongful eviction action pursuant to the Residential Landlord and Tenant Act, R.I. Gen. Laws tit. 34, ch. 18. Tambor v. Miller, 792 A.2d 744, 2002 R.I. LEXIS 38 (2002).

34-18-35. Eviction for nonpayment of rent.

  1. If any part of the stipulated rent is due and in arrears for fifteen (15) days, the landlord shall send a written notice, in a form substantially similar to that provided in § 34-18-56(a) , specifying the amount of the rent which is fifteen (15) days in arrears, making demand for the rent, and notifying the tenant that unless he or she cures the breach within five (5) days of the date of mailing of the notice, the rental agreement shall terminate, and the landlord shall commence an eviction action in the appropriate district court or housing court.
  2. If the tenant fails to cure his or her breach by paying the stipulated rent in arrears within five (5) days of the date of mailing of the notice, the landlord may commence an eviction action against the tenant, which shall be filed no earlier than the sixth (6th) day after mailing of the written demand notice. The action shall be commenced by filing a “Complaint for Eviction for Nonpayment of Rent” in the appropriate court in the form provided in § 34-18-56(d) .
  3. The summons for eviction for nonpayment of rent shall specify the date for hearing and be in the form provided in § 34-18-56(g) . The summons shall specify that the defendant may file and serve his or her answer prior to or at the time of hearing, and that if he or she fails to answer or appear at the hearing, he or she shall be defaulted.
  4. If the defendant files his or her answer and commences discovery prior to the hearing, and it appears, for good cause shown, that the defendant will not be able to conduct his or her defense without the benefit of discovery, the court may continue the hearing to allow a reasonable time for the completion of discovery. In the case of such a continuance, the court may, in its discretion, order interim rent, or other remedy, to be paid to preserve the status quo pending hearing. Except as provided in this chapter, the landlord may recover possession and actual damages. In cases where the tenant had received a demand notice pursuant to subsection (a) within the six (6) months immediately preceding the filing of the action, and the tenant’s nonpayment was willful, the landlord may also recover a reasonable attorney’s fee.
  5. The tenant shall have the right to cure his or her failure to pay rent by tendering the full amount of rent prior to commencement of suit. If the tenant has not received a notice pursuant to subsection (a) of this section within the six (6) months immediately preceding the filing of the action, the tenant shall have the right to cure his or her failure to pay rent after commencement of suit by tendering the full amount of rent in arrears, together with court costs, at the time of hearing.

History of Section. P.L. 1986, ch. 200, § 2.

NOTES TO DECISIONS

Appeal.

The proper remedy for a party aggrieved by a judgment for trespass and eviction is to file an appeal with the superior court pursuant to § 34-18-47 , which directs a litigant to bring appeals under § 9-12-10.1 , and the plaintiff waived his right to appeal his eviction when he missed the five-day filing deadline. Garganta v. Mobile Village, Inc., 730 A.2d 1, 1999 R.I. LEXIS 107 (1999).

34-18-36. Eviction for noncompliance with rental agreement.

  1. Except as provided in this chapter, if there is a material noncompliance by the tenant with the rental agreement or a noncompliance with § 34-18-24 materially affecting health and safety, the landlord shall deliver a written demand notice to the tenant, in a form substantially similar to that provided in § 34-18-56(b) , specifying:
    1. The acts and/or omissions constituting the breach of the rental agreement or of § 34-18-24 ;
    2. The acts, repairs, or payment of damages, which are necessary to remedy the breach; and
    3. That unless the breach is remedied within twenty (20) days of mailing of the notice the rental agreement shall terminate upon a specified date, which shall not be less than twenty-one (21) days after the mailing of the notice.
  2. Unless it is a violation of § 34-18-24(8) , (9), or (10), if the tenant adequately remedies the breach before the date specified in the notice, the rental agreement shall not terminate. If the breach is not remedied, the landlord may commence an eviction action, which shall be filed no earlier than the first day following the termination date specified in the written demand notice. The action shall be initiated by filing a “Complaint for Eviction for Reason Other Than for Nonpayment of Rent” in the appropriate court according to the form in § 34-18-56(e) .
  3. The summons shall be in the form provided in § 34-18-56(h) and shall specify that the tenant has twenty (20) days from the date of service in which to file his or her answer to the complaint, and that if he or she fails to file his or her answer within that time, he or she will be defaulted. The matter may be assigned for hearing in accordance with the rules of procedure of the appropriate court.
  4. Except as provided in this chapter, the landlord may recover possession, actual damages and obtain injunctive relief for noncompliance by the tenant with the rental agreement or § 34-18-24 . If the tenant’s noncompliance is willful, the landlord may recover reasonable attorney’s fees.
  5. If substantially the same act or omission which constituted a prior noncompliance, of which good faith notice was given, recurs within six (6) months, the landlord may terminate the rental agreement upon at least twenty (20) days’ written notice, specifying the breach and the date of termination of the rental agreement. No allowance of time to remedy noncompliance shall be required.
  6. If the tenant has violated § 34-18-24(8) , (9), or (10), or if the tenant (i) is a seasonal tenant occupying the premises pursuant to a written lease agreement which commences no earlier than May 1st of the occupation year and expires no later than October 15th of the occupation year, or commences no earlier than September 1st and expires no later than June 1st of the next subsequent year, with no right of renewal or extension beyond the above dates; and (ii) has been charged with violating a municipal ordinance or has otherwise violated the terms of the rental agreement pertaining to legal occupancy or excessive noise or other disturbance of the peace, the landlord shall not be required to send a notice of noncompliance to the tenant and may immediately file a complaint for eviction in a form substantially similar to that provided in § 34-18-56(e) and seek the relief set forth in subsection (d).

History of Section. P.L. 1986, ch. 200, § 2; P.L. 1988, ch. 84, § 25; P.L. 1988, ch. 649, § 1; P.L. 1989, ch. 229, § 1; P.L. 1996, ch. 358, § 1; P.L. 2005, ch. 384, § 1.

NOTES TO DECISIONS

Appeals.

Pursuant to § 34-18-53 , the plaintiff ’s successful action for eviction could not be appealed by the defendant since the defendant failed to pay rent. Brooks v. Hill, 667 A.2d 1262, 1995 R.I. LEXIS 274 (1995).

Due Process.

Where students were evicted under circumstances where a nuisance ordinance provided a landlord attempting to evict a tenant with a defense to liability for penalties under the ordinance, the students did not have a constitutionally protected due process interest to continued occupancy notwithstanding a violation of the ordinance because R.I. Gen. Laws § 34-18-36(f) provided that any seasonal tenant charged with violating a municipal ordinance might be subject to expedited eviction. URI Student Senate v. Town of Narragansett, 707 F. Supp. 2d 282, 2010 U.S. Dist. LEXIS 6261 (D.R.I. 2010), aff'd, 631 F.3d 1, 2011 U.S. App. LEXIS 141 (1st Cir. 2011).

Relationship With Other Laws.

Ordinance that banned unruly gatherings and contained an eviction defense was not preempted by Residential Landlord and Tenant Act, R.I. Gen. Laws § 34-18-1 et seq., because R.I. Gen. Laws § 34-18-36(f)(ii) allowed streamlined eviction procedures when seasonal tenants have been charged with violating a municipal ordinance and the R.I. Legislature expressly dovetailed the Act with municipal ordinances. URI Student Senate v. Town of Narragansett, 707 F. Supp. 2d 282, 2010 U.S. Dist. LEXIS 6261 (D.R.I. 2010), aff'd, 631 F.3d 1, 2011 U.S. App. LEXIS 141 (1st Cir. 2011).

Collateral References.

Retaliatory eviction of tenant for reporting landlord’s violation of law. 23 A.L.R.5th 140.

34-18-37. Termination of periodic tenancy.

  1. The landlord or the tenant may terminate a week-to-week tenancy by a written notice, in a form substantially similar to that provided in § 34-18-56(c) , delivered to the other at least ten (10) days before the termination date specified in the notice.
  2. The landlord or the tenant may terminate a month-to-month tenancy or any periodic tenancy for more than a month or less than a year by a written notice, in a form substantially similar to that provided in § 34-18-56(c) , delivered to the other at least thirty (30) days before the date specified in the notice.
  3. The landlord or tenant may terminate a year-to-year tenancy by written notice, in a form substantially similar to that provided in § 34-18-56(c) , delivered to the other at least three (3) months prior to the expiration of the occupation year.

History of Section. P.L. 1986, ch. 200, § 2.

NOTES TO DECISIONS

Termination Notice Sufficient.

Trial court’s determination that a notice of termination of tenancy was sufficient under R.I. Gen. Laws §§ 34-18-56(c) and 34-18-37 for purposes of informing an incapacitated individual’s daughter that she needed to vacate the premises she resided in was proper, as the statutory language that was omitted from the notice provided to her related to the payment of rent, which was not applicable to the daughter because she had been residing in the premises rent-free; accordingly, an affirmance of the eviction judgment obtained against the daughter was proper. Estate of Dellefratte v. Dellefratte, 917 A.2d 407, 2007 R.I. LEXIS 20 (2007).

34-18-38. Eviction for unlawfully holding over after termination or expiration of tenancy.

  1. If the tenant remains in possession without the landlord’s consent after expiration of the term of the rental agreement or after the termination of a periodic tenancy, the landlord may commence an eviction action, which may be filed no earlier than the first day following the expiration or termination of the tenancy. The action shall be commenced by filing a “Complaint for Eviction for Reason Other Than for Nonpayment of Rent,” which shall be filed in the appropriate court according to the form provided in § 34-18-56(e) .
  2. The summons shall be in the form provided in § 34-18-56(h) and shall specify that the tenant has twenty (20) days from the date of service in which to file his or her answer to the complaint, and that if he or she fails to file his or her answer within that time, he or she will be defaulted. The matter may be assigned for hearing in accordance with the rules of procedure of the appropriate court.
  3. If the tenant’s holdover is willful and not in good faith, the landlord may also recover, in addition to possession, an amount not more than three (3) months’ periodic rent or threefold the actual damages sustained by him or her, whichever is greater, and reasonable attorney’s fees. If the landlord consents to the tenant’s occupancy, the parties may agree to a definite term. If no term is specified, the term shall be week-to-week if the tenant pays on a week-to-week basis, and in all other cases, month-to-month.

History of Section. P.L. 1986, ch. 200, § 2.

NOTES TO DECISIONS

Subject Matter Jurisdiction.

Supreme Court of Rhode Island could not review a determination by a motion justice because the justice erred in dismissing a trustee’s trespass and ejectment action for lack of subject matter jurisdiction, and the justice did not hold a hearing or make findings of fact as to standing. Joseph P. Notarianni Revocable Trust of January, 2007 v. Notarianni, 91 A.3d 771, 2014 R.I. LEXIS 73 (2014).

Collateral References.

What constitutes tenant’s holding over of leased premises. 13 A.L.R.5th 169.

34-18-38.1. Definitions for purpose of the eviction of tenants in residential foreclosed properties.

As used in § 34-18-38.2 , the following words shall, unless the context clearly requires otherwise, have the following meanings:

  1. “Bona fide lease” or “bona fide tenancy” means a lease or tenancy shall not be considered bona fide unless:
    1. The mortgagor, or the child, spouse, or parent of the mortgagor under the contract, is not the tenant; and
    2. The lease or tenancy was the result of an arms-length transaction; and
    3. The lease or tenancy requires the receipt of rent that is not substantially less than fair-market rent for the property, or the dwelling unit’s rent is reduced or subsidized due to a federal, state, or local subsidy.
  2. “Entity” means a business organization, or any other kind of organization including, without limitation, a corporation, partnership, trust, limited liability corporation, limited liability partnership, joint venture, sole proprietorship, or any other category of organization, and any employee, agent, servant, or other representative of such entity.
  3. “Eviction” means an action, without limitation, by a foreclosing owner of a housing accommodation that is intended to actually or constructively evict a tenant or otherwise compel a tenant to vacate such housing accommodation.
  4. “Foreclosing owner” means an entity that holds title in any capacity, directly or indirectly, without limitation, whether in its own name, as trustee or as beneficiary, to a housing accommodation that has been foreclosed upon and either:
    1. Held or owned a mortgage or other security interest in the housing accommodation at any point prior to the foreclosure of the housing accommodation or is the subsidiary, parent, trustee, or agent thereof; or
    2. Is an institutional mortgagee that acquires or holds title to the housing accommodation within three (3) years of the filing of a foreclosure deed on the housing accommodation; or
    3. Is the federal national mortgage association or the federal home loan mortgage corporation.
  5. “Foreclosure” means an action to terminate a mortgagor’s interest in property by sale of property pursuant to a power of sale in a mortgage, as described in § 34-11-22 ; or conveyance of the property by the mortgagor in lieu of foreclosure; or an action filed in court pursuant to § 34-27-1 .
  6. “Housing accommodation” means a building or structure containing four (4) or fewer dwelling units, or part thereof of land appurtenant thereto, and any other real or personal property used, rented, or offered for rent for living or dwelling purposes, together with all services connected with the use or occupancy of such property.
  7. “HUD” means the United States Department of Housing and Urban Development and any successor to such department.
  8. “Institutional mortgagee” means an entity, or an entity that is the subsidiary, parent, trustee to such entity, that holds or owns mortgages or other security interests in three (3) or more housing accommodations or that acts as a mortgage servicer of three (3) or more mortgages of housing accommodations.
  9. “Just cause” means one of the following:
    1. The tenant has failed to pay rent in effect prior to the foreclosure, as long as the foreclosing owner notified the tenant in writing of the amount of rent that was to be paid and to whom it was to be paid;
    2. The tenant has materially violated either an express or legally required obligation or covenant of the tenancy or occupancy, other than the obligation to surrender possession upon proper notice, and has failed to cure such violation within thirty (30) days after having received written notice thereof from the foreclosing owner;
    3. The tenant is committing a nuisance in the unit; is permitting a nuisance to exist in the unit; is causing substantial damage to the unit; or is creating a substantial interference with the quiet enjoyment of other occupants;
    4. The tenant is using, or permitting the unit to be used, for any illegal purpose;
    5. The tenant, who had a written bona fide lease or other rental agreement that terminated, on or after July 1, 2014, has refused, after written request or demand by the foreclosing owner, to execute a written extension or renewal thereof for a further term of like duration and in such terms that are not inconsistent with this chapter;
    6. The tenant has refused the foreclosing owner reasonable access to the unit for the purpose of making necessary repairs or improvement required by the laws of the United States, the state of Rhode Island or any subdivision thereof, or for the purpose of inspection as permitted or required by agreement or by law, or for the purpose of showing the unit to a prospective purchaser or mortgagee;
    7. The foreclosing owner: (A) Seeks to permanently board up or demolish the premises because the premises has been cited by a state or local minimum housing code enforcement agency for substantial violations affecting the health and safety of tenants and it is economically not feasible for the foreclosing owner to eliminate the violations; or (B) Seeks to comply with a state or local minimum housing code enforcement agency that has cited the premises for substantial violations affecting the health and safety of tenants and it is not feasible to so comply without removing the tenant; or (C) Seeks to correct an illegal occupancy because the premises has been cited by a state or local minimum housing code enforcement agency or zoning official and it is not feasible to correct such illegal occupancy without removing the tenant; and provided further that nothing in this section shall limit the rights of a third-party owner to evict a tenant at the expiration of an existing lease.
  10. “Mortgagee” means an entity to whom property is mortgaged, the mortgage creditor or lender including, but not limited to, mortgage services, lenders in a mortgage agreement and any agent, servant, or employee of the mortgagee, or any successor in interest or assignee of the mortgagee’s rights, interests, or obligations under the mortgage agreement.
  11. “Mortgage servicer” means an entity that administers, or at any point administered, the mortgage; provided, however, that such administration shall include, but not be limited to, calculating principal and interest, collecting payments from the mortgager, acting as escrow agent, or foreclosing in the event of a default.
  12. “Tenant” means a person or group of persons, who at the time of foreclosure, is entitled to occupy a housing accommodation pursuant to a bona fide lease or tenancy. A person who moves into the housing accommodation owned by the foreclosing owner, subsequent to the foreclosure sale, without the express written permission of the foreclosing owner, shall not be considered a tenant under this section.
  13. “Unit” or “residential unit” means the room, or group of rooms, within a housing accommodation that is used, or intended for use, as a residence by one household.

History of Section. P.L. 2014, ch. 486, § 2; P.L. 2014, ch. 513, § 2.

Compiler’s Notes.

P.L. 2014, ch. 486, § 2, and P.L. 2014, ch. 513, § 2 enacted identical versions of this section.

34-18-38.2. Just cause needed for eviction of foreclosed residential property tenants.

  1. Notwithstanding any provision of the general or public laws to the contrary, a foreclosing owner shall not evict a tenant except for just cause, or unless a binding purchase-and-sale agreement has been executed for a bona fide third party to purchase the housing accommodation from a foreclosing owner, and the foreclosing owner has disclosed to the third-party purchaser that said purchaser may be responsible for evicting the current occupants of the housing accommodation after the sale occurs; or with respect to a housing accommodation in a housing accommodation insured by the Federal Housing Administration, unless HUD denies a request by any tenant for an occupied conveyance or if a tenant does not submit to HUD a request for continued occupancy before the deadline set forth in a notice to occupants of pending acquisition delivered to the tenant by the foreclosing owner.
  2. Within thirty (30) days of the foreclosure, the foreclosing owner shall post in a prominent location in the building in which the rental housing unit is located, a written notice stating:
    1. The names, addresses, telephone numbers, and telephone contact information of the foreclosing owner, the building manager, or other representative of the foreclosing owner responsible for the management of such building;
    2. The address to which rent charges shall be sent;
    3. That in order to remain on the premises as a tenant of the foreclosing owner, the household must submit, within thirty (30) days, a completed form to be provided with said written notice to the same address where rent charges shall be sent, said form to be substantially similar to the request for continued occupancy form used by HUD and shall contain an authorization to conduct a credit check of the person or persons submitting the form. This requirement shall be satisfied if the foreclosing owner or someone acting on his/her behalf has:
      1. Posted the notice in a prominent location in the building;
      2. Mailed the notice by first-class mail to each unit; and
      3. Slid the notice under the door of each unit in the building a document stating the names, addresses, and telephone contact information of the foreclosing owner, the building manager or other representative of the foreclosing owner responsible for the management of such building, and stating the address to which rent and use and occupancy charges shall be sent.
  3. A foreclosing owner shall not evict a tenant except for actions that constitute just cause, and:
    1. A foreclosing owner shall not evict a tenant for the following actions that constitute just cause until thirty (30) days after the notice required by subsection (b) of this section is posted, mailed, and delivered:
      1. The tenant has failed to pay the rent in effect prior to the foreclosure as long as the foreclosing owner notified the tenant in writing of the amount of rent that was to be paid and to whom it was to be paid;
      2. The tenant has materially violated an obligation or covenant of the tenancy or occupancy, other than the obligation to surrender possession upon proper notice;
      3. The tenant, who had a written bona fide lease or other rental agreement that terminated, on or after July 1, 2014, has refused, after written request or demand by the foreclosing owner, to execute a written extension or renewal thereof for a further term of like duration and in such terms that are not inconsistent with this section; and
      4. The foreclosing owner: (A) Seeks to permanently board up or demolish the premises because the premises has been cited by a state or local minimum housing code enforcement agency for substantial violations affecting the health and safety of tenants and it is not economically feasible for the foreclosing owner to eliminate the violations; or (B) Seeks to comply with a state or local minimum housing code enforcement agency that has cited the premises for substantial violations affecting the health and safety of tenants and it is not feasible to so comply without removing the tenant; or (C) Seeks to correct an illegal occupancy because the premises has been cited by a state or local minimum housing code enforcement agency or zoning officials and it is not feasible to correct such illegal occupancy without evicting the tenant.
    2. A foreclosing owner shall not evict a tenant for the following actions that constitute just cause until the notice required by subsection (b) is posted and delivered:
      1. The tenant is committing a nuisance in the unit; is permitting a nuisance to exist in the unit; is causing substantial damage to the unit; or is creating a substantial interference with the quiet enjoyment of other occupants;
      2. The tenant is using or permitting the unit to be used for any illegal purpose; and
      3. The tenant has refused the foreclosing owner reasonable access to the unit for the purpose of making necessary repairs or improvements required by the laws of the United States, the state of Rhode Island or any subdivision thereof, or for the purpose of showing the unit to a prospective purchaser or mortgagee.
  4. The following procedures shall be followed for the eviction of a tenant pursuant to subsection (c) of this section:
    1. For evictions brought pursuant to subsection (c)(1)(i), the foreclosing owner shall follow § 34-18-35 ;
    2. For evictions brought pursuant to subsection (c)(1)(ii), or subsection (c)(2) the foreclosing owner shall follow § 34-18-36 ;
    3. For evictions brought pursuant to subsection (c)(1)(iii) or (c)(1)(iv); or for evictions brought where a binding purchase-and-sale agreement has been executed for a bona fide third party to purchase the housing accommodation from a foreclosing owner; or for evictions brought with respect to housing accommodations located in a premises insured by the federal housing administration as provided in subsection (a); or for an eviction brought against a tenant who fails to return the form requesting continued occupancy pursuant to subsection (b); the foreclosing owner shall follow the procedures for terminating a month-to-month tenancy set forth in § 34-18-37 , provided that any obligations of the foreclosing owner arising under the federal Protecting Tenants at Foreclosure Act of 2009, as such act is amended and extended from time to time, shall first have been satisfied; and provided, further, that in any eviction brought against a tenant pursuant to subsection (c), the tenant may raise an affirmative defense that the form was not posted or served upon the tenant as required by subsection (b).
  5. A foreclosing owner may evict any person other than a tenant by following the procedures for terminating a month-to-month tenancy set forth in § 34-18-37 .
  6. If a foreclosing owner disagrees with the amount of rent paid by the tenant to the foreclosing owner, the foreclosing owner may bring a claim in district court to claim that the rental charge is unreasonable and set a new rental rate. A bona fide lease or bona fide tenancy between the foreclosed-upon owner and the lessee, or proof of rental payment to the foreclosed-upon owner, shall be presumed to be a reasonable rental rate.
  7. Nothing herein shall be deemed to limit the right of any tenant to knowingly waive the provisions of this section for consideration acceptable to such tenant.
  8. Notwithstanding any other provisions of this section, a foreclosing owner shall be exempt from the requirement of this section if:
    1. The foreclosing owner is headquartered in Rhode Island and maintains a physical office or offices in Rhode Island from which office or offices it carries out full-service mortgage operations, including the acceptance and processing of mortgage payments and the provision of local customer service and loss mitigation, and where Rhode Island staff have the authority to approve loan restructuring and other loss mitigation strategies; or
    2. The foreclosing owner conducted fewer than fifteen (15) foreclosures in Rhode Island during the prior calendar year, excluding any conveyances of property by a deed in lieu of foreclosure.

History of Section. P.L. 2014, ch. 486, § 2; P.L. 2014, ch. 513, § 2.

Compiler’s Notes.

P.L. 2014, ch. 486, § 2, and P.L. 2014, ch. 513, § 2 enacted identical versions of this section.

34-18-39. Failure to maintain.

If there is noncompliance by tenant with § 34-18-24 materially affecting health and safety that can be remedied by repair, replacement of a damaged item, or cleaning, and the tenant fails to comply as promptly as conditions require in case of emergency or within twenty (20) days after written notice by the landlord specifying the breach and requesting that the tenant remedy it within that period of time, the landlord may enter the dwelling unit and cause the work to be done in a skilled manner and submit the itemized bill for the actual and reasonable cost or the fair and reasonable value thereof as rent on the next date periodic rent is due, or if the rental agreement has terminated, for immediate payment.

History of Section. P.L. 1986, ch. 200, § 2.

Collateral References.

Measure and elements of damages for lessee’s breach of covenant as to repairs. 45 A.L.R.5th 251.

34-18-40. Remedies for abandonment.

If the tenant abandons the dwelling unit, the landlord shall send a certified letter, return receipt requested, to the tenant’s last known address giving notice that unless a reply is received from the tenant within seven (7) days, the landlord shall re-rent the premises. If the notice is returned as undeliverable, or the tenant fails to contact the landlord within seven (7) days, the landlord shall make reasonable efforts to rent the premises at a fair rental. If the landlord rents the dwelling unit for a term beginning before the expiration of the rental agreement, the tenancy terminates as of the date of the new tenancy. If the landlord fails to use reasonable efforts to rent the dwelling unit at fair rental, or if the landlord accepts the abandonment as a surrender, the rental agreement is deemed to be terminated by the landlord as of the date the landlord has notice of the abandonment.

History of Section. P.L. 1986, ch. 200, § 2.

Collateral References.

Landlord’s duty, on tenant’s failure to occupy, or abandonment of, premises, to mitigate damages by accepting or procuring another tenant. 75 A.L.R.5th 1.

Landlord’s permitting third party to occupy premises rent-free as acceptance of tenant’s surrender of premises. 18 A.L.R.5th 437.

What constitutes abandonment of residential or commercial lease — modern cases. 84 A.L.R.4th 183.

34-18-41. Waiver of landlord’s right to terminate.

Acceptance of rent with knowledge of a default by the tenant or acceptance of performance by him or her that varies from the terms of the rental agreement constitutes a waiver of the landlord’s right to terminate the rental agreement for that breach, unless the landlord gives written notice within ten (10) days. However, acceptance of partial payment of rent shall not constitute a waiver of the balance due. Acceptance does not waive the landlord’s right to seek remedies for the default.

History of Section. P.L. 1986, ch. 200, § 2; P.L. 1997, ch. 95, § 1.

NOTES TO DECISIONS

Construction.

Housing authority, who was aware that defendant tenant was in breach of a rental agreement, was estopped from pursuing an eviction action against the tenant for that breach because it accepted rent without a written reservation of rights, even though the tenant had actual notice of the pending eviction action; R.I. Gen. Laws § 34-18-41 was the specific statute, and its mandate could not be overcome by reference to R.I. Gen. Laws § 34-18-14 . Warwick Hous. Auth. v. McLeod, 913 A.2d 1033, 2007 R.I. LEXIS 7 (2007).

34-18-42. Landlord liens — Distraint for rent abolished.

  1. A lien or security interest on behalf of the landlord in the tenant’s household goods is not enforceable unless perfected before the effective date of this chapter, except as provided in § 34-18-50 .
  2. Distraint for rent is abolished.

History of Section. P.L. 1986, ch. 200, § 2.

34-18-43. Remedy after termination.

If the rental agreement is terminated, the landlord has a claim for possession, for a sum for reasonable use and occupation subsequent to the termination, and for actual damages for breach of the rental agreement and reasonable attorney’s fees.

History of Section. P.L. 1986, ch. 200, § 2.

Law Reviews.

John N. Mansella, The Rogue Landlord: Tenants’ Recourse Against Self-Help for Damages Following a Residential Lease Termination, 23 Roger Williams U. L. Rev. 445 (2018).

34-18-44. Self-help recovery of possession prohibited.

A landlord may not recover or take possession of the dwelling unit by action or otherwise, including willful diminution of services to the tenant by interrupting or causing the interruption of heat, running water, hot water, electric, gas, or other essential service to the tenant, except in case of abandonment, surrender, or as permitted in this chapter.

History of Section. P.L. 1986, ch. 200, § 2.

Law Reviews.

John N. Mansella, The Rogue Landlord: Tenants’ Recourse Against Self-Help for Damages Following a Residential Lease Termination, 23 Roger Williams U. L. Rev. 445 (2018).

NOTES TO DECISIONS

Particular Cases.

Where a residential tenant had a month-to-month lease, as her landlord prevented her from accessing the premises after October 6, in violation of R.I. Gen. Laws §§ 34-18-21 and 34-18-44 , she was not obliged to pay rent thereafter and was entitled to the return of her security deposit minus the unpaid, accrued rent for the period from October 1 through October 6. Furlan v. Farrar, 982 A.2d 581, 2009 R.I. LEXIS 120 (2009).

It was not an abuse of discretion to find a purchaser of real property tampered with the property’s services to make the property uninhabitable because (1) supporting testimony was found credible, and (2) it could be inferred from that evidence that the purchaser damaged the property on a certain date. Gregoire v. Baird Props., LLC, 138 A.3d 182, 2016 R.I. LEXIS 58 (2016).

34-18-45. Landlord and tenant remedies for abuse of access.

  1. If the tenant refuses to allow lawful access, the landlord may obtain injunctive relief to compel access, or terminate the rental agreement.
  2. If the landlord makes an unlawful entry or a lawful entry in an unreasonable manner or makes repeated demands for entry otherwise lawful but which have the effect of unreasonably harassing the tenant, the tenant may obtain injunctive relief to prevent the recurrence of the conduct or terminate the rental agreement.
  3. In any action under subsection (a) or (b) the prevailing party may recover actual damages and shall be awarded costs and reasonable attorney’s fees.

History of Section. P.L. 1986, ch. 200, § 2.

34-18-46. Retaliatory conduct prohibited.

  1. Except as provided in this section, a landlord may not retaliate by increasing rent or decreasing services or by bringing or threatening to bring an action for possession because:
    1. The tenant has complained to a governmental agency charged with responsibility for enforcement of a building or housing code of a violation applicable to the premises materially affecting health and safety; or
    2. The tenant has complained to the landlord of a violation under § 34-18-22 ; or
    3. The tenant has organized or become a member of a tenants’ union or similar organization; or
    4. The tenant has availed himself or herself of any other lawful rights and remedies.
  2. If the landlord acts in violation of subsection (a), the tenant is entitled to the remedies provided in § 34-18-34 and has a defense in any retaliatory action against him or her for possession. In an action by or against the tenant, evidence of a complaint within six (6) months before the alleged act of retaliation creates a presumption that the landlord’s conduct was in retaliation. The presumption does not arise if the tenant made the complaint after notice of a proposed rental increase or diminution of services. “Presumption” means that the trier of fact must find the existence of the fact presumed unless and until evidence is introduced which would support a finding of its nonexistence.
  3. Notwithstanding subsections (a) and (b), a landlord may bring an action for possession if:
    1. The violation of the applicable building or housing code was caused primarily by lack of reasonable care by the tenant, a member of his or her family, or other person on the premises with his or her consent; or
    2. The tenant is in default in rent; or
    3. Compliance with the applicable building or housing code or other public action such as eminent domain, requires alteration, remodeling, or demolition which would effectively deprive the tenant of use of the dwelling unit, and the relocation requirements have been met by the municipality.
  4. The maintenance of an action under subsection (c) of this section does not release the landlord from liability under § 34-18-28(b) .

History of Section. P.L. 1986, ch. 200, § 2.

NOTES TO DECISIONS

Judgment Reversed.

Judgment for a tenant on a claim of reprisal was error since the trial court failed to make a finding on whether the tenant had the benefit of the presumption of reprisal, the court concluded that the landlord’s objective in eviction litigation was to rid herself of the tenant, and there was no finding that the eviction proceedings were primarily intended as a penalty. Kingstown Mobile Home Park v. Strashnick, 774 A.2d 847, 2001 R.I. LEXIS 174 (2001).

34-18-47. Appeals.

Appeals of actions brought under this chapter shall be pursuant to § 9-12-10.1 .

History of Section. P.L. 1986, ch. 200, § 2.

NOTES TO DECISIONS

Timeliness.

The proper remedy for a party aggrieved by a judgment for trespass and eviction is to file an appeal with the superior court pursuant to this section, which directs a litigant to bring appeals under § 9-12-10.1 , and the plaintiff waived his right to appeal his eviction when he missed the five-day filing deadline. Garganta v. Mobile Village, Inc., 730 A.2d 1, 1999 R.I. LEXIS 107 (1999).

34-18-48. Execution.

If no appeal is claimed, and if the judgment has not been satisfied, execution shall be issued on the sixth (6th) day following judgment. Executions shall be issued to the division of sheriffs or certified constable. Every execution issued by any district court pursuant to this chapter shall continue in full force and effect for one year after the date thereof and be returnable to the district court that issued it in accordance with the provisions of § 9-25-21 . All costs, including reasonable moving costs, incurred by the division of sheriffs or certified constable in carrying out the mandates of the execution may be added to the execution by the clerk upon approval of the court upon presentment of evidence of the costs.

History of Section. P.L. 1986, ch. 200, § 2; P.L. 1990, ch. 224, § 1; P.L. 2003, ch. 300, § 1; P.L. 2003, ch. 311, § 1; P.L. 2012, ch. 324, § 65; P.L. 2015, ch. 260, § 34; P.L. 2015, ch. 275, § 34.

Compiler’s Notes.

P.L. 2015, ch. 260, § 34, and P.L. 2015, ch. 275, § 34 enacted identical amendments to this section.

Effective Dates.

P.L. 2015, ch. 260, § 41, provides that the amendment to this section by that act takes effect on September 1, 2015.

P.L. 2015, ch. 275, § 41, provides that the amendment to this section by that act takes effect on September 1, 2015.

34-18-49. Payment of rent on stay of execution.

Whenever, in any action for the recovery of real property, the issuance of an execution, or the service of an execution, is stayed by order of the court or by the operation of law, the stay shall be conditioned upon the payment by tenant to the landlord of sums of money equal to the rent for the premises, which sums shall be paid at such times and in such amounts as rent would be due and payable were the action not then pending. The acceptance of these sums shall not constitute a waiver of the right of the landlord to obtain possession of the premises, nor shall the receipt thereof be deemed to reinstate the tenancy.

History of Section. P.L. 1986, ch. 200, § 2.

34-18-50. Payment of moving costs required.

Whenever the personal property of any tenant is removed from the premises the tenant occupies by mandate of an execution from the court of competent jurisdiction, the tenant shall pay the entire amount of the cost of moving the personal property and any prepaid storage charges to the division of sheriffs, constable, or other person who lawfully caused the personal property to be so moved before the personal property can be released to the tenant by the person, firm, partnership, company, association, or corporation having lawful possession of the property. Further, the division of sheriffs, constable, or other person who lawfully caused the personal property to be so moved shall prepare and deliver a release in writing stating that the costs of moving and any prepaid storage charges have been paid in full and authorizing the release of the personal property to the tenant. This amount shall be paid to the landlord as reimbursement for the costs of removing the personal property.

History of Section. P.L. 1986, ch. 200, § 2; P.L. 2012, ch. 324, § 65.

34-18-51. Issuance of execution on nonpayment of rent.

In the event that the tenant shall fail or refuse to pay all sums promptly when due in accordance with the provisions of § 34-18-49 , the court in which the judgment for possession was issued shall, on motion of the landlord and after hearing thereon, including satisfactory proof of such nonpayment, enter an order for the issuance of such execution and the prompt service thereof, and from this order there shall be no appeal.

History of Section. P.L. 1986, ch. 200, § 2.

34-18-52. Payment of rent during pendency of appeal.

Whenever an action for the recovery of real property is pending on appeal in the superior or supreme court, the tenant in the action shall pay to the landlord sums of money equal to the rent for the premises, which the sums shall be paid at such times and in such amounts as rent would be due and payable were the action not then pending. The acceptance of these sums shall not constitute a waiver of the right of the landlord to obtain possession of the premises, nor shall their receipt be deemed to reinstate the tenancy.

History of Section. P.L. 1986, ch. 200, § 2.

NOTES TO DECISIONS

Applicability.

In an eviction action, the defendant-tenant, who had transferred title to the property in question to his wife preceding his divorce, who in turn had transferred title to the plaintiff, could not argue his wife had made the required mortgage payments and, therefore, “rent” was not owed by him, since this section requires the tenant to pay the rent during the pendency of the appeal. Chalet Nominee Trust v. Ryan, 672 A.2d 464, 1996 R.I. LEXIS 76 (1996).

Duty to Pay.

This section is mandatory and contains no provisions for the exercise of discretion concerning the circumstances of nonpayment of rent during the pendency of an appeal, no matter how compelling the circumstances may be. Russo v. Fleetwood, 713 A.2d 775, 1998 R.I. LEXIS 228 (1998).

Trial justice was correct in dismissing a tenant’s appeal because the trial justice determined that the tenant had failed to pay the use and occupancy fee for the month as of the hearing date and any prior acceptance of late payments by the landlord was immaterial to the trial justice’s decision. Fannie Mae v. Jacavone, 252 A.3d 286, 2021 R.I. LEXIS 52 (R.I. 2021).

34-18-53. Dismissal of appeal for nonpayment of rent during pendency of appeals.

In the event that the tenant fails or refuses to pay all sums promptly when due, in accordance with the provisions of § 34-18-52 , the court in which the case is pending, shall, without any trial on the merits, on motion of the landlord, and after hearing thereon, including satisfactory proof of such nonpayment, enter an order for the entry of judgment and the issuance of the execution and the prompt service thereof, and from that order there shall be no appeal. The papers shall be forthwith returned to the district court which shall upon payment of the required fee, issue an execution without further delay.

History of Section. P.L. 1986, ch. 200, § 2; P.L. 2001, ch. 75, § 1.

Law Reviews.

Caselaw Survey Section: Landlord and Tenant, see 4 Roger Williams U.L. Rev. 756 (1999).

NOTES TO DECISIONS

Dismissal Appropriate.

The defendant’s appeal was properly dismissed as a result of the defendant’s failure to pay the rent as ordered by the district court. Brooks v. Hill, 667 A.2d 1262, 1995 R.I. LEXIS 274 (1995).

Trial justice was correct in dismissing a tenant’s appeal because the trial justice determined that the tenant had failed to pay the use and occupancy fee for the month as of the hearing date and any prior acceptance of late payments by the landlord was immaterial to the trial justice’s decision. Fannie Mae v. Jacavone, 252 A.3d 286, 2021 R.I. LEXIS 52 (R.I. 2021).

34-18-54. Savings clause.

Transactions entered into before January 1, 1987, and not extended or renewed on and after that date, and the rights, duties and interests flowing from them remain valid and may be terminated, completed, consummated, or enforced as required or permitted by any statute or other law amended or repealed by this chapter as though the repeal or amendment had not occurred.

History of Section. P.L. 1986, ch. 200, § 2.

34-18-55. Severability.

If any provision of this chapter or the application thereof to any person or circumstances is held invalid, the invalidity does not affect other provisions or application of this chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.

History of Section. P.L. 1986, ch. 200, § 2.

34-18-56. Notices and complaint forms.

  1. A notice in substantially the following language shall suffice for the purpose of giving a tenant a five (5) day demand for payment of rent prior to commencement of an eviction pursuant to § 34-18-35 : Click to view
  2. A notice in substantially the following language shall suffice for the purpose of giving a tenant a notice of noncompliance with the rental agreement pursuant to § 34-18-36 : Click to view
  3. A notice in substantially the following language shall suffice for the purpose of giving a tenant notice of termination of tenancy pursuant to § 34-18-37 : Click to view
  4. A complaint in substantially the following language shall suffice for the purpose of commencing an eviction action for nonpayment of rent pursuant to § 34-18-35 : Click to view
  5. A complaint in substantially the following language shall suffice for the purpose of commencing an eviction action for noncompliance with the rental agreement pursuant to § 34-18-36 , or an eviction action for unlawfully holding over after expiration or termination of the tenancy pursuant to § 34-18-38 : Click to view
  6. A complaint in substantially the following language, or in similar language, shall be sufficient for use by landlords or by tenants to bring any claims or causes of action other than eviction actions:

    Click to view

  7. The summons in an action for eviction for nonpayment of rent pursuant to § 34-18-35 shall be in substantially the following form: Click to view
  8. The summons in an action for eviction for noncompliance with the rental agreement pursuant to § 34-18-36 , or for unlawfully holding over after termination or expiration of tenancy pursuant to § 34-18-38 , shall be in substantially the following form: Click to view
    1. The summons in an action relating to any claims by tenants, or by landlords other than for eviction, shall be in substantially the following form: Click to view (j) The blank answer served in eviction actions shall be in substantially the following form: Click to view

FIVE-DAY DEMAND NOTICE FOR NONPAYMENT OF RENTDate of Mailing: R.I.G.L. 34-18-35 TO: (tenant) You are now more than fifteen days in arrears for some or all of the rent owed under your rental agreement. State law requires that you be sent this Notice of arrearage. Unless you make payment of all rent in arrears within five days of the date this notice was mailed to you, an eviction action may be instituted in court against you. You can prevent the eviction by paying all rent owing within five days of the mailing of this notice. If you believe you have a legal reason for not paying this rent, you will be able to present that defense at the eviction hearing. The rent in arrears as of the above date is $. (signature) (name and address of land- lord/owner) I certify that I placed in regular U.S. mail, first class postage prepaid, a copy of this Notice, addressed to the tenant, on the day of , 20. (landlord or owner signature)

NOTICE OF NONCOMPLIANCEDate of Mailing: R.I.G.L. 34-18-36 TO: (tenant) (address) You are in breach of your rental agreement, or of your legal duties under , because you: R.I.G.L. 34-18-24 (provide details) To remedy this situation you must do the following within twenty days of the date of mailing of this Notice: If you do not remedy this situation within twenty days, your rental agreement will terminate without further notice on (date, which must be not less than twenty-one days from the date of mailing of this Notice). (NOTE: Under the law you lose this right to remedy your noncompliance if this is the second notice on the same subject within the past six months.) After that date an eviction case may begin in court, and you may be served with a complaint. You will have the right to a hearing and to present any defenses you believe you have. (signature) (name and address of land- lord/owner) I certify that I placed in regular U.S. mail, first class postage prepaid, a copy of this Notice, addressed to the tenant, on the day of , 20. (landlord or owner signature)

NOTICE OF TERMINATION OF TENANCYDate of Mailing: R.I.G.L. 34-18-37 TO: (tenant) (address) You are hereby directed to vacate and remove your property and personal possessions from the premises located at (address of premises) and deliver control of the premises to the landlord/owner on the first day after the end of your current rental period, namely . (insert date) This notice is given for the purpose of terminating your tenancy. You must continue to pay rent as it becomes due until the date indicated above. If you fail to pay that rent, a nonpayment eviction action may be instituted against you. If you fail to vacate the premises by the date specified, an eviction may be instituted against you without further notice. If you believe you have a defense to this termination, you will be able to raise that defense at the court hearing. (signature) (name and address of land- lord/owner) I certify that I placed in regular U.S. mail, first class postage prepaid, a copy of this Notice, addressed to the tenant, on the day of , 20. (landlord or owner signature)

State of Rhode Island , Sc. DISTRICT COURT DIVISION PLAINTIFF DEFENDANT (Landlord's Name) (Tenant's Name) V (address) (address of rental premises) COMPLAINT FOR EVICTIONFOR NONPAYMENT OF RENT R.I.G.L. 34-18-35 1. Plaintiff is the owner/landlord of the rental premises listed above, in which the Defendant Tenant currently resides. 2. Defendant is more than fifteen days in arrears in rental payments due to the plaintiff from the defendant. The rent is $ per , and the amount in arrears is $ as of the day of , 20. (month) 3. Plaintiff has served the five-day demand notice as required by law, and a copy of that notice is attached to this complaint. The notice was mailed to the defendant on the day of , 20. 4. Defendant has not paid the rent in arrears or offered the full amount in arrears, either before or after the demand notice. Defendant remains in possession of the rental premises. WHEREFORE, Plaintiff requests that this Court grant a judgment for possession of the premises (eviction of the tenant) and for back rent in the amount of $, plus costs. (Name & address of landlord/owner or attorney for landlord) Date complaint filed with clerk

STATE OF RHODE ISLAND , Sc. DISTRICT COURT DIVISION PLAINTIFF DEFENDANT (Landlord's Name) (Tenant's Name) V (address) (address of rental premises) COMPLAINT FOR EVICTIONFOR REASON OTHER THANNONPAYMENT OF RENT R.I.G.L. 34-18-36 R.I.G.L. 34-18-38 1. Plaintiff Landlord(s) owns the rental premises listed above, in which the Defendant Tenant(s) resides. 2. CHECK ONE: Defendant breached the tenant’s obligations under the rented agreement or as set forth in the attached copy of the notice of noncompliance which was mailed to the defendant. Defendant has not cured or remedied the breach. (Plaintiff must attach copy of required notice of noncompliance.) § 34-18-24 Defendant has remained in possession of the rented premises following the period set forth in the attached notice of termination of tenancy which was mailed to defendant. (Plaintiff must attach copy of required termination notice.) Defendant breached the tenants’ obligations under , (9) or (10). § 34-18-24(8) 3. Plaintiff seeks judgment for possession of the premises plus judgment in the amount of for (explain basis for money claim) Plaintiff seeks costs and fees (if applicable). (Signature of Landlord/Owner or Attorney) Date complaint filed with clerk

NOT FOR EVICTION State of Rhode Island , Sc. DISTRICT COURT DIVISION PLAINTIFF DEFENDANT (Name) (Name) V (address) (address of rental premises) LANDLORD-TENANT COMPLAINT (NOT FOR USE IN EVICTIONS) 1. Plaintiff is the Tenant Landlord/Owner of the rental premises at . (address of rental premises) 2. Defendant is the Tenant Landlord/Owner. 3. Plaintiff claims that defendant has breached the obligations of the rental agreement or law in relation to this landlord-tenant relationship, as follows: (brief description of claim, attach extra sheet, if necessary) 4. Plaintiff seeks the following judgment or relief from the Court: Date Complaint Filed With Clerk: (Signature of plaintiff or plaintiff's attorney) (address)

STATE OF RHODE ISLANDDISTRICT COURTSUMMONSEVICTION-NONPAYMENT OF RENTDIVISION COUNTY CIVIL ACTION-FILE NO. Address of Court: (name & address of plaintiff (name & address of defendant- landlord) tenant) TO THE TENANT: You are served with an eviction complaint for nonpayment of rent. If you do nothing, you will lose by default and be evicted. If you claim any defense, you must complete the enclosed ANSWER and file it with the Court Clerk at or before the hearing date. You should also mail a copy to the landlord or the landlord’s lawyer. Your hearing will be at 9:30 A.M. on the hearing date, at the court address listed above. You should go to the hearing or you may lose by default. If you think the case is “settled,” you should still go to the hearing to make sure the settlement is in the court record. YOUR HEARING DATE IS: . (Proof of Service on next page) PROOF OF SERVICE I hereby certify that I served a copy of the Complaint and Summons & Answer upon the defendant(s) by delivering or leaving said papers in the following manner: to the defendant personally; or at his or her dwelling unit or usual place of abode at the address listed below with a person of suitable age then residing therein; or if none be found, by posting conspicu- ously on the door to the defendant’s dwelling unit. ADDRESS OF DWELLING OR USUAL PLACE OF ABODE: NAME OF PERSON OF SUITABLE AGE: SERVICE DATE: DEPUTY SHERIFF/CONSTABLE: CERTIFICATE OF SERVICE I hereby certify that a copy of this Complaint and Summons was placed into regular U.S. Mail, postage prepaid, on the day of , 20, addressed to defendant at the following address: . (Signature of Clerk)

State of Rhode Island District CourtSummons EVICTION FOR REASON OTHER THAN NONPAYMENT OF RENT DIVISIONCOUNTYCIVIL ACTION-FILE NO. Address of Court: V (name & address of plaintiff (name & address of landlord) defendant-tenant) TO THE TENANT: You are served with an eviction complaint for noncompliance with rental agreement (), or for unlawfully holding over after termination or expiration of tenancy (). If you do nothing, you will lose by default and be evicted. If you claim any defense, you must complete the enclosed ANSWER and file it with the Court Clerk within TWENTY (20) days after you are served with this summons and complaint. You should also mail a copy of the ANSWER to the landlord or the landlord’s lawyer. If you file the enclosed ANSWER, then you will receive another written notice telling you when the hearing will be. If you have any questions, you may consult a lawyer. If you think the case is “settled” you should still file the enclosed ANSWER or be sure that the written settlement is in the file at the Clerk’s office. R.I.G.L. 34-18-36 R.I.G.L. 34-18-38 (Proof of Service on next page) PROOF OF SERVICE I hereby certify that I served a copy of the Complaint, Summons, and Answer form upon the defendant(s) by delivering or leaving said papers in the following manner: to the defendant personally at his/her dwelling unit or usual place of abode at the address listed below, with a person of suitable age then residing therein to an agent named below authorized by appointment or by law to receive service of process further notice as required by law was given as noted below Address of dwelling or usual place of abode: Name of person of suitable age or of agent: Service Date: Deputy Sheriff/Constable (circle one): (signature)

State of Rhode Island District CourtSummons DIVISION COUNTY CIVIL ACTION-FILE NO. PLAINTIFF PLAINTIFF’S ATTORNEY ADDRESS vs DEFENDANT DEFENDANT’S ADDRESS TO THE ABOVE-NAMED DEFENDANT: You are hereby summoned and required to serve upon the plaintiff’s attorney, whose name and address appears above, an answer to the complaint which is herewith served upon you. Your answer must be made within 20 days after service of this summons, excluding the date of service. The original must be filed in writing with this court. If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint. DATE CLERK SEAL OF THE DISTRICT COURT DATE RECEIVED PROOF OF SERVICE I hereby certify that on the date below I served a copy of this summons and a copy of the complaint received herewith upon the above-named defendant by delivering or leaving said papers in the following manner: • to the defendant personally. • at his or her dwelling house or usual place of abode at the address entered below, with a person of suitable age and discretion then residing therewith. • to an agent named below authorized by appointment or by law to receive service of process. • Further notice as required by statute was given as noted on the reverse side. Address of Dwelling or Usual Place of Abode Name of Authorized Agent or Person of Suitable Age Date Deputy Sheriff/Constable SERVICE FEE $

State of Rhode Island , Sc. DISTRICT COURT DIVISION PLAINTIFF DEFENDANT (Landlord's Name) (Tenant's Name) V (address) (address of rental premises) INSTRUCTIONS TO THE DEFENDANT Listed below are several possible defenses to the eviction action your landlord has filed against you. If one or more of these defenses apply to your case, check the appropriate box(es). If space is provided, write in facts in support of that defense. Use additional paper if necessary. Some of these defenses are technical, and there may be others not listed here. You may consult a lawyer and seek representation before filling out this Answer. TENANT’S ANSWER The complaint against me is untrue or fails to state the following facts: I offered rent, but my landlord refused it. I am still able and willing to pay the rent. I have a defense for nonpayment because the landlord has failed to maintain the premises in a fit and habitable condition My rent has not been paid, but I have a legally justifiable defense for not paying: I have a written lease which does not expire until: I have not received the required notice from the landlord before this complaint was served on me. The landlord is trying to evict me because I have exercised my legal rights by calling code enforcement officials, or by taking the following protected action: I have other defenses as follow: WHEREFORE: Because of the defense(s) indicated above, I ask the court to grant a judgment in my favor and not order me to be evicted. COUNTERCLAIM Instructions: If you believe you are entitled to be awarded damages or money for any reason from your landlord, you may fill out the statement below: I hereby sue my landlord for the amount of $. I believe I am entitled to receive an award of this amount because Name of Defendant (or attorney)Signature of Defendant Address Telephone number

History of Section. P.L. 1986, ch. 200, § 2; P.L. 1988, ch. 649, § 1; P.L. 1989, ch. 229, § 1.

Compiler’s Notes.

In 2021, “State of Rhode Island” was substituted for “State of Rhode Island and Providence Plantations” four times in this section at the direction of the Law Revision Director to reflect the 2020 amendments to the state constitution that changed the state's name.

NOTES TO DECISIONS

Termination Notice Sufficient.

Trial court’s determination that a notice of termination of tenancy was sufficient under R.I. Gen. Laws §§ 34-18-56(c) and 34-18-37 for purposes of informing an incapacitated individual’s daughter that she needed to vacate the premises she resided in was proper, as the statutory language that was omitted from the notice provided to her related to the payment of rent, which was not applicable to the daughter because she had been residing in the premises rent-free; accordingly, an affirmance of the eviction judgment obtained against the daughter was proper. Estate of Dellefratte v. Dellefratte, 917 A.2d 407, 2007 R.I. LEXIS 20 (2007).

34-18-57. Providence and Warwick Absentee Landlord Enforcement Act.

All persons, corporations, organizations, associations or other legal entities owning and leasing property in the cities of Providence or Warwick shall register their names, home addresses, including zip codes, and telephone numbers with the city clerk in the city where such property is located.

History of Section. P.L. 1995, ch. 336, § 1; P.L. 2008, ch. 236, § 1; P.L. 2008, ch. 465, § 1.

Chapter 18.1 Commercial Leasing and Other Estates

34-18.1-1. Purpose.

This chapter shall apply to all commercial properties and other estates, excluding residential properties governed by the Residential Landlord and Tenant Act, chapter 18 of this title.

History of Section. P.L. 1986, ch. 200, § 8; P.L. 1989, ch. 287, § 1.

Collateral References.

Implied warranty of fitness or suitability in commercial leases — modern status. 76 A.L.R.4th 928.

Provision in lease as to purpose for which premises are to be used as excluding other uses. 86 A.L.R.4th 259.

34-18.1-2. Quitting by tenants at will or by sufferance on notice.

Tenants of lands or tenements at will or by sufferance covered by this chapter shall quit upon notice in writing from the landlord at the day named therein.

History of Section. P.L. 1986, ch. 200, § 8; P.L. 1989, ch. 287, § 2.

NOTES TO DECISIONS

Possession.

Trial court did not err in awarding Federal National Mortgage Association (FNMA) possession of certain premises because FNMA sent a notice of termination of tenancy by sufferance to the owner, the owner’s general appearance constituted a consent to the court’s jurisdiction, the owner failed to rebut the presumption that FNMA was entitled to possession of the property, the trial justice did not err in failing to enforce the owner’s subpoenas, and FNMA had redeemed the title to the property. Fannie Mae v. Malinou, 101 A.3d 860, 2014 R.I. LEXIS 133 (2014).

34-18.1-3. Liability of tenants by sufferance for rent.

Persons in possession of lands or tenements covered by this chapter as tenants by sufferance shall be liable to pay rent for such time as they may occupy or detain the same.

History of Section. P.L. 1986, ch. 200, § 8; P.L. 1989, ch. 287, § 3.

34-18.1-4. Quitting by tenants by parol from year to year.

Tenants by parol of lands, buildings, or parts of buildings covered by this chapter, from year to year, shall quit at the end of the year upon notice in writing from the landlord given at least three (3) months prior to the expiration of the occupation year.

History of Section. P.L. 1986, ch. 200, § 8; P.L. 1989, ch. 287, § 4.

34-18.1-5. Quitting by tenants by parol for less than one year.

Tenants by parol of lands, buildings, or parts of buildings covered by this chapter, for any term less than a year, shall quit at the end of the term upon notice in writing from the landlord, given at least half the period of the term, but not exceeding three (3) months, prior to the expiration of the term.

History of Section. P.L. 1986, ch. 200, § 8; P.L. 1989, ch. 287, § 5.

34-18.1-6. Notice of termination by tenant.

To terminate leases at will or by sufferance or by parol covered by this chapter, like notice shall be given by the tenant, if he or she would quit of the same, as is prescribed to be given by the landlord. The notice shall have the same effect, for all purposes, as if given by the landlord to the tenant.

History of Section. P.L. 1986, ch. 200, § 8; P.L. 1989, ch. 287, § 6.

34-18.1-7. Time of termination of letting.

The time agreed upon in a definite letting covered by this chapter shall be the time of the termination thereof for all purposes; and if no time of termination has been agreed upon, it shall be deemed a letting from award year; provided, however, that in any case of a letting at a certain rate per month without any reference as to time, the letting shall be deemed a letting from month to month; and provided, further, that in any case of a letting at a certain rate per week without any other reference as to time, the letting shall be deemed a letting from week to week.

History of Section. P.L. 1986, ch. 200, § 8; P.L. 1989, ch. 287, § 7.

NOTES TO DECISIONS

Holdover Tenant

Having failed to properly exercise an option to extend its lease, a commercial tenant became a holdover tenant; the trial court correctly concluded that the landlord was entitled to possession of the premises. Elena Carcieri Trust-1988 v. Enter. Rent-A-Car Co., 871 A.2d 944, 2005 R.I. LEXIS 78 (2005).

34-18.1-8. Surrender of premises damaged by fire or storm — Adjustment of rent.

Where any leased or occupied tenement or other building covered by this chapter is destroyed by fire, hurricane or other cause, or is condemned by any state or municipal authority as unfit for occupancy, the lessee or occupant may, if the destruction or damage occurred without his or her fault or neglect, quit and surrender possession of the leasehold premises and of the land so leased or occupied upon giving written notice to the lessor or owner of his or her intention to quit; and he or she is not liable to pay to the lessor or owner rent for the time subsequent to the surrender of the premises. Any rent paid in advance or which may have accrued by the terms of the lease or any other hiring shall be adjusted to the date of the surrender of the leasehold premises.

History of Section. P.L. 1986, ch. 200, § 8; P.L. 1989, ch. 287, § 8.

34-18.1-9. Delinquency in rent — Repossession by ejectment — Judgment.

  1. All suits for possession of lands, buildings or parts of buildings covered by this chapter shall be by the ordinary process of actions for possession or otherwise as provided by law.
    1. If, in any case of a letting covered by this chapter, whether by writing or parol, the stipulated rent, or any part of the same, be due and in arrear for a period of fifteen (15) days, whether demanded or not, the landlord or reversioner wishing to repossess him or herself of the lands, building or parts of buildings let, or recover possession of the same from the tenant, or any person holding under him or her, shall, without the necessity of notice, institute a trespass and action for possession in the district court where the premises are situated, and in this action the court may award a plaintiff judgment for possession and for all rent due plus costs.
    2. For cause shown the justice of the district court may issue a special order providing for the method of service of process upon the defendant.
    3. Answer to the summons and complaint shall be made within seven (7) days of the service upon the defendant. The action shall be heard on the next court day following the seven (7) day period, and shall take precedence on the calendar. If no answer is filed within the time prescribed, judgment shall enter forthwith.
    4. Any aggrieved party may appeal to the superior court from a judgment of the district court by claiming such appeal in writing filed with the clerk within forty-eight (48) hours, exclusive of Sundays and legal holidays, after the judgment is entered.
    5. All such court actions shall have precedence on the calendar and shall continue to have precedence on the calendar on a day-to-day basis until the matter is heard.
    1. Executions shall be issued only to the division of sheriffs or constable of the county where the premises are situated and he or she shall execute the mandates therein contained within twenty (20) days of its issuance. If the member of the division of sheriffs or constable fails to execute the mandates within the prescribed time, the member of the division of sheriffs or constable shall appear before a justice of the court issuing the execution at the regular session of the court next following the twenty (20) days to show cause why the mandates of the execution have not been carried out.
    2. All costs, including reasonable moving costs incurred by the member of the division of sheriffs or constable in carrying out the mandates of the execution may be added to the execution by the clerk upon approval of the court upon presentment of evidence of the costs.

History of Section. P.L. 1986, ch. 200, § 8; P.L. 1988, ch. 494, § 3; P.L. 1989, ch. 287, § 9; P.L. 2012, ch. 324, § 66.

NOTES TO DECISIONS

Notice.

Judgment of possession was void where lease assignee did not receive written notice, under R.I. Dist. Ct. Civ. R. 55, three days before a hearing on an application for the entry of a judgment by default, notwithstanding the specific statutory provision of R.I. Gen. Laws § 34-18.1-9 . The assignee had filed a timely answer and asserted affirmative defenses, including a claim that monies allegedly owed had been paid. Tonetti Enters., LLC v. Mendon Rd. Leasing Corp., 943 A.2d 1063, 2008 R.I. LEXIS 32 (2008).

34-18.1-10. Liability of person in possession for rent on land held.

Every person in possession of land covered by this chapter out of which rent is due shall be liable for the just amount or proportion of the rent due from the land in his or her possession, although it is only a part of what was originally demised.

History of Section. P.L. 1986, ch. 200, § 8; P.L. 1989, ch. 287, § 10.

34-18.1-11. Action by or against executors or administrators for arrears of rent.

An action may be brought by or against executors and administrators, for any arrears of rent accrued in the lifetime of the deceased parties respectively, in the same manner as for debts due from or to the same parties in their lifetime on a personal contract.

History of Section. P.L. 1986, ch. 200, § 8.

34-18.1-12. Other legal remedies for recovery of rents preserved.

Nothing contained in §§ 34-18.1-9 — 34-18.1-11 shall deprive landlords of any other legal remedy for the recovery of their rents, whether secured to them by lease or by provision of law.

History of Section. P.L. 1986, ch. 200, § 8.

34-18.1-13. Apportionment of rent on termination of lease.

When lands covered by this chapter are held by lease of a person who has an estate therein determinable on a life or on a contingency, and such estate determines before the end of a period for which rent is payable, or when an estate, created by a written lease or by operation of the provisions of this chapter, is determined before the end of such a period by surrender, either expressed or by operation of law, by notice to quit, or for nonpayment of rent, or by the death of any party, the landlord, or his or her executors and administrators, may recover a proportional part of such rent according to the time expired, at such determination, of the last period for which such rent was growing due.

History of Section. P.L. 1986, ch. 200, § 8; P.L. 1989, ch. 287, § 11.

34-18.1-14. Recovery of prepaid rent on termination of tenancy.

Upon the termination of a tenancy covered by this chapter in any manner mentioned in § 34-18.1-13 before the end of the period for which rent is payable, if the rent for the period has been paid, the portion of the period then unexpired may be recovered back; however, the termination shall not have occurred by reason of any default of the person claiming to recover the rent.

History of Section. P.L. 1986, ch. 200, § 8; P.L. 1989, ch. 287, § 12.

34-18.1-15. Right of “self help” prohibited.

The right of a landlord or a reversioner to utilize “self help”, whether pursuant to the common law or pursuant to any agreement in writing or by parol, to reenter and repossess him or herself of land, buildings or parts of buildings leased covered by this chapter upon nonpayment of rent, is prohibited.

History of Section. P.L. 1986, ch. 200, § 8; P.L. 1989, ch. 287, § 13.

Law Reviews.

2001 Survey of Rhode Island Law, see 7 Roger Williams U.L. Rev. 403 (2002).

NOTES TO DECISIONS

Changing Locks on Tenant’s Suite.

Landlord’s conduct in evicting a tenant by changing the locks on the tenant’s suite, before any attempt was made to terminate the lease, violates the self help provisions relating to commercial leases. Turks Head Realty Trust v. Shearson Lehman Hutton, Inc., 736 F. Supp. 422, 1990 U.S. Dist. LEXIS 5629 (D.R.I. 1990), aff'd, 930 F.2d 905 (1st Cir. 1991).

Right to Privacy.

A valid possessory interest and legal right to exclude the owners from a leased garage gave rise to an objectively reasonable expectation of privacy in the premises. State v. Verrecchia, 766 A.2d 377, 2001 R.I. LEXIS 46 (2001).

34-18.1-16. Payment of rent on stay of execution.

Whenever the issuance of an execution for the recovery of real property covered by this chapter, or the service of an execution, is stayed by order of the court or by the operation of law, the stay shall be conditioned upon the payment, by the defendant or defendants to the plaintiff or plaintiffs in such actions, of sums of money equal to the rent for the premises, which sums shall be paid at the times and in the amounts as rent would be due and payable were the action not then pending. The acceptance of moneys shall not constitute a waiver of the right of the plaintiff or plaintiffs to obtain possession of the premises, nor shall the receipt thereof be deemed to reinstate the defendant or defendants as a tenant.

History of Section. P.L. 1988, ch. 494, § 1; P.L. 1989, ch. 287, § 14.

NOTES TO DECISIONS

Waiver Not Found.

The trial justice did not err in finding a holdover tenancy since notification of the exercise of an option to renew was not communicated to the landlord until 13 days after the initial renewal extension had expired, and acceptance of rent did not in and of itself constitute a waiver of the notice provisions of the lease. Dyer v. Ryder Student Transp. Servs., 765 A.2d 858, 2001 R.I. LEXIS 35 (2001).

34-18.1-17. Issuance of execution on nonpayment of rent.

In the event that the defendant or defendants shall fail or refuse to pay all sums promptly when due, in accordance with the provisions of § 34-18.1-16 , the court in which the judgment for possession was issued shall, on motion of the plaintiff or plaintiffs, and hearing thereon, including satisfactory proof of the nonpayment, enter an order for the issuance of execution and the prompt service thereof, and from that order there shall be no appeal.

History of Section. P.L. 1988, ch. 494, § 1.

34-18.1-18. Payment of rent during pendency of appeal.

Whenever an action for the recovery of real property covered by this chapter shall be pending on appeal in the superior or supreme court, the defendant or defendants in the action shall pay to the plaintiff or plaintiffs sums of money equal to the rent for the premises, which sums shall be paid at such times and in such amounts as rent would be due and payable were the action then not pending. The acceptance of this money shall not constitute a waiver of the right of the plaintiff or plaintiffs to obtain possession of the premises, nor shall the receipt thereof be deemed to reinstate the defendant or defendants as tenants.

History of Section. P.L. 1988, ch. 494, § 1; P.L. 1989, ch. 287, § 15.

NOTES TO DECISIONS

Rent Not Timely Paid.

Tenant did not timely pay the rent during the pendency of an appeal by mailing a payment before the due date under a so-called “mailbox rule,” where the lease clearly showed that the landlord bargained for possession of the rental payment on the first of the month, not to hear a story that “the check is in the mail.” Arcade Co. v. Kentco, Inc., 592 A.2d 135, 1991 R.I. LEXIS 152 (1991).

A lessee failed to make rental payments during the pendency of an appeal on a trespass and ejectment action in accordance with the terms of the lease since the lease called for payment of rent on the first day of each month; the paragraph in lease stating “if such failure to pay rent shall continue for 15 days, the lessor shall be at liberty to declare this lease at an end” did not provide a 15-day window in which lessee could pay the rent. City of Providence v. S & J 351, 693 A.2d 665, 1997 R.I. LEXIS 124 (1997).

Waiver Not Found.

The trial justice did not err in finding a holdover tenancy since notification of the exercise of an option to renew was not communicated to the landlord until 13 days after the initial renewal extension had expired, and acceptance of rent did not in and of itself constitute a waiver of the notice provisions of the lease. Dyer v. Ryder Student Transp. Servs., 765 A.2d 858, 2001 R.I. LEXIS 35 (2001).

34-18.1-19. Order of judgment on nonpayment of rent in pending appeals.

In the event that the defendant or defendants shall fail or refuse to pay all sums promptly when due, in accordance with the provisions of § 34-18.1-18 , the court in which the case is pending, shall, without any trial on the merits, on motion of the plaintiff or plaintiffs, and hearing thereon, including satisfactory proof of the nonpayment, enter an order for the entry of judgment and the issuance of execution and the prompt service thereof, and from that order there shall be no appeal. The papers shall be forthwith returned to the district court which shall, upon payment of the required fee, issue an execution without further delay.

History of Section. P.L. 1988, ch. 494, § 1; P.L. 2001, ch. 75, § 2.

NOTES TO DECISIONS

Rent Not Timely Paid.

A lessee failed to make rental payments during the pendency of an appeal on a trespass and ejectment action in accordance with the terms of the lease since the lease called for payment of rent on the first day of each month; the paragraph in lease stating “if such failure to pay rent shall continue for 15 days, the lessor shall be at liberty to declare this lease at an end” did not provide a 15-day window in which lessee could pay the rent. City of Providence v. S & J 351, 693 A.2d 665, 1997 R.I. LEXIS 124 (1997).

34-18.1-20. Removal of persons in tourist camps.

Notwithstanding the provisions of § 34-18-8(4) , all persons keeping tourist camps as defined under § 44-18-7(11) , including campgrounds, may remove or cause to be removed from such establishment any guest remaining in a rental unit in violation of an agreed upon departure time and date by notifying such guest that the establishment no longer desires to entertain him or her and requesting that he or she immediately leave. Any guest who remains or attempts to remain in a rental unit after being so requested to leave shall be guilty of a civil violation of this section. Any law enforcement officer of this state, upon the request of the operator of the same, shall assist in the abatement of the violation.

History of Section. P.L. 1989, ch. 507, § 1.

Chapter 18.2 Leased Land Dwellings

34-18.2-1. Purpose.

The purpose of this chapter is to ensure the property rights of individuals who own residential dwelling located on leased lands.

History of Section. P.L. 1988, ch. 567, § 1.

34-18.2-2. Definitions.

As used in this chapter, the following words shall have the following meanings:

  1. “Homeowner” shall mean and include any person, corporation, partnership or association owning a residential dwelling which is located on leased land.
  2. “Land owner” shall mean and include any person, corporation, partnership or association owning land which is leased to another or others whereon there is situated a residential dwelling or dwellings.
  3. “Leased land” shall mean and include any land owned by any person, corporation, partnership or association upon which there is situated a leased residential dwelling owned by any person, corporation, partnership or association other than the owner of the land.
  4. “Residential dwelling” shall mean and include any structure located on leased land and used primarily for residential purposes.

History of Section. P.L. 1988, ch. 567, § 1.

34-18.2-3. Transfer of leased land — Right of first refusal.

  1. In any instance in which a landowner has been sent a certified letter from an incorporated homeowners’ association indicating that the association has at least fifty-one percent (51%) of the homeowners owning residential dwellings on the landowners’ land as members and has articles of incorporation specifying all rights and powers, including the power to negotiate for and acquire land on behalf of the member homeowners, then, before leased land may be sold for any purpose and before it may be leased for any purpose that would result in a discontinuance, the owner shall notify the association by certified mail of any bona fide offer that the owner intends to accept, to buy the leased land or to lease it for a use that would result in a discontinuance. The owner shall also give notice by certified mail to the incorporated homeowners’ association of any intention to sell or lease the land for a use which will result in a discontinuance within fourteen (14) days of any advertisement or other public notice by the owner or his or her agent that the land is for sale or the land upon which the residential dwelling is located is for lease.
  2. The notice to the homeowners’ association shall include the price, calculated as a single lump sum amount which reflects the present value of any installment payments offered and of any promissory notes offered in lieu of cash payments or, in the case of an offer to rent the capitalized value of the annual rent, and the terms and conditions of the offer. Any incorporated homeowners’ association entitled to notice under this section shall have the right to purchase, in the case of a third party bona fide offer to purchase, or to lease in the case of a third party bona fide offer to lease, the land, provided it meets the same price and the same terms and conditions of any offer of which it is entitled to notice under this section by executing a contract or purchase and sale or lease agreement with the owner within one hundred eighty (180) days of notice of the offer. No owner shall attempt to terminate the tenancy of any member of the incorporated homeowners’ association except for nonpayment of rent for a period of one hundred and eighty (180) days following a notice of sale or lease under this section. No owner shall unreasonably refuse to enter into, or unreasonably delay the execution of a purchase and sale or lease agreement with a homeowners’ association that has made a bona fide offer to meet the same price and the same terms and conditions of an offer for which notice is required to be given pursuant to this section. Failure of the incorporated homeowners’ association to execute such a purchase and sale agreement or lease within the first one hundred eighty (180) day period shall serve to terminate the right of the association to purchase or lease the land. The time periods may be extended by agreement of the association and the owner. Nothing herein shall be construed to require an owner to provide financing to any association or to prohibit an owner from requiring an association which is offering to lease land to have within its possession a sum equivalent to the capitalized value of the proposed rent of the land and requiring that a portion of the sum, of an amount necessary to pay the rent on the land for a period of no greater that two (2) years, be kept in escrow for such purpose during the term of the lease. In the event that an incorporated homeowners’ association accepts an offer under this section, the tenancy of the members of the association shall be extended on a month to month basis until the time set in the offer for closing on the offer.
    1. When an owner has been properly notified under the terms of this section of the existence of an incorporated homeowners’ association, the owner shall include in any purchase and sale agreement or lease agreement which would be subject to this section, a statement informing the purchaser or lessee of the homeowners association’s right of first refusal pursuant to this section.
    2. In addition, the homeowners’ association shall record in the land evidence records of the city or town where the leased land is located, a copy of its articles of incorporation together with a statement setting forth its statutory right of first refusal to purchase or lease the land of the owner pursuant to this section.
    3. The right of first refusal created herein shall not be deemed to allow a homeowners’ association to vary the terms of any offer made to an owner and to make a counteroffer to said owner. The homeowners’ association shall have the right of first refusal only on the exact terms and conditions as set forth in the offer received by the owner; provided, however, that the homeowners’ association shall not be required to meet any terms or conditions that would result in the removal of members of the association from the property which is the subject of the offer.
    4. The right of first refusal created herein shall inure to a homeowners’ association for the time periods provided in this section, beginning on the date of notice to the homeowners’ association. The effective period of the right of first refusal shall apply separately for each substantially different bona fide offer to purchase the land or to lease it for a purpose that would result in a discontinuance, and for each offer the same as an offer made more than three (3) months prior to the later offer; provided, however, that in the case of the same offer made by a prospective buyer who has previously made an offer for which notice to a homeowners’ association was required by this section, the right of first refusal shall apply only if the subsequent offer is made more than six (6) months after the earlier offer. The right of first refusal shall not apply with respect to any offer received by the owner for which notice to a homeowners’ association is not required pursuant to this section.
    5. No right of first refusal shall apply to a government taking by eminent domain or negotiated purchase, a forced sale pursuant to a foreclosure, transfer by gift, devise or operation of law, or a sale to a person who would be included within the table of descent and distribution if there were to be a death intestate of a landowner.
  4. In any instance in which the incorporated homeowners’ association of leased land is not the successful purchaser or lessee of the land, the seller or lessor of the land shall prove compliance with this section by filing an affidavit of compliance in the official land evidence records of the city or town where the property is located within seven (7) days of the sale or lease of the land.
  5. No landowner shall attempt to increase any rental amount due regarding leased land from the time of his or her receipt of any bona fide offer to purchase or to lease for a purpose which would result in a discontinuance, until the expiration of the time period during which a homeowners’ association may exercise its right of first refusal or until the time set in the offer for closing on the offer.
  6. In the event that an owner terminates the tenancies of all of the members of the incorporated association, the right of first refusal created by this section shall inure to the benefit of the former membership of the association for a period of one year after the termination of the tenancies, or until the houses which they occupied are removed or destroyed, whichever first occurs, with the former members having the same rights and obligations as existed prior to the terminations.
  7. The landowner shall tender a written lease incorporating the terms and conditions of the tenancy to all tenants and prospective tenants. The lease shall not be inconsistent with the provisions of this chapter.
  8. A covenant of good faith and fair dealing shall be deemed to be incorporated into the terms and conditions of all tenancies between a homeowner and landowner involving a residential dwelling which is located on leased land, as well as the negotiation process associated therewith.

History of Section. P.L. 1988, ch. 567, § 1; P.L. 1990, ch. 522, § 1; P.L. 2014, ch. 254, § 1; P.L. 2014, ch. 281, § 1.

Compiler’s Notes.

P.L. 2014, ch. 254, § 1, and P.L. 2014, ch. 281, § 1 enacted identical amendments to this section.

34-18.2-4. Termination of lease.

  1. A landowner desiring to terminate a tenancy with a homeowner based on the discontinuation of the use of the leased land as leased land (and not for cause) shall provide the affected homeowner(s) with at least fifteen (15) months’ notice thereof.
  2. In the event of a termination of a tenancy (or a failure to renew a tenancy) with a homeowner without cause as provided in subsection (a) of this section, or in the event of a termination (or a failure to renew a tenancy) for cause, the landowner shall take reasonable steps to take control of any residential dwelling remaining on the leased land following said termination, and shall, upon at least ninety (90) days of said advertising sell the dwelling pursuant to commercially reasonable terms. The proceeds of such sale shall be applied as follows:
    1. First, to satisfy any federal, state or local liens on the dwelling;
    2. Second, to cover the fair and reasonable costs incurred by the landowner to secure the dwelling and accomplish its sale;
    3. Third, to satisfy any arrearages for unpaid rent or other costs remaining due under the tenancy;
    4. Fourth, to satisfy any mortgage or other liens on the property; then
    5. The balance shall be remitted to the homeowner.
  3. During the aforesaid ninety (90) day notice period, the homeowner may avert the advertising and sale of the dwelling by the landowner as aforesaid, by satisfying any arrearages for unpaid rent or other costs remaining due under the tenancy, and causing the dwelling to be removed from the formerly leased land, by sale or otherwise.

History of Section. P.L. 2014, ch. 254, § 2; P.L. 2014, ch. 281, § 2.

Compiler’s Notes.

P.L. 2014, ch. 254, § 2, and P.L. 2014, ch. 281, § 2 enacted identical versions of this section.

34-18.2-5. Rent increases for leased land.

  1. A landowner, as defined in § 34-18.2-2 , shall give the homeowner sixty (60) days’ written notice prior to any lot rent increase. The written notice shall set forth the current rent, the proposed rent, and the date upon which the increase shall take effect.
  2. If a homeowner or a homeowners’ association, having, the power and authority to negotiate rental terms on behalf of member homeowners, believes that the rent increase is “excessive” as defined in this section, the homeowner or authorized homeowners’ association may submit the matter to binding arbitration pursuant to chapter 3 of title 10. In the event the parties are unable to agree upon an arbitrator, an arbitrator shall be appointed in the manner set forth in chapter 3 of title 10. The costs and expenses of the arbitrator shall be borne equally by the landowner and the homeowner or authorized homeowners’ association.
  3. An “excessive” rent increase, for purposes of this section, is an increase which unreasonably exceeds the fair rental value of the property based on market conditions at the time.
  4. The arbitrator shall promptly hear the dispute and render a decision based on the “excessive” rent increase standard as set forth in this section.
  5. No lot rent increase shall go into effect until the earlier of:
    1. Completion of the binding arbitration process; or
    2. Ninety (90) days after the written notice given under subsection (a) of this section.
  6. This section shall not apply to chapter 31 of title 44.

History of Section. P.L. 2014, ch. 254, § 2; P.L. 2014, ch. 281, § 2.

Compiler’s Notes.

P.L. 2014, ch. 254, § 2, and P.L. 2014, ch. 281, § 2 enacted identical versions of this section.

34-18.2-6. Leased land exempt.

The provisions of §§ 34-18-2.4 and 34-18-2.5 of this chapter shall not apply to any landowner who holds a recreation facility license under chapter 21 of title 23, or a trailer park or campground license issued by the municipality in which it is located or leased land that is leased to at least ninety percent (90%) of the homeowners on a seasonal basis.

History of Section. P.L. 2014, ch. 254, § 2; P.L. 2014, ch. 281, § 2; P.L. 2016, ch. 512, art. 1, § 21.

Compiler’s Notes.

P.L. 2014, ch. 254, § 2, and P.L. 2014, ch. 281, § 2 enacted identical versions of this section.

Chapter 19 Forcible Entry and Detainer

34-19-1. Warrant for summons of jury.

Whenever a complaint shall be made in writing and under oath of the complainant, or of some one in his or her behalf, to a justice of the superior court, that any person has made unlawful and forcible entry into lands or tenements, and with a strong hand detains the lands or tenements, or that, having made lawful and peaceable entry, or peaceable entry, into lands or tenements, any person unlawfully and with force holds and detains them, the court shall make out a warrant under its hand and seal, directed to the sheriff of the county in which the lands or tenements lie, or to his or her deputy, commanding him or her in behalf of the state to cause to come before the superior court, at such time and place as the court shall appoint within the county, twelve (12) good and lawful men or women of the same county, which warrant shall be in the following form:

THE STATE OF RHODE ISLAND. SC. (SEAL)To the sheriff of the county of or to his or her deputy, Greeting: Whereas complaint is made to me, the subscriber, by of that of upon the day of at with force and arms and with a strong hand did unlawfully and forcibly enter into and upon a tract of land of him or her in aforesaid containing acres, bounded as follows, viz.: (or, into the messuage or tenement of him or her, as the case may be, describing it) and him or her with force and a strong hand as aforesaid did expel and unlawfully put out of possession of the same (or, as the case may be, that having made lawful and peaceable entry, or peaceable entry, such person unlawfully and with force holds and detains him or her out of the same), you are hereby commanded in behalf of the state to cause to come before our superior court, upon the day of at o’clock ( : ) in the noon at in the county of twelve (12) good and lawful men or women of your county to be impaneled and sworn, to inquire into the forcible entry and detainer (or forcible detainer, as the case may be), as aforedescribed. Given under my hand and seal the day of in the year . Justice of the superior court.

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History of Section. P.L. 1908, ch. 1533, § 1; G.L. 1909, ch. 340, § 1; G.L. 1923, ch. 391, § 1; G.L. 1938, ch. 591, § 1; G.L. 1956, § 34-19-1 ; P.L. 2021, ch. 77, § 15, effective June 23, 2021; P.L. 2021, ch. 78, § 15, effective June 23, 2021.

Compiler's Notes.

P.L. 2021, ch. 77, § 15, and P.L. 2021, ch. 78, § 15 enacted identical amendments to this section.

Cross References.

Jurisdiction of superior court, § 8-2-14 .

Venue of actions, § 9-4-2 .

Comparative Legislation.

Forcible entry and detainer:

Conn. Gen. Stat. § 47a-43 et seq.

Mass. Ann. Laws ch. 239, § 1-13 et seq.

NOTES TO DECISIONS

In General.

A complaint not under the oath of the complainant must be dismissed. Levy v. David, 24 R.I. 249 , 52 A. 1080, 1902 R.I. LEXIS 59 (1902).

A town sergeant cannot file an action for forcible entry and detainer on behalf of the town, though authorized to do so by vote of the town council, since the town itself is the only one authorized to file a complaint. East Greenwich v. Guenond, 32 R.I. 224 , 78 A. 1015, 1911 R.I. LEXIS 15 (1911).

Collateral References.

Dispossession without legal process by one entitled to possession of real property as ground of action, other than for recovery of possession or damage to his person, by person dispossessed. 101 A.L.R. 46.

Gasoline station, right of lessee of, to maintain action of forcible entry and detainer. 83 A.L.R. 1419; 126 A.L.R. 1385.

Minerals or oil and gas, forcible entry and detainer as applicable in case of “lease” of. 107 A.L.R. 661.

Right of landlord legally entitled to possession to dispossess tenant without legal process. 6 A.L.R.3d 177.

Right-of-way, forcible entry and detainer as remedy for interference with. 47 A.L.R. 556.

Stranger wrongfully interfering with tenant’s possession, forcible entry and detainer as remedy against. 12 A.L.R.2d 1199.

Tenant at will or by sufferance, action of forcible entry and detainer against, after conveyance or lease of property. 151 A.L.R. 370.

Tenant dispossessed without legal process as entitled to maintain action for forcible entry and detainer. 6 A.L.R.3d 177.

War legislation in nature of moratory statute, restrictions under, on right to forcible entry and detainer. 137 A.L.R. 1380; 147 A.L.R. 1311.

34-19-2. Issuance of summons to defendant.

The court shall also make out a summons to the party complained against in the form following:

THE STATE OF RHODE ISLAND. SC. (SEAL)To the sheriff of the county of or to his or her deputy, Greeting: We command you that you summon of to appear before our superior court at in our county of on the day of at o’clock ( : ) in the noon, then and there to answer to and defend against the complaint of there exhibited: wherein complains that (here recite the complaint); and you are to make return of this writ with your doings thereon unto our the court upon or before the such day. Given under my hand and seal, the day of in the year . Justice of the superior court.

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History of Section. P.L. 1908, ch. 1533, § 2; G.L. 1909, ch. 340, § 2; G.L. 1923, ch. 391, § 2; G.L. 1938, ch. 591, § 2; G.L. 1956, § 34-19-2 ; P.L. 2021, ch. 77, § 15, effective June 23, 2021; P.L. 2021, ch. 78, § 15, effective June 23, 2021.

Compiler’s Notes.

P.L. 2021, ch. 77, § 15, and P.L. 2021, ch. 78, § 15 enacted identical amendments to this section.

34-19-3. Service on defendant — Proceeding on nonappearance.

The summons shall be served upon the party complained against, or a copy thereof left at his or her usual place of abode, six (6) days, exclusive, before the day appointed by the justice for the trial; and if, after the service of the summons, the party shall not appear to defend, the court shall proceed to the inquiry in the same manner as if he or she were present.

History of Section. P.L. 1908, ch. 1533, § 3; G.L. 1909, ch. 340, § 3; G.L. 1923, ch. 391, § 3; G.L. 1938, ch. 591, § 3; G.L. 1956, § 34-19-3 .

34-19-4. Impaneling and oath of jurors.

When the jury summoned, or such other jurors as may be taken up on a new venire to be issued by the court if occasion shall require, shall appear, they shall, to the number of twelve (12), be impaneled to inquire into the forcible entry and detainer, or forcible detainer, complained of, and the court shall lay before them the exhibited complaint, and shall administer, or cause to be administered, to them the following oath, to wit:

Foreperson’s Oath. You, as foreperson of this jury, do solemnly swear (or affirm) that you will well and truly try whether the complaint of now laid before you is true, according to the evidence; so help you God (or, this affirmation you make and give upon the peril of the penalty of perjury). The Oath of the Other Jurors. The same oath which your foreperson has taken on his or her part, you and every one of you will well and truly observe and keep; so help you God (or, this affirmation you make and give upon the peril of the penalty of perjury).

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History of Section. P.L. 1908, ch. 1533, § 4; G.L. 1909, ch. 340, § 4; G.L. 1923, ch. 391, § 4; G.L. 1938, ch. 591, § 4; G.L. 1956, § 34-19-4 .

34-19-5. Return of verdict.

If, upon a full hearing of the cause, the jury shall find the complaint laid before them supported by the evidence, they shall sign and return to the court their verdict, in form following, to wit:

At a court of inquiry held before one of the justices of the superior court within and for the county of at upon the day of in the year , the jury, upon their oaths, do find that the lands or tenements in aforesaid, bounded (or, described) as follows (as in the complaint), upon the day of in the year were in the lawful and rightful possession of and that did, upon the same day, unlawfully, with force and arms and with a strong hand, enter forcibly into the same, and (or, being lawfully upon the same) did unlawfully, with force and a strong hand, hold and keep out and that he or she still continues wrongfully to detain the possession from him or her, : whereupon the jury find, upon their oaths aforesaid, that ought to have restitution thereof without delay.

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History of Section. P.L. 1908, ch. 1533, § 4; G.L. 1909, ch. 340, § 5; G.L. 1923, ch. 391, § 5; G.L. 1938, ch. 591, § 5; G.L. 1956, § 34-19-5 .

NOTES TO DECISIONS

Verdict Insufficient.

A verdict signed only by the foreman was not a sufficient compliance with the provision for signature of the verdict. Hart v. Superior Court, 29 R.I. 429 , 71 A. 1057, 1909 R.I. LEXIS 31 (1909).

34-19-6. Judgment and writ of restitution.

Upon the return of verdict for the complainant, the court shall enter up judgment that the complainant have restitution of the premises, with all costs, to be taxed by the court, and shall award a writ of restitution and for costs against the party complained of, in the form following:

THE STATE OF RHODE ISLAND.SC. (SEAL) To the sheriff of our county of , or to his or her deputy, Greeting: Whereas, at a court of inquiry of forcible entry and detainer, held at in our county of upon the day of in the year before one of the justices of the superior court, the jurors impaneled and sworn by our justice did return their verdict in writing, signed by each of them, that was upon the day of in the rightful possession of a certain messuage or tract of land (as in the verdict returned), and that (as in the verdict), whereupon it was considered by our court that should have restitution of the same, we command you, that, taking with you the power of the county, if necessary, you cause to be forthwith removed from the premises, and to have peaceable possession of the same, and also that you levy of the goods and chattels and real estate of the said the sum of being costs taxed against him or her on the trial aforesaid, together with twenty-five cents (25¢) more for this writ, and also your own fees for levying the same; and for want of such goods and chattels or real estate of to be by you found, you are commanded to take the body of and him or her to commit to jail in , in county of , there to remain until he or she shall pay the sum aforesaid together with all fees arising on the service of this writ or until he or she is delivered by order of law; and make return of this writ and your doings thereon within twenty (20) days next coming. Witness the seal of the superior court the day of in the year . Clerk. (or) Witness my hand and seal the day of in the year . Justice of the superior court.

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History of Section. P.L. 1908, ch. 1533, § 6; G.L. 1909, ch. 340, § 6; G.L. 1923, ch. 391, § 6; G.L. 1938, ch. 591, § 6; G.L. 1956, § 34-19-6 ; P.L. 2021, ch. 77, § 15, effective June 23, 2021; P.L. 2021, ch. 78, § 15, effective June 23, 2021.

Compiler's Notes.

P.L. 2021, ch. 77, § 15, and P.L. 2021, ch. 78, § 15 enacted identical amendments to this section.

34-19-7. Recovery of costs by defendant.

If the jury’s verdict is that the complaint is not supported, or if the jury cannot agree upon a verdict, the defendant shall recover his or her costs of the proceeding, to be taxed by the court, who shall award to him or her, in common form, execution therefor.

History of Section. P.L. 1908, ch. 1533, § 7; G.L. 1909, ch. 340, § 7; G.L. 1923, ch. 391, § 7; G.L. 1938, ch. 591, § 7; G.L. 1956, § 34-19-7 .

34-19-8. Appeal not allowed — New trial — Judgment not bar to further action.

No appeal shall be allowed from the judgment of the court, nor shall a new trial be granted, in this proceeding, nor shall the judgment be a bar to any action thereafter brought by either party.

History of Section. P.L. 1908, ch. 1533, § 8; G.L. 1909, ch. 340, § 8; G.L. 1923, ch. 391, § 8; G.L. 1938, ch. 591, § 8; G.L. 1956, § 34-19-8 .

NOTES TO DECISIONS

In General.

A bill of exceptions cannot be maintained from a decree in an action of forcible entry and detainer. East Greenwich v. Guenond, 32 R.I. 224 , 78 A. 1015, 1911 R.I. LEXIS 15 (1911).

34-19-9. Certiorari to supreme court.

The proceeding may be removed by certiorari into the supreme court, and be quashed for irregularity, if there is any.

History of Section. P.L. 1908, ch. 1533, § 9; G.L. 1909, ch. 340, § 9; G.L. 1923, ch. 391, § 9; G.L. 1938, ch. 591, § 9; G.L. 1956, § 34-19-9 .

34-19-10. Limitation of actions.

The complaint may be made within three (3) years after the forcible entry and detainer, or forcible detainer, complained of is committed, and not after.

History of Section. P.L. 1908, ch. 1533, § 10; G.L. 1909, ch. 340, § 10; G.L. 1923, ch. 391, § 10; G.L. 1938, ch. 591, § 10; G.L. 1956, § 34-19-10 .

34-19-11. Compensation of jurors.

Every person summoned and attending as a juror shall be entitled to the same allowance per day for attendance and for travel per mile as for like attendance and travel in the superior court; to be paid in the first instance by the complainant before the verdict shall be received, and to be taxed in the bill of costs against the defendant, if the verdict be against him or her.

History of Section. P.L. 1908, ch. 1533, § 11; G.L. 1909, ch. 340, § 11; G.L. 1923, ch. 391, § 11; G.L. 1938, ch. 591, § 11; G.L. 1956, § 34-19-11 .

NOTES TO DECISIONS

In General.

Trial court could not accept verdict in action of forcible entry and detainer where plaintiff failed to pay the cost of attendance and travel of the jury prior to receipt of verdict. East Greenwich v. Guenond, 32 R.I. 224 , 78 A. 1015, 1911 R.I. LEXIS 15 (1911).

Chapter 20 Trespass and Actions for Possession

34-20-1. Liability for unauthorized cutting of trees or wood.

Every person who shall cut, destroy, or carry away any tree, timber, wood or underwood whatsoever, lying or growing on the land of any other person, without leave of the owner thereof, shall, for every such trespass, pay the party injured twice the value of any tree so cut, destroyed, or carried away; and for the wood or underwood, thrice the value thereof; to be recovered by civil action.

History of Section. G.L. 1896, ch. 270, § 1; C.P.A. 1905, § 1168; G.L. 1909, ch. 335, § 1; G.L. 1923, ch. 386, § 1; G.L. 1938, ch. 588, § 1; G.L. 1956, § 34-20-1 ; P.L. 1965, ch. 72, § 1.

Cross References.

Survival of action, § 9-1-6 .

Vegetation, malicious injury or removal, § 11-44-2 .

Writ of arrest, § 10-10-1 .

Comparative Legislation.

Trespass and ejectment:

Conn. Gen. Stat. §§ 47-29, 47-30, 49-22, 49-22a, 49-23.

NOTES TO DECISIONS

Burden of Proof.

Plaintiff who failed to carry burden of proof as to want of consent was not entitled to recover under this section. Coulombe v. Bois, 80 R.I. 465 , 98 A.2d 367, 1953 R.I. LEXIS 95 (1953).

Consent of Parties.

When the parties have impliedly consented to replacement costs as the proper measure of damages, plaintiffs are not entitled to double damages under the statute. White v. Le Clerc, 444 A.2d 847, 1982 R.I. LEXIS 841 (1982).

Elements.

This section does not condition recovery for an unauthorized cutting of trees upon proof that the wrongdoer was trespassing upon the owner’s land; an individual rightfully upon another’s land may still be liable for the value of trees cut down without permission of the owner. Hickey v. Town of Burrillville, 713 A.2d 781, 1998 R.I. LEXIS 212 (1998).

Judgment as a Matter of Law.

Trial court erred in granting an abutting landowner’s motion for judgment as a matter of law on a neighbor’s claim the landowner destroyed 190 trees on the neighbor’s property because the trial court invaded the province of the jury by weighing the testimony of the neighbor’s arborist expert on the value of the trees and making findings of fact. Morabit v. Hoag, 80 A.3d 1, 2013 R.I. LEXIS 155 (2013).

Licensee of Cotenant.

This section did not apply to the licensee of a cotenant who entered common land and cut and carried away matured timber which he had purchased. Buchanan v. Jencks, 38 R.I. 443 , 96 A. 307, 1916 R.I. LEXIS 5 (1916).

Pleadings.

That portion of plaintiffs’ count in trespass under this section which sought to impose special statutory penalty could not be disregarded as surplusage so that remainder of count could stand as one for common law trespass, since reference to statute was essential to the recovery sought. Buchanan v. Jencks, 38 R.I. 443 , 96 A. 307, 1916 R.I. LEXIS 5 (1916).

Collateral References.

Liability for injury to trespassing stock from poisonous substances on the premises. 12 A.L.R.3d 1103.

Measure and amount of damages recoverable under supersedeas bond in action involving recovery or possession of real estate. 9 A.L.R.3d 330.

Measure of damages for wrongful removal of earth, sand, or gravel from land. 1 A.L.R.3d 801.

“Owner,” scope and import of term, in statutes relating to trespass. 2 A.L.R. 798; 95 A.L.R. 1098.

Right to enter land to remove timber cut before revocation of license. 26 A.L.R.2d 1194.

Statutes of limitation concerning actions of trespass as applicable to actions for injury to property not constituting a common-law trespass. 15 A.L.R.3d 1228.

Timber contract, right of owner of land to maintain an action in trespass when purchaser under, has entered and removed the timber after the time fixed in the contract. 15 A.L.R. 111; 42 A.L.R. 648; 71 A.L.R. 143; 164 A.L.R. 463.

34-20-1.1. Damages for willful encroachment on state, municipal or nonprofit land conservation organization open space land — Civil action.

  1. Definitions.  As used in this section, the following words and terms shall have given to them the meanings set forth below, unless the context indicates another or different meaning or intent.
    1. “Encroach” means to conduct an activity that causes substantial damage or alteration to the land or vegetation or other features thereon, including, but not limited to, erecting buildings or other structures; constructing roads, driveways, or trails; destroying or moving stone walls; cutting trees or other vegetation, other than de minimus cutting; removing boundary markers; installing lawns or utilities; or using, storing, or depositing vehicles, substantial amounts of materials, or debris.
    2. “Nonprofit land conservation organization” means a not-for-profit entity organized with a mission of permanently protecting open-space land for conservation purposes.
    3. “Open-space land” means and includes, but is not limited to, any park, forest, wildlife management area, refuge, preserve, sanctuary, green or wildlife area owned, or held pursuant to a conservation restriction as defined in § 34-39-1 et seq., by the state, a political subdivision of the state, or a nonprofit land conservation organization.
  2. No person may encroach, or cause another person to encroach, on open-space land without permission of the owner of the open-space land or holder of the conservation restriction on the open-space land or without other legal authorization.
  3. Any owner, or holder of a conservation restriction as defined above in open-space land, subject to the provisions of subsection (b), may bring an action in the superior court for the county where the land is located against any person who knowingly and intentionally violates the provisions of subsection (b) with respect to the owner’s land or land subject to the conservation restriction. The court shall order any person who knowingly and intentionally violates the provisions of subsection (b) to restore the land to its condition as it existed prior to the violation or shall award the landowner the costs of the restoration, including reasonable management costs necessary to achieve the restoration. In addition, the court may award reasonable attorney’s fees and costs and injunctive or equitable relief as the court deems appropriate.
  4. In addition to any damages and relief ordered pursuant to subsection (c), the court may award damages of up to five (5) times the cost of restoration or statutory damages of up to five thousand dollars ($5,000). In determining the amount of the award, the court shall consider the willfulness of the violation; the extent of damage done to natural resources, if any; the appraised value of any trees or shrubs damaged, or carried away as determined in accordance with the latest revision of The Guide for Plant Appraisal, as published by the International Society of Arboriculture, Urbana, Illinois, or a succeeding publisher; any economic gain realized by the violator; and any other relevant factors.

History of Section. P.L. 2018, ch. 145, § 1; P.L. 2018, ch. 261, § 1.

Compiler’s Notes.

P.L. 2018, ch. 145, § 1, and P.L. 2018, ch. 261, § 1 enacted identical versions of this section.

34-20-2. Actions to recovery possession — Right of entry.

In actions to recover possession of lands, tenements, or hereditaments, the plaintiff shall not be required to prove an actual entry under his or her title; but if he or she proves entitlement to an estate in the premises, whether as heir, devisee, purchaser, or otherwise, and proves a right of entry therein, this shall be deemed sufficient proof of his or her seisin, as alleged in the complaint; but no action shall be maintained unless the plaintiff has, at the time of commencing the same, a right of entry into the premises.

History of Section. C.P.A. 1905, § 404; G.L. 1909, ch. 292, § 52; G.L. 1923, ch. 342, § 52; G.L. 1938, ch. 538, § 12; G.L. 1956, § 34-20-2 .

Cross References.

Action to repossess property for delinquency in rent, § 34-18-9 .

Jurisdiction of superior court, § 8-2-14 .

Survival of actions, § 9-1-9 .

Venue of actions, § 9-4-2 .

NOTES TO DECISIONS

Action by Lessee.

A lessee for years has a right to bring trespass and ejectment against strangers. Heroux v. Katt, 76 R.I. 122 , 68 A.2d 25, 1949 R.I. LEXIS 82 (1949).

Effect of Adverse Possession on Conveyance.

This section does not affect the rule that a conveyance of land which another person holds in adverse possession is ineffectual to pass title. Burdick v. Burdick, 14 R.I. 574 , 1884 R.I. LEXIS 60 (1884).

Tenant’s Right of Possession.

Landlord’s acceptance of defendant as tenant was an assertion of right to reenter where plaintiff at the time was in default in payment of rent, hence defendant was entitled to succeed in suit for possession and ejectment by plaintiff, since defendant had an outstanding superior right of possession. Rinfret & Arruda v. Morrisey, 29 R.I. 223 , 69 A. 763, 1908 R.I. LEXIS 39 (1908).

Collateral References.

Contingent or defeasible future interest, right of owner of, to maintain action for trespass. 144 A.L.R. 769.

Estoppel of tenant never in possession under lease to dispute landlord’s title in action of ejectment. 98 A.L.R. 546.

Estoppel or waiver, necessity of pleading, in ejectment action. 120 A.L.R. 92.

Laches as affecting right of one whose property is taken for public use to maintain ejectment. 58 A.L.R. 684.

Mere possession in plaintiff as basis of action of trespass. 150 A.L.R. 163.

Pretermitted child’s remedy by ejectment action. 123 A.L.R. 1091.

Right-of-way, ejectment as remedy for interference with. 4 A.L.R. 554.

Rule that plaintiff in ejectment need not trace title back to common source. 5 A.L.R.3d 375.

Rule that plaintiff may recover on proof of better title from common source as applicable where plaintiff’s evidence shows that common source title is bad. 5 A.L.R.3d 375.

Stranger wrongfully interfering with tenant’s possession, ejectment as remedy against. 12 A.L.R.2d 1197.

Taxes or public improvement assessments, right of purchaser at invalid sale for, to reimbursement from owner in action of ejectment, and provision of judgment as to relief. 86 A.L.R. 1222.

Tax sale, right of owner who has in fact paid taxes in question to maintain action against purchaser at. 26 A.L.R. 631.

War legislation in nature of moratory statute, restrictions under, on actions of ejectment. 137 A.L.R. 1380; 147 A.L.R. 1311.

Wife’s right to exclude husband from possession, use, or enjoyment of family residence or homestead owned by her. 21 A.L.R. 745.

34-20-3. Action by cotenants.

In actions concerning any estate held or claimed in coparcenary, common or joint tenancy, where the possession of the estate claimed is the object of the action, the same may be commenced by all or any two (2) or more of the coparceners, tenants in common or joint tenants, or the same may be brought by each one for his or her particular share of the estate, and the same rules shall prevail in actions for mesne profits.

History of Section. G.L. 1896, ch. 265, § 1; G.L. 1909, ch. 330, § 1; G.L. 1923, ch. 381, § 1; G.L. 1938, ch. 586, § 1; G.L. 1956, § 34-20-3 .

NOTES TO DECISIONS

Applicability.

This section applies only to actions where possession of real estate is the object of the suit. In actions regarding personalty, the co-tenants must join in suing under the common law rule. Clapp v. Pawtucket Inst. for Sav., 15 R.I. 489 , 8 A. 697, 1887 R.I. LEXIS 20 (1887).

Collateral References.

Church or religious society, property of, action of expelled member to recover. 20 A.L.R.2d 498.

Mineral in situ, right of owner of interest in, to maintain ejectment. 35 A.L.R. 234.

34-20-4. Conditional judgment in action by mortgagee.

In every action for possession of any real estate mortgaged, in which the defendant by his or her answer shall aver a right of redemption in himself or herself or in the person under whom the defendant claims, which averment shall not be denied by the plaintiff, or if denied shall be found true, the court shall, by itself or by one or more judicious and disinterested persons appointed by it, ascertain the just sum due on such mortgage; and shall thereupon render a conditional judgment, that if the mortgagor, the mortgagor’s heirs, executors, administrators, or assigns, shall pay unto the plaintiff in such action, or deposit in the clerk’s office for him or her, the sum adjudged due within two (2) months from the time of entering up judgment, with interest, then the mortgage, or deed operating as such, shall be void and discharged; otherwise the plaintiff shall have a judgment for possession.

History of Section. C.P.A. 1905, § 434; G.L. 1909, ch. 294, § 8; G.L. 1923, ch. 344, § 8; G.L. 1938, ch. 444, § 1; G.L. 1956, § 34-20-4 .

NOTES TO DECISIONS

Failure to Pay Interest.

A conditional judgment for possession in accordance with this section may be entered where the defendant has failed to pay interest, due annually, even though the principal sum of the mortgage is not yet due. Carpenter v. Carpenter, 6 R.I. 542 , 1860 R.I. LEXIS 30 (1860).

Collateral References.

Mortgage foreclosure proceedings which are imperfect or irregular, ejectment by, or against, purchaser under. 73 A.L.R. 640.

34-20-5 — 34-20-9. Repealed.

History of Section. P.L. 1948, ch. 1986, §§ 1, 2; G.L. 1956, §§ 34-20-5 — 34-20-8; P.L. 1948, ch. 1986, § 3, § 34-20-9; Repealed by P.L. 1986, ch. 200, § 3, effective January 1, 1987; P.L. 1995, ch. 323, § 30, effective July 5, 1995.

Compiler’s Notes.

Former §§ 34-20-5 — 34-20-8 concerned payment of rent on stay of execution or during pendency of appeal, issuance of execution on nonpayment of rent, and order of judgment on nonpayment of rent in pending appeals.

Former § 34-20-9 concerned severability of provisions.

34-20-10. Unlawful termination of tenancy in general.

When proceedings commenced under this chapter are to regain possession of the premises following the alleged termination of a tenancy, if the defendant alleges in his or her answer and if it appears by a preponderance of the evidence that any of the following situations exist, judgment shall be entered for the defendant:

  1. That the alleged termination was intended as a penalty for the defendant’s justified attempt to secure or enforce rights under a lease or contract, or under the laws of the state or its governmental subdivisions, or of the United States.
  2. That the alleged termination was intended as a penalty for the defendant’s justified complaint to a governmental authority with a report of plaintiff’s violation of any health or safety code or ordinance.
  3. That the alleged termination was intended as a penalty for any other justified lawful act of the defendant.
  4. That the alleged termination was a tenancy in housing operated by a city, town, municipal housing authority, or other unit of a local government, and was terminated without cause.

History of Section. P.L. 1968, ch. 55, § 1.

34-20-11. Termination of tenancy for failure to pay increased rent imposed as penalty.

When proceedings commenced under this chapter are to regain possession of the premises following the alleged termination of a tenancy, if the defendant alleges and it appears by a preponderance of the evidence that the plaintiff attempted to increase the defendant’s obligations under the letting as a penalty for the justified lawful acts described in the preceding section, and that the defendant’s failure to perform the additional obligations was a material reason for the alleged termination, judgment shall be entered for the defendant on the claim of possession, and all the additional obligations shall be void.

History of Section. P.L. 1968, ch. 55, § 1.

Chapter 21 Replevin

34-21-1. Property repleviable on superior court writ.

Whenever any goods or chattels of more than five thousand dollars ($5,000) value shall be unlawfully taken or unlawfully detained from the owner or from the person entitled to the possession thereof, and whenever any goods or chattels of that value, which are attached on mesne process or execution or warrant of distress, are claimed by any person other than the defendant in the suit or process in which they are attached, the owner or other person may cause the same to be replevied by writ of replevin issuing from the superior court.

History of Section. G.L. 1896, ch. 272, § 1; C. P. A. 1905, §§ 1216, 1235; G.L. 1909, ch. 336, § 1; G.L. 1923, ch. 387, § 1; P.L. 1929, ch. 1331, § 13; G.L. 1938, ch. 589, § 1; G.L. 1956, § 34-21-1 ; P.L. 1969, ch. 239, § 39.

Cross References.

Form of writ of replevin, § 9-5-15 .

Jurisdiction of superior court, § 8-2-14 .

Survival of action, § 9-1-6 .

Comparative Legislation.

Replevin:

Conn. Gen. Stat. § 52-515 et seq.

Mass. Ann. Laws ch. 247, § 1 et seq.

NOTES TO DECISIONS

Applicability.

The replevin statute applies only when the plaintiff seeks pretrial seizure of personal property pending a trial to determine ownership. When the plaintiff brings a civil action seeking a determination of who owns the personal property at issue and prays for an equitable remedy, the trial justice after a trial on the merits may exercise the equitable powers conferred upon him or her by § 8-2-13 to grant relief such as recovery of personal property. Therefore, the plaintiff does not need to file a writ pursuant to the replevin statute to be entitled to a return of its property after a trial on the merits, he need only pray for this equitable remedy in its complaint. Moseman Constr. Co. v. State DOT, 608 A.2d 34, 1992 R.I. LEXIS 93 (1992).

Pursuant to Fed. R. Civ. P. 64, a writ of replevin in accordance with R.I. Gen. Laws § 34-21-1 was issued for a painting sold at auction in 1937 under orders of an organization of the Nazi German government because the possessor’s predecessor-in-interest, who acquired the painting through the forced sale, did not acquire good title to the painting. Vineberg v. Bissonnette, 529 F. Supp. 2d 300, 2007 U.S. Dist. LEXIS 94509 (D.R.I. 2007), aff'd, 548 F.3d 50, 2008 U.S. App. LEXIS 24043 (1st Cir. 2008).

Attached Property.

Property attached on an original writ can be replevied since the words “mesne process” mean any process except the final process in the case. Arnold v. Chapman, 13 R.I. 586 , 1882 R.I. LEXIS 46 (1882).

Burden of Proof.

After defendant in his plea of property in replevin action asserts his right to present possession of the property replevied, the burden to establish the right to present possession is on the plaintiff. Clyde Dye & Print Works v. Craig, 52 R.I. 65 , 157 A. 425, 1931 R.I. LEXIS 108 (1931).

Demand for Return.

No mention is made within this chapter of the necessity of a demand for the return of the goods as a condition precedent to the institution of a replevin action, and such a condition ought not to be read into the replevin statute. Brunswick Corp. v. Sposato, 120 R.I. 673 , 389 A.2d 1251, 1978 R.I. LEXIS 708 (1978).

Demand and refusal are not required in a replevin action pursuant to R.I. Gen. Laws § 34-21-1 . Vineberg v. Bissonnette, 529 F. Supp. 2d 300, 2007 U.S. Dist. LEXIS 94509 (D.R.I. 2007), aff'd, 548 F.3d 50, 2008 U.S. App. LEXIS 24043 (1st Cir. 2008).

Jurisdiction of Court.

Vendee who filed writ of replevin to secure possession of goods and who was nonsuited since writ returnable to superior court alleged value of the goods at less than minimum jurisdictional amount was not entitled to maintain bill in equity to determine title to goods in his possession since superior court, being without jurisdiction, could not determine title. McKittrick v. Bates, 47 R.I. 240 , 132 A. 610, 1926 R.I. LEXIS 40 (1926).

Mortgagee as Plaintiff.

An action in replevin may be maintained by a mortgagee against a mortgagor in possession for wood and timber cut upon the mortgaged premises which substantially diminished the security of the mortgagee since the statute permits replevin actions for goods unlawfully detained as well as those unlawfully taken. Waterman v. Matteson, 4 R.I. 539 , 1857 R.I. LEXIS 35 (1857).

Possessory Right.

Nothing but a right of present possession founded upon a general or special ownership in goods is necessary to enable a plaintiff to maintain a writ of replevin. Clyde Dye & Print Works v. Craig, 52 R.I. 65 , 157 A. 425, 1931 R.I. LEXIS 108 (1931).

Rights of Lienholder.

Under a plea of property in the defendant, he is entitled to prove he has a lien on the property replevied. Clyde Dye & Print Works v. Craig, 52 R.I. 65 , 157 A. 425, 1931 R.I. LEXIS 108 (1931).

Collateral References.

Action against landowner for recovery of possession of cut timber after his revocation of license. 26 A.L.R.2d 1197.

Agent, employed to purchase personal property, buying it for himself, remedy of replevin. 20 A.L.R.2d 1149.

Availability of replevin or similar possessory action to one not claiming as heir, legatee, or creditor of decedent’s estate, against personal representative. 42 A.L.R.2d 418.

Bank account, replevin of. 44 A.L.R. 1522.

Conditional seller’s action of replevin to recover possession of forfeited property, demand for payment of possession as condition precedent. 59 A.L.R. 140.

Executor, administrator or trustee, replevin against, in official capacity. 44 A.L.R. 655; 127 A.L.R. 692.

Husband or wife, right to maintain replevin against other. 41 A.L.R. 1054.

Illegal contract, rule that denies remedy in case of, as applicable to an action of replevin or detinue for property, possession of which was obtained by defendant as result of such a contract with the plaintiff or his predecessor in interest. 132 A.L.R. 619.

Joint owner of personal property, right of, to maintain replevin against third person. 110 A.L.R. 353.

Mere possession in plaintiff as basis of action of replevin. 150 A.L.R. 163.

Moving picture film, replevin to recover. 19 A.L.R. 1015.

Partner’s right to maintain action of replevin or unlawful detainer against copartner. 21 A.L.R. 124; 168 A.L.R. 1117.

Sheriff or other officer levying on property, duty of, to bring replevin upon loss of possession. 138 A.L.R. 741.

Stolen chattels, demand as a condition of replevin against innocent purchaser of. 51 A.L.R. 1465.

Undivided share in or undivided quantity of a larger mass, replevin for. 26 A.L.R. 1015.

34-21-2. District court jurisdiction.

The district court may issue writs of replevin where the goods and chattels to be replevied are valued at five thousand dollars ($5,000) or less, and venue of the action may be in any division of the district court where they were taken, attached or detained. The court may also try the same and award execution therein, adhering in its proceedings, as near as may be, to the forms herein prescribed.

History of Section. G.L. 1896, ch. 272, § 12; C.P.A. 1905, § 1235; G.L. 1909, ch. 336, § 12; G.L. 1923, ch. 387, § 12; P.L. 1929, ch. 1331, § 13; G.L. 1938, ch. 589, § 12; G.L. 1956, § 34-21-2 ; P.L. 1969, ch. 239, § 39.

Cross References.

Replevin of impounded animals, § 4-14-10 et seq.

Writs of district courts, § 8-8-22 .

NOTES TO DECISIONS

Forms.

The word “forms” in this section refers to the forms of procedure used in replevin suits, which may be followed by district courts within the limits of their jurisdiction. Angell v. Sprague, 35 R.I. 156 , 85 A. 790, 1913 R.I. LEXIS 8 (1913).

Venue.

It is sufficient to authorize the issuance of a writ of replevin if the town in which the property is taken or detained is the same town in which the justice of the peace resides, regardless of the residence of the parties. Hopkins v. Brown, 5 R.I. 357 , 1858 R.I. LEXIS 47 (1858).

This section should be read by way of exception to the provisions of § 9-5-11 with respect to the return of the writ. Cahill v. Goodell, 20 R.I. 481 , 40 A. 1, 1898 R.I. LEXIS 85 (1898).

34-21-3. Service of writ where deputy is party.

If any deputy sheriff is a party to the suit, then the writ shall be directed to and served by either of the town sergeants or constables in the county in which the same is to be served.

History of Section. G.L. 1896, ch. 272, § 2; G.L. 1909, ch. 336, § 2; G.L. 1923, ch. 387, § 2; G.L. 1938, ch. 589, § 2; G.L. 1956, § 34-21-3 ; P.L. 2012, ch. 324, § 67.

34-21-4. Bond given prior to service of writ.

The officer charged with the service of any such writ shall, before serving the same, take from the plaintiff, or from someone in his or her behalf, a bond to the defendant, with sufficient sureties, or a surety company authorized to do business in this state, in double the value of the goods and chattels to be replevied, with condition to prosecute the writ of replevin to final judgment and to pay such damages and costs as the defendant in the writ shall recover against the plaintiff, and also to return and restore the same goods and chattels in like good order and condition as when taken, in case such shall be the final judgment on the writ.

History of Section. G.L. 1896, ch. 272, § 3; P.L. 1901, ch. 815, § 1; G.L. 1909, ch. 336, § 3; G.L. 1923, ch. 387, § 3; G.L. 1938, ch. 589, § 3; P.L. 1940, ch. 937, § 1; G.L. 1956, § 34-21-4 .

Cross References.

Fees for serving writ and taking inventory, § 9-29-9 .

NOTES TO DECISIONS

Amendment of Bond.

A defect in a replevin bond cannot be amended after service of the writ upon the defendant. Simpson v. Wilcox, 18 R.I. 40 , 25 A. 391, 1892 R.I. LEXIS 6 (1892).

Claims of Third Party.

Since the statute does not direct the officer as to his course of action if while serving the writ and taking possession of the property a third party appears and claims title to the property, the officer is not liable if it later appears that the property belonged to such third party. Curry, Richards & Anthony v. Johnson, 13 R.I. 121 , 1880 R.I. LEXIS 54 (1880).

Co-Plaintiffs.

A replevin bond given by one plaintiff in behalf of himself and his co-plaintiffs is valid, assuming that the other requirements of the bond are met. Dunbar & Co. v. Scott, 14 R.I. 152 , 1883 R.I. LEXIS 23 (1883).

Inspection by Defendant.

A replevin bond need not be submitted to a defendant for his inspection and approval before the property is replevied. McDonald v. Brown, 61 R.I. 40 , 199 A. 750, 1938 R.I. LEXIS 27 (1938).

Prosecution to Final Judgment.

The conditions of a replevin bond specified in this section are separate and distinct so that a breach of any one is a forfeiture of the bond. It is not necessary in order to bring suit on the bond for the defendant in replevin to make complaint and obtain a judgment where the plaintiff has not prosecuted the action to judgment. Gardiner v. McDermott, 12 R.I. 206 , 1878 R.I. LEXIS 62 (1878).

A replevin bond conditioned upon the plaintiff prosecuting the action to final judgment is breached if the case is dismissed on appeal for want of jurisdiction and the plaintiff takes no further action and does not return the replevied property. Pierce v. King, 14 R.I. 611 , 1884 R.I. LEXIS 71 (1884).

Signature.

A replevin bond signed in the name of the plaintiff by a person without authority to sign does not authorize the service of a writ of replevin, and such a bond cannot be subsequently ratified so as to authorize the maintenance of the action. Smith v. Fisher, 13 R.I. 624 , 1882 R.I. LEXIS 55 (1882).

Replevin bond was not a statutory bond where another person signed plaintiff’s name to bond without any indication of his authority to so do. Horton v. Stone, 32 R.I. 499 , 80 A. 1, 1911 R.I. LEXIS 59 (1911).

Sureties.

The provision permitting surety companies to go on bond of plaintiff in replevin suit supersedes prior law which required two sureties on the bond. Leiter v. Lyons, 24 R.I. 42 , 52 A. 78, 1902 R.I. LEXIS 16 (1902).

Collateral References.

Amendment of pleadings in replevin as affecting liability of surety on replevin bond. 90 A.L.R. 541.

Assignment of judgment as carrying assignor’s rights as to replevin bond. 63 A.L.R. 291.

Counterclaim, amount of judgment recovered by defendant on account of, as within coverage of bond given by plaintiff. 87 A.L.R. 295.

Damages for detention between judgment against principal and delivery or redelivery of property as covered by replevin bond or redelivery bond in replevin. 90 A.L.R. 972.

Damages from wrongful seizure of property, right to maintain action for, on replevin bond, or must claim for, be interposed in replevin action. 85 A.L.R. 682.

Depreciation of property between the date it was replevied and final judgment as element of recovery on bond. 24 A.L.R. 1189.

Loss of destruction of property pending replevining action as affecting liability under bond given therein. 31 A.L.R. 1290.

34-21-5. Court examination of bond — Failure of plaintiff to comply with court order.

The officer taking any goods or chattels by virtue of a writ of replevin shall not surrender or deliver the writ to the plaintiff until the amount of the plaintiff’s bond and the sufficiency of the surety shall have been approved by the court to which the writ is returnable. Every officer who shall have served the writ shall make return thereof with his or her doings thereon as soon thereafter as possible to the clerk of the court to which the writ is returnable, and the cause shall then be in order for summary hearing upon the size of the plaintiff’s bond and the sufficiency of his or her surety. The court after notice and hearing shall fix the amount of the plaintiff’s bond and determine the sufficiency of the surety and shall enter its order accordingly. If the plaintiff fails to comply with the order within three (3) days from the entry thereof, the court shall forthwith and without hearing direct the officer in possession of the goods and chattels to return them immediately to the defendant. Thereafter, upon the defendant’s motion, decision shall be for the defendant for his or her damages and costs. Failure of the plaintiff to comply with the order of the court shall also operate as an adjudication of the title to the goods and chattels replevied in favor of the defendant.

History of Section. G.L. 1938, ch. 589, § 3; P.L. 1940, ch. 937, § 1; G.L. 1956, § 34-21-5 .

34-21-6. Insufficient bond.

In case the defendant shall at any time pending the writ of replevin be dissatisfied with the amount of the sureties or the surety company in the bond, the court before which the writ is pending may, on the defendant’s motion and for cause shown, in its discretion order the plaintiff to give further bond or further surety; and if the plaintiff does not comply with such order, the plaintiff’s action shall be dismissed and judgment shall be rendered for the defendant, for a return and restoration of the goods and chattels replevied and for damages and costs, the same as if the plaintiff had neglected to enter the writ of replevin.

History of Section. G.L. 1896, ch. 272, § 4; P.L. 1901, ch. 815, § 2; G.L. 1909, ch. 336, § 4; G.L. 1923, ch. 387, § 4; G.L. 1938, ch. 589, § 4; G.L. 1956, § 34-21-6 .

NOTES TO DECISIONS

Motion by Plaintiff.

A replevin bond is not amendable by the plaintiff under this section, since this section is applicable only in favor of the defendant and upon his motion. Whitford, Sanders & Co. v. Goodwin, 13 R.I. 145 , 1880 R.I. LEXIS 66 (1880).

Power of District Court.

A district court is entitled to order further bond, but the total amount of all bonds so required shall not exceed double the jurisdictional amount. Angell v. Sprague, 35 R.I. 156 , 85 A. 790, 1913 R.I. LEXIS 8 (1913).

Remedies of Defendant.

If a defendant in replevin is not satisfied with the plaintiff’s bond or the sureties thereon, he may move the court for further bond or further sureties but may not unilaterally obstruct replevin according to his own feelings or beliefs that the plaintiff’s bond is defective or inadequate. McDonald v. Brown, 61 R.I. 40 , 199 A. 750, 1938 R.I. LEXIS 27 (1938).

34-21-7. Failure of plaintiff to prosecute.

Whenever any plaintiff in replevin shall neglect to enter and prosecute the suit, the defendant may, upon complaint, have judgment for a return and restoration of the goods and chattels replevied, and reasonable damages for the taking, with such reasonable costs as shall be adjudged by the court, and a writ of return and restoration thereupon accordingly.

History of Section. G.L. 1896, ch. 272, § 5; G.L. 1909, ch. 336, § 5; G.L. 1923, ch. 387, § 5; G.L. 1938, ch. 589, § 5; G.L. 1956, § 34-21-7 .

NOTES TO DECISIONS

Complaint Unnecessary.

It is not necessary for a plaintiff to file a complaint and obtain a judgment under this section in order for him to maintain an action for breach of the conditions of a replevin bond. Gardiner v. McDermott, 12 R.I. 206 , 1878 R.I. LEXIS 62 (1878).

Under the provisions of this section, no formal or written complaint is necessary after entry of a judgment for the defendant. Thus where a plaintiff fails to prosecute his suit, he may be nonsuited and judgment entered against him for failure to establish his claim. Wright v. Card, 16 R.I. 719 , 19 A. 709, 1890 R.I. LEXIS 19 (1890).

Collateral References.

Voluntary dismissal of replevin action by plaintiff as affecting defendant’s right to judgment for the return or value of the property. 24 A.L.R.3d 768.

34-21-8. Judgment for defendant.

If, upon trial of the writ of replevin, judgment is rendered for a return and restoration, the defendant shall recover his or her reasonable damages with costs of suit.

History of Section. G.L. 1896, ch. 272, § 6; G.L. 1909, ch. 336, § 6; G.L. 1923, ch. 387, § 6; G.L. 1938, ch. 589, § 6; G.L. 1956, § 34-21-8 .

Cross References.

Plaintiff not entitled to poor debtor’s oath, § 10-13-2 .

NOTES TO DECISIONS

Purpose.

The damages provided by this section are a substitute for compensation for the use of property by the defendant so that, after recovering the property and being awarded damages in a replevin action, the plaintiff cannot maintain an action in trover to recover compensation. Davis v. Fenner, 12 R.I. 21 , 1878 R.I. LEXIS 5 (1878).

Applicability.

Defendant is entitled to a judgment for costs for reasonable expenses incurred by him to bring before the court evidence that sureties provided by plaintiff on his bond were not sufficient. Valentine v. Knox, 45 R.I. 429 , 123 A. 600, 1924 R.I. LEXIS 18 (1924), limited, In re Lanni, 47 R.I. 158 , 131 A. 52, 1925 R.I. LEXIS 75 (1925).

Collateral References.

Recovery of damages by defendant in replevin. 85 A.L.R. 674.

34-21-9. Form of writ of return and restoration.

The writ of return and restoration shall be substantially as follows:

THE STATE OF RHODE ISLAND. SC. (SEAL) To the sheriffs and certified constables of our several counties, or to their deputies, Greeting: Whereas of in the county of lately replevied the following goods and chattels, viz.: (here enumerate and particularly describe them) which in our county of had unlawfully taken (detained, or attached, as the case may be) as suggested, and caused to be summoned to appear before our superior court to be held at to answer unto for such unlawful taking (detaining, or attaching, as the case may be) on the day of . And whereas, to our said court at its session held as aforesaid, upon a full hearing of the cause of the taking (detaining, or attaching, as the case may be) it appeared that the taking (detaining, or attaching, as the case may be) was lawful and justifiable, whereupon it was then and there by the court considered that the same be returned and restored unto irrepleviable, and that recover against the sum of dollars damages, for his or her taking the same by the process of replevin and his or her costs of defense taxed at as to us appears of record, whereof execution remains to be done: we command you, therefore, that you forthwith return and restore the same goods and chattels unto and also that of the goods and chattels and real estate of within your precinct, you cause to be levied and paid unto the aforesaid sums, being in the whole together with your fees; and for want of such goods and chattels or real estate of to be by you found within your precinct, to satisfy and pay the sums aforesaid, we command you to take the body of and commit him or her to our correctional institution in your precinct, therein to be kept until he or she pays the sums aforementioned, with your fees, or until he or she is discharged by or otherwise by order of law. Hereof fail not, and make true return of this writ and your doings thereon, to our superior court on or before the day of . Witness, the seal of our superior court at this day of in the year . , Clerk.

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History of Section. G.L. 1896, ch. 272, § 11; C.P.A. 1905, § 1169; G.L. 1909, ch. 336, § 11; G.L. 1923, ch. 387, § 11; G.L. 1938, ch. 589, § 11; impl. am. P.L. 1956, ch. 3721, § 1; G.L. 1956, § 34-21-9 ; P.L. 2015, ch. 260, § 35; P.L. 2015, ch. 275, § 35.

Compiler’s Notes.

P.L. 2015, ch. 260, § 35, and P.L. 2015, ch. 275, § 35 enacted identical amendments to this section.

In 2021, “AND PROVIDENCE PLANTATIONS” was deleted following “STATE OF RHODE ISLAND” in this section at the direction of the Law Revision Director to reflect the 2020 amendments to the state constitution that changed the state's name.

Effective Dates.

P.L. 2015, ch. 260, § 41, provides that the amendment to this section by that act takes effect on September 1, 2015.

P.L. 2015, ch. 275, § 41, provides that the amendment to this section by that act takes effect on September 1, 2015.

Cross References.

Execution against the body, § 9-25-15 .

34-21-10. Recovery of damages and costs by plaintiff.

If, upon trial of the writ of replevin, the plaintiff shall make good his or her plea, the plaintiff shall recover from the defendant reasonable damages for the taking and detention of the goods and chattels, and costs; provided, that no costs shall be taxed against a defendant bailee where such bailee upon demand surrenders the replevied property to the officer serving the writ and makes no defense to the action, if the bailee shall, before service of the writ, have offered to surrender the property upon receipt of a good and sufficient bond of indemnity.

History of Section. G.L. 1896, ch. 272, § 7; P.L. 1901, ch. 847, § 1; G.L. 1909, ch. 336, § 7; G.L. 1923, ch. 387, § 7; G.L. 1938, ch. 589, § 7; G.L. 1956, § 34-21-10 .

NOTES TO DECISIONS

District Court’s Jurisdiction.

This section does not preclude district court jurisdiction where the plaintiff has made good his plea, even though the reasonable damages in full may exceed the maximum jurisdictional amount. Mack Motor Truck Co. v. Dorsey, 45 R.I. 65 , 119 A. 756, 1923 R.I. LEXIS 17 (1923).

Requirements.

Trial court cannot determine a proceeding in replevin if the property is not replevied by the officer. Warren v. Leiter, 24 R.I. 36 , 52 A. 76, 1902 R.I. LEXIS 15 (1902).

Collateral References.

Alternative judgment in replevin as giving option to either party in regard to payment of damages or return of property. 170 A.L.R. 122.

Interest on value of property where property itself cannot be recovered. 96 A.L.R. 132; 36 A.L.R.2d 337.

Lien of third person, sale of property under foreclosure of, while in hands of unsuccessful party, as affecting amount of alternative money judgment in replevin. 22 A.L.R. 215.

Recovery for depreciation of property between date it was replevied and final judgment. 24 A.L.R. 1189.

Recovery of damages in replevin for value of use of property detained, by successful party having only security interest as conditional vendor, chattel mortgagee, or the like. 33 A.L.R.2d 774.

Right of plaintiff in replevin to damages for detention of property during pendency of action as affected by his failure to claim immediate possession by complying with statutory provisions in that regard. 164 A.L.R. 758.

Sale price of property as sufficient evidence of value to support alternative money judgment in replevin action between one of the parties and a third person. 149 A.L.R. 1027.

Storage or care of property pending action of detinue or replevin, recovery of expenses for. 43 A.L.R. 92.

Wrongful seizure of property, may or must claim for damages from, be interposed in replevin action. 85 A.L.R. 674.

34-21-11. Damages and costs on divided judgment.

If, upon trial of the writ of replevin, the plaintiff shall make good his or her plea for part of the goods replevied, and shall fail to make it good as to the other part, the plaintiff shall have judgment for reasonable damages for the taking and detention of the part adjudged to be plaintiff’s, and costs, and the defendant shall have judgment for a return and restoration of the goods and chattels adjudged to defendant, with damages, as provided in § 34-21-10 , according to the relative value of such part, and with or without costs at the discretion of the court, but the court shall, in such case, set off the damages recovered by each.

History of Section. G.L. 1896, ch. 272, § 8; G.L. 1909, ch. 336, § 8; G.L. 1923, ch. 387, § 8; G.L. 1938, ch. 589, § 8; G.L. 1956, § 34-21-11 .

NOTES TO DECISIONS

In General.

Judgment in replevin may be partly for plaintiff and partly for defendant. Lewis v. Bull, 48 R.I. 166 , 136 A. 443, 1927 R.I. LEXIS 33 (1927).

34-21-12. Restored property subject to prior attachment.

Whenever the goods and chattels replevied shall have been taken on execution or warrant of distress, they shall, in case of a judgment of return and restoration, be held responsible for the space of twenty (20) days after the return thereof; if on mesne process, until thirty (30) days shall have expired after final judgment thereon, in case judgment shall not then have been given, but if final judgment on mesne process shall have been given before the return, then for the space of twenty (20) days only after the return, to the end that the creditor, at whose suit they were originally taken, may have a complete remedy, and the benefit of his or her attachment.

History of Section. G.L. 1896, ch. 272, § 9; G.L. 1909, ch. 336, § 9; G.L. 1923, ch. 387, § 9; G.L. 1938, ch. 589, § 9; G.L. 1956, § 34-21-12 .

34-21-13. Assumption of defense by attaching creditor.

Whenever any action of replevin shall be brought against an officer who has taken or attached goods and chattels at the suit of a creditor, the creditor shall have the right to assume the defense of the suit upon indemnifying the officer against damages and costs therein, and the money recovered by way of damages by the officer shall be deemed to be recovered to the use of the attaching creditor, and when received shall be paid over to the creditor.

History of Section. G.L. 1896, ch. 272, § 10; G.L. 1909, ch. 336, § 10; G.L. 1923, ch. 387, § 10; G.L. 1938, ch. 589, § 10; G.L. 1956, § 34-21-13 .

Chapter 22 Powers

34-22-1. Disclaimer and renunciation or restriction of power.

A person to whom any power of appointment, or power of apportionment, or any other power, whether coupled with an interest or not, is given, may disclaim or renounce the whole, or any part, of that power to the extent that the power has not been exercised by that person, and may also restrict any such power, either as to persons to whom he or she may appoint or the amounts he or she may appoint, or both. The disclaimer or renunciation shall relate back to the creation of the power and shall take and have effect as of that time. No title to any property or interest with respect to which such renunciation or disclaimer is made shall pass to any person by virtue of the power to the extent of the renunciation or disclaimer, and the power shall be void to the extent of the renunciation or disclaimer. After such disclaimer or renunciation, the power may be exercised by the other or others, if any, or the survivors or survivor of the others, of the persons to whom the power is given, unless the contrary is expressed in the instrument creating the power. This section shall apply to all powers of appointment and powers of apportionment and all other powers, whether created before or after the original enactment of this section.

History of Section. G.L. 1896, ch. 208, § 20; G.L. 1909, ch. 259, § 20; G.L. 1923, ch. 303, § 20; G.L. 1938, ch. 488, § 1; P.L. 1944, ch. 1486, § 1; G.L. 1956, § 34-22-1 .

Cross References.

Disclaimer of estates, § 34-5-1 et seq.

Comparative Legislation.

Disclaimer and release:

Conn. Gen. Stat. § 45a-568 et seq.

Mass. Ann. Laws ch. 204, § 27 et seq.

Collateral References.

Appointee’s renunciation of appointment. 9 A.L.R.2d 1382.

Effect of statute upon determination whether disposition of all or residue of testator’s property, without referring to power of appointment, sufficiently manifests intention to exercise power. 16 A.L.R.3d 911.

Election to take against will as extinguishing power of appointment. 38 A.L.R.2d 977.

Nontestamentary transactions, pecuniary bequest, or specific devise or bequest not referring to power as constituting sufficient manifestation of intention to exercise power of disposition over property. 16 A.L.R. 951.

Revocation or amendment of exercise of power to appoint future interest, after exercise by inter vivos instrument. 60 A.L.R.3d 143.

34-22-2. Delivery and recording of disclaimer and renunciation.

Any renunciation or disclaimer shall be valid and effective according to its terms when signed by the person disclaiming or renouncing the power and delivered to any other person having any legal or equitable interest, vested or contingent, in the property subject to the power; provided, however, that if the property, or any part thereof, shall consist of real estate situated in this state, the disclaimer or renunciation shall not take effect with respect to the real estate unless and until the renunciation or disclaimer shall be acknowledged and recorded in the records of land evidence in the town or city in which the real estate, or some part thereof, is situated.

History of Section. G.L. 1938, ch. 488, § 1; P.L. 1944, ch. 1486, § 1; G.L. 1956, § 34-22-2 .

34-22-3. Release of power — Contract not to exercise.

A person to whom any power, whether or not coupled with an interest, is given, may release, or contract not to exercise, the power, unless prevented from so doing by the terms of the power.

History of Section. G.L. 1896, ch. 202, § 22; G.L. 1909, ch. 253, § 22; G.L. 1923, ch. 297, § 22; G.L. 1938, ch. 488, § 4; G.L. 1956, § 34-22-3 .

Collateral References.

Release of power of appointment of property. 76 A.L.R. 1430.

34-22-4. Means of releasing or contracting not to exercise power.

Any power of appointment or power of apportionment or any other power, whether or not coupled with an interest, unless it is otherwise expressly provided by the terms of the power, may be released in whole or in part by the donee or donees of the power, or the donee or donees of the power may contract not to exercise the power in whole or in part. After the release or contract, the power may be exercised by the other or others, if any, or the survivors or survivor of the others, of the persons to whom the power is given, unless the contrary is expressed in the instrument creating the power. This section shall apply to all powers of appointment and powers of apportionment and all other powers, whether created before or after the original enactment of this section. Notwithstanding any other provisions of law, the release or contract shall be valid and effective according to its terms when signed by the releasor, or by the contracting party, as the case may be, and delivered to any other person having any legal or equitable interest, vested or contingent, in the property subject to the power; provided, however, that if the property, or any part thereof, shall consist of real estate situated in this state, the release or contract shall not take effect with respect to the real estate unless and until the release or contract shall be acknowledged and recorded in the records of land evidence in the town or city in which the real estate, or some part thereof, is situated.

History of Section. G.L. 1938, ch. 488, § 5; P.L. 1943, ch. 1348, § 1; P.L. 1944, ch. 1486, § 2; G.L. 1956, § 34-22-4 .

34-22-5. Relationship between §§ 34-22-3 and 34-22-4.

The general assembly hereby declares that § 34-22-4 is declaratory of the meaning of § 34-22-3 .

History of Section. P.L. 1944, ch. 1486, § 3; G.L. 1956, § 34-22-5 .

34-22-6. Acts under power of attorney.

The donee of a power of attorney may, under and within the authority of the power, if he or she thinks fit, execute or do any assurance, instrument, or thing in and with his or her own name and signature, and, where sealing is required, with his or her own seal; and every assurance, instrument and thing so executed and done shall be as effectual in law, to all intents, as if it had been executed or done by the donee of the power in the name and with the signature, or signature and seal, of the donor thereof.

History of Section. G.L. 1896, ch. 202, § 17; G.L. 1909, ch. 253, § 17; G.L. 1923, ch. 297, § 17; G.L. 1938, ch. 488, § 2; G.L. 1956, § 34-22-6 .

Cross References.

Surviving fiduciaries, powers, § 18-4-9 .

Collateral References.

Agreement by donee of power of appointment respecting its exercise or nonexercise, validity and effect. 163 A.L.R. 1449.

Execution, by donee of power, of deed, mortgage, or will not referring to the power, as exercise thereof. 91 A.L.R. 433; 127 A.L.R. 248.

Partial exercise of power of appointment. 4 A.L.R.2d 919.

Partial invalidity of attempted exercise of power of appointment, effect of. 121 A.L.R. 1226.

Power of attorney, under which deed or mortgage is executed, as instrument entitled to record. 114 A.L.R. 660.

Power to appoint as exercisable by creation of new power by donee. 169 A.L.R. 727.

Sufficiency of execution of deed by agent or attorney in fact in name of principal without his own name appearing. 96 A.L.R. 1252.

34-22-6.1. When power of attorney not affected by incompetency.

  1. Whenever a donor of a power of attorney designates another his or her attorney in fact or agent by a power of attorney in writing and the writing contains the words “This power of attorney shall not be affected by the incompetency of the donor”, or “This power of attorney shall become effective upon the incompetency of the donor”, or similar words showing the intent of the donor that the authority conferred is exercisable notwithstanding the donor’s incompetency, the authority of the attorney in fact or agent is exercisable as provided in the power on behalf of the donor notwithstanding later incompetency of the donor at law or later uncertainty as to whether the donor is dead or alive, and unless it states a time of termination, the authority conferred remains exercisable notwithstanding the lapse of time since the execution of the instrument. All acts done by the attorney in fact or agent pursuant to the power during any period of incompetence or uncertainty as to whether the donor is dead or alive have the same effect and inure to the benefit of and bind the donor or the donor’s heirs, devisees, and personal representative as if the donor were alive and competent. If a guardian or conservator subsequently is appointed for the donor, the attorney in fact or agent, during the continuance of the appointment, accounts to the guardian or conservator rather than the donor. The guardian or conservator has the same power the donor would have had if the donor were not incompetent to revoke, suspend, or terminate all or any part of the power of attorney or agency.
  2. Any person who acts in good faith reliance on a power of attorney, whether such power is authorized pursuant to subsection (a) of this section or is otherwise valid on its face, shall incur no liability as a result of acting in accordance with the instructions of the attorney in fact or agent.

History of Section. P.L. 1983, ch. 322, § 1; P.L. 2000, ch. 342, § 1; P.L. 2005, ch. 124, § 1; P.L. 2005, ch. 133, § 1.

34-22-7. Good faith payment by attorney acting under invalid power.

Any person, making any payment in good faith in pursuance of a power of attorney, shall not be liable, in respect of the payment, by reason that before the payment the donor of the power had died or become of unsound mind or bankrupt, or had revoked the power, if the fact of death, unsoundness of mind, bankruptcy or revocation, was not at the time of the payment known to the person making the payment. This section shall not affect any right against the payee of any person interested in any money so paid; and that person shall have the like remedy against the payee as he or she would have had against the payer if the payment had not been made.

History of Section. G.L. 1896, ch. 202, § 18; G.L. 1909, ch. 253, § 18; G.L. 1923, ch. 297, § 18; G.L. 1938, ch. 488, § 3; G.L. 1956, § 34-22-7 ; P.L. 1999, ch. 83, § 79; P.L. 1999, ch. 130, § 79.

34-22-8. Power of attorney given by member of military in time of war.

Any person seventeen (17) years old or over may give a power of attorney to be exercised during the period during which the donor is engaged in active service with the military, air, or naval forces of the United States or in the American merchant marine during any war, declared or undeclared, in which the United States shall be engaged. The power of attorney shall continue in full force and effect until revoked by the donor or by operation of law. The donee of the power of attorney may act for and represent the donor to the extent as authorized in the power of attorney, provided that nothing in §§ 34-22-8 — 34-22-10 shall authorize a donee of a power of attorney given by a minor to sell, mortgage or dispose of the property, real or personal, of the minor.

History of Section. P.L. 1950 (s. s.), ch. 2644, § 1; G.L. 1956, § 33-22-8 .

Cross References.

Conservatorship of military absentees’ property, § 33-20-8 et seq.

34-22-9. Good faith acts under revoked military member’s power of attorney.

Notwithstanding the revocation of any power of attorney given by a member of the military, whether by act of the donor of the power or by operation of law, any act done or instrument executed by the donee of the power shall be as valid and effectual in favor of any person dealing with the donee as if the power had remained unrevoked at the time when the act was done or the instrument was executed unless the person dealing with the donee had at that time actual notice of the revocation of the power.

History of Section. P.L. 1950 (s. s.), ch 2644, § 2; G.L. 1956, § 34-22-9 .

34-22-10. Notice of death of member of military giving power of attorney.

No person shall be deemed for the purposes of §§ 34-22-8 and 34-22-9 to have actual notice of the death of any donor of any power of attorney given by a member of the military by reason only of a report to the effect that the donor is missing or is missing and believed to be killed, unless the death of the donor has been presumed by order of a court of competent jurisdiction and the person in question has notice of the order.

History of Section. P.L. 1950 (s. s.), ch. 2644, § 3; G.L. 1956, § 34-22-10 .

34-22-11. Construction of certain powers of appointment created before May 1, 1958.

In the construction of any will of a person who dies, or of a deed of trust executed and becoming effective before May 1, 1958, which instrument shall create a power to appoint by will, unlimited as to the persons to whom the donee of the power may appoint, the instrument shall be deemed to permit appointment to the estate of the donee of the power unless a contrary intention shall appear by the terms thereof, or unless the donee of the power shall have deceased prior to May 1, 1958.

History of Section. P.L. 1958, ch. 54, § 1.

34-22-12. Construction of certain powers of appointment created after May 1, 1958.

In the construction of any will of a person who dies, or of a deed of trust executed and becoming effective after May 1, 1958, which instrument shall create a power to appoint by will, unlimited as to the persons to whom the donee of the power may appoint, the instrument shall be deemed to permit appointment to the estate of the donee of the power unless a contrary intention shall appear by the terms thereof.

History of Section. P.L. 1958, ch. 54, § 1.

34-22-13. Powers as subjecting property to creditors.

Except to the extent that a donee shall appoint to his or her estate or to his or her creditors, §§ 34-22-11 and 34-22-12 shall not be construed to subject to the claims of creditors of the donee the property which the donee is authorized to appoint.

History of Section. P.L. 1958, ch. 54, § 1.

34-22-14. Severability of §§ 34-22-11 — 34-22-14.

The provisions of §§ 34-22-11 — 34-22-14 are hereby declared to be severable; and in case any part, section or provision of §§ 34-22-11 — 34-22-14 are held invalid by any court of competent jurisdiction, the remaining parts, sections and provisions of §§ 34-22-11 — 34-22-14 shall not be thereby impaired or otherwise affected and the other parts, sections and provisions shall be given effect without the invalid provisions.

History of Section. P.L. 1958, ch. 54, § 1.

Chapter 23 Mortgages of Real Property

34-23-1. Effect of unrecorded defeasance.

When a deed purports to contain an absolute conveyance of real estate but is made defeasible by a deed, bond or other instrument, the original deed shall not be thereby affected as against any person, other than the maker of the instrument of defeasance and his or her heirs and devisees and persons having actual notice of it, unless such defeasance is recorded in the records of land evidence in the town or city in which the real estate to which it relates is situated prior to the conveyance to such other person.

History of Section. G.L. 1896, ch. 207, § 1; G.L. 1909, ch. 258, § 1; G.L. 1923, ch. 302, § 1; G.L. 1938, ch. 442, § 1; G.L. 1956, § 34-23-1 .

Cross References.

Assignment for benefit of creditors, effect, § 10-4-6 .

Form and effect of mortgage, § 34-11-19 et seq.

Housing authority mortgages, § 45-27-10 .

Personal property for probate purposes, § 33-9-9 .

Recording, eligibility for, § 34-13-1 .

Redevelopment agency, power to mortgage, § 45-33-8 .

Tax sale, notice to mortgagee, § 44-9-11 .

Comparative Legislation.

Mortgages:

Conn. Gen. Stat. § 49-1 et seq.

Mass. Ann. Laws ch. 183, § 18 et seq.

Collateral References.

Controlling Effect of United States Department of Housing and Urban Development (HUD) Regulations upon Mortgages. 38 A.L.R. Fed. 3d Art. 9 (2019).

Necessity that mortgage covering oil and gas lease be recorded as real estate mortgage, and/or filed or recorded as chattel mortgage. 34 A.L.R.2d 902.

Omission of amount of debt in mortgage as affecting operation of mortgage as notice to third person. 145 A.L.R. 375.

Unrecorded mortgage, effect of notice of, on priority between it and judgment lien. 4 A.L.R. 442.

34-23-2. Redemption right of mortgagor or vendor with defeasance.

All real estates, conveyed or pledged by mortgage or deed of bargain and sale with defeasance, shall be redeemable by the mortgagor or vendor, his or her heirs, executors, administrators, successors, or assigns, on paying the money borrowed thereon, with interest, or by performing the condition on which the real estate was conveyed or mortgaged, deducting the rents and profits which the mortgagee, or any under him or her, may have received over and above the taxes and assessments paid out, and suitable repairs and insurance made by him, her, or them, and all other necessary expenses in the care and management of the premises.

History of Section. G.L. 1896, ch. 207, § 2; G.L. 1909, ch. 258, § 2; G.L. 1923, ch. 302, § 2; G.L. 1938, ch. 442, § 2; G.L. 1956, § 34-23-2 .

Collateral References.

Deed from mortgagor or privy to mortgage holder as extinguishing equity of redemption. 129 A.L.R. 1435.

Equitable conversion, doctrine of, as affecting right of redemption from sale on foreclosure. 138 A.L.R. 1296.

Extension of existing mortgage by subsequent agreement, necessity that redemptioner pay additional indebtedness covered by. 76 A.L.R. 590.

Inchoate dower right as entitling wife, who united with husband in mortgage, to redeem. 12 A.L.R. 1353; 65 A.L.R. 964.

Junior lienor’s right in respect of redemption as affected by failure to make him a party to suit to foreclose senior mortgage or properly serve him with process in such suit. 134 A.L.R. 1507.

Junior mortgagee’s equity of redemption as affected by reacquisition by mortgagor or his grantee of title through foreclosure of first mortgage. 51 A.L.R. 445; 111 A.L.R. 1285.

Purchaser under irregular or imperfect foreclosure sale, rights and remedies of, as against redemptioner. 73 A.L.R. 635.

Quitclaim deed by mortgagor as passing equity of redemption. 44 A.L.R. 1273; 162 A.L.R. 563.

Rights and remedies of mortgagee where mortgaged property is bid in on foreclosure at less than mortgage debt and it is redeemed by mortgagor or latter’s grantee. 128 A.L.R. 796.

Trustees or beneficiaries of trust, right to redeem. 159 A.L.R. 477.

34-23-3. Time within which redemption allowed.

No mortgagor, his or her heirs, executors, administrators, successors, or assigns shall be allowed to redeem any mortgaged real estate, but shall be forever barred and foreclosed of all equity and right of redemption therein, unless the mortgagor, his or her heirs, executors, administrators, successors, or assigns shall pay to the mortgagee, his or her heirs, executors, administrators, successors, or assigns the full sum, both principal and interest, due on the mortgage, within three (3) years after the mortgagee, or other person claiming under him or her, shall by process of law, or by peaceable and open entry made in the presence of two (2) witnesses, have taken actual possession of the mortgaged estate and continued the mortgage during the term.

History of Section. G.L. 1896, ch. 207, § 3; G.L. 1909, ch. 258, § 3; G.L. 1923, ch. 302, § 3; G.L. 1938, ch. 442, § 3; G.L. 1956, § 34-23-3 .

NOTES TO DECISIONS

Continuous Possession.

In order to foreclose a mortgage, the right to redeem and file a bill for that purpose must be continuous throughout the three years of possession by the mortgagee, and an agreement between the parties which interrupts the right to redeem necessitates a new entry into possession by the mortgagee for foreclosure pursuant to chapter 27 of this title. Daniels v. Mowry, 1 R.I. 151 , 1842 R.I. LEXIS 1 (1842).

If after entry into possession of the premises by a mortgagee the mortgagor conveys a portion of the premises, such conveyance does not interrupt the three years of possession required of the mortgagee before foreclosure. Daniels v. Mowry, 1 R.I. 151 , 1842 R.I. LEXIS 1 (1842).

Mortgagor as Tenant.

In an action of ejectment by a purchaser at an execution sale, subject to a prior mortgage, the mortgagor could show that he surrendered the premises to the mortgagee in accordance with this section prior to the commencement of the action, became a tenant at will of the mortgagee, and thus could defeat the purchaser’s action by showing the mortgagee’s superior title. Wilcox v. Wilbur, 15 R.I. 434 , 8 A. 78, 1887 R.I. LEXIS 3 (1887).

Collateral References.

Emergency legislation extending time for redemption. 86 A.L.R. 1530; 88 A.L.R. 1519; 96 A.L.R. 312.

Extension of time to redeem from mortgage foreclosure sale by agreement or other acts of one person entitled to redeem as inuring to benefit of other person entitled to redeem. 161 A.L.R. 201.

Financial depression as justification for extending time for redemption or other relief to mortgagor. 90 A.L.R. 1330; 94 A.L.R. 1352; 96 A.L.R. 853; 97 A.L.R. 1123; 104 A.L.R. 375.

Imprisonment as extending time for redemption. 18 A.L.R. 531.

Junior lienor, time for redemption by, as affected by failure to make him a party to suit to foreclose senior mortgage or properly to serve him with process in such suit. 134 A.L.R. 1516.

Oral agreement, effect of, to enlarge time for redemption of real property from sale under mortgage or other lien. 54 A.L.R. 1207.

Purchaser under imperfect or irregular foreclosure sale, time for redemption as against. 73 A.L.R. 612.

Soldiers’ and Sailors’ Civil Relief Act of 1940, as amended, as extending period of redemption from sale under mortgage or trust deed. 40 A.L.R.2d 1279.

34-23-4. Certificate of possession taken by mortgagee.

Whenever possession shall be taken in the presence of witnesses as provided in § 34-23-3 , they shall give to the mortgagee, or other person taking possession under him or her, a certificate of the possession being taken; and the person delivering possession shall acknowledge the delivery have been voluntarily done before a justice of the peace or notary public in the town or city where the mortgaged estate lies, which certificate and acknowledgment shall be recorded in the records of land evidence in the town or city.

History of Section. G.L. 1896, ch. 207, § 4; G.L. 1909, ch. 258, § 4; G.L. 1923, ch. 302, § 4; G.L. 1938, ch. 442, § 4; G.L. 1956, § 34-23-4 .

Cross References.

Mortgagor in possession of real estate deemed owner for tax purposes, § 44-4-5 .

NOTES TO DECISIONS

Execution Sale.

In an action of ejectment by a purchaser at an execution sale subject to a prior mortgage, the mortgagor could show that he surrendered the premises to the mortgagee in accordance with this section prior to the commencement of the action, became a tenant at will of the mortgagee, and thus could defeat the purchaser’s action by showing the mortgagee’s superior title. Wilcox v. Wilbur, 15 R.I. 434 , 8 A. 78, 1887 R.I. LEXIS 3 (1887).

34-23-5. Prepayment of mortgage loans.

  1. Every bank, trust company, loan company, building-loan association, credit union, finance company and other person(s) making a loan or loans secured by a mortgage or mortgages on real estate located in Rhode Island containing thereon dwelling houses of not more than four (4) dwelling units shall provide in the mortgage note, and in any event the loan or loans shall be upon the condition that the full payment of mortgage may be made at any time after one year from the making of the loan without penalty, provided further, that during the first year, penalty or other charges for prepayment shall not exceed two percent (2%) of the balance due at date of the pay-off. If interest or other charges in connection with the loan or loans shall have been prepaid or included in the face of the mortgage, the holder thereof shall rebate the interest or other charges under regulations promulgated by the director of the department of business regulation.
  2. Alternatively a bank, trust company, loan company, building-loan association, credit union, finance company and other person(s) making a nonpurchase money loan or loans secured by a mortgage or mortgages on real estate located in Rhode Island containing on it dwelling houses of not more than four (4) dwelling units, may impose a prepayment penalty or other similar charges for the prepayment of a mortgage loan notwithstanding the prepayment penalty limitation imposed in subsection (a), but only if:
    1. The terms, conditions and amount of the prepayment penalty or other similar charges are prominently and conspicuously disclosed in writing to the borrower;
    2. The borrower agrees and consents to be bound by these terms and conditions; and
    3. Provided no prepayment penalty shall be imposed for any prepayment occurring more than sixty (60) months after the date of such loan.
  3. Any bank, trust company, loan company, building-loan association, credit union, finance company or other lender that chooses to offer a mortgage product pursuant to subsection (b) shall have available a similar mortgage product that complies with the limitations set forth in subsection (a) and all applicable federal regulations.
  4. Any prepayment penalty imposed under this section shall not be construed as interest under the provisions of § 6-26-2 .

History of Section. P.L. 1965, ch. 113, § 1; P.L. 1970, ch. 288, § 1; P.L. 1974, ch. 109, § 1; P.L. 1996, ch. 366, § 1; P.L. 2002, ch. 117, § 1.

34-23-6. Loan fees.

In the event any brokerage fees, loan fees, points, finders’ fees, origination fees, or any similar charges shall be imposed on any secured mortgage loan on real estate containing thereon dwelling houses of not more than four (4) dwelling units, those charges shall not be subject to any refund in the event the underlying loan contract is prepaid in full provided that the loan originator, broker or lender gives the following disclosure to the loan applicant in writing: not later than three (3) business days after the application is received. “Notice regarding nonrefundability of loan fees: You have received a good faith estimate of fees and charges showing the loan fees and similar charges you are likely to pay to obtain this loan. As provided in § 34-23-6 , none of these or other fees and charges will be refunded in the event the loan is prepaid in whole or in part.”

History of Section. P.L. 1988, ch. 246, § 2; P.L. 2001, ch. 294, § 1; P.L. 2002, ch. 307, § 1; P.L. 2011, ch. 344, § 1; P.L. 2011, ch. 390, § 1.

Compiler’s Notes.

P.L. 2011, ch. 344, § 1, and P.L. 2011, ch. 390, § 1 enacted identical amendments to this section.

34-23-7. Repealed.

History of Section. P.L. 1988, ch. 437, § 2; Repealed by P.L. 1989, ch. 310, § 2, effective July 7, 1989.

Compiler’s Notes.

Former § 34-23-7 concerned a homeowners note for a second mortgage.

Chapter 24 Mortgages of Personal Property

34-24-1 — 34-24-7. Repealed.

History of Section. G.L. 1896, ch. 207, §§ 10-13; P.L. 1899, ch. 614, § 1; G.L. 1909, ch. 258, §§ 10-13; G.L. 1923, ch. 302, §§ 10-13; P.L. 1935, ch. 2200, §§ 1-3; G.L. 1938, ch. 442, §§ 10-13; G.L. 1938, ch. 443, §§ 1-3; P.L. 1945, ch. 1587, § 2; G.L. 1956, §§ 34-24-1 to 34-24-7; Repealed by P.L. 1960, ch. 147, § 2. For present provisions of law, see Uniform Commercial Code, title 6A.

Compiler’s Notes.

Former §§ 34-24-1 — 34-24-7) concerned mortgages of personal property.

34-24-8. Agreements affecting landlord’s interests — Agreements to subordinate prior liens.

An assignment of or an agreement affecting any rights or interests of a landlord or owner of premises occupied by a tenant or person planting on shares, or an agreement to subordinate a prior lien or encumbrance on real property, may be recorded in the land records in the office of the clerk of the town in which the premises are situated, and the clerk shall in each case enter a reference to the record of the subordination agreement on the margin of the record of the instrument affected thereby. Any agreement herein provided for shall be valid and enforceable against the party executing the agreement from the time of execution and delivery thereof and against all creditors of the party and all persons claiming under or through the party from the time of the recording thereof.

History of Section. P.L. 1935, ch. 220, § 4; G.L. 1938, ch. 443, § 4; G.L. 1956, § 34-24-8 ; P.L. 1960, ch. 147, § 3.

Collateral References.

Lease or contract which reserves title to crops in lessor, necessity of filing. 14 A.L.R. 1362.

34-24-9 — 34-24-13. Repealed.

History of Section. P.L. 1935, ch. 2200, §§ 5-8; P.L. 1936, ch. 2389, § 1; G.L. 1938, ch. 443, §§ 5-8; G.L. 1956, §§ 34-24-9 to 34-24-13; Repealed by P.L. 1960, ch. 147, § 2. For the present provisions of law, see Uniform Commercial Code, title 6A.

Compiler’s Notes.

Former §§ 34-24-9 — 34-24-13 concerned mortgages of personal property.

Chapter 25 Future Loans and After-Acquired Property

34-25-1. Real estate mortgage to secure future loans — Amounts and purposes of loans covered.

  1. Whenever a mortgage deed in statutory form or other form mortgaging real property is entitled at the beginning thereof “Mortgage to secure present and future loans under §§ 34-25-1 — 34-25-5 ” and contains in its provisions a provision to the effect that it is intended to secure present and future loans and states a maximum amount as the total of the principal amount of loans to be secured thereby, hereinafter referred to as the stated maximum amount, the mortgage deed shall be security from the time of its recording in the records for recording real estate mortgages in the city or town in which the real property mortgaged therein is located for all loans which at the time of or before the recordings are made or agreed to be made by the mortgagee to the mortgagor on the security of the mortgage and shall also constitute security from the time of its recording for all additional loans made from time to time by the mortgagee to the mortgagor on the security of the mortgage after the recording of the mortgage and prior to its discharge of record, whether or not made after reduction of the principal of any loan made on the security of the mortgage. The mortgage shall also be security for interest, taxes, insurance premiums and other obligations undertaken by such mortgagor in the mortgage deed or in the note or notes secured thereby, notwithstanding that the interest, taxes, insurance premiums and other obligations, when added to the total principal amount of the loans outstanding at any time, may cause the amount secured by the mortgage to exceed the stated maximum amount.
  2. Provided, however, that such stated maximum amount shall not be an amount which exceeds by more than three thousand dollars ($3,000) the total of the principal amount of loans which at the time of or before the recording the mortgagee made or agreed to make to the mortgagor.
  3. And provided further, that that portion of the total amount of the principal of all loans outstanding at any one time made on the security of the mortgage in excess of the stated maximum amount shall not, to the extent of such excess, be secured by the mortgage while the total amount outstanding is in excess of the stated maximum amount.

History of Section. G.L. 1938, ch. 442, § 20; P.L. 1952, ch. 3018, § 1; G.L. 1956, § 34-25-1 .

Cross References.

Effect of mortgage to secure future loans, § 34-11-23 .

Redemption right of mortgagor or vendor with defeasance, § 34-23-2 et seq.

Comparative Legislation.

Mortgages to secure future advances:

Conn. Gen. Stat. § 49-3 et seq.

Mass. Ann. Laws ch. 183, § 28A.

Collateral References.

Debts included in provision of mortgage purporting to cover unspecified future or existing debts. 3 A.L.R.4th 690.

Extension of existing real estate mortgage or deed of trust by subsequent agreement to cover additional indebtedness. 76 A.L.R. 574.

Future advances, limit of amount specified in mortgage for, as affected by repayment of part of the advances. 152 A.L.R. 1182.

Future advances, what amounts to a mortgage for. 1 A.L.R. 1586.

Omission of amount of debt in mortgage, effect of. 145 A.L.R. 369.

Unlimited future advances, validity of mortgage securing. 81 A.L.R. 631.

34-25-2. Priority of future loan mortgages over encumbrances not previously recorded.

The mortgage and the rights established therein shall, to the extent of the loans secured thereby, and interest, taxes, insurance premiums, and other obligations secured thereby, have full priority over all mortgages, liens and encumbrances which have not been recorded prior to such recording of the mortgage deed except as otherwise hereinafter provided.

History of Section. G.L. 1938, ch. 442, § 20; P.L. 1952, ch. 3018, § 1; G.L. 1956, § 34-25-2 .

34-25-3. Priority of attachment, execution, or lis pendens over subsequent loans.

If, after the recording of the mortgage, any writ of attachment attaching the real estate mortgaged under the mortgage or any execution against the real estate or any notice of lis pendens affecting the real estate is recorded in the records of the city or town, loans on the security of the mortgage, made after the attachment, execution or lis pendens becomes so of record, shall not have priority over the attachment, execution or notice of lis pendens, except that loans which the mortgagee at or before the recording of the mortgage made or agreed with the mortgagor to make on the security of the mortgage and additional loans made on the security of the mortgage pursuant to the provisions of §§ 34-25-1 — 34-25-5 prior to such recording of the attachment, execution or lis pendens, together with interest thereon, and the taxes, insurance premiums and obligations of the mortgagor as the mortgagee has agreed, or which the mortgagor has given the mortgagee the right, to pay in connection with the mortgage, shall continue to have priority over the attachment, execution or lis pendens.

History of Section. G.L. 1938, ch. 442, § 20; P.L. 1952, ch. 3018, § 1; G.L. 1956, § 34-25-3 .

34-25-4. Relinquishment of security as to additional loans — Stipulation as to amount due.

If the mortgagor shall desire that the privilege shall be terminated of having the mortgage constitute security for further loans in addition to the loans which the mortgagee at or before the recording of the mortgage made or agreed with the mortgagor to make on the security of the mortgage, and shall desire that the principal amount of loans made or agreed upon prior to the recording on the security of the mortgage and loans made after the recording shall be established as a matter of record, and if the mortgagor shall in writing by registered or certified mail notify the mortgagee of such desire. The mortgagee shall execute and deliver to the mortgagor at the address within this state specified in the notice a stipulation in writing setting forth the principal amount of loans made or agreed to be made on the security of the mortgage prior to the time of the receipt of the notice and relinquishing the right to have the mortgage constitute security for additional loans made to the mortgagor subsequent to the receipt of the written notice except loans which the mortgagee prior to receipt of the notice agreed to make to the mortgagor. The mortgagor shall offer the stipulation for record in the records of land evidence with payment for the recording thereof, and the recorder of deeds shall record the stipulation when so offered and shall cause reference thereto to be made on the original recording of the mortgage. The recording fee for recording any such stipulation shall not exceed four dollars ($4.00).

History of Section. G.L. 1938, ch. 442, § 20; P.L. 1952, ch. 3018, § 1; P.L. 1956, ch. 3717, § 1; G.L. 1956, § 34-25-4 ; P.L. 1986, ch. 331, § 2.

34-25-5. Mortgages to which §§ 34-25-1 — 34-25-5 apply.

  1. “Mortgage,” as used in §§ 34-25-1 — 34-25-5 , means a real estate, mortgage deed or real estate mortgage instrument entitled “Mortgage to secure present and future loans under §§ 34-25-1 — 34-25-5 ,” and which includes in its provisions the aforesaid provision to the effect that it is intended to secure present and future loans and which states a maximum amount as the total of the amount of loans to be secured thereby; but §§ 34-25-1 to 34-25-6 shall not apply to nor affect, directly, indirectly or by implication, any mortgage made before April 29, 1952, and shall not apply to nor affect, directly, indirectly, or by implication, any mortgage thereafter made, whether or not it provides for future loans, unless it contains the provisions required in § 34-25-1 and is also entitled at the beginning thereof “Mortgage to secure present and future loans under §§ 34-25-1 to 34-25-5.”
  2. “Mortgagor,” as used in §§ 34-25-1 — 34-25-5 , means and includes wherever applicable the mortgagor and mortgagors named in the “mortgage,” his, her, its or their heirs, executors, administrators, successors or assigns.
  3. “Mortgagee,” as used in §§ 34-25-1 — 34-25-5 , means and includes wherever applicable the mortgagee and mortgagees named in the “mortgage,” his, her, its or their executors, administrators, successors or assigns.

History of Section. G.L. 1938, ch. 442, § 20; P.L. 1952, ch. 3018, § 1; G.L. 1956, § 34-25-5 .

34-25-6. Mortgagees authorized to take future loan mortgages.

  1. Domestic building-loan associations, whether organized by special act of the general assembly or pursuant to the provisions of chapter 22 of title 19, foreign building-loan associations subject to the provisions of chapter 24 of title 19, savings and loan associations organized under the laws of the United States of America, credit unions subject to the provisions of chapter 21 of title 19, and other financial institutions are expressly authorized to make loans secured by mortgages entitled as provided in § 34-25-1 and containing the provision required in § 34-25-1 to be contained in the provisions of such mortgages, provided that such loans comply in other respects with the requirements of law relating to loans secured by real estate mortgages made by such institutions.
  2. Other mortgagees are authorized to make loans on the security of such mortgages if such mortgages comply with the requirements of §§ 34-25-1 — 34-25-5 .

History of Section. P.L. 1952, ch. 3018, § 4; G.L. 1956, § 34-25-6 .

Cross References.

Authorized investments for savings deposits, § 19-9-13 .

34-25-7. Application of mortgages to after-acquired property of public utilities.

Notwithstanding the provisions of chapter 9 of title 6A, whenever any public utility, as defined in chapter 1 of title 39, shall have given a mortgage expressly including real or personal property to be acquired after the date of the execution of the mortgage, and the mortgage shall have been duly recorded, no further deed, conveyance or recording, or delivery of possession from the mortgagor to the mortgagee, his, her, or its heirs, executors, administrators, successors, or assigns shall be required as to any real or personal property situated in any town or city in which the mortgage shall have been duly recorded, if real property, or the office of the secretary of state, if personal property, and all right, title and interest of the public utility in and to any real or personal property situated in any town or city in which the mortgage shall have been duly recorded, if real property, or the office of the secretary of state, if personal property, and acquired by the mortgagor after the execution and prior to the discharge of the mortgage, unless otherwise expressly provided in the mortgage, shall vest in the mortgagee, his, her, or its heirs, executors, administrators, successors, or assigns, subject to the terms of the mortgage, as against all persons whatsoever, immediately upon the acquisition of the real or personal property by the mortgagor.

History of Section. G.L. 1938, ch. 302, § 19; P.L. 1929, ch. 1367, § 1; G.L. 1938, ch. 442, § 19; G.L. 1956, § 34-25-7 ; P.L. 1960, ch. 147, § 3.

Cross References.

Redemption rights of mortgagor of personal property, § 6A-9-601 et seq.

34-25-8. Open-end mortgages.

Whenever a mortgage deed in statutory form or other form mortgaging real property is clearly entitled at the beginning thereof “Open-end mortgage to secure present and future loans under chapter 25 of title 34” and in all other respects complies with the requirements of § 34-25-9 , the mortgage deed shall be security from the time of its recording in the records for recording real estate mortgages in the city or town in which the real property mortgaged therein is located for all mortgage debt secured thereby at the time of recording and for all future advances secured thereby in an aggregate principal amount outstanding at any time not to exceed the stated amount of such mortgage deed, whether or not the future advances are agreed to be made at the time of recording such mortgage deed and whether or not the mortgages readvances principal sums repaid. The mortgage shall also be security for interest, taxes, insurance premiums and such other obligations as are undertaken by the mortgagor in the mortgage deed or in the note or notes or agreement secured thereby, notwithstanding that the interest, taxes, insurance premiums and other obligations, when added to the total principal amount of such loans outstanding at any time may cause the amount secured by the mortgage deed to exceed the stated maximum amount. The application of this section shall be retroactive to June 1, 1983.

History of Section. P.L. 1983, ch. 230, § 1; P.L. 1984, ch. 238, § 1.

34-25-9. Form of open-end mortgage.

In order to be entitled to the benefits of this chapter, a mortgage deed shall comply with the following provisions:

  1. The mortgage deed shall contain specific provisions permitting the future advances;
  2. At no time shall the unpaid principal balance of indebtedness outstanding under the mortgage deed exceed the stated amount thereof;
  3. All future advances shall be evidenced by a note or notes and/or an agreement signed by the obligor whose indebtedness is secured by the mortgage deed;
  4. The original mortgage deed shall be executed and recorded on or after June 1, 1983; and
  5. The mortgage shall provide an address at which mortgagee will accept written notices pursuant to §§ 34-25-10(b) and 34-25-11 . The application of this section shall be retroactive to June 1, 1983.

History of Section. P.L. 1983, ch. 230, § 1; P.L. 1984, ch. 238, § 1.

34-25-10. Priority of open-end mortgages over encumbrances not previously recorded.

  1. The mortgage deed and the rights established therein, shall, to the extent of the loans secured thereby, and interest, taxes, insurance premiums and other obligations as secured thereby, have full priority over all mortgages, liens and encumbrances which have not been recorded prior to the recording of the mortgage deed except as otherwise hereinafter provided.
  2. If, after the recording of the mortgage deed, any writ of attachment attaching the real estate mortgaged under the mortgage deed or any execution against the real estate or any notice of lis pendens affecting the real estate or any subsequent mortgage or lien against such real estate be recorded in the records of the city or town, any optional or nonobligatory advances secured by the mortgage deed which are made by the mortgagee after receipt of written notice by the mortgagee at the address provided for such purpose in the mortgage deed, shall not have priority over the lien of the writ of attachment, execution, lis pendens or subsequent mortgage or lien, except that any obligatory advances which the mortgagee agreed to make by agreement entered into with mortgagor prior to receipt of written notice and any taxes, insurance premiums and obligations of the mortgagor as the mortgagee has agreed, or which the mortgagor has given the mortgagee the right, to pay in connection with the mortgage deed, shall continue to have priority over the writ of attachment, execution, lis pendens, or subsequent mortgage or lien. For the purposes of this chapter, an “obligator advance” is defined as any advance or principal which the mortgagee is obligated to make, absent the occurrence of an event of default under the mortgage or any corresponding loan agreement or notes, on or before a specified date or time or upon application therefor by the mortgagor or other obligor whose indebtedness is secured by the mortgage.

History of Section. P.L. 1983, ch. 230, § 1.

34-25-11. Relinquishment of security as to additional future advances — Stipulation as to amount due.

If the mortgagor desires to terminate the privilege of having the mortgage constitute security for further future advances in addition to all advances theretofore made by the mortgagee on the security of the mortgage, and desires to establish the then principal amount of loans outstanding and made on the security of the mortgage as a matter of record, the mortgagor shall, in writing, by registered or certified mail, send to the mortgagee at the address provided for such purpose in the mortgage, notice of the desire, then the mortgagee shall execute and deliver to the mortgagor at the address within this state specified in the notice, a stipulation, in writing, setting forth the then unpaid principal amount of loans outstanding and made on the security of the mortgage prior to the time of the receipt of the notice and relinquishing the right to have the mortgage constitute security for additional future advances made to the mortgagor subsequent to the receipt of written notice. The mortgagor shall offer the stipulation for record in the records of land evidence with payment for the recording thereof, and the recorder of deeds shall record the stipulation when so offered and shall cause reference thereto to be made on the original recording of the mortgage. The recording fee for recording any stipulation shall not exceed ten dollars ($10.00).

History of Section. P.L. 1983, ch. 230, § 1.

34-25-12. Discharge of open-end mortgage.

  1. Notwithstanding the provisions of § 34-26-2 , no mortgagee under an open-end mortgage subject to this chapter shall be obligated to discharge the mortgage until the mortgagee receives full satisfaction for the money due thereon and receives such written agreements as the mortgagee shall reasonably request releasing the mortgagee from any further obligation to make future advances under any and all notes and agreements theretofore secured by the mortgage deed.
  2. Notwithstanding the provisions of any agreement by and between the mortgagee and the mortgagor or any other person, the mortgagee under the mortgage shall have the option to discharge any mortgage if there has existed no outstanding indebtedness thereunder for a continuous period of not less than two (2) years, and effective upon the recording of the discharge, the mortgagee shall be released and discharged from any further obligation to make any loans or advances under any notes or agreements executed in connection with the mortgage.

History of Section. P.L. 1983, ch. 230, § 1.

34-25-13. Mortgages to which §§ 34-25-8 — 34-25-14 apply.

  1. “Mortgage,” as used in §§ 34-25-8 — 34-25-14 , means a real estate mortgage deed or real estate mortgage instrument entitled, “Open-end mortgage to secure present and future loans under chapter 25 of title 34”, and which includes in its provisions the terms and elements set forth in § 34-25-9 ; but this chapter shall not apply to nor affect, directly, indirectly or by implication, any mortgage made before June 1, 1983, and shall not apply to nor affect, directly, indirectly, or by implication, any mortgage thereafter made, whether or not it provides for future loans, unless it complies with the requirements of this chapter.
  2. “Mortgagor”, as used in §§ 34-25-8 — 34-25-14 , means and includes the mortgagor and mortgagors named in the “mortgage,” and his, her, its or their heirs, executors, administrators, successors, or assigns, as the case may be.

History of Section. P.L. 1983, ch. 230, § 1.

34-25-14. Mortgagees authorized to take open-end mortgages.

  1. Domestic building-loan associations, whether organized by special act of the general assembly or pursuant to the provisions of chapter 22 of title 19, foreign building-loan associations subject to the provisions of chapter 24 of title 19, savings and loan associations organized under the laws of the United States, credit unions subject to the provisions of chapter 21 of title 19, loan and investment banks subject to the provisions of chapter 20 of title 19 and other financial institutions are expressly authorized to make loans secured by mortgages entitled as provided in § 34-25-8 and containing the provisions required in §§ 34-25-8 and 34-25-9 to be contained in the provisions of such mortgages; provided, that such loans comply in other respects with the requirements of law, if any, relating to loans secured by real estate mortgages made by those institutions.
  2. Other mortgagees are authorized to make loans on the security of such mortgages if such mortgages comply with the requirements of §§ 34-25-8 — 34-25-14 .

History of Section. P.L. 1983, ch. 230, § 1.

Chapter 25.1 Reverse Mortgages

34-25.1-1. Reverse mortgages.

Whenever a mortgage deed in statutory form or other form mortgaging real property is clearly entitled at the beginning thereof, reverse mortgage to secure present and future loans under chapter 25 of this title and in all other respects complies with the requirements of § 34-25.1-2 , the mortgage deed shall be security from the time of its recording in the records for recording real estate mortgages in the city or town in which the real property mortgaged therein is located for all mortgage debt secured thereby at the time of recording and for all future advances secured thereby in an aggregate principal amount outstanding at any time not to exceed the stated amount of such mortgage deed, whether or not the future advances are agreed to be made at the time of recording such mortgage deed and whether or not the mortgages readvances principal sums repaid. The mortgage shall also be security for interest, taxes, insurance premiums, and such other obligations as are undertaken by the mortgagor in the mortgage deed or in the note or notes secured thereby, notwithstanding that interest, taxes, insurance premiums, and other obligations, when added to the total principal amount outstanding, at any time may cause the amount secured by the mortgage deed to exceed the stated maximum amount.

History of Section. P.L. 1986, ch. 475, § 1.

NOTES TO DECISIONS

Failure to File Probate Claim.

Federal appellate court predicted that the Rhode Island Supreme Court would hold that the failure to file a claim in the probate court did not bar a mortgagee holding a reverse mortgage from collecting the balance due through a foreclosure as the probate process did not extinguish a real estate mortgage but only extinguished personal liability for the underlying debt. Summers v. Fin. Freedom Acquisition LLC, 807 F.3d 351, 2015 U.S. App. LEXIS 18507 (1st Cir. 2015).

Collateral References.

Requirements Under State Law for Foreclosure on Home Equity Conversion Mortgages or So-Called Reverse Mortgages. 21 A.L.R.7th Art. 4 (2017).

34-25.1-2. Form of reverse mortgage.

In order to be entitled to the benefits of this chapter, a mortgage deed shall comply with the following provisions:

  1. The mortgage deed shall contain specific provisions permitting future advances;
  2. At no time shall the unpaid principal balance of indebtedness outstanding under the mortgage deed exceed the stated amount thereof;
  3. All future advances shall be evidenced by a note or notes signed by the obligor whose indebtedness is secured by the mortgage deed;
  4. The original mortgage deed shall be executed and recorded on or after January 1, 1985; and
  5. The mortgage shall provide an address at which mortgagee will accept written notices pursuant to §§ 34-25.1-3(b) and 34-25.1-4 .

History of Section. P.L. 1986, ch. 475, § 1.

34-25.1-3. Priority over encumbrances not previously recorded.

  1. The mortgage deed and the rights established therein, shall, to the extent of the loans secured thereby, and interest, taxes, insurance premiums and other obligations as secured thereby, have full priority over all mortgages, liens and encumbrances which have not been recorded prior to the recording of the mortgage deed except as otherwise hereinafter provided.
  2. If, after the recording of the mortgage deed, any writ of attachment attaching the real estate mortgaged under the mortgage deed or any execution against the real estate or any notice of lis pendens affecting the real estate or any subsequent mortgage or lien against the real estate be recorded in the records of the city or town, any optional or nonobligatory advances secured by the mortgage deed which are made by the mortgagee after receipt of written notice by the mortgagee at the address provided for such purpose in the mortgage deed, shall not have priority over the lien of the writ of attachment, execution, lis pendens or subsequent mortgage or lien, except that any obligatory advances which the mortgagee agreed to make by agreement entered into with mortgagor prior to receipt of written notice and any taxes, insurance premiums and obligations of the mortgagor that the mortgagee has agreed, or which the mortgagor has given the mortgagee the right, to pay in connection with the mortgage deed, shall continue to have priority over the writ of attachment, execution, lis pendens, or subsequent mortgage or lien. For the purposes of this chapter, an “obligatory advance” shall be defined as any advance of principal which the mortgagee is obligated to make, absent the occurrence of an event of default under the mortgage or any corresponding loan agreement or notes, on or before a specified date or time or upon application therefor by the mortgagor or other obligor whose indebtedness is secured by the mortgage.

History of Section. P.L. 1986, ch. 475, § 1.

34-25.1-4. Relinquishment of security as to additional future advances — Stipulation as to amount due.

If the mortgagor desires to terminate the privilege of having the mortgage constitute security for further future advances in addition to all advances theretofore made by the mortgagee on the security of the mortgage, and desires to establish the then principal amount of loans outstanding and made on the security of such mortgage as a matter of record, then the mortgagor shall, in writing, by registered or certified mail, send to mortgagee at the address provided for such purpose in the mortgage, notice of such desire, the mortgagee shall execute and deliver to the mortgagor at the address within this state specified in the notice, a stipulation, in writing, setting forth the then unpaid principal amount of loans outstanding and made on the security of the mortgage prior to the time of the receipt of the notice and relinquishing the right to have the mortgage constitute security for additional future advances made to the mortgagor subsequent to the receipt of the written notice. The mortgagor shall offer the stipulation for record in the records of land evidence with payment for the recording thereof, and the recorder of deeds shall record the stipulation when so offered and shall cause reference thereto to be made on the original recording of the mortgage. The recording fee for recording any stipulation shall not exceed ten dollars ($10.00).

History of Section. P.L. 1986, ch. 475, § 1.

34-25.1-5. Discharge of reverse mortgage.

  1. Notwithstanding the provisions of § 34-26-2 , no mortgagee under an open-end mortgage subject to this chapter shall be obligated to discharge such mortgage until such mortgagee receives full satisfaction for the money due thereon and such written agreements as the mortgagee shall reasonably request releasing such mortgagee from any further obligation to make future advances under any and all notes and agreements theretofore secured by such mortgage deed.
  2. Notwithstanding the provisions of any agreement by and between the mortgagee and the mortgagor or any other person, the mortgagee under any such mortgage shall have the option to discharge any such mortgage if there has existed no outstanding indebtedness thereunder for a continuous period of not less than two (2) years, and effective upon the recording of such discharge, such mortgagee shall be released and discharged from any further obligation to make any loans or advances under any notes or agreements executed in connection with such mortgage.

History of Section. P.L. 1986, ch. 475, § 1.

34-25.1-6. Mortgages to which this chapter applies.

  1. “Mortgage,” as used in this chapter, means a real estate mortgage deed or real estate mortgage instrument entitled, “Reverse mortgage to secure present and future loans under chapter 25.1 of title 34,” and which includes in its provisions the terms and elements set forth in § 34-25.1-2 ; but this chapter shall not apply to nor affect, directly, indirectly or by implication, any mortgage made before January 1, 1985, and shall not apply to nor affect, directly, indirectly, or by implication, any mortgage thereafter made, whether or not it provides for future loans, unless it complies with the requirements of this chapter.
  2. “Mortgagor,” as used in this chapter, means and includes the mortgagor and mortgagors named in the “mortgage,” and his, her, its or their heirs, executors, administrators, successors or assigns, as the case may be.

History of Section. P.L. 1986, ch. 475, § 1.

34-25.1-7. Reverse mortgage loan requirements.

  1. A reverse mortgage loan shall comply with all of the following requirements:
    1. Reverse mortgages may be written over any period in use by lending institutions, with the outstanding balance due and payable upon the first to occur of the maturity of the loan or the mortgagor’s default thereunder which cause the entire loan to become due and payable. A reverse mortgage loan may provide for a fixed or adjustable interest rate or combination thereof, including compound interest. Interest on a reverse mortgage loan shall be accumulated and due upon the first to occur of the maturity of the loan or the mortgagor’s default thereunder which cause the entire loan to become due and payable.
    2. Prepayment, in whole or in part, shall be permitted without penalty. Notwithstanding the foregoing, where a mortgagee has waived all of the usual fees associated with a reverse mortgage loan, a mortgagee may impose a prepayment penalty in accordance with the provisions of Rhode Island general laws § 34-23-5 , and shall provide that: (i) the prepayment penalty will be calculated as a percentage of the available credit commitment as stated in the reverse mortgage loan documents, which penalty shall not exceed the total of the usual fees that were initially absorbed by the mortgagee; and (ii) for a prepayment penalty imposed under the provisions of Rhode Island general laws subsection 34-23-5(b) , the amount of the prepayment penalty shall not exceed the total of the usual fees that were initially absorbed by the mortgagee, reduced on a prorate basis by the percentage of the months remaining in the prepayment penalty term to the full prepayment penalty term. A mortgagee may not impose a prepayment penalty under this subsection if the prepayment is caused by the occurrence of any event specified in Rhode Island general laws subdivisions 34-25.1-7 (5)(ii), (iii), (iv) or (v).
    3. If a reverse mortgage loan provides for periodic advances to a borrower, these advances shall not be reduced in amount or number based on any adjustment in the interest rate.
    4. A lender that is found by an appropriate court to have failed, beyond any applicable notice or cure periods, to make loan advances as required in the loan documents, shall forfeit to the borrower treble the amount wrongfully withheld plus interest at the legal rate.
    5. The reverse mortgage loan may become due and payable upon the occurrence of any one of the following events:
      1. The home securing the loan is sold or title to the home is otherwise transferred.
      2. All mortgagors cease occupying the home as a principal residence, except as provided in subdivision (6).
      3. For a period of longer than twelve (12) consecutive months, a mortgagor fails to occupy the property because of physical or mental illness and the property is not the principal residence of at least one other mortgagor.
      4. Any fixed maturity date agreed to by the lender and the mortgagor occurs.
      5. An event occurs which is specified in the loan documents and which jeopardizes the lender’s security.
    6. Repayment of the reverse mortgage loan shall be subject to the following additional conditions:
      1. Temporary absences from the home not exceeding one hundred twenty (120) consecutive days shall not cause the mortgage to become due and payable.
      2. Extended absences from the home exceeding one hundred twenty (120) consecutive days, but less than one year, shall not cause the mortgage to become due and payable if the mortgagor has taken prior action which secures and protects the home in a manner satisfactory to the lender, as specified in the loan documents.
      3. The lender’s right to collect reverse mortgage loan proceeds shall be subject to the applicable statute of limitations for written loan contracts. Notwithstanding any other provision of law, the statute of limitations shall commence on the date that the reverse mortgage loan becomes due and payable as provided in the loan agreement.
      4. The lender shall prominently disclose in the loan agreement any interest rate or other fees to be charged during the period that commences on the date that the reverse mortgage loan becomes due and payable, and that ends when repayment in full is made.
    7. A lender shall not require an applicant for a reverse mortgage to purchase an annuity as a condition of obtaining a reverse mortgage loan. A reverse mortgage lender or a broker arranging a reverse mortgage loan shall not:
      1. Offer an annuity to the mortgagor prior to the closing of the reverse mortgage or before the expiration of the right of the mortgagor to rescind the reverse mortgage agreement.
      2. Refer the mortgagor to anyone for the purchase of an annuity prior to the closing of the reverse mortgage or before the expiration of the right of the mortgagor to rescind the reverse mortgage agreement.
    8. Notwithstanding anything in chapter 34-25.1 to the contrary, the fees, costs and payments that may be charged in connection with the origination and closing of a reverse mortgage loan shall not be other than the following and only may be charged provided they are properly disclosed to the mortgagor(s) as required in chapter 34-25.1:
      1. An application fee, which may be collected prior to closing, shall be designated as such and shall not be a percentage of the principal amount of the loan or amount financed, and shall be reasonably related to the services to be performed;
      2. a loan origination fee;
      3. The cost of document preparation which is reasonably related to the services provided;
      4. The cost of appraising or surveying the property;
      5. The cost of a title examination, an abstract of title or title insurance;
      6. The cost of a tax search for tax liens existing at the time of closing if such search is not included in the title examination;
      7. The payment to discharge any existing liens on the real property securing the loan;
      8. The cost of recording the reverse mortgage loan;
      9. The cost of actual attorneys’ fees charged to the lender in connection with the closing of such loan;
      10. The cost of a credit report;
      11. The cost of a flood zone search;
      12. The cost of an inspection to be paid in connection with the origination of the loan but not subsequent to the loan closing;
      13. The payment for any repairs contracted for at or before the loan closing irrespective of whether such repairs are completed at the time of closing and/or whether the funds are held in escrow;
      14. The cost of purchasing mortgage insurance;
      15. The payment of real estate taxes and property insurance; and
      16. such other costs as shall be permitted to be charged by the director of the department of business regulation.
    9. Any reverse mortgage made in this state prior to July 14, 2006, the effective date of P.L. 2006, chapter 625, § 1, shall be deemed in compliance with chapter 34-25.1 as in effect as of July 14, 2006 if made pursuant to the provisions of § 255 of the National Housing Act and the regulations thereunder.
    10. With the exception of subsections 34-25.1-7 (a)(4), 34-25.1-7(a)(6)(iii) , 34-25.1-7(a)(7) , and 34-25.1-7(a)(9) , § 34-25.1-7 shall not apply to: (i) any national bank, federal savings bank or financial institution (as defined in § 19-1-1 ) that is insured by the Federal Deposit Insurance Corporation or to the wholly owned subsidiary of any of the foregoing; or: (ii) any reverse mortgage loan that is subject to and that complies with 12 U.S.C. § 1715z-20 and the federal regulations promulgated with respect thereto (including without limitation 24 CFR Part 206).

History of Section. P.L. 1986, ch. 475, § 1; P.L. 2006, ch. 625, § 1; P.L. 2008, ch. 19, § 1; P.L. 2008, ch. 21, § 1.

34-25.1-8. Mortgagees authorized to take reverse mortgages.

  1. Domestic building-loan associations, whether organized by special act of the general assembly or pursuant to the provisions of chapter 22 of title 19, foreign building-loan associations subject to the provisions of chapter 24 of title 19, savings and loan associations organized under the laws of the United States of America, credit unions subject to the provisions of chapter 21 of title 19, loan and investment banks subject to the provisions of chapter 20 of title 19 and other financial institutions are expressly authorized to make loan secured by mortgages entitled as provided in § 34-25.1-1 and containing the provisions required in §§ 34-25.1-1 and 34-25.1-2 to be contained in the provisions of the mortgages; provided that such loans comply in other respects with the requirements of law, if any, relating to loans secured by real estate mortgages made by such institutions and with the requirements of this chapter.
  2. Other mortgagees are authorized to make loans on the security of such mortgages if such mortgages comply with the requirements of this chapter.
  3. All reverse mortgage loan officers must be registered and/or licensed under Rhode Island general laws § 19-14-1 et seq. as mortgage loan originators, unless otherwise exempt.
  4. The authority of the director of the department of business regulation or his or her designee to revoke licenses pursuant to chapter 19-14-13 shall apply to any lender that fails to comply with the requirements of this chapter.

History of Section. P.L. 1986, ch. 475, § 1; P.L. 2008, ch. 19, § 1; P.L. 2008, ch. 21, § 1.

34-25.1-9. Required counseling.

  1. All lenders shall deliver to all reverse mortgage loan applicants a statement, if available, prepared by the office of healthy aging on the advisability and availability of independent counseling and information services. With respect to every reverse mortgage loan, the prospective mortgagor(s) shall complete a reverse mortgage counseling program. An original certificate, dated and signed by both the counselor and the mortgagor(s), certifying that the counseling required by this section has taken place, shall be delivered to the mortgagee at least three (3) business days prior to the closing of the loan. The lender shall not process a reverse mortgage loan application, other than ordering an automated valuation model, ordering a credit report, obtaining information required for inclusion in a loan application, including documenting and verifying credit, income, assets and property charges, evaluating extenuating circumstances and compensating factors, evaluating the results of the financial assessment in determining eligibility for a home equity conversion mortgage, determining whether a life expectancy set-aside will be required and whether the set-aside must be fully or partially funded, and completing a home equity conversion mortgage financial assessment worksheet; and ordering a preliminary title search, until the counseling required by this section has been completed and the certificate of counseling is delivered to the mortgagee.
  2. The reverse mortgage counseling program shall include, but is not limited to, all matters enumerated in subsections (e)(1) through (e)(6) of this section. The office of healthy aging shall maintain a list of counseling programs and agencies approved by the United States Department of Housing and Urban Development and the Federal Housing Administration to satisfy the requirements of this section and shall make such list available to all lenders and to the public, provided that: (1) the counseling agency is not affiliated with the reverse mortgage lender; and (2) the counseling agency complies with the counseling requirements of this section. The director of the office of healthy aging shall have the right to prescribe the form of counseling certificate that will meet the requirements of subsection (a) of this section.
  3. Counseling shall comply with the following requirements: (1) It shall be conducted in person; however, if the prospective mortgagor(s) cannot or choose(s) not to travel to a housing counseling agency and cannot be visited by a counselor in their home, telephone counseling shall be permitted by counseling agencies that are authorized by the United States Department of Housing and Urban Development or the Federal Housing Administration to conduct telephone counseling. (2) The reverse mortgage loan shall close within one hundred eighty (180) days after the prospective mortgagor(s) sign(s) the counseling certificate. If the reverse mortgage loan does not close within such one hundred eighty (180) day period, the parties shall be required to again comply with the counseling requirements of this section. (3) Mortgagees shall provide prospective mortgagors with the name of at least three (3) independent, authorized counseling agencies approved by the United States Department of Housing and Urban Development or the Federal Housing Administration. The mortgagee shall not recommend a counseling agency that is an affiliate of the mortgagee.
  4. In the event that counseling shall not be available free of charge, the mortgagee shall be responsible for the cost of the counseling to the extent that all other legitimate sources of funding the counseling including, without limitation, nonprofit organizations and grants have not been obtained. In the event that 12 U.S.C. § 1715z-20 or the federal regulations promulgated with respect thereto shall, at the time such counseling fee is due and payable by the mortgagee, expressly prohibit a mortgagee from being responsible for the cost of counseling, then subsection (d) of this section shall not apply to a reverse mortgage loan that is subject to 12 U.S.C. § 1715z-20 and the federal regulations promulgated with respect thereto.
  5. Counseling shall include, without limitation, discussion of the following with the prospective mortgagor(s):
    1. Options other than a reverse mortgage that are available to the mortgagor(s), including other housing, social service, health, and financial options;
    2. Other home equity conversion options that are or may become available to the mortgagor(s), such as other reverse mortgages, sale-leaseback financing, deferred payment loan, and property tax deferral;
    3. The financial implications of entering into a reverse mortgage;
    4. A disclosure that a reverse mortgage may have tax consequences, affect eligibility for assistance under federal and state programs, and have an impact on the estate and heirs of the homeowner(s), as well as an explanation of how the reverse mortgage may affect the estate and public benefits of the mortgagor(s);
    5. Such other topics as shall be required to be addressed during counseling with respect to a reverse mortgage pursuant to 12 U.S.C. § 1715z-20, and/or any regulations promulgated pursuant thereto; and
    6. Such other topics as shall be required to be addressed by the director of the office of healthy aging.
  6. Subsections (b), (c), (e) of this section shall not apply to any reverse mortgage loan that is subject to 12 U.S.C. § 1715z-20 and the federal regulations promulgated with respect thereto; provided that such loan complies with the counseling requirements set forth in 12 U.S.C. § 1715z-20 and the federal regulations promulgated with respect thereto (including without limitation 24 C.F.R. Part 206).

History of Section. P.L. 2008, ch. 19, § 2; P.L. 2008, ch. 21, § 2; P.L. 2015, ch. 128, § 1; P.L. 2015, ch. 135, § 1; P.L. 2016, ch. 511, art. 1, § 15.

Compiler’s Notes.

P.L. 2015, ch. 128, § 1, and P.L. 2015, ch. 135, § 1 enacted identical amendments to this section.

34-25.1-10. Pre-closing disclosures.

At least three (3) business days before closing of the loan, all mortgagees, or their authorized representative who is then duly licensed by the Rhode Island department of business regulation as lender or as a loan broker shall provide in writing all of the following information to, each prospective reverse mortgage mortgagor:

  1. All information as shall be required to be disclosed in connection with a reverse mortgage loan pursuant to the Truth in Lending Act (15 U.S.C. § 1601 et seq.), Regulation Z (12 CFR Part 226), and 12 U.S.C. § 1715z-20 and the federal regulations promulgated with respect thereto (including without limitation 24 CFR Part 206); and
  2. All other information as shall be required to be disclosed by the director of the department of business regulation.

History of Section. P.L. 2008, ch. 19, § 2; P.L. 2008, ch. 21, § 2; P.L. 2011, ch. 363, § 15.

34-25.1-11. Annual account statements and other required disclosures.

  1. At the closing of the reverse mortgage loan, the mortgagee shall provide to the mortgagor(s) contact information for the mortgagee’s (or its assignee’s or servicing agent’s, as the case may be) employee(s) or agent(s) who have been designated specifically to respond to inquiries concerning reverse mortgage loans. This information shall be provided by the mortgagee (or its assignee or servicing agent, as the case may be) to mortgagor(s) at least annually, and whenever this contact information concerning the designated employee(s) or agent(s) changes.
  2. On an annual basis and when the loan becomes due, the mortgagee shall issue to the mortgagor, without charge, a statement of account regarding the activity of the mortgage for the preceding calendar year, or for the period since the last statement of account was provided. The statement shall include all of the following information for the preceding year:
    1. The outstanding balance of the loan at the beginning of the statement period;
    2. Disbursements to the mortgagor;
    3. The total amount of interest added to the outstanding balance of the loan;
    4. Any property taxes, hazard insurance premiums, mortgage insurance premiums, or assessments paid by the mortgagee;
    5. Payments made to the mortgagee;
    6. The total mortgage balance owed to date;
    7. The remaining amount available to the mortgagor in reverse mortgage loans wherein proceeds have been reserved to be disbursed in one or more lump sum amounts; and
    8. All other information as shall be required to be disclosed by the director of the department of business regulation.

History of Section. P.L. 2008, ch. 19, § 2; P.L. 2008, ch. 21, § 2.

34-25.1-12. Non-binding on the applicant.

An applicant for a reverse mortgage loan shall not be bound for at least three (3) business days after all of the following shall have occurred: (1) The applicant’s execution and delivery to the mortgagee of a fully completed application for the reverse mortgage loan; (2) The applicant’s delivery to the mortgagee of the requisite fully completed and executed certificate in proper form evidencing the applicant’s completion of the counseling required pursuant to § 37-25.1-9 (as to any reverse mortgage loan that is exempt, pursuant to subsection 34-25.1-9(g), from the requirements of subsections 34-25.1-9(b) , (c) and (e), such certificate must meet the requirements of 12 U.S.C. § 1715z-20 and the federal regulations promulgated with respect thereto); and (3) The applicant’s receipt, in writing, of all of the information required to be disclosed pursuant to § 37-25.1-10. No reverse mortgage loan shall be closed prior to the expiration of this three (3) business day period, and this three (3) business day period shall be in addition to any right of rescission the mortgagors may have following the closing of the loan. In addition, no costs in connection with the application and processing of a proposed reverse mortgage loan shall be imposed upon any applicant for a reverse mortgage until the events described in subsections 34-25.1-12 (1) and (2) have occurred. Each mortgagee shall inform each applicant in writing of the applicant’s rights pursuant to § 34-25.1-12 simultaneously with providing the application to the applicant for completion.

History of Section. P.L. 2008, ch. 19, § 2; P.L. 2008, ch. 21, § 2.

34-25.1-13. Attorneys-in-fact — Guardians.

All mortgagees shall require any person who executes reverse mortgage loan documents as attorney-in-fact for another to deliver at the closing a written, notarized certification as to all of the following: (1) That the power of attorney is then in full force and effect and has not been revoked or otherwise terminated; and (2) That the attorney-in-fact acknowledges his or her fiduciary obligations to the principal pursuant to the power of attorney with respect to the reverse mortgage loan.

History of Section. P.L. 2008, ch. 19, § 2; P.L. 2008, ch. 21, § 2.

34-25.1-14. Regulations.

The director of the department of business regulation shall have the authority to promulgate such regulations as shall be reasonably necessary to carry out §§ 34-25.1-10 through 34-25.1-16 . The director of the department of business regulation shall also have the authority to promulgate regulations pursuant to § 34-25.1-7 with respect to unfair and deceptive trade practices. The director of the department of elderly affairs shall have the authority to promulgate such regulations as shall be reasonably necessary to carry out § 34-25.1-9 .

History of Section. P.L. 2008, ch. 19, § 2; P.L. 2008, ch. 21, § 2.

34-25.1-15. Property held in name or trust.

It is the intention of chapter 34-25.1 that the cash advances made under a reverse mortgage shall be made by the lender to the mortgagor. In the event that legal title to the property encumbered by a reverse mortgage is held in trust:

  1. The reverse mortgage proceeds may be received by the occupant of the property provided that the occupant is a beneficiary of the trust;
  2. References in subdivision 34-25.1-7(a)(5) to the mortgagor shall be deemed to refer to the occupant of the property provided that the occupant is a beneficiary of the trust;
  3. References in subdivision 34-25.1-7(s)(6) to absences from the home shall be deemed to refer to the occupant of the property provided that the occupant is a beneficiary of the trust.

History of Section. P.L. 2008, ch. 19, § 2; P.L. 2008, ch. 21, § 2; P.L. 2011, ch. 363, § 15.

34-25.1-16. Liberal construction.

This chapter shall be construed liberally in aid of its purpose of ensuring that reverse mortgage borrowers fully understand the ramifications of entering into a reverse mortgage transaction.

History of Section. P.L. 2008, ch. 19, § 2; P.L. 2008, ch. 21, § 2.

Chapter 25.2 Rhode Island Home Loan Protection Act

34-25.2-1. Short title.

This chapter shall be known as the “Rhode Island Home Loan Protection Act.”

History of Section. P.L. 2006, ch. 569, § 1; P.L. 2006, ch. 573, § 1.

34-25.2-2. Legislative findings.

The general assembly finds that predatory lending has become an increasing problem in this state, threatening the viability of many communities and causing decreases in home ownership. While the marketplace may appear to be operating effectively for most home loans, too many homeowners are falling victim to unprincipled creditors who provide loans at exorbitant costs and include terms which are unnecessary to secure repayment of the loan. The general assembly finds that as competition and self-regulation have not eliminated the predatory terms for home-secured loans, the consumer protection provisions of this chapter are necessary to encourage responsible lending.

History of Section. P.L. 2006, ch. 569, § 1; P.L. 2006, ch. 573, § 1.

34-25.2-3. Purpose.

The purpose of this act is to prohibit predatory lending practices in this state while preserving access to credit in the subprime market.

History of Section. P.L. 2006, ch. 569, § 1; P.L. 2006, ch. 573, § 1.

34-25.2-4. Definitions.

The following definitions shall apply for the purposes of this chapter, unless the context otherwise requires:

  1. “Accelerate” means the advancing of a loan agreement’s maturity date so that payment of the entire debt is due immediately.
  2. “Affiliate” means any company that controls, is controlled by, or is under common control with another company, as set forth in 12 U.S.C. § 1841.
  3. “Annual percentage rate” means the annual percentage rate for the loan calculated according to the provisions of 12 C.F.R. part 226.
  4. “Bona fide discount points” means an amount knowingly paid by the borrower for the express purpose of reducing, and which in fact does result in a bona fide reduction of, the interest rate applicable to the home loan; provided the undiscounted interest rate for the home loan does not exceed the conventional mortgage rate by two (2) percentage points for a home loan secured by a first lien, or by three and one-half (3.5) percentage points for a home loan secured by a subordinated lien.
  5. “Borrower” means any person obligated to repay the loan, including a co-borrower, co-signor or guarantor.
  6. “Brokering” means to act as a loan broker as defined in Rhode Island general laws § 19-14-1 .
  7. “Conventional mortgage rate” means the most recently published annual yield on conventional mortgages published by the board of governors of the Federal Reserve System, as published in statistical release H.15 or any publication that may supersede it, as of the applicable time set forth in 12 C.F.R. 226.32(a)(1)(i).
  8. “Conventional prepayment penalty” means any prepayment penalty or fee that may be collected or charged in a home loan, and that is authorized by law other than this chapter, provided the home loan: (1) does not have an annual percentage rate that exceeds the conventional mortgage rate by more than two (2) percentage points; and (2) does not permit any prepayment fees or penalties that exceed two percent (2%) of the amount prepaid.
  9. “Creditor” means any person who regularly makes available a home loan and shall include a loan broker.
  10. “Department” means the department of business regulation.
  11. “Director” means the director of the department of business regulation.
  12. “High-cost home loan” means a home loan in which the terms of the loan meet or exceed one of more of the thresholds as defined in subsection (r) of this section.
  13. “Home loan” means a loan, including an open-end credit plan, other than a reverse mortgage transaction, where the loan is secured by:
    1. A mortgage or deed of trust on real estate in this state upon which there is located or there is to be located a structure or structures designed principally for occupancy of from one to four (4) families which is or will be occupied by a borrower as the borrower’s principal dwelling; or
    2. A security interest on a manufactured home which is or will be occupied by a borrower as the borrower’s principal dwelling.
  14. “Loan originator” means a natural person employee of a lender or loan broker that is required to be licensed under Rhode Island general laws § 19-14-1 et seq., and who for or with the expectation of a fee, commission or other valuable consideration and whose job responsibilities include direct contact with applicants during the loan application process, which includes soliciting, negotiating, acquiring, arranging or making mortgage loans, or who in connection with the taking of loan applications or the taking of loan pre-approval requests obtains personal financial information or other documents, quotes loan rates or terms, or provides required disclosures.
  15. “Points and fees” means:
    1. All items included in the definition of finance charge in 12 C.F.R. 226.4(a) and 12 C.F.R. 226.4(b) except interest or the time price differential;
    2. All items described in 12 C.F.R. 226.32(b)(1)(iii);
    3. All compensation paid directly by a borrower to a loan broker including a loan broker that originates a loan in its own name in a table-funded transaction;
    4. All compensation paid indirectly to a loan broker from any source other than the borrower in excess of one percentage point of the total loan amount, including a loan broker that originates a loan in its own name in a table-funded transaction;
    5. The cost of all premiums financed by the creditor, directly or indirectly for any credit life, credit disability, credit unemployment or credit property insurance, or any other life or health insurance, or any payments financed by the creditor directly or indirectly for any debt cancellation or suspension agreement or contract, except that insurance premiums or debt cancellation or suspension fees calculated and paid in full on a monthly basis shall not be considered financed by the creditor;
    6. The maximum prepayment fees and penalties that may be charged or collected under the terms of the loan documents; and
    7. All prepayment fees or penalties that are incurred by the borrower if the loan refinances a previous loan originated or currently held by the same creditor or an affiliate of the creditor.
    8. For open-end loans, the points and fees are calculated by adding the total points and fees known at or before closing, including the maximum prepayment penalties which may be charged or collected under the terms of the loan documents, plus the minimum additional fees the borrower would be required to pay to draw down an amount equal to the total credit line.
    9. Points and fees shall not include:
      1. Points and fees up to and including one percent (1%) of the total loan amount attributable to bona fide fees paid to a federal or state government agency that insures payment of some portion of a home loan plus an amount not to exceed two percent (2%) of the total loan amount attributable to a bona fide discount points or a conventional prepayment penalty. In no case shall the total excluded points and fees in connection with a home loan exceed three percent (3%) of the total loan amount;
      2. Taxes, filing fees, recording and other charges and fees paid or to be paid to public officials for determining the existence of or for perfecting, releasing or satisfying a security interest; or
      3. Bona fide and reasonable fees paid to a person other than the creditor or an affiliate of the creditor for the following: fees for tax payment services; fees for flood certification; fees for pest infestation and flood determination; appraisal fees; fees for inspections performed prior to closing; credit reports; surveys; attorneys’ fees; notary fees; escrow charges, so long as not otherwise included under subparagraph (1) of this paragraph; title insurance premiums; and fire and hazard insurance and flood insurance premiums, provided that the conditions in 12 C.F.R. 226.4(d)(2) are met; or
  16. “Predatory lending” means any act and practice which is found in violation of those acts and practices prohibited by §§ 34-25.2-5 and 34-25.2-6 of this chapter.
  17. “Tangible, net benefit” means at the time of refinancing a home loan(s), the new home loan(s) meet, at a minimum, one of the following:
    1. The borrower’s new monthly payment(s) is lower than the total of all monthly obligations being financed, taking into account the costs and fees as disclosed on the HUD-1 settlement statement;
    2. There is a beneficial change in the amortization period of the new loan(s);
    3. The borrower receives cash in excess of the costs and fees, as disclosed on the HUD-1 settlement statement, as part of the refinancing;
    4. The borrower’s current note rate of interest is reduced, or in the event more than one loan in being refinanced, the weighted average note rate of the current loans is reduced;
    5. There is a change from an adjusted rate loan(s) to a fixed rate loan(s); or
    6. The refinancing is necessary to respond to a bona fide personal need or an order of a court of competent jurisdiction.
  18. “Threshold” means any one of the following two (2) items, as defined:
    1. “Rate threshold” means:
      1. For a first lien mortgage home loan, an interest rate equal to eight (8) percentage points over the yield on comparable United States treasury securities on the fifteenth (15th) day of the month immediately preceding the month in which the loan application was received by the lender; and
      2. For a subordinate mortgage lien, an interest rate equal to nine (9) percentage points over the yield on comparable United States treasury securities on the fifteenth (15th) day of the month immediately preceding the month in which the loan application was received by the lender;
    2. “Total points and fees threshold” means:
      1. For loans in which the total loan amount is fifty thousand dollars ($50,000) or more, the total points and fees payable in connection with the home loan less any excluded points and fees exceed five percent (5%) of the total loan amount; and
      2. For loans in which the total loan amount is less than fifty thousand dollars ($50,000) the total points and fees payable in connection with the home loan less any excluded points and fees exceed eight percent (8%) of the total loan amount.
  19. “Total loan amount” means the total amount the consumer will borrow, as reflected by the face amount of the note. For open-end loans, the total loan amount shall be calculated using the total line of credit allowed under the home loan at closing.

History of Section. P.L. 2006, ch. 569, § 1; P.L. 2006, ch. 573, § 1.

34-25.2-5. Prohibited acts and practices regarding home loans.

A home loan shall be subject to the following prohibited acts and practices.

  1. No creditor making a home loan shall finance, directly or indirectly, any credit life, credit disability, credit unemployment or credit property insurance, or any other life or health insurance, or any payments directly or indirectly for any debt cancellation or suspension agreement or contract, except that insurance premiums or debt cancellation or suspension fees calculated and paid in full on a monthly basis shall not be considered financed by the creditor.
  2. No creditor shall knowingly or intentionally engage in the unfair act or practice of flipping a home loan. “Flipping a home loan” is the making of a home loan to a borrower that refinances an existing home loan that was consummated within the prior sixty (60) months when the new loan does not have reasonable, tangible net benefit in accordance with subsection 34-25.2-4(q) , to the borrower considering all of the circumstances, including, but not limited to, the terms of both the new and refinanced loans, the cost of the new loan, and the borrower’s circumstances.
  3. No creditor shall recommend or encourage default on an existing loan or other debt prior to and in connection the closing or planned closing of a home loan that refinances all or any portion of such existing loan or debt.
  4. No home loan may contain a provision that permits the creditor, in its sole discretion, to accelerate the indebtedness. This provision does not prohibit acceleration of the loan in good faith due to the borrower’s failure to abide by the material terms of the loan.
  5. No home loan may contain a provision that allows a party to require a borrower to assert any claim or defense in a forum that is less convenient, more, costly, or more dilatory for the resolution of a dispute than a judicial forum established in this state where the borrower may otherwise properly bring a claim or defense or limits in any way claim or defense the borrower may have.

History of Section. P.L. 2006, ch. 569, § 1; P.L. 2006, ch. 573, § 1.

34-25.2-6. Limitations and prohibited practices regarding high-cost home loans.

A high-cost home loan shall be subject to the following additional limitations and prohibited practices:

  1. In connection with a high-cost home loan, no creditor shall directly or indirectly finance any points or fees which total is greater than five percent (5%) of the total loan amount or eight hundred dollars ($800) whichever is greater.
  2. No prepayment fees or penalties shall be included in the loan documents for a high-cost home loan.
  3. No high-cost home loan may contain a scheduled payment that is more than twice as large as the average of earlier scheduled payments. This provision does not apply when the payment schedule is adjusted to the seasonal or irregular income of the borrower.
  4. No high-cost home loan may include payment terms under which the outstanding principal balance or accrued interest will increase at any time over the course of the loan because the regularly scheduled periodic payments do not cover the full amount of interest due.
  5. No high-cost home loan may contain a provision that increases the interest rate after default. This provision does not apply to interest rate changes in a variable-rate loan otherwise consistent with the provisions of the loan documents, provided the change in the interest rate is not triggered by the event of default or the acceleration of the indebtedness.
  6. No high-cost home loan may include terms under which more than two (2) periodic payments required under the loan are consolidated and paid in advance from the loan proceeds provided to the borrower.
  7. A creditor may not make a high-cost home loan without first receiving certification from a counselor with a third-party nonprofit organization approved by the United States Department of Housing and Urban Development that the borrower has received counseling on the advisability of the loan transaction.
  8. A high-cost home loan shall not be extended to a borrower unless a reasonable creditor would believe at the time the loan is closed that one or more of the borrowers will be able to make the scheduled payments associated with the loan based upon a consideration of his or her current and expected income, current obligations, employment status, and other financial resources, other than the borrower’s equity in the collateral that secures the repayment of the loan. There is a rebuttable presumption that the borrower is able to make the scheduled payments to repay the obligation if, at the time the loan is consummated, said borrower’s total monthly debts, including amounts under the loan, do not exceed fifty percent (50%) of said borrower’s monthly gross income as verified by tax returns, payroll receipts, and other third-party income verification.
  9. A creditor may not pay a contractor under a home-improvement contract from the proceeds of a high-cost home loan, unless:
    1. The creditor is presented with a signed and dated completion certificate showing that the home improvements have been completed; and
    2. The instrument is payable to the borrower or jointly to the borrower and the contractor, or, at the election of the borrower, through a third-party escrow agent in accordance with terms established in a written agreement signed by the borrower, the creditor, and the contractor prior to the disbursement.
  10. A creditor may not charge a borrower any fees or other charges to modify, renew, extend, or amend a high-cost home loan or to defer any payment due under the terms of a high-cost home loan.
  11. A creditor shall not make available a high-cost home loan that provides for a late payment fee except as follows:
    1. The late payment fee shall not be in excess of three percent (3%) of the amount of the payment past due.
    2. The late payment fee shall only be assessed for a payment past due for fifteen (15) days or more or ten (10) days or more in cases of bi-weekly mortgage payment arrangement.
    3. The late payment fee shall not be imposed more than once with respect to a single late payment. If a late payment fee is deducted from a payment made on the loan, and the deduction causes a subsequent default on a subsequent payment, no late payment fee may be imposed for the default.
    4. A creditor shall treat each payment as posted on the same business day as it was received.
  12. All high-cost home loan documents that create a debt or pledge property as collateral shall contain the following notice on the first page in a conspicuous manner: “Notice: This a high-cost home loan subject to special rules under state law. Purchasers or assignees of this high-cost home loan may be liable for all claims and defenses by the borrower with respect to the home loan.”

History of Section. P.L. 2006, ch. 569, § 1; P.L. 2006, ch. 573, § 1; P.L. 2016, ch. 512, art. 1, § 22; P.L. 2017, ch. 451, § 14.

34-25.2-7. Assignee liability.

  1. Any person who purchases or is otherwise assigned a high-cost home loan shall be subject to all affirmative claims and any defenses with respect to the loan that the borrower could assert against the original creditor of the loan; provided, that this section shall not apply if the purchaser or assignee demonstrates by a preponderance of the evidence that it:
    1. Has in place at the time of the purchase or assignment of the subject loans, policies that expressly prohibit its purchase or acceptance of assignment of any high-cost home loans;
    2. Requires by contract that a seller or assignor of home loans to the purchaser or assignee represents and warrants to the purchaser or assignee that either: (a) the seller or assignor will not sell or assign any high-cost home loans to the purchaser or assignee; or (b) that such seller or assignor is a beneficiary of a representation and warranty from a previous seller or assignor to that effect; and
    3. Exercises reasonable due diligence at the time of purchase or assignment of high-cost home loans or within a reasonable period of time after the purchase or assignment of such high-cost home loans, intended by the purchaser or assignee to prevent the purchaser or assignee from purchasing or taking assignment of any high-cost home loans; provided, further, that reasonable due diligence shall provide for sampling and shall not require loan-by-loan review.
  2. In the event that a purchaser or assignee does not prevail under subsection (a), any recovery by a borrower, under this section, shall be limited to amounts required to reduce or extinguish the borrower’s liability under the high-cost home loan plus amounts required to recover costs, including reasonable attorneys’ fees. Any such claim asserted by a borrower against a subsequent holder or assignee of the high-cost home loan may be asserted by a borrower acting only in an individual capacity and must be asserted as follows:
    1. Within five (5) years of the closing of a high-cost home loan, a violation of this act in connection with the loan as an original action; and
    2. At any time during the term of a high-cost home loan, after an action to collect on the high-cost home loan or foreclose on the collateral securing the high-cost home loan has been initiated or the debt arising from the high-cost home loan has been accelerated or the high-cost home loan has become sixty (60) days in default, any defense, claim or counterclaim, or action to enjoin foreclosure or preserve or obtain possession of the home that secures the loan.
  3. The provisions of this section shall be effective notwithstanding any other provision of law; provided, that nothing in this section shall be construed to limit the substantive rights, remedies or procedural rights available to a borrower against any creditor, assignee or holder under any other law.

History of Section. P.L. 2006, ch. 569, § 1; P.L. 2006, ch. 573, § 1; P.L. 2007, ch. 54, § 1; P.L. 2007, ch. 67, § 1.

34-25.2-8. Civil action.

  1. An aggrieved borrower or borrowers may bring a civil action for injunctive relief or damages in a court of competent jurisdiction for any violation of this chapter.
  2. In addition, the court shall, as the court may consider appropriate:
    1. Issue an order or injunction rescinding a home mortgage loan contract which violates this chapter, or barring the lender from collecting under any home mortgage loan which violates this chapter;
    2. Issue an order or injunction barring any judicial or nonjudicial foreclosure or other lender action under the mortgage or deed of trust securing any home mortgage loan which violates this chapter;
    3. Issue an order or injunction reforming the terms of the home mortgage loan to conform to this chapter;
    4. Issue an order or injunction enjoining a lender from engaging in any prohibited conduct; or
    5. Impose such other relief, including injunctive relief, as the court may consider just and equitable.
  3. Originating or brokering a home loan that violates a provision of this section shall constitute a violation of this chapter.
  4. A creditor in a home loan who, when acting in good faith, fails to comply with the provisions of this act, will not be deemed to have violated this section if the creditor establishes that either:
    1. Within thirty (30) days of the loan closing and prior to the institution of any action under this chapter, the lender notifies the borrower of the compliance failure and makes appropriate restitution and whatever adjustments are necessary are made to the loan, at the choice of the borrower, to either:
      1. make the high-cost home mortgage loan satisfy the requirements of this chapter; or
      2. change the terms of the loan in a manner beneficial to the borrower so that the loan will no longer be considered a high-cost home mortgage loan; or
    2. The compliance failure was not intentional and resulted from a bona fide error notwithstanding the maintenance procedures reasonably adapted to avoid the errors, and within sixty (60) days after the discovery of the compliance failure and before the institution of any action under this chapter or the receipt of written notice of the compliance failure, the borrower is notified of the compliance failure, appropriate restitution is made and whatever adjustments are necessary are made to the loan, at the choice of the borrower, to either:
      1. make the high-cost home mortgage loan satisfy the requirements of this chapter; or
      2. change the terms of the loan in a manner beneficial to the borrower so that the loan will no longer be considered a high-cost home mortgage loan.

        Examples of a bona fide error may include clerical errors, errors in calculation, computer malfunction and programming, and printing errors. An error in legal judgment with respect to a person’s obligation under this chapter shall not be considered a bona fide error.

  5. Notwithstanding any provision to the contrary contained in this chapter regarding costs and attorneys’ fees, in any action instituted by a borrower who alleges that the defendant violated subsection 34-25.2-5(b) , the borrower shall not be entitled to costs and attorneys’ fees if the presiding judge, in the judge’s discretion, finds that, before the institution of the action by the borrower, the lender made a reasonable offer to cure and that offer was rejected by the borrower.

History of Section. P.L. 2006, ch. 569, § 1; P.L. 2006, ch. 573, § 1.

34-25.2-9. Subterfuge prohibited.

It shall be a violation of this chapter for any person to attempt in bad faith to avoid the application of this chapter by:

  1. Dividing any loan transaction into separate parts for the purpose of evading the provisions of this chapter;
  2. Structuring a home loan transaction as an open-end loan for the purpose of evading the provisions of this chapter when the loan would have been a high-cost home loan if the loan had been structured as a closed-end loan;
  3. Engaging in any other subterfuge with the intent of evading any provision of this chapter.

History of Section. P.L. 2006, ch. 569, § 1; P.L. 2006, ch. 573, § 1; P.L. 2011, ch. 363, § 16.

34-25.2-10. Rights in addition to other laws.

The rights conferred by this chapter are independent of and in addition to any other rights under other laws.

History of Section. P.L. 2006, ch. 569, § 1; P.L. 2006, ch. 573, § 1.

34-25.2-11. Exemption.

The provisions of this chapter shall not apply to:

  1. Any national bank, federal savings bank, federal credit union, credit union, or financial institution, as defined under § 19-1-1 , or their wholly-owned subsidiary; and
  2. The Federal Housing Administration, the Department of Veterans Affairs, or other state or federal housing finance agencies.

History of Section. P.L. 2006, ch. 569, § 1; P.L. 2006, ch. 573, § 1; P.L. 2007, ch. 54, § 1; P.L. 2007, ch. 67, § 1; P.L. 2011, ch. 363, § 16.

34-25.2-12. Department of business regulation.

The director may promulgate such rules and regulations as are necessary and proper to carry out the provisions of this chapter. Rules and regulations promulgated for subsections 34-25.2-4(q) and 34-25.2-5(b) may contain such factors, classifications, differentiations or other provisions, and may provide for such adjustments and exceptions for any class of transactions as, in the judgment of the director, are necessary or proper to carry out those sections, to prevent circumvention or evasion thereof or to facilitate compliance therewith.

History of Section. P.L. 2006, ch. 569, § 1; P.L. 2006, ch. 573, § 1.

34-25.2-13. Reporting.

The department shall report to the governor and the general assembly on or before January 1, 2009, with regard to the effectiveness of this act in achieving its purpose, which report shall include, but not be limited to:

  1. The reported incidence of prohibited practices by calendar quarter for the period January 1, 2007 through June 30, 2008;
  2. The disposition, if any, of the reported incidences of prohibited practices;
  3. Findings and recommendations with regard to any improvements, amendments, or changes that should be considered to make the act more effective in achieving its purposes or which may be necessary in order to assure fair availability of credit.

History of Section. P.L. 2006, ch. 569, § 1; P.L. 2006, ch. 573, § 1; P.L. 2011, ch. 363, § 16.

34-25.2-14. Liberal construction.

This chapter shall be construed liberally in aid of its declared purpose of protecting the homes and the equity of individual borrowers in this state.

History of Section. P.L. 2006, ch. 569, § 1; P.L. 2006, ch. 573, § 1.

34-25.2-15. Severability.

If any provision of this chapter or the application of this chapter to any person or circumstances is held invalid or unconstitutional, the invalidity or unconstitutionality shall not affect other provisions or applications of this chapter which can be given effect without the invalid or unconstitutional provision or application, and to this end, the provisions of this chapter are declared to be severable.

History of Section. P.L. 2006, ch. 569, § 1; P.L. 2006, ch. 573, § 1.

Chapter 26 Redemption, Release, and Transfer of Mortgages

34-26-1. Complaint to redeem.

Any person entitled in equity to redeem any mortgaged property, whether real or personal, may prefer a complaint to redeem the property, which complaint may be heard, tried and determined according to the usages in chancery and the principles of equity.

History of Section. G.L. 1896, ch. 207, § 14; G.L. 1909, ch. 258, § 14; G.L. 1923, ch. 302, § 14; G.L. 1938, ch. 442, § 14; G.L. 1956, § 34-26-1 .

Cross References.

Executor or administrator, redemption from, § 33-9-13 .

Redemption by executor or administrator, § 33-9-8 .

Redemption by plaintiff in attachment, § 10-5-29 .

Redemption of personalty by plaintiff in execution, § 9-26-10 .

Comparative Legislation.

Redemption:

Conn. Gen. Stat. § 49-8 et seq.

Mass. Ann. Laws ch. 244, § 18 et seq.

NOTES TO DECISIONS

Final Decree.

A decree which fixed the time for payment in order to redeem and provided that in default of payment the bill would be dismissed was a final decree, and if payment was not made within the time specified no final order dismissing the bill would be necessary. Hazard v. Robinson, 15 R.I. 226 , 2 A. 433, 1886 R.I. LEXIS 3 (1886).

Timeliness.

When the mortgagee who has possession ceases, after default, to recognize the mortgage and deals with the property as if it were his own, the mortgagor must bring his action within a reasonable time and equity courts will refer to the statutes of limitations in determining what is a reasonable time. Greene v. Dispeau, 14 R.I. 575 , 1884 R.I. LEXIS 61 (1884).

Collateral References.

Discharge of mortgage and taking back of new mortgage as affecting lien intervening between old and new mortgages. 43 A.L.R.5th 519.

Right of junior mortgagee whose mortgage covers only a part of land subject to first mortgage to redeem pro tanto, where he was not bound by foreclosure sale. 46 A.L.R.3d 1362.

34-26-2. Right to discharge on satisfaction of mortgage — Escrow accounts.

  1. Every mortgagee of real estate, his, her or its heirs, executors, administrators, successors, or assigns, having received full satisfaction for the money due on the mortgage, shall, within thirty (30) days after final payment, discharge the mortgage as provided in § 34-26-3 or by separate instrument of release of the mortgage, and shall send the discharge to be recorded in the proper record book with suitable references to the original record, including the mortgagor’s name and address, which shall forever afterwards discharge, defeat and release the mortgage and perpetually bar all actions to be brought thereon in any court. Upon forwarding the discharge for recording the mortgagee shall notify the mortgagor. Any mortgagor or his agent upon tendering final payment to the mortgagee in full satisfaction of the mortgage may in writing require the mortgagee to issue the discharge by separate instrument of release, directly to a designated person or real estate closing officer within the thirty (30) day period.
  2. Every mortgagee of real estate, his, her or its heirs, executors, administrators or successors or assigns, having received full satisfaction for the money due on the mortgage, shall, within thirty (30) days after final payment, disburse to the mortgagor any and all funds held in escrow under the terms of the mortgage.

History of Section. G.L. 1896, ch. 207, § 5; G.L. 1909, ch. 258, § 5; G.L. 1923, ch. 302, § 5; G.L. 1938, ch. 442, § 5; G.L. 1956, § 34-26-2 ; P.L. 1960, ch. 147, § 3; P.L. 1980, ch. 240, § 1; P.L. 1987, ch. 216, § 1; P.L. 1993, ch. 53, § 1; P.L. 1993, ch. 143, § 1; P.L. 2000, ch. 482, § 1.

NOTES TO DECISIONS

Nonresident Assignee.

This section does not prevent a nonresident assignee or personal representative of the mortgagee from exercising a power of sale contained in the mortgage instrument merely because a purchaser in such sale could not from the record identify such a seller or determine his power to make the sale. Thurber v. Carpenter, 18 R.I. 782 , 31 A. 5, 1895 R.I. LEXIS 11 (1895).

Purchase Option Contained in Mortgage.

Upon satisfaction of the original mortgage, a service station operator was no longer under any obligation to comply with the purchase option provision contained in the original lease with an oil company. Star Enterprise v. Thomas, 783 F. Supp. 1564, 1992 U.S. Dist. LEXIS 2576 (D.R.I. 1992).

Tender of Payment.

In order to trigger the mortgagee’s duty to discharge, the mortgagor must tender final payment of all amounts owed. The statute does not say that the duty to release arises when the mortgagor offers to tender, or shows an ability to tender. National Credit Union Admin. Bd. v. Regine, 795 F. Supp. 59, 1992 U.S. Dist. LEXIS 7577 (D.R.I. 1992).

Anything less than a complete tender is insufficient to initiate the mortgagee’s statutory duty to discharge. National Credit Union Admin. Bd. v. Regine, 795 F. Supp. 59, 1992 U.S. Dist. LEXIS 7577 (D.R.I. 1992).

Because a bank was mandated by R.I. Gen. Laws § 34-26-2(a) to discharge a mortgage once the debt was paid in full, and hence could not have assigned the mortgage to a mortgagor, the bank did not violate R.I. Gen. Laws §§ 34-26-4 and 34-26-5 in doing so. As a result, the bank was properly granted summary judgment on the claims filed against it by a mortgagor who sought an assignment of the mortgage. Kirshenbaum v. Fid. Fed. Bank, F.S.B., 941 A.2d 213, 2008 R.I. LEXIS 16 (2008).

Collateral References.

Cloud on title, satisfied or discharged mortgage as. 78 A.L.R. 101.

Compromise or settlement by one of the parties to a chattel mortgage, with a third person, on account of conversion or damage to property, as affecting other party. 92 A.L.R. 205.

Construction of covenant for partial release from mortgage. 41 A.L.R.3d 7.

Construction of provision in real estate mortgage, land contract, or other security instrument for release of separate parcels of land as payments are made. 41 A.L.R.3d 7.

Release or modification of chattel mortgage to which property was subject when attachment was levied, effect of. 128 A.L.R. 1392.

Tender, necessity of keeping good in equity to discharge lien. 12 A.L.R. 950.

Tender of amount of mortgage debt which is made upon condition of receipt in full or release of mortgage as affecting lien of mortgage. 93 A.L.R. 74.

34-26-3. Methods of discharge.

A mortgage may be discharged in whole or in part by an entry acknowledging the satisfaction thereof or the payment thereon, as the case may be, made on the face or back of the mortgage, or upon the face or margin of the record of the mortgage, in the records of land evidence, and signed by the mortgagee or by his or her executor, administrator, successor, or, if the mortgage be assigned, by the assignee or his or her executor or administrator; and such entry shall have the same effect as a deed of release duly acknowledged and recorded.

History of Section. G.L. 1896, ch. 207, § 6; G.L. 1909, ch. 258, § 6; G.L. 1923, ch. 302, § 6; G.L. 1938, ch. 442, § 6; G.L. 1956, § 34-26-3 .

Cross References.

Fees of town clerk, § 45-7-6 .

Married woman, discharge of mortgage by, § 15-4-2 .

NOTES TO DECISIONS

Mistake.

A defendant in a trespass and ejectment action could not defend on the grounds that he purchased a mortgage on the property which was assigned to him before commencement of the action and that his mortgage was discharged on the records by mistake. Fitzpatrick v. Fitzpatrick, 6 R.I. 64 , 1959 R.I. LEXIS 1 (1959).

Collateral References.

Applicability of parol evidence rule in favor of or against one not a party to contract of release. 13 A.L.R.3d 313.

Bank cashier’s implied authority to waive or surrender lien on property. 108 A.L.R. 713.

Foreign executor’s or administrator’s right to discharge mortgage. 10 A.L.R. 283.

Merger by uniting interest of chattel mortgagor and mortgagee in same person. 29 A.L.R. 702.

Mortgagor as released by consent of mortgagee to release or impairment of mortgage security by grantee of mortgagor. 112 A.L.R. 1343.

Quitclaim deed by mortgagee to mortgagor as satisfaction of mortgage. 44 A.L.R. 1273.

Reinstatement and restoration of mortgages released or discharged without authorization, as against subsequent purchasers, lienholders, judgment creditors, and the like, without notice. 35 A.L.R.2d 948.

Requiring security as condition of canceling of record mortgage or lien, or of recording payment. 2 A.L.R.2d 1064.

Rescission as essential to cancelation of chattel mortgage voidable for fraud or failure of consideration. 109 A.L.R. 1032.

Trustee’s duty and liability as to release. 90 A.L.R.2d 501.

34-26-4. Requiring assignment of mortgage in lieu of discharge — Enforcement by incumbrancers.

Where a mortgagor is entitled to redeem, he or she shall by virtue of this section have power to require the mortgagee, instead of discharging or reconveying, and on the terms on which he or she would be bound to discharge or reconvey, to assign the mortgage debt and convey the mortgaged property to such third person as the mortgagor directs; provided, that the mortgagor assumes the expense of making the assignment and conveyance, and obligates himself or herself to have the same recorded, and the fact of the transfer being made shall be prima facie evidence that the assumption of expense and the obligation have been made; and the mortgagee shall, by virtue of this section, be bound, on being relieved of all expense and having the obligation made to him or her, to assign and convey accordingly; and the right shall belong to and be capable of being enforced by each incumbrancer, or by the mortgagor, notwithstanding any intermediate incumbrance, but a requisition of an incumbrancer shall prevail over a requisition of the mortgagor and, as between incumbrancers, a requisition of a prior incumbrancer shall prevail over a requisition of a subsequent incumbrancer. This section does not apply in the case of a mortgagee being or having been in possession.

History of Section. G.L. 1896, ch. 207, § 7; G.L. 1909, ch. 258, § 7; G.L. 1923, ch. 302, § 7; G.L. 1938, ch. 442, § 7; G.L. 1956, § 34-26-4 .

Cross References.

Foreign executor, administrator or guardian, transfer of mortgage by, § 33-18-24 .

NOTES TO DECISIONS

Construction With Other Law

Because a bank was mandated by R.I. Gen. Laws § 34-26-2(a) to discharge mortgage once the debt was paid in full, and hence could not have assigned the mortgage to a mortgagor, the bank did not violate R.I. Gen. Laws §§ 34-26-4 and 34-26-5 in doing so. As a result, the bank was properly granted summary judgment on the claims filed against it by a mortgagor who sought an assignment of the mortgage. Kirshenbaum v. Fid. Fed. Bank, F.S.B., 941 A.2d 213, 2008 R.I. LEXIS 16 (2008).

Assignee as Incumbrancer.

The assignee of a mortgagee was not an incumbrancer within the meaning of this section so as to have a right to retain mortgage against demand of life tenant entitled to redeem. Atwood v. Charlton, 21 R.I. 568 , 45 A. 580, 1900 R.I. LEXIS 25 (1900).

Co-Mortgagors.

One of two co-mortgagors could not compel assignment of the mortgage under this statute, rather both had to join in the action. Green v. Walker, 22 R.I. 14 , 45 A. 742, 1900 R.I. LEXIS 31 (1900).

Although two co-mortgagors, acting together, might obtain an assignment, neither can do so alone. Harrington v. Harrington, 427 A.2d 1314, 1981 R.I. LEXIS 1097 (1981).

The assignment by a co-mortgagor, acting alone is a nullity. Harrington v. Harrington, 427 A.2d 1314, 1981 R.I. LEXIS 1097 (1981).

Counsel Fees.

This section does not permit a mortgagee refusing to assign mortgage and note to nominee of “incumbrancer” to recover counsel fees for defense of such action. Tierney v. Citizens' Sav. Bank, 51 R.I. 329 , 154 A. 653, 1931 R.I. LEXIS 48 (1931).

Devisee of Mortgagor.

Devisee of mortgaged real estate who held as life tenant could compel assignee of the mortgagee to transfer mortgages to a third person, as this section, being remedial, extends to those who have succeeded to the mortgagor’s right or title. Atwood v. Charlton, 21 R.I. 568 , 45 A. 580, 1900 R.I. LEXIS 25 (1900).

Dowress as Incumbrancer.

Bill to compel assignment of mortgage under this section was properly brought by widow of mortgagor entitled to dower, without joining remaindermen, such widow being an incumbrancer within the meaning of this statute. Harvey v. Chapman, 22 R.I. 316 , 47 A. 888, 1900 R.I. LEXIS 118 (1900).

Inchoate right of dower, being in the nature of a lien, was an incumbrance to be protected and conferred upon holder the right to redeem mortgage on the land and to have an assignment under this section. Atwood v. Arnold, 23 R.I. 609 , 51 A. 216, 1902 R.I. LEXIS 154 (1902).

Wife of co-mortgagor was entitled to an assignment of the mortgage and transfer of the note to her nominee, as an incumbrancer under this section, even though she released her right of dower in the mortgage deed, since she still had an interest in a right of redemption. Tierney v. Citizens' Sav. Bank, 51 R.I. 329 , 154 A. 653, 1931 R.I. LEXIS 48 (1931).

Wife who had signed note as a maker and had subjected her dower to a mortgage could not be enjoined from paying off the mortgage and having the mortgage assigned to her designee. O'Brien v. O'Brien, 73 R.I. 1 , 53 A.2d 501, 1947 R.I. LEXIS 49 (1947).

Estoppel as Against Incumbrancer.

Mortgagees were estopped from acquiring title as purchasers at foreclosure sale, as against junior incumbrancer, where mortgagees intentionally misrepresented to junior incumbrancer that the mortgage had been a good investment and that they would not foreclose without notifying him, which caused junior incumbrancer not to insist on transfer of mortgage on payment of amount due. Berarducci v. Diano, 60 R.I. 305 , 198 A. 351, 1938 R.I. LEXIS 147 (1938).

Pleadings.

Although bill to compel assignment of mortgages under this section should show that complainant obligated herself to have such assignments recorded, demurrer would not be sustained on that ground, inasmuch as the court could so provide by decree. Atwood v. Charlton, 21 R.I. 568 , 45 A. 580, 1900 R.I. LEXIS 25 (1900).

Allegations in bill that complainants tendered full amount due on the note, including interest to date of tender, tendered proper assignment, duly stamped, assumed expense of the transfer, obligated themselves to record, and tendered costs of advertising at mortgage sale were sufficient compliance without allegation that certain other specific items of expense had been tendered. Harvey v. Chapman, 22 R.I. 316 , 47 A. 888, 1900 R.I. LEXIS 118 (1900).

Priority of Requisitions.

Owner of land who stood in the place of mortgagor had no equity against one having inchoate right of dower in undivided half of such land, as the requisition of an incumbrancer prevails over that of a mortgagor. Atwood v. Arnold, 23 R.I. 609 , 51 A. 216, 1902 R.I. LEXIS 154 (1902).

Requisition Defined.

The word “requisition” is used in this section in its literal sense of an act of requiring or demanding and not as a desire to retain. Atwood v. Charlton, 21 R.I. 568 , 45 A. 580, 1900 R.I. LEXIS 25 (1900).

Rights of Incumbrancer.

Incumbrancer under this section has right to have mortgage in hands of one who will notify her of changes in the situation. Tierney v. Citizens' Sav. Bank, 51 R.I. 329 , 154 A. 653, 1931 R.I. LEXIS 48 (1931).

Collateral References.

Assignment of mortgage, right to demand, on paying or tendering amount due thereon. 93 A.L.R. 89.

Assignment of mortgage to mortgagor who has paid the mortgage debt after transfer of the property. 2 A.L.R. 242.

34-26-5. Liability of mortgagee for failure to discharge, release, or transfer mortgage.

  1. If any mortgagee, his, her or its heirs, executors, administrators, agents, successors, or assigns, shall not, within ten (10) days after a request made in that behalf and a tender of all reasonable charges therefor, discharge the mortgage in one of the modes aforesaid, or otherwise make and execute a release and quitclaim of the estate so mortgaged, and acknowledge it before some proper officer, or transfer the mortgage if required under the provisions of § 34-26-4 , he, she, or they so refusing shall be liable to make good all damages that shall accrue for want of the discharge, release, or transfer, to be recovered in a civil action; and in case judgment shall pass against the party sued, the mortgagee shall pay the plaintiff reasonable attorney’s fees and triple costs upon the suit.
  2. In the event of noncompliance with the provisions of either this section and/or § 34-26-2 , the mortgagee shall pay a penalty to the mortgagor for noncompliance in the amount of fifty dollars ($50.00) for a first day of noncompliance and five dollars ($5.00) for each day thereafter that the party remains in noncompliance. The mortgagor shall also be entitled to a reimbursement of reasonable attorney’s fees, if applicable, for the costs incurred by the mortgagor and/or his, her or its attorneys in attempting to obtain a discharge to which the mortgage was lawfully entitled pursuant to the provisions of this section and/or § 34-26-2 . Demand for penalties and, if applicable, attorney’s fees and costs pursuant to this section may be made to the department of business regulation, in those instances in which the mortgagee is a regulated institution as defined in Title 19, and the department shall direct such regulated institutions to pay applicable penalties and reimburse effected mortgagors for attorneys fees and costs incurred, on confirmed instances of noncompliance. The department may promulgate rules and regulations governing the processing of such reimbursement. In those instances in which the mortgagee is not a regulated institution as defined in Title 19, the Department shall provide the mortgagor with the name, address and telephone number of the regulatory agency having jurisdiction over the actions of such mortgagees.
  3. As used herein, the term “first day of noncompliance” shall mean the first day following the last day for a mortgagee or similar party to discharge the mortgage.

History of Section. G.L. 1896, ch. 207, § 8; G.L. 1909, ch. 258, § 8; G.L. 1923, ch. 302, § 8; G.L. 1938, ch. 442, § 8; G.L. 1956, § 34-26-5 ; P.L. 1986, ch. 216, § 1; P.L. 1999, ch. 476, § 1.

NOTES TO DECISIONS

Nonresident Assignee.

This section does not prevent a nonresident assignee or personal representative of the mortgagee from exercising a power of sale contained in the mortgage instrument merely because a purchaser in such sale could not from the record identify such a seller or determine his power to make the sale. Thurber v. Carpenter, 18 R.I. 782 , 31 A. 5, 1895 R.I. LEXIS 11 (1895).

Tender of Payment.

In order to trigger the mortgagee’s duty to discharge, the mortgagor must tender final payment of all amounts owed. The statute does not say that the duty to release arises when the mortgagor offers to tender, or shows an ability to tender. National Credit Union Admin. Bd. v. Regine, 795 F. Supp. 59, 1992 U.S. Dist. LEXIS 7577 (D.R.I. 1992).

Anything less than a complete tender is insufficient to initiate the mortgagee’s statutory duty to discharge. National Credit Union Admin. Bd. v. Regine, 795 F. Supp. 59, 1992 U.S. Dist. LEXIS 7577 (D.R.I. 1992).

Because a bank was mandated by R.I. Gen. Laws § 34-26-2(a) to discharge a mortgage once the debt was paid in full, and hence could not have assigned the mortgage to a mortgagor, the bank did not violate R.I. Gen. Laws §§ 34-26-4 and 34-26-5 in doing so. As a result, the bank was properly granted summary judgment on the claims filed against it by a mortgagor who sought an assignment of the mortgage. Kirshenbaum v. Fid. Fed. Bank, F.S.B., 941 A.2d 213, 2008 R.I. LEXIS 16 (2008).

Collateral References.

Conditional sale as within statute providing for penalty for failure to satisfy lien. 65 A.L.R. 1316.

Damages recoverable for real estate mortgagee’s refusal to discharge mortgage or give partial release therefrom. 8 A.L.R.4th 853.

Validity and construction of statute allowing penalty and damages against mortgagee refusing to discharge mortgage on real property. 56 A.L.R. 335.

34-26-6. Other forms of discharge or release preserved.

Nothing contained in this chapter shall be so construed as to defeat, invalidate, annul, or render ineffectual any other legal or equitable discharge, payment, satisfaction, or release of any mortgage.

History of Section. G.L. 1896, ch. 207, § 9; G.L. 1909, ch. 258, § 9; G.L. 1923, ch. 302, § 9; G.L. 1938, ch. 442, § 9; G.L. 1956, § 34-26-6 .

Collateral References.

Construction of provision in real estate mortgage, land contract, or other security instrument for release of separate parcels of land as payments are made. 41 A.L.R.3d 7.

Validity and effect of agreement that debt or legal obligation contemporaneously or subsequently incurred shall be canceled by death of creditor or obligee. 11 A.L.R.3d 1427.

34-26-7. Certain ancient mortgages becoming void unless continued.

On and after January 1, 1989, no power of sale in any mortgage of real estate, except mortgages made by public utilities and non-amortizing mortgages made by Rhode Island housing and mortgage finance corporation now or hereafter of record, shall be exercised and no entry shall be made, nor possession taken, nor proceeding begun for foreclosure of any such mortgage after the expiration of a period which shall be thirty-five (35) years from the date of recording of the mortgage, or in the case of a mortgage in which the term or maturity date is stated, five (5) years from the expiration of the term or maturity date, unless an extension of the mortgage, or an acknowledgment by affidavit of the mortgagee that the mortgage is not satisfied, is recorded before the expiration of the applicable time period. In case an extension of the mortgage or such an acknowledgment by affidavit is so recorded, the period shall continue until five (5) years shall have elapsed during which there is not recorded any further extension of the mortgage nor acknowledgment nor affidavit that the mortgage is not satisfied. The period shall not be extended by nonresidence nor disability of any person interested in the mortgage or the real estate, or by any partial payment, agreement, extension, acknowledgment, affidavit, or other action not meeting the requirements of this section. All extensions, agreements, affidavits and acknowledgments shall be indexed in the land evidence records under the name of the present landowner. Upon the expiration of the applicable period provided herein, the mortgage shall be treated for title purposes as if it had been properly discharged by the record holder thereof.

History of Section. P.L. 1970, ch. 200, § 1; P.L. 1986, ch. 217, § 1; P.L. 1988, ch. 139, § 1; P.L. 1988, ch. 215, § 1; P.L. 1989, ch. 293, § 1; P.L. 2015, ch. 96, § 1; P.L. 2015, ch. 106, § 1.

Compiler’s Notes.

P.L. 2015, ch. 96, § 1, and P.L. 2015, ch. 106, § 1 enacted identical amendments to this section.

Effective Dates.

P.L. 2015, ch. 96, § 2, provides that the amendment to this section by that act takes effect on June 19, 2016.

P.L. 2015, ch. 106, § 2, provides that the amendment to this section by that act takes effect on June 19, 2016.

Law Reviews.

Ethan M. Armitano, 2019 Survey: Bayview Loan Servicing, LLC v. Providence Business Loan Fund, Inc., 25 Roger Williams U. L. Rev. 677 (2020).

NOTES TO DECISIONS

Discharge.

Based on a reading of the plain language of the ancient mortgages statute, § 34-26-7 , the period of validity for a 1992 mortgage that stated a term of 10 years, with no maturity date, was 10 years plus five years following expiration of that term; therefore, the superior court properly ruled that the mortgage had been discharged by operation of the statute. Bayview Loan Servicing, LLC v. Providence Bus. Loan Fund, Inc., 200 A.3d 153, 2019 R.I. LEXIS 18 (2019).

Extension.

Although the amended mortgage was recorded, the purported extension of the mortgage set forth in a modification agreement was not recorded in the land evidence records and the modification agreement was the only document that stated the duration of the extension. Thus, the amendment failed to extend the term of the mortgage for the purposes set forth in the ancient mortgages statute, § 34-26-7 . Bayview Loan Servicing, LLC v. Providence Bus. Loan Fund, Inc., 200 A.3d 153, 2019 R.I. LEXIS 18 (2019).

34-26-8. Release of mortgage — Affidavit.

  1. For purposes of this section:
    1. “Mortgage” means a mortgage upon any interest in real property located in the State of Rhode Island.
    2. “Person” means an individual, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision or agency, or other legal or commercial entity;
    3. “Mortgagor” means the grantor of a mortgage;
    4. “Mortgagee” means the grantee of a mortgage; provided, if the mortgage has been assigned of record. “Mortgagee” means the last person to whom the mortgage has been assigned of record; provided further, if the mortgage has been serviced by a mortgage servicer, “Mortgagee” means the mortgage servicer;
    5. “Mortgage servicer” means the last person to whom the mortgagor has been instructed by the mortgagee to send payment of the mortgage. The person who has transmitted a payoff statement shall be deemed to be the mortgage servicer with respect to the mortgage described in that payoff statement;
    6. “Attorney-at-law” means any person admitted to practice law in this state and in good standing;
    7. “Title insurance company” means any corporation or other business entity authorized and licensed to transact the business of insuring titles to interests in real property in this state; and
    8. “Payoff statement” means a written statement of the amount of the unpaid balance on a mortgage, including principal, interest and other charges properly assessed pursuant to the loan documentation of such mortgage and of the interest on a per diem basis with respect to the unpaid principal balance of the mortgage.
  2. If a mortgagee fails to execute and deliver a release of mortgage to the mortgagor or to the mortgagor’s designated agent within thirty (30) days from receipt of payment of the mortgage by the mortgagee in accordance with the payoff statement furnished by the mortgagee, any attorney-at-law or duly authorized officer of a title insurance company may, on behalf of the mortgagor or any transferee of the mortgagor who has acquired title to the premises described in the mortgage, execute and cause to be recorded in the land records of each city or town where the mortgage was recorded, an affidavit which complies with the requirements of this section.
  3. An affidavit pursuant to this section shall state that:
    1. The affiant is an attorney-at-law or the authorized officer of a title insurance company, and that the affidavit is made in behalf of and at the request of the mortgagor;
    2. The mortgagee has provided a payoff statement with respect to the loan secured by the mortgage;
    3. The affiant has ascertained that the mortgagee has received payment of the loan secured by the mortgage in accordance with the payoff statement, as evidence by a bank check, certified check or attorney’s clients’ funds account which has been negotiated by the mortgagee or by other documentary evidence of such receipt of payment by the mortgagee;
    4. More than sixty (60) days have elapsed since payment was received by the mortgagee; and
    5. The affiant has given the mortgagee at least thirty (30) days’ notice in writing by certified mail, return receipt request and signed for and completed, of intention to execute and cause to be recorded an affidavit in accordance with this section with a copy of the proposed affidavit attached to such written notice, and that the mortgagee has not responded in writing to such notification, or that any request for additional payment made by the mortgagee has been complied with at least fifteen (15) days prior to the date of the affidavit.
  4. Such affidavit shall state the names of the mortgagor and the mortgagee, the date of the mortgage, and the volume and page of the land records where the mortgage is recorded. The affidavit shall give similar information with respect to any recorded assignment of the mortgage.
  5. The affiant shall attach to the affidavit:
    1. Photostatic copies of the documentary evidence that payment has been received by the mortgagee, including mortgagee’s endorsement of any bank check, certified check or attorney’s clients’ funds account,
    2. A photostatic copy of the written payoff statement and shall certify on each that it is a true copy of the original document, and
    3. Evidence of mailing and receipt notice to mortgagee.
  6. Such affidavit, when recorded, shall be a release of the lien of such mortgage of the property described therein.
  7. The city or town clerk shall index the affidavit in the name of the mortgagor as grantor.
  8. Any person who causes an affidavit to be recorded in the land records of any city or town in accordance with this section knowing the information and statements therein contained to be false may be fined not more than a dollar amount that is double the face amount of the mortgage falsely discharged and shall make restitution to the affected mortgagee to the extent such mortgagee suffers direct financial loss due to said mortgage being falsely discharged.
  9. The provisions of this section shall not be applicable to mortgages securing lines of credit nor to any mortgage held by a financial institution incorporated under the laws of the state of Rhode Island or to any mortgage held by any financial institution organized under federal laws and maintaining a principal place of business within the state of Rhode Island or to any mortgage held by the Rhode Island Housing and Mortgage Finance Corporation.

History of Section. P.L. 1995, ch. 131, § 1.

Chapter 27 Mortgage Foreclosure and Sale

34-27-1. Complaint to foreclose.

Any person entitled to foreclose the equity of redemption in any mortgaged estate, whether real or personal, may prefer a complaint to foreclose it, which complaint may be heard, tried, and determined according to the usages in chancery and the principles of equity.

History of Section. G.L. 1896, ch. 207, § 15; G.L. 1909, ch. 258, § 15; G.L. 1923, ch. 302, § 15; G.L. 1938, ch. 442, § 15; G.L. 1956, § 34-27-1 .

Cross References.

Agricultural mortgage, foreclosure by sale, § 6A-9-504 .

Ejectment brought by mortgagee, judgment, § 34-20-4 .

Housing authority mortgage, right to foreclose, § 45-27-10 .

Jurisdiction of superior court, § 8-2-14 .

Statutory form for power of sale in mortgage, § 34-11-22 .

Comparative Legislation.

Foreclosure:

Conn. Gen. Stat. § 49-1 et seq.

Mass. Ann. Laws ch. 244, § 1 et seq.

NOTES TO DECISIONS

Determination of Amount Due.

Determination of amount due on mortgage could not be made in a proceeding to enjoin foreclosure to which the then mortgagee was not a party. Walsh v. Morgan, 60 R.I. 349 , 198 A. 555, 1938 R.I. LEXIS 155 (1938).

Loss of Mortgage.

Loss of the original mortgage does not prevent foreclosure thereon. Walsh v. Morgan, 60 R.I. 349 , 198 A. 555, 1938 R.I. LEXIS 155 (1938).

Statute of Limitations.

Burden of proving that right to foreclose is barred by the lapse of time is on the mortgagor. Walsh v. Morgan, 60 R.I. 349 , 198 A. 555, 1938 R.I. LEXIS 155 (1938).

Fact that statute of limitations has expired as to action on the note does not bar foreclosure of the mortgage. Walsh v. Morgan, 60 R.I. 349 , 198 A. 555, 1938 R.I. LEXIS 155 (1938).

Collateral References.

Action for damages for attempted wrongful foreclosure. 104 A.L.R.6th 485.

Failure to keep up insurance as justifying foreclosure under acceleration provision in mortgage or deed of trust. 69 A.L.R.3d 774.

34-27-1.1. [Transferred.]

Compiler’s Notes.

The 1984 Reenactment (P.L. 1984, ch. 81, § 1) purported to redesignate § 34-27.1-1 as this section. However, the joint committee on legislative affairs retained the § 34-27.1-1 designation for the section pursuant to its powers under § 43-2-2.1 .

34-27-2. Right of mortgagee to bid at sale.

At any sale by public auction made under and according to the provisions of any mortgage of real estate, or of any power of sale contained therein or annexed thereto, the mortgagee in the deed of mortgage or other conveyance, or pledgee, his, her, or their assigns, or his, her, or their heirs, executors or administrators, or any person for him, her, or them, may fairly and in good faith bid for and purchase the estate or property so put up for sale, or any part thereof, in the same manner as it may be bid for and purchased by any other person.

History of Section. G.L. 1896, ch. 207, § 16; P.L. 1896, ch. 327, § 1; G.L. 1909, ch. 258, § 16; G.L. 1923, ch. 302, § 16; G.L. 1938, ch. 442, § 16; G.L. 1956, § 34-27-2 ; P.L. 1960, ch. 147, § 3.

NOTES TO DECISIONS

Conveyance to Mortgagee.

A mortgagee could convey the purchased property directly to himself. Woonsocket Inst. for Sav. v. American Worsted Co., 13 R.I. 255 , 1881 R.I. LEXIS 14 (1881).

Good Faith.

A mortgagee, trustee, or any one in behalf of mortgagee can bid in and purchase property providing it is done fairly and in good faith. Galvin v. Newton, 19 R.I. 176 , 36 A. 3, 1895 R.I. LEXIS 93 (1895).

Heirs of deceased mortgagor of part interest in business were entitled to establish a trust in the hands of an officer of mortgagee where officer bid in property at a time when there was no representative in the estate, in collusion with another owner of the business, and at a price far below the market value, since purchase was not done fairly and in good faith. Galvin v. Newton, 19 R.I. 176 , 36 A. 3, 1895 R.I. LEXIS 93 (1895).

A foreclosing mortgagee is not entitled to equitable relief for mistakes made when bidding at its own sale. Greenwood Credit Union v. Fleet Nat'l Bank, 675 A.2d 415, 1996 R.I. LEXIS 127 (1996).

Guardian and Ward.

This statute would not be extended to permit a guardian to purchase property of his ward under power of sale in mortgage executed to him by the ward prior to the guardianship. Horton v. Maine, 22 R.I. 126 , 46 A. 403, 1900 R.I. LEXIS 61 (1900).

Collateral References.

Accountability of mortgagee for profit made upon resale of the property after purchase thereof at foreclosure or other enforcement sale. 117 A.L.R. 863.

Bonds conditioned for improvement of property, or other obligation collateral to mortgage, purchase of mortgaged property by mortgagee as affecting liability on. 82 A.L.R. 762.

Conditional seller of fixtures, rights of, as against mortgagee of the realty purchasing at the foreclosure sale. 13 A.L.R. 456; 73 A.L.R. 758; 88 A.L.R. 1322; 111 A.L.R. 368; 141 A.L.R. 1286.

Legacy charged upon land devised, right of legatee to enforce, as against mortgagee of devisee purchasing at foreclosure sale. 116 A.L.R. 32; 134 A.L.R. 364.

Mortgagee’s purchase at his own foreclosure sale as affecting right of subrogation against him arising out of facts antedating sale. 141 A.L.R. 1217.

Rights and remedies of mortgagee where mortgaged property is bid on in foreclosure at less than mortgage debt and it is redeemed by mortgagor or latter’s grantee. 128 A.L.R. 796.

Rights of holder of “first refusal” option on real property in event of sale at foreclosure or other involuntary sale. 17 A.L.R.3d 962.

Taxes paid by mortgagee after judgment but before sale, right of mortgagee to be credited with amount of, on his bid at the sale. 60 A.L.R. 425.

Validity, construction and application of provision of mortgage or trust deed authorizing trustee to purchase property at foreclosure sale for benefit of bondholders. 130 A.L.R. 1349.

34-27-3. Discharge of purchaser at sale by payments to mortgagee.

The receipt in writing of a mortgagee shall be a sufficient discharge for any money accruing from sales made under the powers of sale conferred by his or her mortgage; and a person paying it to the mortgagee shall not be obliged to inquire whether any money remains due under the mortgage, or to see as to the application of such proceeds in case of sale.

History of Section. G.L. 1896, ch. 207, § 17; G.L. 1909, ch. 258, § 17; G.L. 1923, ch. 302, § 17; G.L. 1938, ch. 442, § 17; G.L. 1956, § 34-27-3 .

Cross References.

No implied warranty in sale of goods, § 6A-2-312 .

Railroad mortgage sale, rights and liabilities of purchaser, §§ 39-6-25 , 39-6-26 .

Securities registration law, exemption, § 7-11-401 .

34-27-3.1. Repealed.

History of Section. P.L. 2009, ch. 376, § 1; P.L. 2009, ch. 384, § 1; Repealed by P.L. 2014, ch. 543, § 2, effective October 8, 2014.

Compiler’s Notes.

Former § 34-27-3.1 concerned foreclosure counseling.

34-27-3.2. Mediation conference.

  1. Statement of policy.  It is hereby declared that residential mortgage foreclosure actions, caused in part by unemployment and underemployment, have negatively impacted a substantial number of homeowners throughout the state, creating a situation that endangers the economic stability of many of the citizens of this state as the increasing numbers of foreclosures lead to increases in unoccupied and unattended buildings and the unwanted displacement of homeowners and tenants who desire to live and work within the state.
  2. Purpose.  The statutory framework for foreclosure proceedings is prescribed under the provisions of chapter 27 of this title. As the need for a mortgage mediation process has evolved, it is important for the state to develop a standardized, statewide process for foreclosure mediation rather than a process based on local ordinances that may vary from municipality to municipality. By providing a uniform standard for an early HUD-approved, independent counseling process in owner-occupied principal residence mortgage foreclosure cases, the chances of achieving a positive outcome for homeowners and lenders will be enhanced.
  3. Definitions.  The following definitions apply in the interpretations of the provisions of this section unless the context requires another meaning:
    1. “Default” means the failure of the mortgagor to make a timely payment of an amount due under the terms of the mortgage contract, which failure has not been subsequently cured.
    2. “Department” means the department of business regulation.
    3. “Good faith” means that the mortgagor and mortgagee deal honestly and fairly with the mediation coordinator with an intent to determine whether an alternative to foreclosure is economically feasible for the mortgagor and mortgagee, as evidenced by some or all of the following factors:
      1. Mortgagee provided notice as required by this section;
      2. Mortgagee designated an agent to participate in the mediation conference on its behalf and with the authority to agree to a work-out agreement on its behalf;
      3. Mortgagee made reasonable efforts to respond in a timely manner to requests for information from the mediation coordinator, mortgagor, or counselor assisting the mortgagor;
      4. Mortgagee declined to accept the mortgagor’s work-out proposal, if any, and the mortgagee provided a detailed statement, in writing, of its reasons for rejecting the proposal;
      5. Where a mortgagee declined to accept the mortgagor’s work-out proposal, the mortgagee offered, in writing, to enter into an alternative work-out/disposition resolution proposal that would result in net financial benefit to the mortgagor as compared to the terms of the mortgage.
    4. “HUD” means the United States Department of Housing and Urban Development and any successor to such department.
    5. “Mediation conference” means a conference involving the mortgagee and mortgagor, coordinated and facilitated by a mediation coordinator whose purpose is to determine whether an alternative to foreclosure is economically feasible to both the mortgagee and the mortgagor, and if it is determined that an alternative to foreclosure is economically feasible, to facilitate a loan workout or other solution in an effort to avoid foreclosure.
    6. “Mediation coordinator” means a person employed by a Rhode Island-based, HUD-approved counseling agency designated to serve as the unbiased, impartial, and independent coordinator and facilitator of the mediation conference, with no authority to impose a solution or otherwise act as a consumer advocate, provided that such person possesses the experience and qualifications established by the department.
    7. “Mortgage” means an individual consumer first-lien mortgage on any owner-occupied, one (1)- to four (4)- unit residential property that serves as the mortgagor’s primary residence.
    8. “Mortgagee” means the holder of a mortgage, or its agent or employee, including a mortgage servicer acting on behalf of a mortgagee.
    9. “Mortgagor” means the person who has signed a mortgage in order to secure a debt or other duty, or the heir or devisee of such person provided that:
      1. The heir or devisee occupies the property as his or her primary residence; and
      2. The heir or devisee has record title to the property, or a representative of the estate of the mortgagor has been appointed with authority to participate in a mediation conference.
  4. The mortgagee shall, prior to initiation of foreclosure of real estate pursuant to § 34-27-4(b) , provide to the mortgagor written notice at the address of the real estate and, if different, at the address designated by the mortgagor by written notice to the mortgagee as the mortgagor’s address for receipt of notices, that the mortgagee may not foreclose on the mortgaged property without first participating in a mediation conference. Notice addressed and delivered as provided in this section shall be effective with respect to the mortgagor and any heir or devisee of the mortgagor.
    1. If the mortgagee fails to mail the notice required by this subsection to the mortgagor within one hundred twenty (120) days after the date of default, it shall pay a penalty at the rate of one thousand ($1,000) per month for each month or part thereof, with the first month commencing on the one hundred twenty-first (121st) day after the date of default and a new month commencing on the same day (or if there is no such day, then on the last day) of each succeeding calendar month until the mortgagee sends the mortgagor written notice as required by this section. Notwithstanding the foregoing, any penalties assessed under this subsection for any failure of any mortgagee to provide notice as provided herein during the period from September 13, 2013, through the effective date of this section shall not exceed the total amount of one hundred twenty-five thousand dollars ($125,000) for such mortgagee.
    2. Penalties accruing pursuant to subsection (d)(1) shall be paid to the mediation coordinator prior to the completion of the mediation process. All penalties accrued under this section shall be transferred to the state within one month of receipt by the mediation coordinator and deposited to the restricted-receipt account within the general fund established by § 42-128-2(3) and used for the purposes set forth therein.
    3. Issuance by the mediation coordinator of a certificate authorizing the mortgagee to proceed to foreclosure, or otherwise certifying the mortgagee’s good-faith effort to comply with the provisions of this section, shall constitute conclusive evidence that, to the extent that any penalty may have accrued pursuant to subsection (d)(1), the penalty has been paid in full by the mortgagee.
    4. Notwithstanding any other provisions of this subsection, a mortgagee shall not accrue any penalty if the notice required by this subsection is mailed to the borrower:
      1. Within sixty (60) days after the date upon which the loan is released from the protection of the automatic stay in a bankruptcy proceeding, or any similar injunctive order issued by a state or federal court, or within sixty (60) days after a loan is no longer afforded protection under the Servicemembers Civil Relief Act (50 U.S.C. § 3901 et seq.) or the provisions of § 34-27-4(d) , or within one hundred twenty (120) days of the date on which the mortgagor initially failed to comply with the terms of an eligible workout agreement, as hereinafter defined; and
      2. The mortgagee otherwise complies with the requirements of subsection (d); provided, however, that if the mortgagee fails to mail the notice required by subsection (d) to the mortgagor within the time frame set forth in subsection (d)(4)(i), the mortgagee shall pay a penalty at the rate of one thousand dollars ($1,000) per month for each month, or part thereof, with the first month commencing on the thirty-first (31st) day after the date upon which the loan is released from the protection of the automatic stay in a bankruptcy proceeding or any similar injunctive order issued by a state or federal court and a new month commencing on the same day (or if there is no such day, then on the last day) of each succeeding calendar month until the mortgagee sends the mortgagor written notice as required by this section. Notwithstanding the foregoing, any penalties assessed under this subsection for any failure of any mortgagee to provide notice as provided herein during the period from September 13, 2013, through the effective date of this section shall not exceed the total amount of one hundred twenty-five thousand dollars ($125,000) for such mortgagee.
    5. Notwithstanding any other provisions of this section, a mortgagee may initiate a judicial foreclosure in accordance with § 34-27-1 .
  5. A form of written notice meeting the requirements of this section shall be promulgated by the department for use by mortgagees at least thirty (30) days prior to the effective date of this section. The written notice required by this section shall be in English, Portuguese, and Spanish and may be combined with any other notice required under this chapter or pursuant to state or federal law.
  6. The mediation conference shall take place in person, or over the phone, at a time and place deemed mutually convenient for the parties by an individual employed by a HUD-approved, independent counseling agency selected by the mortgagee to serve as a mediation coordinator, but not later than sixty (60) days following the mailing of the notice. The mortgagor shall cooperate in all respects with the mediation coordinator including, but not limited to, providing all necessary financial and employment information and completing any and all loan resolution proposals and applications deemed appropriate by the mediation coordinator. A mediation conference between the mortgagor and mortgagee conducted by a mediation coordinator shall be provided at no cost to the mortgagor. The HUD-approved counseling agency shall be compensated by the mortgagee for mediation conferences that take place at a rate not to exceed five hundred dollars ($500) per mediation. The HUD-approved agency shall be entitled to a filing fee not to exceed one hundred dollars ($100) per mediation engagement.
  7. If, after two (2) attempts by the mediation coordinator to contact the mortgagor, the mortgagor fails to respond to the mediation coordinator’s request to appear at a mediation conference, or the mortgagor fails to cooperate in any respect with the requirements of this section, the requirements of the section shall be deemed satisfied upon verification by the mediation coordinator that the required notice was sent and any penalties accrued pursuant to subsection (d)(1) and any payments owed pursuant to subsection (f) have been paid. Upon verification, a certificate will be issued immediately by the mediation coordinator authorizing the mortgagee to proceed with the foreclosure action, including recording the deed. Such certificate shall be valid until the earlier of:
    1. The curing of the default condition; or
    2. The foreclosure of the mortgagor’s right of redemption.

      The certificate shall be recorded along with the foreclosure deed. A form of certificate meeting the requirements of this section shall be promulgated by the department for use by mortgagees at least thirty (30) days prior to the effective date of this section.

  8. If the mediation coordinator determines that after a good-faith effort made by the mortgagee at the mediation conference, the parties cannot come to an agreement to renegotiate the terms of the loan in an effort to avoid foreclosure, such good-faith effort by the mortgagee shall be deemed to satisfy the requirements of this section. A certificate certifying such good-faith effort will be promptly issued by the mediation coordinator authorizing the mortgagee to proceed with the foreclosure action and recording of the foreclosure deed; provided, however, that the mediation coordinator shall not be required to issue such a certificate until any penalties accrued pursuant to subsections (d)(1) and (d)(4)(ii), and any payments owed pursuant to subsection (f), have been paid. Such certification shall be valid until the earlier of:
    1. The curing of the default condition; or
    2. The foreclosure of the mortgagor’s equity of redemption.

      The certificate shall be recorded along with the foreclosure deed. A form of certificate meeting the requirements of this section shall be promulgated by the department for use by mortgagees at least thirty (30) days prior to the effective date of this section.

  9. If the mortgagee and mortgagor are able to reach agreement to renegotiate the terms of the loan to avoid foreclosure, the agreement shall be reduced to writing and executed by the mortgagor and mortgagee. If the mortgagee and mortgagor reach agreement after the notice of mediation conference is sent to the mortgagor, but without the assistance of the mediation coordinator, the mortgagee shall provide a copy of the written agreement to the mediation coordinator. Upon receipt of a written agreement between the mortgagee and mortgagor, the mediation coordinator shall issue a certificate of eligible workout agreement if the workout agreement would result in a net financial benefit to the mortgagor as compared to the terms of the mortgage (“Certificate of Eligible Workout Agreement”). For purposes of this subsection, evidence of an agreement shall include, but not be limited to, evidence of agreement by both mortgagee and mortgagor to the terms of a short sale or a deed in lieu of foreclosure, regardless of whether said short sale or deed in lieu of foreclosure is subsequently completed.
  10. Notwithstanding any other provisions of this section, where a mortgagor and mortgagee have entered into a written agreement and the mediation coordinator has issued a certificate of eligible workout agreement as provided in subsection (i), if the mortgagor fails to fulfill his or her obligations under the eligible workout agreement, the provisions of this section shall not apply to any foreclosure initiated under this chapter within twelve (12) months following the date of the eligible workout agreement. In such case, the mortgagee shall include in the foreclosure deed an affidavit establishing its right to proceed under this section.
  11. This section shall apply only to foreclosure of mortgages on owner-occupied, residential real property with no more than four (4) dwelling units that is the primary dwelling of the mortgagor and not to mortgages secured by other real property.
  12. Notwithstanding any other provisions of this section, any locally based mortgagees shall be deemed to be in compliance with the requirements of this section if:
    1. The mortgagee is headquartered in Rhode Island; or
    2. The mortgagee maintains a physical office, or offices, exclusively in Rhode Island from which office, or offices, it carries out full-service mortgage operations, including the acceptance and processing of mortgage payments and the provision of local customer service and loss mitigation and where Rhode Island staff have the authority to approve loan restructuring and other loss mitigation strategies; and
    3. The deed offered by a mortgagee to be filed with the city or town recorder of deeds as a result of a mortgage foreclosure action under power of sale contained a certification that the provisions of this section have been satisfied.
  13. No deed offered by a mortgagee as a result of a mortgage foreclosure action under power of sale shall be submitted to a city or town recorder of deeds for recording in the land evidence records of the city or town until and unless the requirements of this section are met. Failure of the mortgagee to comply with the requirements of this section shall render the foreclosure voidable, without limitation of the right of the mortgagee thereafter to re-exercise its power of sale or other means of foreclosure upon compliance with this section. The rights of the mortgagor to any redress afforded under the law are not abridged by this section.
  14. Any existing municipal ordinance or future ordinance that requires a conciliation or mediation process as a precondition to the recordation of a foreclosure deed shall comply with the provisions set forth herein and any provisions of said ordinances that do not comply with the provisions set forth herein shall be determined to be unenforceable.
  15. The provisions of this section shall not apply if:
    1. The mortgage is a reverse mortgage as described in chapter 25.1 of this title; or
    2. The date of default under the mortgage is on or before May 16, 2013.
  16. Limitations on actions.  Any person who claims that a foreclosure is not valid due to the mortgagee’s failure to comply with the terms of this section shall have one year from the date that the first notice of foreclosure was published to file a complaint in the superior court for the county in which the property is located and shall also file in the records of land evidence in the city or town where the land subject to the mortgage is located a notice of lis pendens, the complaint to be filed on the same day as the notice of lis pendens or within seven (7) days thereafter. Failure to file a complaint, record the notice of lis pendens, and serve the mortgagee within the one-year period shall preclude said mortgagor, or any other person claiming an interest through a mortgagor, from subsequently challenging the validity of the foreclosure. Issuance by the mediation coordinator of a certificate authorizing the mortgagee to proceed to foreclosure, or otherwise certifying the mortgagee’s good-faith effort to comply with the provisions of this section, shall constitute a rebuttable presumption that the notice requirements of subsection (d) have been met in all respects.

History of Section. P.L. 2013, ch. 325, § 1; P.L. 2013, ch. 406, § 1; P.L. 2014, ch. 543, § 1; P.L. 2015, ch. 147, § 1; P.L. 2015, ch. 155, § 1; P.L. 2018, ch. 72, § 3; P.L. 2018, ch. 73, § 3.

Compiler’s Notes.

P.L. 2013, ch. 325, § 1, and P.L. 2013, ch. 406, § 1 enacted identical amendments to this section.

P.L. 2015, ch. 147, § 1, and P.L. 2015, ch. 155, § 1 enacted identical amendments to this section.

P.L. 2018, ch. 72, § 3, and P.L. 2018, ch. 73, § 2 enacted identical amendments to this section.

Sunset Provision.

P.L. 2013, ch. 325, § 2, as amended by P.L. 2018, ch. 72, § 1 and P.L. 2018, ch. 73, § 1, provides that this section takes effect sixty (60) days following passage [July 15, 2013] and shall expire on July 1, 2023.

P.L. 2013, ch. 406, § 2, as amended by P.L. 2018, ch. 72, § 1 and P.L. 2018, ch. 73, § 1, provides that this section takes effect sixty (60) days following passage [July 15, 2013] and shall expire on July 1, 2023.

P.L. 2014, ch. 543, § 3, provides that the amendment to this section by that act takes effect ninety (90) days following passage [October 8, 2014] and shall expire on July 1, 2018.

34-27-4. Publication of notice under power of sale and rights of active military servicemembers.

  1. Whenever any real estate shall be sold under any power of sale mortgage executed subsequent to May 4, 1911, and the mortgage shall provide for the giving of notice of the sale by publication in some public newspaper at least once a week for three (3) successive weeks before the sale, the first publication of the notice shall be at least twenty-one (21) days before the day of sale, including the day of the first publication in the computation, and the third publication of the notice shall be no fewer than seven (7) days before the original date of sale listed in the advertisement, including the day of the third publication in the computation, and no more than fourteen (14) days before the original date of sale listed in the advertisement. The sale may take place no more than fourteen (14) days from the date on which the third successive notice is published, excluding the day of the third publication in the computation. Provided, however, that if the sale is adjourned as provided in § 34-11-22 , and the adjourned sale is held during the same calendar week as the originally scheduled day of sale, no additional advertising is required. Otherwise, publication of the notice of the adjourned sale, together with a notice of the adjournment or adjournments, shall be continued at least once each week commencing with the calendar week following the originally scheduled day of sale; the sale, as so adjourned, shall take place during the same calendar week in which the last notice of the adjourned sale is published, at least one day after the date on which the last notice is published.
  2. Provided, however, that no notice shall be valid or effective unless the mortgagor has been mailed written notice of the time and place of sale by certified mail return receipt requested at the address of the real estate and, if different, at the mortgagor’s address listed with the tax assessor’s office of the city or town where the real estate is located or any other address mortgagor designates by written notice to mortgagee at his, her, or its last known address, at least twenty (20) days for mortgagors other than individual consumer mortgagors, and at least thirty (30) days for individual consumer mortgagors, days prior to the first publication, including the day of mailing in the computation. The mortgagee shall include in the foreclosure deed an affidavit of compliance with this provision.
  3. Provided further, that the notice mailed to the mortgagor in accordance with subsection (b) above shall also contain a copy of subsection (d) below (printed in not less than 12 point type) headed by the following notice (printed in not less than 14 point type): “A servicemember on active duty or deployment or who has recently ceased such duty or deployment has certain rights under subsection 34-27-4(d) of the Rhode Island general laws set out below. To protect your rights if you are such a servicemember, you should give written notice to the servicer of the obligation or the attorney conducting the foreclosure, prior to the sale, that you are a servicemember on active duty or deployment or who has recently ceased such duty or deployment. This notice may be given on your behalf by your authorized representative. If you have any questions about this notice, you should consult with an attorney.” The mortgagee shall include in the foreclosure deed an affidavit of compliance with this provision.
  4. Foreclosure sales affecting servicemembers.
    1. The following definitions shall apply to this subsection and to subsection (c):
      1. “Servicemember” means a member of the army, navy, air force, marine corps, or coast guard and members of the national guard or reserves called to active duty.
      2. “Active duty” has the same meaning as the term is defined in 10 U.S.C. §§ 12301 — 12304. In the case of a member of the national guard, or reserves “active duty” means and includes service under a call to active service authorized by the president or the secretary of defense for a period of time of more than thirty (30) consecutive days under 32 U.S.C. § 502(f), for the purposes of responding to a national emergency declared by the president and supported by federal funds.
    2. This subsection applies only to an obligation on real and related personal property owned by a service member that:
      1. Originated before the period of the servicemember’s military service or in the case of a member of the national guard or reserves originated before being called into active duty and for which the servicemember is still obligated; and
      2. Is secured by a mortgage or other security in the nature of a mortgage.
    3. Stay of right to foreclose by mortgagee.  Upon receipt of written notice from the mortgagor or mortgagor’s authorized representative that the mortgagor is participating in active duty or deployment or that the notice as provided in subsection (c) was received within nine (9) months of completion of active duty or deployment, the mortgagee shall be barred from proceeding with the execution of sale of the property as defined in the notice until such nine (9) month period has lapsed or until the mortgagee obtains court approval in accordance with subdivision (d)(5) below.
    4. Stay of proceedings and adjustment of obligation.  In the event a mortgagee proceeds with foreclosure of the property during, or within nine (9) months after a servicemember’s period of active duty or deployment notwithstanding receipt of notice contemplated by subdivision (d)(3) above, the servicemember or his or her authorized representative may file a petition against the mortgagee seeking a stay of such foreclosure, after a hearing on such petition, and on its own motion, the court may:
      1. Stay the proceedings for a period of time as justice and equity require; or
      2. Adjust the obligation as permitted by federal law to preserve the interests of all parties.
    5. Sale or foreclosure.  A sale, foreclosure or seizure of property for a breach of an obligation of a servicemember who is entitled to the benefits under subsection (d) and who provided the mortgagee with written notice permitted under subdivision (d)(3) shall not be valid if made during, or within nine (9) months after, the period of the servicemember’s military service except:
      1. Upon a court order granted before such sale, foreclosure or seizure after hearing on a petition filed by the mortgagee against such servicemember; or
      2. If made pursuant to an agreement of all parties.
    6. Penalties.  A mortgagee who knowingly makes or causes to be made a sale, foreclosure or seizure of property that is prohibited by subsection (d)(3) shall be fined the sum of one thousand dollars ($1,000), or imprisoned for not more than one year, or both. The remedies and rights provided hereunder are in addition to and do not preclude any remedy for wrongful conversion otherwise available under law to the person claiming relief under this section, including consequential and punitive damages.
    7. Any petition hereunder shall be commenced by action filed in the superior court for the county in which the property subject to the mortgage or other security in the nature of a mortgage is situated. Any hearing on such petition shall be conducted on an expedited basis following such notice and/or discovery as the court deems proper.

History of Section. P.L. 1911, ch. 692, § 1; G.L. 1923, ch. 302, § 18; G.L. 1938, ch. 442, § 18; G.L. 1956, § 34-27-4 ; P.L. 1988, ch. 138, § 2; P.L. 1989, ch. 154, § 2; P.L. 1992, ch. 224, § 3; P.L. 1993, ch. 377, § 2; P.L. 2003, ch. 233, § 2; P.L. 2003, ch. 358, § 2; P.L. 2008, ch. 352, § 1; P.L. 2008, ch. 369, § 1; P.L. 2010, ch. 233, § 1; P.L. 2010, ch. 237, § 1; P.L. 2012, ch. 161, § 1; P.L. 2012, ch. 177, § 1.

Compiler’s Notes.

P.L. 2012, ch. 161, § 1, and P.L. 2012, ch. 177, § 1 enacted identical amendments to this section.

Applicability.

P.L. 2003, ch. 233, § 3, provides that the amendment to this section by that act takes effect on November 1, 2003, and the minimum thirty day notice requirement for individual consumer mortgagors shall be applicable only with regard to notices mailed to those mortgagors on and after November 1, 2003.

P.L. 2003, ch. 358, § 3, provides that the amendment to this section by that act takes effect on November 1, 2003, and the minimum thirty day notice requirement for individual consumer mortgagors shall be applicable only with regard to notices mailed to those mortgagors on and after November 1, 2003.

NOTES TO DECISIONS

Applicability.

The provisions for notice in a mortgage are governed by the meanings set out in this section. McKendall Land Co. v. Tudor Arms, Inc., 54 R.I. 10 , 168 A. 908, 1933 R.I. LEXIS 4 (1933).

Bankruptcy Stay.

In Chapter 13 case where bankruptcy court denied debtor’s motion for sanctions against creditor for his alleged violation of automatic stay when he postponed foreclosure sale date and conducted advertising in connection with such postponements, continuing foreclosure sale date in manner permitted by Rhode Island law did not violate stay because creditor did not take additional steps in foreclosure process beyond continuances and advertising necessitated by continuances, and acts did not revive financial pressures on debtor or harass her. Witkowski v. Knight, 523 B.R. 291, 2014 Bankr. LEXIS 4705 (1st Cir. 2014).

Notice Sufficient.

Where mortgage required publication at least once each week for three successive weeks and notice was published for four successive weeks, with the sale on the date of last publication, this section was fulfilled. McKendall Land Co. v. Tudor Arms, Inc., 54 R.I. 10 , 168 A. 908, 1933 R.I. LEXIS 4 (1933).

The notice requirements of this section and § 34-11-22 were satisfied by the publication of the notice on one day during each of the three calendar weeks preceding the sale. Beaufort v. Warwick Credit Union, 437 A.2d 1375, 1981 R.I. LEXIS 1417 (1981).

Adjourned foreclosure sale was lawfully noticed because the mortgagor received proper notice from the mortgagee of the original foreclosure sale, and notice of the adjourned sale was continuously published in the newspaper on a weekly basis, with the last notice appearing the day before the sale actually took place. McGovern v. Bank of Am., N.A., 91 A.3d 853, 2014 R.I. LEXIS 83 (2014).

Superior court properly granted summary judgment to a lender in its foreclosure action because the only evidence in the record revealed that the lender did in fact give notice of its foreclosure sale of the property in compliance with the statutory requirements; the borrower’s and owner’s bare assertions otherwise—that there remained genuine issues of material fact and that discovery was ongoing—fell well short of proving by competent evidence the existence of a disputed issue of material fact. Adams v. Santander Bank, N.A., 183 A.3d 544, 2018 R.I. LEXIS 49 (2018).

Trial court did not err in granting summary judgment in favor of the bank as the bank did not conduct an illegal foreclosure sale. Despite the trust asserting at oral argument that notice was improper, its written submission to the court was devoid of any mention that the foreclosure sale was improper based on the trust not being notified; and, even if the trust had properly raised the argument that notice was improper in its written submission, that argument lacked merit as the undisputed evidence demonstrated that both mortgagors were mailed written notice of the bank’s intent to foreclose at their last known addresses, in accordance with this section. Dorothy M. Allegra Revocable Trust - 2001 v. Deutsche Bank Nat'l Trust Co., 225 A.3d 244, 2020 R.I. LEXIS 16 (2020).

34-27-5. Mortgage foreclosure advertisement.

An advertisement for foreclosure may, if describing the real estate being foreclosed, describe the real estate to be foreclosed by metes and bounds description and street address, or by recitation of the taxing authority’s assessor’s plat and lot designation and street address, or by recitation of the book and page of mortgage and street address.

History of Section. P.L. 1990, ch. 403, § 1.

34-27-6. Payment of outstanding taxes.

  1. In connection with any sale by public auction made under and according to the provisions of any mortgage of real estate or any power of sale contained therein or annexed thereto, if the mortgagee or an affiliate of the mortgagee is the successful bidder for the real estate or property offered for sale, the foreclosure deed shall be recorded in the records of land evidence for the municipality where the real estate is located within forty-five (45) days after the date of the sale. The deed shall be captioned “foreclosure deed” and the date of the foreclosure shall be stated in the deed. This subsection (a) shall not apply to any such sale if, prior to the recording of the foreclosure deed: (1) The mortgagor files a voluntary proceeding, or an order for relief is entered in any involuntary proceeding against the mortgagor, under any federal or state bankruptcy or insolvency statute; or (2) The mortgagee abandons or otherwise terminates such sale.
  2. Notwithstanding any other general law or local ordinance to the contrary, the grantee of real estate named in the foreclosure deed shall pay to the municipality, on or before the date the foreclosure deed is recorded, all taxes and other assessments, including water charges, interest and penalties, if any, that constitute liens on the real estate described in the foreclosure deed and that are due and owing on the recording date (collectively, “taxes due and owing”); provided, however, that a grantee shall not be deemed in violation of this subsection (b) if the grantee shall apply for a municipal lien certificate from the tax collector for the municipality during the forty-five-day (45) period ending on the day on which the foreclosure deed is recorded and shall pay the taxes due and owing within thirty (30) days after the date on which the municipal lien certificate is mailed by the tax collector by the United States mail, postage prepaid, certified, return receipt requested, and addressed to the grantee at the address therefor set forth in the application for the municipal lien certificate. Taxes due and owing for purposes of this section shall include only installments thereof required by law to be paid as of the date the foreclosure deed is recorded.
  3. Upon a violation of any one or more of the requirements of this section, a penalty shall accrue at the rate of three hundred dollars ($300) per month (in the aggregate) for each month or part thereof during which such violation or violations continue. For purposes of determining the penalty due hereunder, a month commences on the day on which the first such violation occurs and a new month commences on the same day (or if there is no such day, then on the last day) of each succeeding calendar month until all taxes due and owing are paid. In the event of a violation of subsection (a), taxes due and owing shall be determined as of the date required thereunder for the recording of a foreclosure deed. The maximum aggregate penalty shall not exceed two thousand dollars ($2,000), which shall be paid prior to the city or town clerk accepting the foreclosure deed for recording.
  4. As used in this section, the term “affiliate” shall mean, with respect to any mortgagee, any individual or legal entity that controls, is controlled by, or is under common control with such mortgagee, and the term “foreclosure deed” shall mean the mortgagee’s deed or other conveyance of title to the successful bidder at any sale by public auction made under and according to the provisions of any mortgage of real estate or any power of sale contained therein or annexed thereto.
  5. A mortgagee not licensed as a financial lending institution holding a mortgage by private agreement with another party shall be exempt from the penalty requirements of this section.

History of Section. P.L. 2008, ch. 238, § 1; P.L. 2008, ch. 309, § 1; P.L. 2017, ch. 170, § 1; P.L. 2017, ch. 173, § 1.

Compiler’s Notes.

P.L. 2017, ch. 170, § 1, and P.L. 2017, ch. 173, § 1 enacted identical amendments to this section.

Applicability.

P.L. 2008, ch. 238, § 3, provides that this section takes effect sixty (60) days after passage and shall apply to foreclosure auction sales occurring after the date on which section 1 takes effect [July 4, 2008].

P.L. 2008, ch. 309, § 3, provides that this section takes effect sixty (60) days after passage and applies to foreclosure auction sales occurring after the date on which section 1 takes effect [July 8, 2008].

34-27-7. Notice to tenants of foreclosure sale.

  1. The mortgagee shall provide to each bona fide tenant a written notice: (1) Stating that the real estate is scheduled to be sold at foreclosure; (2) Stating the date, time, and place initially scheduled for the sale; (3) Informing of the availability and advisability of counseling and information services; (4) Providing the address and telephone number of the Rhode Island housing help center and the United Way 2-1-1 center; (5) Reminding the recipient to continue paying rent to the landlord until the foreclosure sale occurs; and (6) Stating that this notice is not an eviction notice. The notice shall be mailed by first-class mail at least one business day prior to the first publication of the notice required by § 34-27-4 . A form of written notice meeting the requirements of this section shall be promulgated by the department of business regulation for use by mortgagees no later than sixty (60) days after the effective date of this section. The notice may be addressed to “Occupant” and mailed to each dwelling unit of the real estate identified in the application for the loan secured by the mortgage being foreclosed. Failure of the mortgagee to provide notice as provided herein shall not affect the validity of the foreclosure.
  2. For purposes of this section, a lease or tenancy shall be considered bona fide only if:
    1. The mortgagor, or the child, spouse, or parent of the mortgagor, under the contract is not the tenant;
    2. The lease or tenancy was the result of an arms-length transaction; and
    3. The lease or tenancy requires the receipt of rent that is not substantially less than fair-market rent for the property or the unit’s rent is reduced or subsidized due to a federal, state, or local subsidy.

History of Section. P.L. 2014, ch. 486, § 3; P.L. 2014, ch. 513, § 3; P.L. 2016, ch. 512, art. 1, § 23.

Compiler’s Notes.

P.L. 2014, ch. 486, § 3, and P.L. 2014, ch. 513, § 3 enacted identical versions of this section.

34-27-8. Requirement of affidavit from certain tax-exempt entities.

  1. Definitions.  The following definitions apply in the interpretation of the provisions of this section unless the context requires another meaning:
    1. “Mortgage loan” means a loan to a natural person made primarily for personal, family, or household purposes secured wholly or partially by a mortgage on residential property.
    2. “Residential property” means real property on which there is a dwelling house with accommodations for no more than four (4) dwelling units and occupied, or to be occupied, in whole or in part, by the obligor of the mortgage debt; provided, however, that residential property shall be limited to the principal residence of a person; provided, further, that residential property shall not include an investment property or residence other than a primary residence; and provided, further, that residential property shall not include residential property taken in whole or in part as collateral for a commercial loan.
  2. In all circumstances in which an offer to purchase either a mortgage loan or residential property is made by an entity with a tax-exempt filing status under section 501(c)(3) of the Internal Revenue Code, or an entity controlled by an entity with such tax-exempt filing status, no mortgagee shall require, as a condition of sale or transfer to any such entity, any affidavit, statement, agreement, or addendum limiting ownership or occupancy of the residential property in question and, if obtained, such affidavit, statement, agreement, or addendum shall not provide a basis to avoid a sale or transfer, nor shall it be enforceable against such acquiring entity or any real estate broker, mortgagor, or settlement agent named in such affidavit, statement, or addendum.

History of Section. P.L. 2016, ch. 345, § 1; P.L. 2016, ch. 359, § 1.

Compiler’s Notes.

P.L. 2016, ch. 345, § 1, and P.L. 2016, ch. 359, § 1 enacted identical versions of this section.

Chapter 27.1 Payment of Proceeds of Mortgage Loans to Subcontractors and Materialmen

34-27.1-1. Payment of mortgage proceeds to subcontractors and materialmen.

  1. In any construction mortgage loan, where the original face amount of the loan is under five hundred thousand dollars ($500,000), the mortgagee may pay all or any portion of the mortgage loan to the owner, or lessee, as the case may be, at any time, except to the extent that a lien or notice thereof has been duly recorded and the mortgagee has received, by registered mail, a written statement from the owner, lessee, contractor, subcontractor or materialman, sworn to be true, setting forth the name and address and the amount of the claim of any subcontractor or materialman who has not been paid and specifying the amount of the unpaid balance of his claim. To the extent that any claims of subcontractors or materialmen are shown on the statement to be unpaid, the mortgagee shall, from any funds remaining in its hands, either:
    1. Make checks payable to the owner or lessee, as the case may be, jointly with the subcontractors or materialmen for the amount of the unpaid claim, and a check for any balance may be issued to the owner or lessee, or
    2. Withhold an amount equal to the total of the amounts shown by the statement to be unpaid.
  2. In the event that the mortgagee is notified in writing by registered mail by the owner, lessee, or contractor that there is a dispute as to the satisfactory performance of any subcontractor or materialman, then the amount due the subcontractor or materialman shall not be paid by the mortgagee until the question is resolved.

History of Section. P.L. 1973, ch. 136, § 1; P.L. 1979, ch. 375, § 1; P.L. 1984, ch. 101, § 2.

NOTES TO DECISIONS

Construction Lenders.

This section does not authorize an unpaid subcontractor to demand that a construction lender make direct payment to the subcontractor. Smithfield Peat Co. v. Scott-Lee Constr. Co., 525 A.2d 495, 1987 R.I. LEXIS 483 (1987); Coventry Credit Union v. F.D. McGinn, Inc., 620 A.2d 1261, 1993 R.I. LEXIS 76 (1993).

Materialmen.

The legislature in enacting this section intended to provide a remedy for subcontractors but did not intend to extend that remedy to materialmen. Diamond Int'l Corp. v. Bristol County Builders Corp., 468 A.2d 282, 1983 R.I. LEXIS 1106 (1983).

Chapter 27.2 The Rhode Island Construction Trust Act

34-27.2-1. Short title.

This chapter shall be known and may be cited as “The Rhode Island Construction Trust Act.”

History of Section. P.L. 2007, ch. 150, § 1; P.L. 2007, ch. 288, § 1.

34-27.2-2. Legislative findings.

The general assembly finds and declares that the uniqueness of the construction industry requires a special system to ensure that payment is received by those businesses, contractors and owners who expend materials and/or labor prior to the completion of a construction project, but then must wait to be made financially compensated for the materials and/or labor. The general assembly also recognizes that once the materials and labor are placed into the building, or other construction project, it is impossible to reclaim the goods or services so that the only means of compensation is to receive monetary payment. In addition, the general assembly finds that the Comprehensive Bankruptcy Reform Act of 2005 expanded § 523(a) of the Uniform Code of chapter 13, and created a new section known as UC Bankruptcy Code 1328 that gives building material suppliers recourse when a contractor, “commits fraud or defalcation while acting in a fiduciary capacity.” Under the new UC Bankruptcy Code 1328, if any person commits fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny the debt is nondischargeable under chapter 7 (liquidation), chapter 11 (adjustment of debt) or chapter 13 (reorganization).

History of Section. P.L. 2007, ch. 150, § 1; P.L. 2007, ch. 288, § 1.

34-27.2-3. Definitions.

The following definitions apply in the interpretations of the provisions of this chapter, unless the context requires another meaning:

  1. “Express Trust” means funds that have been paid by an owner, for or in connection with materials used in an improvement of real property, which are to be held by a contractor or subcontractor, in express trust, for material men. Any such contractor or subcontractor who accepts money from any owner or contractor shall become the trustee of the express trust that is created under this act. The amounts received by such contractor or subcontractor under or in connection with each building project shall be a separate trust and the contractor or subcontractor, or any successor and/or assign of such contractor or subcontractor that hold such trust funds, shall be a trustee thereof. These funds are not required to be held in any separate account by a contractor or subcontractor. Such trust shall be effective against and shall have priority over any interest of a party seeking payment from such contractor or subcontractor for claims other than those that are due and owing by reason of the specific building project for which the trust was created, whether such creditors are foreign attachment or other judicial lien creditors, a trustee in bankruptcy or similar creditors or representatives or creditors of the contractor or subcontractor.
  2. “Material men” means those retailers of lumber who are engaged in the business primarily of selling lumber and building materials to contractors, subcontractors, or repairmen to be used for the construction, erection, alteration, or repairing a building or other structure or in the making of any other improvements on land or the preparation thereof, and whose lumber and building material sales comprise of at least fifty percent (50%) of their total sales as defined in § 44-19-41 .

History of Section. P.L. 2007, ch. 150, § 1; P.L. 2007, ch. 288, § 1.

34-27.2-4. Funds held in trust.

  1. Any moneys paid under a contract by an owner to a contractor, or by the owner or contractor to a subcontractor, for work done for or about a building by any subcontractor shall be held in express trust by the contractor or subcontractor, as trustee, for those subcontractors who did work for or about the building, for purposes of paying those subcontractors or any successor and/or assign of such contractor or subcontractor that hold such funds.
  2. Any money paid under a contract by an owner to a contractor, or by the owner or contractor to a subcontractor, for supplies provided by materialmen in contract for the construction, repair, remodeling, improvement or renovation of any building or structure shall be held in an express trust by the contractor or subcontractor for the materialmen or any successor and/or assign of such contractor or subcontractors that holds such trust funds.
  3. Nothing contained in this chapter shall be construed as requiring moneys held in express trust by a contractor or subcontractor under subsection (a) or (b) of this section to be placed in a separate account.
  4. The existence of trust funds shall not prohibit the filing or enforcement of a labor, mechanic or material men’s lien against the affected real property by any lien claimant, nor shall the filing of such a lien release the holder of the funds from the obligations created under Rhode Island law.

History of Section. P.L. 2007, ch. 150, § 1; P.L. 2007, ch. 288, § 1.

Compiler’s Notes.

P.L. 2007, ch. 150, § 2, and P.L. 2007, ch. 288, § 2, provide: “No Express Trust shall be required for a federal, state or municipal project.”

Chapter 28 Mechanics’ Liens

34-28-1. Improvements by consent of owner — Contracts barring enforcement of lien against public policy.

  1. Whenever any building, canal, turnpike, railroad, or other improvement shall be constructed, erected, altered, or repaired by oral or written contract with or at the oral or written request of the owner, the owner being at the time the owner of the land on which the improvement is located, or by the husband of such owner with the consent of his wife, the building, canal, turnpike, railroad, or other improvement, together with the land, is hereby made liable and shall stand subject to liens for all the work done by any person in the construction, erection, alteration, or reparation of such building, canal, turnpike, railroad, or other improvement, and for the materials used in the construction, erection, alteration, or reparation thereof, which have been furnished by any person.
  2. A covenant, promise, agreement of understanding in, or in connection with or collateral to, a contract or agreement relative to the construction, alteration, repair, or maintenance of a building, structure, appurtenance and appliance, including moving, demolition and excavating connected therewith, purporting to bar the filing of a notice of intention or the taking of any steps to enforce a lien as set forth in this chapter is against public policy and is void and unenforceable. This section shall not preclude a requirement for a written waiver of the right to file a mechanic’s lien executed and delivered by a contractor, subcontractor, material supplier, or laborer simultaneously with or after payment for the labor performed or the materials furnished has been made to such contractor, subcontractor, material supplier, or laborer.

History of Section. G.L. 1896, ch. 206, § 1; G.L. 1909, ch. 257, § 1; G.L. 1923, ch. 301, § 1; G.L. 1938, ch. 445, § 1; G.L. 1956, § 34-28-1 ; P.L. 1965, ch. 235, § 1; P.L. 1981, ch. 356, § 1; P.L. 1991, ch. 328, § 1.

Cross References.

Payment of debts by public works contractors, § 37-13-5 .

Law Reviews.

The Rhode Island Mechanics’ Lien Law: A Plea (and Proposal) for Clarity and Fairness, see 3 R.W.U.L. Rev. 207 (1998).

Survey Section: Property Law, see 3 R.W.U.L. Rev. 597 (1998).

Comparative Legislation.

Mechanics’ liens:

Conn. Gen. Stat. § 49-33 et seq.

Mass. Ann. Laws ch. 254, § 1 et seq.

NOTES TO DECISIONS

Amount of Lien.

Where subcontractor’s lien for materials and labor was based only on written subcontract for lump sum, the lien cannot be established for more than the total sum remaining unpaid of the contract price, plus interest on all unpaid portions from the time payable. Art Metal Constr. Co. v. Knight, 56 R.I. 228 , 185 A. 136, 1936 R.I. LEXIS 98 (1936).

The contract sum, which included a profit, was a reasonable and proper judgment for the holder of a mechanic’s lien. Frank N. Gustafson & Sons v. Walek, 643 A.2d 179, 1994 R.I. LEXIS 230 (1994).

Combination of Projects.

A lien under this chapter can be enforced only against the property upon which the labor and materials are bestowed, even though the work is done under a joint contract for work to be performed upon more than one estate. James H. Butler & Co. v. Rivers, 4 R.I. 38 , 1856 R.I. LEXIS 7 (1856).

Petitioner, who furnished material and labor to contractor for use in building of two houses on defendant’s property was not entitled to a joint lien against the property for material and labor furnished where the amounts were not segregated as to each house. McElroy v. Keily, 27 R.I. 64 , 60 A. 679, 1905 R.I. LEXIS 27 (1905), aff'd in part, vacated in part, 27 R.I. 474 , 63 A. 238, 1906 R.I. LEXIS 22 (1906).

Lien could not be enforced for material used in construction of house where material was delivered for use on several jobs but was not designated for use in a particular building. Phillips Lead & Supply Co. v. Swartz, 47 R.I. 203 , 132 A. 4, 1926 R.I. LEXIS 30 (1926).

Credit Extended.

Plaintiff was not barred from asserting a lien for material furnished by the fact that he extended credit for thirty days; instead, this merely suspended his right to enforce his lien. Phillips Lead & Supply Co. v. Swartz, 47 R.I. 203 , 132 A. 4, 1926 R.I. LEXIS 30 (1926).

Delivery on General Account.

Materialman was not entitled to lien against owner of dwelling house for materials furnished to contractor on contractor’s general account and delivered without knowledge of where or when they would be used and without reference to the use to be made. H. A. Grimwood Co. v. Greene, 42 R.I. 225 , 106 A. 739, 1919 R.I. LEXIS 24 (1919).

Interest on Lien.

Interest was properly allowed from date of notice of claim of lien on balance found to be due on written contract under which final payment was due on completion, even though respondent’s claim by way of recoupment for unsatisfactory workmanship and materials was partially allowed. Pearson v. Ryan, 42 R.I. 83 , 105 A. 513, 1919 R.I. LEXIS 7 (1919).

The court did not add prejudgment interest referable to the amount a contractor previously recovered pursuant to a partial settlement though prejudgment interest was granted with respect to the amount recovered through a proceeding under the Rhode Island Mechanics’ Lien statute, §§ 34-28-1 to 34-28-36 . Commercial Assoc. v. Tilcon Gammino, Inc., 801 F. Supp. 939, 1992 U.S. Dist. LEXIS 14787 (D.R.I. 1992), aff'd, 998 F.2d 1092, 1993 U.S. App. LEXIS 18520 (1st Cir. 1993).

Land Subject to Sale Contract.

A mechanic’s lien cannot be enforced against the equitable interest of one holding possession under a contract of sale where the petition does not run against him. Long Island Brick Co. v. Arnold, 18 R.I. 455 , 28 A. 801, 1894 R.I. LEXIS 14 (1894).

A petition for a mechanic’s lien for goods or services furnished by agreement with one in possession of land under a contract of sale cannot be maintained against the legal owner when he is not a party to the agreement for the goods or services. Long Island Brick Co. v. Arnold, 18 R.I. 455 , 28 A. 801, 1894 R.I. LEXIS 14 (1894).

Where a surveyor, in compliance with a purchase-and-sale agreement, was hired by the potential buyer of property to determine the number of possible subdivisions, but the sale was never completed, and the subdivision, as well as any future construction that would have resulted therefrom, was never commenced, the work done by the surveyor does not fall within the parameters of § 34-28-7 , and prohibits the plaintiff from enforcing a mechanic’s lien under this section. Federici & Assocs. v. Lantini, 589 A.2d 1202, 1991 R.I. LEXIS 81 (1991).

Married Woman’s Property.

It is necessary that the consent of the wife be in writing to any contract or request of her husband for work to be done upon her property before her estate can be subjected to a lien. Briggs v. Titus, 7 R.I. 441 , 1863 R.I. LEXIS 13 (1863) (decision prior to 1965 amendment).

Where a contract was made by the wife and the husband had merely withdrawn opposition to the work and permitted it to proceed, a lien could not attach. Cameron v. McCullough, 11 R.I. 173 , 1877 R.I. LEXIS 4 (1877).

Materials Furnished.

Dealer in sash, blinds, doors and other similar articles could not claim a lien for such goods furnished for the construction of a house, even though he expended a small amount of labor on the articles furnished, since the labor was incidental to the sale. Arnold v. Budlong, 11 R.I. 561 , 1877 R.I. LEXIS 44 (1877).

A contractor who furnishes labor and material in installing wires, conduits, and switching for the purpose of lighting a house is entitled to a mechanic’s lien. Scannevin & Potter v. Consolidated Mineral Water Co., 25 R.I. 318 , 55 A. 754, 1903 R.I. LEXIS 70 (1903).

Notice of Lien.

A notice of a lien was fatally defective where it stated that it was pursuant to a section providing for the enforcement of liens, since liens are provided for in this section. Glynn v. Zabriskie, 19 R.I. 215 , 36 A. 3, 1895 R.I. LEXIS 94 (1895). See also Art Metal Constr. Co. v. Knight, 56 R.I. 228 , 185 A. 136, 1936 R.I. LEXIS 98 (1936).

Practice and Procedure.

A mechanic’s lien proceeding is an equitable in rem proceeding. Such equitable proceedings have always been tried before a justice sitting without a jury. Tilcon Gammino v. Commercial Assoc., 570 A.2d 1102, 1990 R.I. LEXIS 40 (1990).

Legal counterclaim raised by respondents does not recharacterize a mechanic’s lien proceeding from an equitable proceeding to an action at law demanding a right to a jury trial. Tilcon Gammino v. Commercial Assoc., 570 A.2d 1102, 1990 R.I. LEXIS 40 (1990).

Priority Between Liens.

The statute in effect plainly provides that the priorities of lienors of whatever class shall be fully protected. Blackmar v. Sharp, 23 R.I. 412 , 50 A. 852, 1901 R.I. LEXIS 163 (1901).

— Assignee of Mortgage.

Where mortgage given to a third person in consideration of a promise by the grantor of land to advance money to the mortgagor was duly recorded, the lien of such mortgage attached at once and took priority over subsequent mechanic’s lien; and the grantor, who held such mortgage by unrecorded assignment executed after the mechanic’s lien had attached but before any advances were made, could claim the mortgage lien’s priority, because the grantor was an equitable owner thereof at date of its recordation. Blackmar v. Sharp, 23 R.I. 412 , 50 A. 852, 1901 R.I. LEXIS 163 (1901).

— Purchase Money Mortgage.

Mortgage given to secure purchase price and future advances, duly recorded, and given for a valid consideration took priority over subsequent mechanic’s lien for all obligatory advances made by mortgagee under contract with mortgagor, even though mechanic’s lien attached before any advance was made. Blackmar v. Sharp, 23 R.I. 412 , 50 A. 852, 1901 R.I. LEXIS 163 (1901).

— Subsequent Mortgage.

A master could properly find that the lien had priority over a mortgage given after the work was commenced. J. J. McDonald & Co. v. Kelly, 14 R.I. 335 , 1884 R.I. LEXIS 7 (1884).

A mechanics’ lien for labor and material furnished after a mortgage was given took precedence over the mortgage when the cellar of the building had been excavated and the foundation piles driven prior to the time the mortgage was given, since such work constituted the commencement of the construction of the building within the meaning of this section. Bassett v. Swarts, 17 R.I. 215 , 21 A. 352, 1891 R.I. LEXIS 9 (1891).

Lien for materials furnished for construction of house on mortgaged premises took priority over mortgage lien, even though materials were furnished after date of the mortgage, where excavation for cellar had been made prior to date of mortgage and there was no abandonment of the work but merely delay of it. Lansing v. Campbell, 41 R.I. 347 , 101 A. 1, 1917 R.I. LEXIS 59 (1917).

— Time of Attachment of Mortgage.

In question of priority between mortgage and subsequent mechanic’s lien, a mortgage, duly recorded, need not show on its face that it was given for future advances nor need the contract for advances be recorded, but the lien of such mortgage attached from date of recording, as the extent of the incumbrance could be ascertained from the record. Blackmar v. Sharp, 23 R.I. 412 , 50 A. 852, 1901 R.I. LEXIS 163 (1901).

Purpose of Statute.

The mechanic’s lien statute was designed to prevent unjust enrichment by one person at the expense of another. Art Metal Constr. Co. v. Knight, 56 R.I. 228 , 185 A. 136, 1936 R.I. LEXIS 98 (1936); Tilcon Gammino v. Commercial Assoc., 570 A.2d 1102, 1990 R.I. LEXIS 40 (1990).

In mechanics’ lien disputes, the law attempts to deal with the familiar dilemma of placing the burden of expense upon one of two individuals who are generally blameless. Faraone v. Faraone, 413 A.2d 90, 1980 R.I. LEXIS 1512 (1980).

The Rhode Island mechanic’s-lien law has long been construed to be a statute intended to afford a liberal remedy to all who have contributed labor or material towards adding to the value of the property to which the lien attaches. Roofing Concepts v. Barry, 559 A.2d 1059, 1989 R.I. LEXIS 112 (1989).

The mechanics’ lien is not intended as a remedy for those lacking privity of contract. Tilcon Gammino v. Commercial Assoc., 570 A.2d 1102, 1990 R.I. LEXIS 40 (1990).

Rental of Equipment.

A bare rental of equipment will not serve as the basis for a mechanic’s lien. Logan Equipment Corp. v. Profile Constr. Co., 585 A.2d 73, 1991 R.I. LEXIS 9 (1991).

Rescission of Contract.

Petitioners are entitled to a lien for work performed on an uncompleted project where the respondent has acted in such a manner as to prevent further work from being done. Additionally the petitioners can treat the contract as rescinded. Greene & Brown v. Haley, 5 R.I. 260 , 1858 R.I. LEXIS 25 (1858).

Time of Attachment of Lien.

When a mechanic commences work by virtue of a contract with the owner of the land, his lien attaches from that moment. Blackmar v. Sharp, 23 R.I. 412 , 50 A. 852, 1901 R.I. LEXIS 163 (1901).

Excavation for cellar on lot in real estate subdivision was constructive notice that liens for labor and materials in further construction work might attach and be entitled to priority. Lansing v. Campbell, 41 R.I. 347 , 101 A. 1, 1917 R.I. LEXIS 59 (1917).

A mechanic’s lien comes into existence when the work begins or the materials are furnished. Art Metal Constr. Co. v. Knight, 56 R.I. 228 , 185 A. 136, 1936 R.I. LEXIS 98 (1936).

Work Performed.

An architect who prepared plans and specifications for, and supervised and directed the construction of a building was entitled to a lien for labor expended in both the drawing of the plans and the supervision. Field & Slocomb v. Consolidated Mineral Water Co., 25 R.I. 319 , 55 A. 757, 1903 R.I. LEXIS 73 (1903).

The agreed statement of facts established that the circumstances present in this case did not meet the requirements of subsection (a) since there was never any agreement, either oral or written, made by the defendants with anyone to construct any improvement on the land owned by them, since at all times they intended to, and did, construct the improvements themselves. Myles P. Flaherty Assocs. v. Russo, 685 A.2d 663, 1996 R.I. LEXIS 298 (1996).

Collateral References.

Arbitration proceedings as affecting mechanic’s lien. 93 A.L.R. 1151.

Architect, mechanic’s lien for services of person supervising construction of building. 60 A.L.R. 1257.

Architect’s services as within mechanics’ lien statute. 31 A.L.R.5th 664.

Canals, drains, or ditches as within mechanic’s lien statute. 92 A.L.R. 753.

Charge for use of machinery, tools or appliances used in construction as basis for mechanic’s lien. 3 A.L.R.3d 573.

Church property as subject of mechanic’s lien. 85 A.L.R. 953.

“Commencement of building or improvement” for purposes of determining accrual of lien, what constitutes. 1 A.L.R.3d 822.

Concrete forms, liens for material and labor employed in construction of. 84 A.L.R. 460.

Contract against mechanics’ liens, validity and effect of. 13 A.L.R. 1065; 75 A.L.R.3d 505.

Freight charges on material as within mechanic’s lien statute. 30 A.L.R. 466.

Grading, clearing, filling, excavating, and the like, mechanic’s lien for. 39 A.L.R.2d 866.

Husband’s contract of work performed or materials furnished as giving right to lien against wife’s property. 4 A.L.R. 1025.

Interest of vendor under executory contract for sale of realty as subject to mechanic’s lien for labor or materials furnished to purchaser. 58 A.L.R. 911; 102 A.L.R. 233.

Labor or materials furnished under contract with vendor pending executory contract for sale of property, mechanic’s lien for, as affecting purchaser’s interest. 4 A.L.R. 263.

Mechanic’s lien for work on or material for separate buildings of one owner. 15 A.L.R.3d 73.

Mineral rights, interest of owner of land as subject to lien for material or service engaged by holder of. 59 A.L.R. 548.

Oil and gas, right or interest subject to statutory lien for labor or material in developing property for. 122 A.L.R. 1182.

“Owner,” scope and import of term in mechanics’ lien statutes. 2 A.L.R. 794; 95 A.L.R. 1095.

Payment in property other than money, mechanic’s lien as affected by agreement for. 81 A.L.R. 766.

Person performing work only part of which is of a lienable character, as within mechanic’s lien statute. 149 A.L.R. 684.

Public property, lien on. 26 A.L.R. 326.

Removal, destruction, demolition of, or damage to improvement as affecting mechanic’s lien. 74 A.L.R. 428.

Removal or demolition of building or other structure as basis for mechanic’s lien. 74 A.L.R.3d 386.

Right to mechanic’s lien as for “labor” or “work,” in case of preparatory or fabricating work done on materials intended for use and used in particular building or structure. 25 A.L.R.2d 1370.

Single mechanic’s lien under entire contract, against two or more separate buildings on different lots in same ownership. 15 A.L.R.3d 73.

Single mechanic’s lien upon several parcels as enforceable against less than all the parcels. 130 A.L.R. 423.

Specially fabricated material for and adapted to building, but not used therein. 33 A.L.R. 320.

Unjust enrichment of landowner based on adjoining landowner’s construction, improvement, or repair of commonly used highway, street, or bridge. 22 A.L.R.5th 800.

Well, lien for digging. 55 A.L.R. 1562; 109 A.L.R. 422.

34-28-2. Improvements by consent of tenant or lessee.

Whenever any building, canal, turnpike, railroad, or other improvement shall be constructed, erected, altered, or repaired by oral or written contract with or at the oral or written request of any lessee or tenant thereof, or by the husband of the lessee or tenant with the consent of his wife, the interest and title of the lessee or tenant in the building, canal, turnpike, railroad, or other improvement, and in the land on which the improvement is located, shall stand subject to liens for all the work done by any person in the construction, erection, alteration, or reparation of the building, canal, turnpike, railroad or other improvement, and for the materials used in the construction, erection, alteration, or reparation thereof, which have been furnished by any person, but not the interest or title of the landlord of such lessee or tenant, unless the consent in writing of the landlord is first obtained, assenting to the construction, erection, alteration, or reparation.

History of Section. G.L. 1896, ch. 206, § 2; G.L. 1909, ch. 257, § 2; G.L. 1923, ch. 301, § 2; G.L. 1938, ch. 445, § 2; G.L. 1956, § 34-28-2 ; P.L. 1965, ch. 235, § 1; P.L. 1991, ch. 328, § 1.

NOTES TO DECISIONS

Application for Construction of Wharf.

Application for approval to build or repair a wharf under § 46-6-2 by the owner of demised land at the request of a lessee, without the owner having knowledge of the nature or extent of the proposed improvement or of the existence of any contract, was not sufficient to bind the owner on lessee’s contract with builder in the absence of owner’s written consent to be bound. Elliott & Watrous v. Harrington, 68 R.I. 237 , 27 A.2d 338, 1942 R.I. LEXIS 71 (1942).

Lessee With Option to Purchase.

A tenant with an option to purchase cannot bind the owner for material furnished or work done on the property in the absence of the owner’s consent in writing. Pawtucket Sash & Blind Co. v. Coffey, 45 R.I. 273 , 121 A. 417, 1923 R.I. LEXIS 73 (1923).

Statutory Authority for Lien.

All liens created by this chapter are created by §§ 34-28-1 to 34-28-3 . Art Metal Constr. Co. v. Knight, 56 R.I. 228 , 185 A. 136, 1936 R.I. LEXIS 98 (1936).

Collateral References.

Interest of one causing improvements to be made, lien on. 58 A.L.R. 938.

Knowledge of owner of improvements or repairs, intended or in process under orders of lessee or vendee, as “consent,” which will subject his interest to mechanics’ liens. 4 A.L.R. 685.

Lease, termination of, as affecting mechanic’s lien on building erected by tenant where lien did not attach to landlord’s title. 87 A.L.R. 1290.

Lessee as agent of lessor within contemplation of mechanics’ lien laws. 79 A.L.R. 962; 163 A.L.R. 992.

Licensee, mechanic’s lien for building erected by. 45 A.L.R. 581.

Termination of lease as affecting mechanic’s lien on building erected by tenant where lien did not attach to landlord’s title. 87 A.L.R. 1290.

34-28-3. Improvements by consent of owner of less than freehold.

Whenever any building, canal, turnpike, railroad, or other improvement shall be constructed, erected, altered, or repaired by oral or written contract with or at the oral or written request of the owner, the owner being at the time less than sole owner of the fee simply (including, without restricting the foregoing, a life tenant, tenant in common, joint tenant, and tenant by entirety), or by the husband of the owner with the consent of his wife (and, in the case of a tenant by entirety, no lien shall be had either against the husband’s or the wife’s interest in the improvement unless the consent is given), the building, canal, turnpike, railroad, or other improvement, together with the title and interest of the owner in the land on which the improvement is located, shall stand subject to liens for all the work done by any person in the construction, erection, alteration, or reparation of such building, canal, turnpike, railroad, or other improvement, and for the materials used in the construction, erection, or reparation thereof, which have been furnished by any person, but not the interest or title of any other owner of an estate in such land, unless the consent in writing of the other owner is first obtained, assenting to the construction, erection, alteration, or reparation.

History of Section. G.L. 1896, ch. 206, § 3; G.L. 1909, ch. 257, § 3; G.L. 1923, ch. 301, § 3; G.L. 1938, ch. 445, § 3; G.L. 1956, § 34-28-3 ; P.L. 1965, ch. 235, § 1; P.L. 1991, ch. 328, § 1.

NOTES TO DECISIONS

Party Held Owner.

Party with sole financial interest in lots and improvements and holding power of attorney to convey to third party or himself was owner, even though not record title holder, against whom a mechanic’s lien would lie. Albert S. Eastwood Lumber Co. v. Britto, 51 R.I. 406 , 155 A. 354, 1931 R.I. LEXIS 62 (1931).

Collateral References.

After-acquired title as supporting mechanic’s lien. 52 A.L.R. 693.

Curtesy initiate as subject to mechanic’s lien. 133 A.L.R. 637.

Easement, mechanic’s lien for labor or material for improvement of. 77 A.L.R. 817.

Enforceability of mechanic’s lien attached to leasehold estate against landlord’s fee. 74 A.L.R.3d 330.

Estoppel of one who has apparently acquiesced in improvements on real property to defeat mechanics’ liens by asserting antagonistic title or interest. 76 A.L.R. 317.

Life tenant, right to mechanics’ lien against fee for work or material furnished under contract with, or consent of. 97 A.L.R. 870.

Rights and duties as between owner of land and owner of timber or minerals in place as regards liens covering both interests. 26 A.L.R. 1031.

34-28-3.1. Materials to include rental or lease of any equipment.

In addition to any meaning given through judicial interpretation or context, the term “material” or “materials”, when used in this chapter shall also include the rental or lease of any equipment.

History of Section. P.L. 1997, ch. 361, § 1.

34-28-4. Notice of intention to claim lien.

  1. Except as provided in § 34-28-7 , any and all liens claimed or that could be claimed under §§ 34-28-1 , 34-28-2 or 34-28-3 shall be void and wholly lost to any person claiming under those sections unless the person shall, before or within two hundred (200) days after the doing of such work or the furnishing of such materials, mail by prepaid registered or certified mail, in either case return receipt requested, a notice of intention, hereinafter described, to do work or furnish material, or both, together with a statement that the person so mailing may within two hundred (200) days after the doing of the work or the furnishing of the materials, file a copy of such notice of intention in the records of land evidence in the city or town in which the land generally described in such notice of intention is located and a further statement that the mailing of the notice of intention and the filing of the copy will perfect a lien of the person so mailing against the land under and subject to the provisions of this chapter, to the owner of record of the land at the time of the mailing, or, in the case of a lien against the interest of any lessee or tenant, to the lessee or tenant, the mailing to be addressed to the last known residence or place of business of the owner or lessee or tenant, but if no residence or place of business is known or ascertainable by the person making the mailing by inquiry of the person with whom the person making the mailing is directly dealing or otherwise, then the mailing under this section shall be to the address of the land, and also shall before or within two hundred (200) days after the doing of the work or the furnishing of the materials file a copy of the notice of intention in the records of land evidence in the city or town in which the land generally described in the notice of lien is located. The mailing of the notice of intention and the filing of the copy in the land evidence records together with the mailing of another copy thereof as herein below provided shall perfect, subject to other sections of this chapter, the lien of the person so mailing and filing as to work done or materials furnished by the person during the two hundred (200) days prior to the filing and thereafter, but not as to work done or materials furnished by the person before the two hundred (200) days prior to the filing, any lien for which shall be void and wholly lost. In the event that the notice of intention, having been mailed, shall be returned to the person mailing the notice, not having been delivered for any reason, the lien of the person so mailing shall be void and wholly lost, notwithstanding any other provision of this section, unless such person shall, within thirty (30) days after the return of the notice of intention, and in no event more than two hundred (200) days after the mailing of the notice, file the notice together with the envelope in which the notice was returned, in the place and manner and with the consequences hereinbefore provided for the filing of a copy of the notice of intention, and the filing shall be in lieu of any filing required at any other time under this section.
  2. The notice of intention shall be executed under oath and shall contain:
    1. The name of the owner of record of the land at the time of the mailing, or in the case of a lien against the interest of any lessee or tenant, the name of the lessee or tenant, and the mailing address of the owner or lessee, the name and address to be located at the upper left hand corner of the notice, in addition to the text of the notice, as described in subsection (c);
    2. A general description of the land sufficient to identify it with reasonable certainty, including, for example only, street name and number, if available;
    3. A general description of the nature of the work done or to be done, or of the materials furnished, or to be furnished, or both, and the approximate value thereof as of the date of the notice;
    4. The name and address of the person or persons for whom directly the work has been done or is to be done, or to whom directly the materials have been furnished or are to be furnished;
    5. The name and address of the person mailing the notice and the name of the individual person or persons whose signature will bind the person so mailing on all matters pertaining to the notice or any lien claimed thereunder, or release thereof.
    6. A statement that the person mailing the notice has not been paid for the work done or materials furnished or both.
  3. The notice may be in substantially the following form:

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(Name of owner of record/Lessee) (Address of owner/Lessee) NOTICE OF INTENTION TO DO WORK OR FURNISH MATERIALS, OR BOTH All persons are hereby notified that the undersigned has within the two hundred (200) days prior to the mailing hereof done work, furnished materials, or both, and/or intends to do so in the future (cross out inappropriate words), in the construction, erection, alteration, or preparation of an improvement on land described as follows: (here insert description) and that the land is owned by or leased to (here insert name of owner or lessee or tenant). The nature of the work being done or materials being furnished is as follows: (here insert general description of the nature of the work or materials, or both) and is being done for or furnished to (here insert name of person or persons for whom directly the work is being done or to whom directly the materials are being furnished), whose address is (here insert address). The approximate value of said work or materials is, as of the date of the notice, $(include amount), itemized as follows: and the undersigned has not been paid for the work or materials or both; The undersigned authorizes (here insert name or names) to act or sign documents in behalf of the undersigned in all matters pertaining to this notice, or any lien claimed hereunder, or release thereof. You are hereby informed that the undersigned may within two hundred (200) days of the performance of the work or furnishing of the materials, file in the records of land evidence of the city or town of (here insert name of city or town) a copy of this notice of intention to do work or furnish materials. The filing of the notice of intention, together with this mailing, will perfect a lien against the land described herein, under and subject to the provisions of the Rhode Island Mechanics' Lien Law. (Name and address of person filing notice) NOTARIZATION CLAUSE Signed and sworn before me this day of , Notary Public My Commission Expires:

History of Section. G.L. 1896, ch. 206, §§ 4-6; P.L. 1906, ch. 1325, § 1; G.L. 1909, ch. 257, §§ 4-6; G.L. 1923, ch. 301, §§ 4-6; G.L. 1938, ch. 445, §§ 4-6; P.L. 1946, ch. 1702, § 1; G.L. 1956, §§ 34-28-4 — 34-28-6 ; G.L. 1956, § 34-28-4 ; P.L. 1965, ch. 235, § 1; P.L. 1966, ch. 197, § 1; P.L. 1981, ch. 364, § 1; P.L. 1989, ch. 189, § 1; P.L. 1991, ch. 328, § 1; P.L. 2006, ch. 630, § 1; P.L. 2008, ch. 75, § 1; P.L. 2008, ch. 345, § 1.

Cross References.

Effect of assignment for benefit of creditors, § 10-4-6 .

Law Reviews.

2006 Survey of Rhode Island Law: Case: Property Law/Constitutional Law/Debtor Creditor/Mechanics’ Lien Law: F.C.C., Inc. v. Reuter, et al., 867 A.2d 819 (R.I. 2005), see 12 Roger Williams U. L. Rev. 631 (2007).

NOTES TO DECISIONS

Lease Agreements.

Where the language of the lease was clear, unambiguous and consistent with the parties’ intent to keep the premises free of liens at all times. A notice of intention to claim a lien was within the class of encumbrances anticipated and was not limited to interpretation under the mechanics’ lien statute. Kilona Crown Jewelers v. Wharfside Assocs. Ltd. Partnership, 651 A.2d 1231, 1994 R.I. LEXIS 284 (1994).

Multiple Accounts.

A petitioner is not limited to the lodging of one account but can file other accounts and demands and waive and abandon all former ones, provided the last account or demand is filed within the time limited for the commencement of legal process. Graybar Elec. Co. v. Providence Journal Co., 92 R.I. 120 , 166 A.2d 885, 1961 R.I. LEXIS 3 (1961) (decision prior to 1965 amendment).

Notice by Materialman.
— Notice to Building Inspector.

The more reasonable construction of this statute requires the mailing of a copy of a notice of intention to claim the lien to the building inspector as a condition of perfecting the lien, only in the event that the owner’s address is unknown, or in the event that the notice that is mailed to the owner is returned undelivered. When the owner’s address is known and the notice is successfully delivered, the failure to mail to the building inspector does not void the lien. Faraone v. Faraone, 413 A.2d 90, 1980 R.I. LEXIS 1512 (1980).

The statutory provision for simultaneous mailing to the building inspector in the event the owner’s address is known and the notice delivered, is not mandatory but directory. Faraone v. Faraone, 413 A.2d 90, 1980 R.I. LEXIS 1512 (1980).

— Time for Notice.

A contractor may claim a lien for materials furnished under an entire contract only for those materials placed upon the property within sixty days (now one hundred and twenty days) prior to giving notice to the landowner. Newell v. Campbell Mach. Co., 17 R.I. 74 , 20 A. 158, 1890 R.I. LEXIS 41 (1890).

The statutory period of sixty days (now one hundred and twenty days) from delivery of materials on the land where used starts running the day following such delivery. Paterson v. St. Thomas' Church, 18 R.I. 349 , 27 A. 449, 1893 R.I. LEXIS 45 (1893).

Claimant is not the holder of a perfected mechanics’ lien on debtor’s property, where, although the claimant properly filed a notice of intent to claim a lien, it did not file or record its “petition to enforce lien — lis pendens notice” until almost three weeks after the debtor filed a bankruptcy petition. In re CNN Dev. Corp., 112 B.R. 1, 1990 Bankr. LEXIS 427 (Bankr. D.R.I. 1990).

Notice to Property Owner.

Trial justice erred in dismissing a mechanic’s lien petition, where there had been compliance with the statutory provisions except for the court clerk’s failure to issue a citation for the property owner, who had actual notice of the proceedings by virtue of his motion to dismiss filed 16 days prior to the return date. Frank N. Gustafson & Sons v. Walek, 599 A.2d 730, 1991 R.I. LEXIS 171 (1991).

Trial court did not err in dismissing a subcontractor’s action to enforce a mechanic’s lien because the notary public’s “acknowledgement” in the subcontractor’s notice of intention was insufficient to satisfy the “oath” requirement under to R.I. Gen. Laws § 34-28-4(b) , and, as a result, the notice was fatally defective; the notarial acknowledgment in the notice attested to the execution of the document by the subcontractor’s president, not to his verifying its contents under oath. GSM Indus. v. Grinnell Fire Prot. Sys. Co., 47 A.3d 264, 2012 R.I. LEXIS 107 (2012).

Strict Construction.

The statute for mechanics’ liens must be strictly construed as it is in derogation of the common law. Rhode Island Marble & Tile Co. v. Spear, 49 R.I. 441 , 143 A. 777, 1928 R.I. LEXIS 85 (1928); Anastos v. Brown, 52 R.I. 462 , 161 A. 218, 1932 R.I. LEXIS 84 (1932); Faraone v. Faraone, 413 A.2d 90, 1980 R.I. LEXIS 1512 (1980).

This section should be construed to carry out its purpose of affording a liberal remedy to all who have contributed labor or materials towards adding to the value of the property to which the lien attaches. Faraone v. Faraone, 413 A.2d 90, 1980 R.I. LEXIS 1512 (1980).

This section was designed to prevent unjust enrichment of one person at the expense of another. Faraone v. Faraone, 413 A.2d 90, 1980 R.I. LEXIS 1512 (1980).

Because the requirements of this section are expressed in clear, unequivocal and mandatory language, the failure of the plaintiff to establish that the notice of intention was sent by certified mail rendered his liens void and wholly lost. Pezzuco Constr., Inc. v. Melrose Assocs., L.P., 764 A.2d 174, 2001 R.I. LEXIS 19 (2001).

When a subcontractor’s notice of intention to enforce a mechanic’s lien contained a notarial “acknowledgment” rather than “oath,” a trial court did not err in dismissing the subcontractor’s action for failing to comply with R.I. Gen. Laws § 34-28-4 because the oath requirement in § 34-28-4(b) was mandatory, not merely directory; the word “shall” in § 34-28-4(b) connoted the imperative and contemplated the imposition of a duty. GSM Indus. v. Grinnell Fire Prot. Sys. Co., 47 A.3d 264, 2012 R.I. LEXIS 107 (2012).

Sub-Subcontractor.

Because a contract between a general contractor and a subcontractor explicitly prohibited the subcontractor from subcontracting or assigning any of its work without the general contractor’s written permission, and because there was no evidence of a contractual relationship between the subcontractor and a sub-subcontractor, the sub-subcontractor was not entitled to file a mechanic’s lien under R.I. Gen. Laws § 34-28-4 ; therefore, the lien releases executed by the subcontractor were binding on the sub-subcontractor. Alpha Omega Constr., Inc. v. Proprietors of Swan Point Cemetery, 962 A.2d 733, 2008 R.I. LEXIS 119 (2008).

Collateral References.

Abandonment of construction or of contract as affecting time for filing mechanics’ liens. 52 A.L.R.3d 797.

Amendment of notice of claim after expiration of time for filing claim. 81 A.L.R. 360.

Amount of owner’s obligation under his guaranty of subcontractor’s or materialman’s account, as deductible from amount otherwise due principal contractor, as against claims of other subcontractors or materialmen. 153 A.L.R. 759.

Bankruptcy of contractor or subcontractor, effect upon mechanics’ liens of their subcontractors, laborers, and materialmen. 98 A.L.R. 323.

Continuing contract, transaction or account, what constitutes, as regards time for filing mechanic’s lien. 97 A.L.R. 780.

Contract between owner and principal contractors against lien as affecting right of subcontractors and materialmen to lien. 13 A.L.R. 1072; 75 A.L.R.3d 505.

Enforceability of mechanic’s lien attached to leasehold estate against landlord’s fee. 74 A.L.R.3d 330.

Examination, repair, or servicing of fixtures, machinery, or attachments in building, labor in, as extending time for filing mechanic’s lien. 51 A.L.R.3d 1087.

Existence of more than one contract between owner and contractor as affecting time for filing lien or giving notice of mechanic’s lien by materialman or subcontractor. 175 A.L.R. 333.

Formal requisites of notice of intention to claim mechanic’s lien. 158 A.L.R. 682.

Nonresidence or absence of defendant from state as suspending running of limitations against action to foreclose mechanic’s lien. 119 A.L.R. 372.

Original contractor as necessary party to suit by subcontractor or materialman to enforce mechanic’s lien against property of married woman for work performed or materials furnished under a contract made with her husband. 4 A.L.R. 1034.

Pre-existing indebtedness of contractor to owner as affecting right of subcontractor, materialman, or laborer to mechanic’s lien. 68 A.L.R. 1263.

Principal contractor as necessary party to suit to enforce mechanic’s lien of subcontractor, laborer, or materialman. 100 A.L.R. 128.

Prior action on contract in which claim on mechanic’s lien might have been asserted by counterclaim, setoff, or cross petition as bar to subsequent action to foreclose lien. 8 A.L.R. 714.

Rejection of work because not in compliance with principal contract as affecting right of subcontractor or materialman to lien. 16 A.L.R. 981.

Release of contractor’s lien as affecting subcontractor’s lien. 75 A.L.R.3d 505.

Removal by, or return to, claimant, of part of the material furnished as effective time for filing claim. 122 A.L.R. 755.

Subcontractor, lien for labor and materials furnished to, against money due to principal contractor for public improvement. 112 A.L.R. 815.

Substitution or replacement of material as affecting time for filing mechanic’s lien. 54 A.L.R. 984.

Time limitation in mechanic’s lien statute as a limitation of the right or only the remedy. 139 A.L.R. 903.

Time when contractor commenced work or time when labor or materials for which lien is claimed was furnished as date of mechanic’s lien. 83 A.L.R. 925.

What amounts to bringing of suit within limited time required by mechanic’s lien statute. 75 A.L.R. 695.

Who is contractor or subcontractor, as distinguished from materialman, for purpose of filing or enforcement of mechanic’s lien. 141 A.L.R. 321.

34-28-4.1. Contractors.

No person contracting directly with either the owner of the land, lessee, or tenant of the land, or owner of less than the fee simple, other than material suppliers, as those terms are referred to in §§ 34-28-1 , 34-28-2 , 34-28-3 , shall be entitled to claim a lien under this chapter unless that person shall have provided the following notice to the owner, lessee, or tenant, or owner of less than the fee simple, either incorporated conspicuously in a written contract or sent by certified mail, return receipt requested, any time prior to commencing work or delivery of materials for construction, erection, alteration or repair as set forth in this chapter. The failure of such person contracting directly to give such notice shall not affect the right of any other person performing work or furnishing materials of claiming a lien pursuant to this chapter, provided that the procedures set forth in this chapter are followed. However, such person failing to file such notice shall indemnify and hold harmless any owner, lessee or tenant, or owner of less than the fee simple from any payment or costs incurred on account of any liens claims by those not in privity with them, unless such owner, lessee or tenant, or owner of less than the fee simple shall not have paid such person.

NOTICE OF POSSIBLE MECHANIC’S LIEN To: Insert name of owner, lessee or tenant, or owner of less than the fee simple. The undersigned is about to perform work and/or furnish materials for the construction, erection, alterations, or repair upon the land at (INSERT ADDRESS) under contract with you. This is a notice that the undersigned and any other persons who provide labor and materials for the improvement under contract with the undersigned may file a mechanic’s lien upon the land in the event of nonpayment to them. It is your responsibility to assure yourself that those other persons under contract with the undersigned receive payment for their work performed and materials furnished for the construction, erection, alteration or repair upon the land.

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History of Section. P.L. 2006, ch. 630, § 2; P.L. 2015, ch. 258, § 1; P.L. 2015, ch. 279, § 1.

Compiler’s Notes.

P.L. 2015, ch. 258, § 1, and, P.L. 2015, ch. 279, § 1 enacted identical amendments to this section.

34-28-5. Recording notice of intention.

Every town clerk and every recorder of deeds, as the case may be, shall, on payment of a fee of eight dollars ($8.00) for each notice of intention, record the notices of intention provided for in § 34-28-4 , whether in the form therein provided or not, in a book to be kept by him or her for that purpose, with the time and date when the notices of intention are received and recorded by him or her; he or she shall also maintain an alphabetical index of the owners and lessees or tenants mentioned in all notices of intention, so recorded, provided, however, that the town clerk may refuse for recording any notice of intention which fails to reference the name of the owner of record, or lessee, pursuant to § 34-28-4(b) .

History of Section. P.L. 1965, ch. 235, § 1; P.L. 1986, ch. 331, § 5; P.L. 1989, ch. 189, § 1; P.L. 1991, ch. 328, § 1.

34-28-6. Repealed.

History of Section. P.L. 1965, ch. 235, § 1; P.L. 1966, ch. 197, § 2; Repealed by P.L. 1991, ch. 328, § 2, effective September 1, 1991.

Compiler’s Notes.

Former § 34-28-6 concerned lien of hourly paid employees.

34-28-7. Lien of architect or engineer.

The lien, under §§ 34-28-1 , 34-28-2 or 34-28-3 , of any architect or engineer, or of any immediate or mediate subcontractor thereto, for work done in connection with the construction, erection, alteration, or reparation, the result of which is used therein, shall be valid and enforceable under the provisions of this chapter if and only if a notice of intention provided for in § 34-28-4 , is mailed and filed in accordance therewith by the architect, engineer, or such subcontractor thereto, the mailing and filing in the land evidence records to be before the later of two hundred (200) days of the performance of the work or ten (10) days after the actual and visible commencement, by excavation or otherwise, of the construction, erection, alteration or reparation.

History of Section. P.L. 1965, ch. 235, § 1; P.L. 1966, ch. 197, § 3; P.L. 1991, ch. 328, § 1; P.L. 2006, ch. 630, § 1.

NOTES TO DECISIONS

Inapplicability to Surveyor.

Where a surveyor, in compliance with a purchase-and-sale agreement, was hired by the potential buyer of property to determine the number of possible subdivisions, but the sale was never completed, and the subdivision, as well as any future construction that would have resulted therefrom, was never commenced, the work done by the surveyor does not fall within the parameters of § 34-28-7 , and prohibits the plaintiff from enforcing a mechanic’s lien under § 34-28-1 . Federici & Assocs. v. Lantini, 589 A.2d 1202, 1991 R.I. LEXIS 81 (1991).

Surveying field work in preparation of a plan for a property subdivision did not fall within the parameters of this section, where no construction was commenced after a town planning board had rejected the proposed subdivision. Anthony & Assocs. v. Muller, 598 A.2d 1378, 1991 R.I. LEXIS 159 (1991).

Validity.

Assignee’s argument that a corporation did not have a valid mechanic’s lien failed because neither of the prior mortgage holders entered an appearance to challenge the corporation’s mechanics’ lien before the return date, and the assignee failed to set forth any evidence tending to show that its untimely filing was the result of excusable neglect. R.I. Constr. Servs. v. Harris Mill, LLC, 68 A.3d 450, 2013 R.I. LEXIS 96 (2013).

Collateral References.

Architect’s services as within mechanics’ lien statute. 31 A.L.R.5th 664.

34-28-8. Land subject to lien.

A notice of intention may be mailed and filed under § 34-28-4 against one or more contiguous parcels of land or parcels of land separated only by a public or private way, provided such parcels are owned, or occupied as lessee or tenant, by the same person or persons, and in such case the lien under the provisions of §§ 34-28-1 , 34-28-2 , 34-28-3 or 34-28-7 shall be against all of the parcels of land and all of the buildings, canals, turnpikes, railroads, or other improvements thereon in accordance with the tenor of those sections, or against the interest of the lessee or tenant therein, if the work is done or the materials are used on any of the parcels, or in any of the buildings, canals, turnpikes, railroads, or other improvements.

History of Section. G.L. 1896, ch. 206, § 20; G.L. 1909, ch. 257, § 20; G.L. 1923, ch. 301, § 20; G.L. 1938, ch. 445, § 20; G.L. 1956, § 34-28-21 ; G.L. 1956, § 34-28-8 ; P.L. 1965, ch. 235, § 1; P.L. 1991, ch. 328, § 1.

34-28-9. Effective period of notice.

A notice of lien recorded in the land evidence records pursuant to § 34-28-4 shall be effective for two hundred (200) days prior to the date of filing. A notice of lien shall be effective as to any retainage earned but not paid, for work furnished pursuant to § 34-28-1 et. seq., and said notice of lien shall be effective from commencement of said work. Retainage is a percentage of the total contract amount that is withheld by the owner from the general contractor and by the general contractor from the subcontractor until the entire job is completed and the project is accepted by the owner and by the general contractor, at which time the retainage due is paid.

History of Section. P.L. 1965, ch. 235, § 1; P.L. 1991, ch. 328, § 1; P.L. 2006, ch. 630, § 1; P.L. 2008, ch. 75, § 1; P.L. 2008, ch. 345, § 1.

34-28-10. Complaint to enforce lien — Lis pendens notice.

  1. Any and all liens under the provisions of § 34-28-1 , 34-28-2 , 34-28-3 , or 34-28-7 regardless of the mailing and filing of a notice of intention under § 34-28-4 or any exemption therefrom, shall be void and wholly lost to any person claiming a lien under those sections, unless the person shall file a complaint to enforce the lien, described in § 34-28-1 3, in the superior court for the county in which is situated the land upon which the building, canal, turnpike, railroad, or other improvement is being or has been constructed, erected, altered, or repaired, and unless such person shall also file in the records of land evidence in the city or town in which such land is located a notice of lis pendens, described in § 34-28-11 , the complaint to be filed on the same day as the notice of lis pendens, or within seven (7) days thereafter, and both the complaint and the notice of lis pendens to be filed within forty (40) days of the date of the recording of the notice of intention provided in § 34-28-4 and § 34-28-7 . The lien of any person under § 34-28-1, 34-28-2 , 34-28-3 or 34-28-7 who fails to file a complaint and notice of lis pendens under this section within the required forty (40) day period, shall be void and wholly lost as to work done or materials furnished prior to the two hundred (200) day period, regardless of the fact that the person may thereafter do other work or furnish other materials in the course of the same construction, erection, alteration, or reparation.
  2. The power of sale contained in a mortgage on any real property subject to a lien created by this chapter shall not be effected by the filing of a notice of lien as provided in § 34-28-4 and § 34-28-7 , provided, however, the power of sale shall be suspended by the filing of a complaint to enforce as provided in this section and the power of sale shall only be exercised thereafter in accordance with the provisions of § 34-28-16.1 .

History of Section. P.L. 1965, ch. 235, § 1; P.L. 1991, ch. 328, § 1; P.L. 2006, ch. 630, § 1.

NOTES TO DECISIONS

Failure to File.

Where the court refused to bar a subcontractor’s action to enforce a mechanics’ lien when the subcontractor did not file a notice of lis pendens against the property, pursuant to R.I. Gen. Laws § 34-28-10(a) , after the property owner filed a petition to discharge the lien, pursuant to R.I. Gen. Laws § 34-28-17 , and agreed to post a bond; the court did not abuse its discretion by finding that the subcontractor was the prevailing party in its action to enforce its lien or by awarding the subcontractor $ 12,383 in attorneys’ fees. Keystone Elevator Co. v. Johnson & Wales Univ., 850 A.2d 912, 2004 R.I. LEXIS 79 (2004).

Notice to Property Owner.

Trial justice erred in dismissing a mechanic’s lien petition, where there had been compliance with the statutory provisions except for the court clerk’s failure to issue a citation for the property owner, who had actual notice of the proceedings by virtue of his motion to dismiss filed 16 days prior to the return date. Frank N. Gustafson & Sons v. Walek, 599 A.2d 730, 1991 R.I. LEXIS 171 (1991).

Strict Compliance Required.

Because the mechanics’ liens statute attempts to deal with the dilemma of placing the burden of expense upon one of two individuals who are generally blameless, strict compliance with the mandatory directives of the statute is required, and the question of whether or not a party is prejudiced by a late filing is irrelevant. Pezzuco Constr., Inc. v. Melrose Assocs., L.P., 764 A.2d 174, 2001 R.I. LEXIS 19 (2001).

Time for Notice by Claimant.

Claimant is not the holder of a perfected mechanic’s lien on debtor’s property, where, although the claimant properly filed a notice of intent to claim a lien, it did not file or record its “petition to enforce lien — lis pendens notice” until almost three weeks after the debtor filed a bankruptcy petition. In re CNN Dev. Corp., 112 B.R. 1, 1990 Bankr. LEXIS 427 (Bankr. D.R.I. 1990).

34-28-11. Contents of lis pendens.

  1. The notice of lis pendens required to be filed under § 34-28-10 shall state that the person filing the notice of lis pendens that day has filed or will file within seven (7) days in the superior court a complaint to enforce a mechanics’ lien, and shall also contain:
    1. The name of the person against whom the complaint has been or will be filed and the relationship of the person to the land upon which the building, canal, turnpike, railroad, or other improvement is being or has been constructed, erected, altered, or repaired;
    2. A description of the land by metes and bounds, or by reference to a recorded plat, by tax assessor’s lot and plat, or by other legal description;
    3. The amount claimed (the value within two hundred (200) days) in the complaint to be due to the plaintiff;
    4. The dates of the mailing and of the filing of any notice of intention under § 34-28-4 and renewal notices under § 34-28-9 , if any, and the name and address of the person to whom any mailing under § 34-28-4 was made;
    5. The name and address of the plaintiff and of his or her attorney, if any.
  2. The notice of lis pendens may be in substantially the following form:

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NOTICE OF LIS PENDENS All persons are hereby notified that the undersigned this day has filed or will file within seven (7) days hereafter, in the superior court for County, a complaint to enforce a mechanics’ lien against (here insert name of the person against whom the complaint has been or will be filed and his or her relationship to the land), concerning land described as follows: (here insert description of land). The undersigned asserts that there is due to him or her the sum of (here insert the amount claimed) under the mechanics’ lien, which is based upon a notice of intention, under of the mechanics’ lien law, mailed to (here insert name and address of person to whom mailing was made) on (here insert date of mailing) and filed in the records of land evidence of the city or town of (here insert name of city or town) on (here insert date of filing of notice). The attorney for the undersigned is (here insert name and address of attorney). § 34-28-4 (Name and address of person filing notice of lis pendens)

History of Section. P.L. 1965, ch. 235, § 1; P.L. 1991, ch. 328, § 1; P.L. 2006, ch. 630, § 1.

34-28-12. Recording of lis pendens.

Every town clerk and every recorder of deeds, as the case may be, on payment of a fee as provided in § 34-13-7 for each notice of lis pendens, shall record the notices of lis pendens provided for in §§ 34-28-10 and 34-28-11 , whether in the form therein provided or not, in the book provided for in § 9-4-9 , and shall maintain as part of the index of the book an alphabetical index of the owners or lessees or tenants mentioned in all notices or lis pendens so recorded.

History of Section. P.L. 1965, ch. 235, § 1; P.L. 1986, ch. 325, § 2.

34-28-13. Form of complaint to enforce lien.

The complaint to enforce a lien, filed under § 34-28-1 0, shall set forth the particulars of the account or demand for which the plaintiff claims a lien including the amount claimed, extras, payment made, the date or dates upon which work was done or materials furnished, shall recite the actions taken under this chapter by the plaintiff for the perfection of such lien, shall particularly describe the building, canal, turnpike, railroad, improvement, and land, and the estate and title in the improvement upon which the plaintiff claims a lien. It shall include specific dates of performance of the work, providing of materials, nature of each performance, and shall pray that the lien may be enforced against the improvement, and that the improvement may be sold to satisfy the account or demand and all other accounts and demands for which the improvement is liable and stands subject to liens under § 34-28-1 , 34-28-2 , 34-28-3 or 34-28-7 ; the complaint shall also name as defendants the owner of record and/or the landlord and lessee, if applicable, under § 34-28-2 , and the complaint shall also contain a list of the names and addresses of all persons who have filed notices of intention under § 34-28-4 and a list of all persons who have any recorded title, claim, lease, mortgage, attachment or other lien or encumbrance (other than under § 34-28-1, 34-28-2, 34-28-3 or 34-28-7 ) with relation to, on or against the building, canal, turnpike, railroad, improvement, or land or any part thereof.

History of Section. G.L. 1896, ch. 206, § 9; C.P.A. 1905, § 1141; G.L. 1909, ch. 257, § 9; G.L. 1923, ch. 301, § 9; G.L. 1938, ch. 445, § 9; G.L. 1956, § 34-28-9 ; G.L. 1956, § 34-28-13 ; P.L. 1965, ch. 235, § 1; P.L. 1991, ch. 328, § 1; P.L. 2006, ch. 630, § 1.

Cross References.

Petitions follow course of equity, § 9-14-1 .

NOTES TO DECISIONS

Amendment of Petition.

Defects in petition to establish mechanic’s lien are amendable. Murphy v. Guisti, 22 R.I. 588 , 48 A. 944, 1901 R.I. LEXIS 63 (1901).

Subcontractor’s petition could be amended to show that account or demand was filed, to set forth terms of subcontract showing payments due and times payable, and to show reasonable value of materials and labor separately. Art Metal Constr. Co. v. Knight, 56 R.I. 228 , 185 A. 136, 1936 R.I. LEXIS 98 (1936).

Where specific evidence on an account was introduced at trial on a mechanics’ lien, the original petition which did not cite particulars was considered amended and without pleading deficiencies. Kelley v. Dunne, 112 R.I. 775 , 316 A.2d 341, 1974 R.I. LEXIS 1506 (1974).

Contents of Petition.

In the petition the particulars must be stated in greater detail than is required in the account, as in actions on book accounts. Murphy v. Guisti, 22 R.I. 588 , 48 A. 944, 1901 R.I. LEXIS 63 (1901).

Failure to particularize a claim was not a jurisdictional defect, and in any event, the requirement of particularity was waived by respondents who went to trial on the merits without requesting a specific accounting. Kelley v. Dunne, 112 R.I. 775 , 316 A.2d 341, 1974 R.I. LEXIS 1506 (1974).

Failure to particularize a claim is not a jurisdictional defect. Tilcon Gammino v. Commercial Assoc., 570 A.2d 1102, 1990 R.I. LEXIS 40 (1990).

— Computation of Amount.

Statement of account for specified amount “for extra work done on said house” was not a sufficient statement, since elements on which computation was based should have been given. McPherson v. Greenwell, 27 R.I. 178 , 61 A. 175, 1905 R.I. LEXIS 67 (1905).

— Contractual Price.

Statement of account for a definite sum as “to amount due under written contract for the erection of a house” was sufficient where compensation was fixed by agreement, since amounts paid should be as well known to the owner as to the contractor. McPherson v. Greenwell, 27 R.I. 178 , 61 A. 175, 1905 R.I. LEXIS 67 (1905).

— Description of Property.

Description of building by reference to contract between owners and the builder to whom materials were furnished was sufficient to indicate what building was intended. Murphy v. Guisti, 22 R.I. 588 , 48 A. 944, 1901 R.I. LEXIS 63 (1901).

Liberal Construction.

Statute should be construed liberally where there is a written contract for the work signed by the owner and the contractor. McPherson v. Greenwell, 27 R.I. 178 , 61 A. 175, 1905 R.I. LEXIS 67 (1905).

Multiple Accounts.

A petitioner is not limited to the lodging of one account but he can file other accounts and demands and waive and abandon all former ones, provided the last account or demand is filed within the time limited for the commencement of legal process. Graybar Elec. Co. v. Providence Journal Co., 92 R.I. 120 , 166 A.2d 885, 1961 R.I. LEXIS 3 (1961).

Pleading and Practice.

The purpose of this statute is to give the claimant a summary remedy without the delay of a plea, answer and replication, so that a motion to strike respondent’s plea and answer will be granted. James P. Burlingame & Co. v. Emerson, 5 R.I. 62 , 1857 R.I. LEXIS 12 (1857).

Collateral References.

Dismissal of proceeding to enforce mechanic’s lien because of delay in prosecuting it. 79 A.L.R. 847.

Pleadings, verification of, by agent or attorney in action to enforce. 7 A.L.R. 13.

Waiver of failure to bring suit to enforce lien in time prescribed by failure to raise objection by demurrer or answer. 93 A.L.R. 1462.

34-28-14. Notice of complaint to owners and encumbrancers.

Upon filing of the complaint, the clerk of the superior court shall, by one advertisement to be inserted in some public newspaper published in the city or town where the property against which the lien is claimed is located, but, if there shall be no public newspaper published in the city or town, then by one advertisement in some public newspaper published in the county where the property is located, which one advertisement shall, with the service of the citation set forth in § 35-28-15, notify all persons having a lien, by virtue of this chapter, or any title, claim, lease, mortgage, attachment, or other lien or encumbrance, or any unrecorded claim on all or any part of the same property, to respond to the court in accordance with § 34-28-1 5 and § 34-28-1 6 and make out their demands against the property; and the clerk shall issue a citation to each person whose name appears on the list, made a part of the complaint by § 34-28-13 , of all persons who have any recorded title, claim, lease, mortgage, attachment, or other lien or encumbrance (other than under § 34-28-1, 34-28-2 , 34-28-3 , or § 34-28-7 ) on a day certain to respond in accordance with §§ 34-28-15 and 34-28-16 and show cause, if any they have, why the lien should not be allowed and enforced for the amount claimed. The plaintiff shall, at least ten (10) days before the return day of the citation mentioned in § 34-28-15 , mail, postage prepaid, a copy of the advertisement provided for in this section (printed, typewritten, or otherwise reproduced) to each person who has filed a notice of intention under § 34-28-4 .

History of Section. G.L. 1896, ch. 206, § 10; G.L. 1909, ch. 257, § 10; G.L. 1923, ch. 301, § 10; G.L. 1938, ch. 445, § 10; G.L. 1956, § 34-28-10 ; G.L. 1956, § 34-28-14 ; P.L. 1965, ch. 235, § 1; P.L. 1991, ch. 328, § 1; P.L. 2006, ch. 630, § 1.

NOTES TO DECISIONS

Mortgagee as Party.

Under this statute, the practice has been to make prior mortgagees parties to the suit to establish a mechanic’s lien. Jepherson v. Green, 22 R.I. 276 , 47 A. 599, 1900 R.I. LEXIS 107 (1900).

Mortgagee’s Power of Sale.

It is the intent of the statute to suspend a mortgagee’s power of sale when property is brought into equity on a petition for a lien so that such property may be sold as a whole. Jepherson v. Green, 22 R.I. 276 , 47 A. 599, 1900 R.I. LEXIS 107 (1900).

Notice to Grantees.

Notice of mechanic’s lien which named the owner of the land at the time construction began was sufficient, even though such owner had conveyed to another before account and notice was filed, as this section provides that the clerk shall issue citation to the owner and to each and every person having a conveyance thereof. Chace v. Pidge, 21 R.I. 70 , 41 A. 1015, 1898 R.I. LEXIS 35 (1898).

Notice to Trustee in Bankruptcy.

Notice served on trustee in bankruptcy in proceeding to enforce mechanic’s lien on property of bankrupt was proper and necessary, since at the time of the citation the bankrupt had no power to give a lien and his rights had been transferred to the bankruptcy trustee. Hawkins v. Boyden, 25 R.I. 181 , 55 A. 324, 1903 R.I. LEXIS 40 (1903).

Service of Citation.

Failure to serve a citation does not necessitate a dismissal of a mechanic’s lien petition. Frank N. Gustafson & Sons v. Walek, 599 A.2d 730, 1991 R.I. LEXIS 171 (1991).

Trial justice erred in dismissing a mechanic’s lien petition, where there had been compliance with the statutory provisions except for the court clerk’s failure to issue a citation for the property owner, who had actual notice of the proceedings by virtue of his motion to dismiss filed 16 days prior to the return date. Frank N. Gustafson & Sons v. Walek, 599 A.2d 730, 1991 R.I. LEXIS 171 (1991).

Time and Mode of Appearance.

The court by rule may prescribe the day and mode of appearing, and until such rule is made, the respondent may enter an appearance at any time during the term until the petition is called. James P. Burlingame & Co. v. Emerson, 5 R.I. 62 , 1857 R.I. LEXIS 12 (1857).

Assignee’s argument that a corporation did not have a valid mechanic’s lien failed because neither of the prior mortgage holders entered an appearance to challenge the corporation’s mechanics’ lien before the return date, and the assignee failed to set forth any evidence tending to show that its untimely filing was the result of excusable neglect. R.I. Constr. Servs. v. Harris Mill, LLC, 68 A.3d 450, 2013 R.I. LEXIS 96 (2013).

34-28-15. Contents and service of citation to owners and encumbrancers.

  1. Every citation issued under § 34-28-14 shall contain a copy of the complaint and shall be served on the parties by a deputy sheriff or constable at least five (5) days before the return day of the citation, by leaving an attested copy at the last and usual place of abode of each of the persons to be cited or by reading the citation in their presence and hearing, if they reside in this state, otherwise by mailing the citation, by registered or certified mail, to the persons prepaid, addressed to their last known residence or place of business, and if no residence or place of business is known, no further service shall be necessary, other than service by advertisement provided for in § 34-28-14 .
  2. The citation noted in the aforesaid section shall be in a form established by the superior court.

History of Section. G.L. 1896, ch. 206, § 11; G.L. 1909, ch. 257, § 11; G.L. 1923, ch. 301, § 11; G.L. 1938, ch. 445, § 11; G.L. 1956, § 34-28-11 ; P.L. 1959, ch. 89, § 1; G.L. 1956, § 34-28-15 ; P.L. 1965, ch. 235, § 1; P.L. 1991, ch. 328, § 1; P.L. 2006, ch. 630, § 1; P.L. 2012, ch. 324, § 68.

NOTES TO DECISIONS

Failure to Serve Citation.

Failure to serve a citation does not necessitate a dismissal of a mechanic’s lien petition. Frank N. Gustafson & Sons v. Walek, 599 A.2d 730, 1991 R.I. LEXIS 171 (1991).

Trial justice erred in dismissing a mechanic’s lien petition, where there had been compliance with the statutory provisions except for the court clerk’s failure to issue a citation for the property owner, who had actual notice of the proceedings by virtue of his motion to dismiss filed 16 days prior to the return date. Frank N. Gustafson & Sons v. Walek, 599 A.2d 730, 1991 R.I. LEXIS 171 (1991).

Notice.

The notice by publication in some newspaper must be given at least ten (now twenty) days before the sitting of the court, and the court cannot enter a decree affecting the interests of persons not resident in the state if the last of the three publications was made within ten (now twenty) days. Vickerie v. Spencer, 9 R.I. 585 , 1870 R.I. LEXIS 27 (1870).

34-28-16. Entry of appearance and filing of account or claim.

  1. The liens, under § 34-28-1 , 34-28-2 , 34-28-3 or 34-28-7 , of all persons, except the persons who have mailed and filed notices of intention under § 34-28-4 before the filing of the complaint and who have not been mailed a copy of the advertisement as provided in § 34-28-1 4 and who have no actual knowledge, on or before the return day of the citation provided for in §§ 34-28-14 and 34-28-15 , of the pendency of the complaint, and the title, claim, lease, mortgage, attachment, or other lien or encumbrance of all persons who have any title, claim, lease, mortgage, attachment, or other lien or encumbrance (other than under § 34-28-1, 34-28-2 , 34-28-3 or 34-28-7 ) to or in the property which is the subject matter of the complaint, except the persons who have recorded the lien or encumbrance before the filing of the complaint and who have not been served with or mailed a citation as provided in § 34-28-15 and who have no actual knowledge, on or before the return day, of the pendency of the complaint, shall be subordinated to the claim of the plaintiff, and persons claiming liens pursuant to this chapter, and any other person having any mortgage, attachment, or other lien or encumbrance who have entered an appearance as a party in the cause, unless the person shall, within twenty (20) days after the return day, or within such other time as may be allowed by the superior court pursuant to Rule 60(b) of the Superior Court Rules of Civil Procedure enter an appearance as a party in the cause commenced by the complaint described in §§ 34-28-10 and 34-28-13 and shall file an answer as follows:
    1. In the case of persons claiming a lien under § 34-28-1, 34-28-2, 34-28-3 or 34-28-7, file an account and demand containing the matters provided in § 34-28-13 for a complaint to enforce a lien, except that the account and demand need not contain a list of the names and addresses of the persons who have filed notices of intention under § 34-28-4 , nor a list of all persons who have any recorded title, claim, lease, mortgage, attachment, or other lien or encumbrance, or
    2. In the case of persons who have any title, claim, lease, mortgage, attachment, or other lien or encumbrance (other than under § 34-28-1, 34-28-2, 34-28-3 or 34-28-7), file a claim setting forth the particulars thereof and praying for the relief and priority to which the person shall deem himself or herself entitled.
  2. Nothing in this section shall, however, bar any claim for a lien under § 34-28-1 , 34-28-2 , 34-28-3 or 34-28-7 , by any person for work done or materials furnished, provided the person complies with the requirements of this chapter.

History of Section. P.L. 1965, ch. 235, § 1; P.L. 1991, ch. 328, § 1; P.L. 2006, ch. 630, § 1.

NOTES TO DECISIONS

Excusable Neglect.

Motion justice committed reversible error when he found that the failure to submit a timely statement of claim was the result of the assignee’s excusable neglect because had the assignee carried out even the most cursory due diligence before it purchased the mortgage, it would have discovered that the property was implicated in the mechanics’ lien action, the assignee purchased an asset that had already lost its priority when it purchased the mortgage, and the assignee’s failure seemed to have been based on its own carelessness, inattention, or willful disregard of the process of the court. R.I. Constr. Servs. v. Harris Mill, LLC, 68 A.3d 450, 2013 R.I. LEXIS 96 (2013).

Impleader.

A party against whom a mechanic’s lien is being enforced is allowed to implead another party who is alleged to be wholly or partially responsible for the payment necessary to discharge the lien even though the mechanic’s-lien law does not specifically provide for such impleader. Roofing Concepts v. Barry, 559 A.2d 1059, 1989 R.I. LEXIS 112 (1989).

Third Party Claims to Lien.

National Credit Union Administration Board, acting as conservator of a mortgagee credit union, and seeking to establish an interest in land with priority over a construction company’s claim, is a “party” to the mechanic’s lien action. Rosciti Constr., Inc. v. Lot 10 of East Greenwich Town Assessor's Plat 14, 754 F. Supp. 14, 1991 U.S. Dist. LEXIS 653 (D.R.I. 1991).

34-28-16.1. Petition to foreclose mortgage.

At any time after the filing of a petition under § 34-28-1 0, the holder of a mortgage having a priority over liens existing under § 34-28-1 , 34-28-2 , 34-28-3 or 34-28-7 may petition the court to exercise the power of sale contained in the mortgage and the court shall grant the petition to foreclose, after notice to all interested parties and hearing thereon, upon a showing by the mortgagee that the mortgage is valid, entitled to priority and is in default, except for a default arising from the filing of a petition to enforce pursuant to § 34-28-10 .

History of Section. P.L. 1989, ch. 540, § 1; P.L. 1991, ch. 328, § 1.

34-28-16.2. Proceedings in superior court.

Once the complaint, described in § 34-28-13 , and containing all claims pursuant to § 34-28-16 has been filed with the court, the proceedings shall continue pursuant to the rules of civil procedure, in a nonjury proceeding.

History of Section. P.L. 1991, ch. 328, § 3; P.L. 2006, ch. 630, § 1.

34-28-17. Dismissal of complaint, notice of lien, and release of lien upon deposit in court.

  1. At any time after the recording of a notice of intention or after the filing of a complaint to enforce a lien under §§ 34-28-1 0 and 34-28-1 3, the owner or lessee or tenant of the land described in the notice or complaint may pay into the registry of the court in the county in which the land is located cash equal to the total amount of the notice of intention and the accounts and demands of all persons claiming liens therein under § 34-28-1, 34-28-2 , 34-28-3 or 34-28-7 , including costs, interest at the statutory rate and reasonable attorney’s fees of the lien holder, or may, in lieu of cash, deposit in the registry of the court the bond of a surety company licensed to do business in this state in the total amount including costs, interest at the statutory rate and reasonable attorney’s fees running to all persons claiming liens under §§ 34-28-10 and 34-28-13 , and on proper proof of payment or deposit and on motion of the owner or lessee or tenant, any justice of the superior court shall enter ex parte an order discharging the notice of intention and lis pendens and dismissing the cause as to the owner or lessee or tenant and as to all persons having any title, claim, lease, mortgage, attachment or other lien or encumbrance (other than under § 34-28-1, 34-28-2 , 34-28-3 or 34-28-7 ), and on the entry of the order, the building, canal, turnpike, railroad or other improvement and the land on which the improvement is being or has been constructed, erected, altered, or repaired shall be released and discharged from the notices of intentions and accounts and demands, but the rights of all persons having any title, claim, lease, mortgage, attachment or other lien or encumbrance (other than under § 34-28-1, 34-28-2, 34-28-3 or 34-28-7) shall be the same as if no notices of intention under § 34-28-4 had been mailed or filed and as if no complaint under §§ 34-28-10 and 34-28-13 had been filed. In the event that a payment is made into the registry of court in accordance with this section, any person, having a contract directly with the person making the payment, may be permitted, after notice to all parties under the complaint and after hearing in open court, to withdraw from the registry of court the sum of money due to him or her under the contract, provided that the person making the withdrawal first furnish a bond, payable to the clerk of court, with good and sufficient corporate surety, for the repayment of the amount, or as much thereof as may be necessary to satisfy claims thereinafter allowed by the court.
  2. Notwithstanding the foregoing provisions, after depositing cash or the bond of a surety company the following shall apply:
    1. In the event that a notice of intention has been recorded, but no complaint filed, the person or other entity claiming the lien shall file the complaint against the surety within the time limits as noted in § 34-28-10 . In the event of a cash deposit as noted in § 34-28-17 , the complaint shall be brought against the clerk of the respective superior court for any deposit that is posted in the registry within the time limits as noted in § 34-28-10 .
    2. In the event that the complaint has been filed with the appropriate superior court, and after depositing cash or the bond of a surety company and discharging the notice of intention and lis pendens, and dismissing the cause as noted in this section, the lien plaintiff shall amend the complaint, to include the surety as defendant within sixty (60) days after the person or entity claiming the lien is given notice of the order in regard to the bond. In the event of a cash deposit as noted in § 34-28-17 , the complaint shall be amended and brought against the clerk of the respective superior court for any cash deposit that is posted in the registry within sixty (60) days after the person or entity claiming the lien is given notice of this order in regard to the cash deposit.
  3. The complaint filed against a surety, or the clerk of any respective superior court, pursuant to subsection (b) of this section need not comply with any procedural requirements of §§ 34-28-10 , 34-28-11 , 34-28-12 , 34-28-14 , or 34-28-15 .

History of Section. P.L. 1965, ch. 235, § 1; P.L. 1966, ch. 197, § 4; P.L. 1991, ch. 328, § 1; P.L. 2006, ch. 630, § 1; P.L. 2008, ch. 75, § 1; P.L. 2008, ch. 345, § 1.

Law Reviews.

2006 Survey of Rhode Island Law: Case: Property Law/Constitutional Law/Debtor Creditor/Mechanics’ Lien Law: F.C.C., Inc. v. Reuter, et al., 867 A.2d 819 (R.I. 2005), see 12 Roger Williams U. L. Rev. 631 (2007).

NOTES TO DECISIONS

Withdrawal by Lienholder of Funds in Registry.

When the facts surrounding a lienholder’s right to receive either all or part of the funds placed in the court registry are not in dispute, it is properly within the trial justice’s discretion to allow such a lienholder to withdraw an amount equal to that which is claimed in the lien. Roofing Concepts v. Barry, 559 A.2d 1059, 1989 R.I. LEXIS 112 (1989).

In a mechanics’ lien action, a trial court did not err by entering judgment in favor of an owner and a lessee because the word “include” in this statute was not indicative of the presence of multiple parties. The owner and the lessee did not remain as defendants after the bond was deposited with a surety and the surety was added as a defendant. Nat'l Refrigeration, Inc. v. Capital Props., 88 A.3d 1150, 2014 R.I. LEXIS 41 (2014).

34-28-17.1. Dismissal of complaint for other cause.

  1. If any person in interest, including, but not limited to, an owner or contractor, claims: (1) that any person who has provided labor, materials or equipment or has agreed to provide funding, financing or payment for labor or materials or equipment refuses to continue to provide such funding, financing or payment for labor materials solely because of the filing or recording of a notice of intention; or (2) it appears from the notice of intention that the claimant has no valid lien by reason of the character of or the contract for the labor, materials or equipment and for which a lien is claimed; or (3) that a notice or other instrument has not been filed or recorded in accordance with the applicable provisions of § 34-28-1 et seq.; or (4) that for any other reason a claimed lien is invalid by reason or failure to comply with the provisions of § 34-28-1 et seq., then in such event, such person may apply forthwith to the superior court for the county where the land lies for an order to show cause why the lien in question is invalid, or otherwise void, or the basis of the lien is without probability of a judgment rendered in favor of the lienor. A mortgage holder or servicer is not a necessary party under this section and shall not be named as a party in any such application or order of notice.
  2. An order of notice to appear and show cause why the relief demanded in the complaint should not be granted shall be served upon the necessary parties no later than one week prior to the date of the scheduled hearing. If the necessary parties cannot be found, such service may be made as the court shall direct. The application shall be made upon a verified complaint accompanied by other written proof of facts upon which the application is made. Upon granting or denying the application, the court shall enter an order or judgment as applicable on the matter involved. Nothing herein shall affect the validity of, or otherwise modify or alter, the mortgage contract nor otherwise affect, alter or modify the mortgage holder’s rights under § 34-28-16.1 .

History of Section. P.L. 2003, ch. 269, § 1; P.L. 2003, ch. 299, § 1; P.L. 2004, ch. 402, § 1; P.L. 2006, ch. 630, § 1.

Law Reviews.

2005 Survey of Rhode Island Law: Constitutional Law: Gem Plumbing & Heating Co., Inc. v. Rossi, 867 A.2d 796 (R.I. 2005), see 11 Roger Williams U. L. Rev. 765 (2006).

2006 Survey of Rhode Island Law: Case: Property Law/Constitutional Law/Debtor Creditor/Mechanics’ Lien Law: F.C.C., Inc. v. Reuter, et al., 867 A.2d 819 (R.I. 2005), see 12 Roger Williams U. L. Rev. 631 (2007).

NOTES TO DECISIONS

Constitutionality.

Rhode Island Mechanics’ Lien Law, as amended by R.I. Gen. Laws § 34-28-17.1 provided due process protections to property owners whose property had been subjected to liens; in ruling the statute had unconstitutionally denied landowners’ federal and Rhode Island constitutional guarantees of due process, the trial court erred in referencing a version of the statute that was no longer in effect. F.C.C., Inc. v. Reuter, 867 A.2d 819, 2005 R.I. LEXIS 35 (2005).

Rhode Island Mechanics’ Lien Law, as amended by R.I. Gen. Laws § 34-28-17.1 , does not violate due process under the Fourteenth Amendment to the United States Constitution or R.I. Const. art. 1, § 2 because, despite the lack of a showing of extraordinary circumstances and ex parte judicial review of an affidavit, the procedural safeguards that R.I. Gen. Laws § 34-28-17.1 employs, primarily the prompt post-deprivation hearing, limits the risk of erroneous deprivation. Gem Plumbing & Heating Co. v. Rossi, 867 A.2d 796, 2005 R.I. LEXIS 36 (2005).

34-28-18. Consolidation of proceedings by different lienholders.

If more than one complaint under §§ 34-28-10 and 34-28-13 are filed against the same or any part of the same property, like proceedings shall be had on each, and each plaintiff shall give, upon motion of any person interested in the complaint made at any time, surety for costs, unless he or she is an inhabitant of the state; but all such complaints against the same or any part of the same property shall be consolidated after the returns of the citations, and shall proceed as one.

History of Section. G.L. 1896, ch. 206, § 12; G.L. 1909, ch. 257, § 12; G.L. 1923, ch. 301, § 12; G.L. 1938, ch. 445, § 12; G.L. 1956, § 34-28-12 ; G.L. 1956, § 34-28-18 ; P.L. 1965, ch. 235, § 1; P.L. 2006, ch. 630, § 1.

34-28-19. Costs of proceedings.

The costs of the proceedings shall in every instance be within the discretion of the court as between any of the parties. Costs shall include legal interest, costs of advertising, and all other reasonable expenses of proceeding with the enforcement of the action. The court, in its discretion, may also allow for the award of attorneys’ fees to the prevailing party.

History of Section. G.L. 1896, ch. 206, § 13; G.L. 1909, ch. 257, § 13; G.L. 1923, ch. 301, § 13; G.L. 1938, ch. 445, § 13; G.L. 1956, § 34-28-13 ; G.L. 1956, § 34-28-19 ; P.L. 1965, ch. 235, § 1; P.L. 1991, ch. 321, § 1.

NOTES TO DECISIONS

Attorney Fees.

Mechanics’ lien statute, R.I. Gen. Laws § 34-28-19 , makes clear that an award of costs and an award of attorneys’ fees are distinct discretionary acts; thus, even if a hearing justice had intended to affirm an arbitrator’s award of “costs” upon judicial review of an original arbitration award, these costs could not have included attorneys’ fees, therefore, the court erred when it affirmed the arbitration award but, in fact, augmented it by adding costs and attorneys’ fees. Aponik v. Lauricella, 844 A.2d 698, 2004 R.I. LEXIS 66 (2004).

Where the court refused to bar a subcontractor’s action to enforce a mechanics’ lien when the subcontractor did not file a notice of lis pendens against the property, pursuant to R.I. Gen. Laws § 34-28-10(a) , after the property owner filed a petition to discharge the lien, pursuant to R.I. Gen. Laws § 34-28-17 , and agreed to post a bond; the court did not abuse its discretion by finding that the subcontractor was the prevailing party in its action to enforce its lien or by awarding the subcontractor $ 12,383 in attorneys’ fees. Keystone Elevator Co. v. Johnson & Wales Univ., 850 A.2d 912, 2004 R.I. LEXIS 79 (2004).

Bond.

Although the trial justice did not err in exercising his discretion in declining to include legal interest and other expenses of proceeding with the enforcement of the action, he was in error in requiring the plaintiff to file a bond equal to that which was claimed, since no genuine dispute existed concerning the plaintiff’s entitlement thereto. Stone v. Housing Auth., 643 A.2d 190, 1994 R.I. LEXIS 180 (1994).

34-28-20. Persons entitled to contest claims.

Every defendant to any complaint and every person claiming to have a lien under § 34-28-1 , 34-28-2 or 34-28-3 on the property described therein or on any part thereof, and every person claiming an interest therein by title, claim, lease, mortgage, attachment, or other lien or encumbrance, may contest the right of the plaintiff and of all others claiming a lien under this chapter to the property or any part thereof to any lien, as well as the amount of the claim.

History of Section. G.L. 1896, ch. 206, § 15; G.L. 1909, ch. 257, § 15; G.L. 1923, ch. 301, § 15; G.L. 1938, ch. 445, § 15; G.L. 1956, § 34-28-15 ; G.L. 1956, § 34-28-20 ; P.L. 1965, ch. 235, § 1; P.L. 2006, ch. 630, § 1.

NOTES TO DECISIONS

Legislative Intent.

The provisions in this section and §§ 34-28-14 and 34-28-21 for notice, the right to contest lien, and for marshaling proceeds, clearly show a legislative intent to suspend a mortgagee’s power of sale when property is brought into equity on a petition for lien. Jepherson v. Green, 22 R.I. 276 , 47 A. 599, 1900 R.I. LEXIS 107 (1900).

Collateral References.

Interpleader by owner against contractor and lien claimants. 70 A.L.R. 515.

34-28-21. Decree ordering sale.

The court shall, upon motion made by the plaintiff, defendant, or any other person, party to the proceedings, claiming to have a lien on the property or any part thereof under § 34-28-1 , 34-28-2 , 34-28-3 or 34-28-7 , had any claim against the property at the time of filing the complaint, or on becoming a party to the proceedings, the court shall, by itself or by a master to be appointed by it for that purpose, proceed to ascertain the exact nature and amount of each claim on the property or any part thereof, made by or belonging to any party to the proceedings, the amount of which to be allowed and paid shall be computed on the basis of the value of the property prior to the construction, erection, alteration, or reparation which is the subject matter of the complaint, and the order in which, in accordance with § 34-28-25 , they should be paid, and, in the event no payment has been made into the registry of the court as provided in § 34-28-1 7, how much of the property, and especially how much, if any, and what portions of land under and adjoining the same, subject to sale by the provisions of this chapter, should be sold to satisfy the claims; and thereupon the court shall decree the property or some part of it, or the interest of the person defendant in the property or some part of it at the time the lien accrued, to be sold by and under the direction of a master to be appointed for that purpose, with instructions, restrictions, and conditions as it shall give in the premises, and the master shall make the sale in accordance with the instructions, restrictions and conditions, free and clear of all titles, claims, leases, mortgages, attachments, or other liens or encumbrances (including all liens under § 34-28-1, 34-28-2 , 34-28-3 or 34-28-7 and all rights of dower and curtesy), except of persons who have rights which are excepted in § 34-28-16 from being void and wholly lost unless an appearance and account and demand or claim is filed in accordance therewith.

History of Section. G.L. 1896, ch. 206, § 16; G.L. 1909, ch. 257, § 16; G.L. 1923, ch. 301, § 16; G.L. 1938, ch. 445, § 16; G.L. 1956, § 34-28-16 ; G.L. 1956, § 34-28-21 ; P.L. 1965, ch. 235, § 1; P.L. 1991, ch. 328, § 1; P.L. 2006, ch. 630, § 1.

NOTES TO DECISIONS

Default of Appearance.

The court by rule may prescribe what default of appearance will amount to a confession, and until such rule is made, nonappearance at the time the petition is called will be regarded as a confession of the lien. James P. Burlingame & Co. v. Emerson, 5 R.I. 62 , 1857 R.I. LEXIS 12 (1857).

Mortgagee’s Power of Sale.

The provisions in this section and §§ 34-28-14 and 34-28-20 for notice, the right to contest lien, and for marshaling proceeds, clearly show a legislative intent to suspend a mortgagee’s power of sale when property is brought into equity on a petition for lien. Jepherson v. Green, 22 R.I. 276 , 47 A. 599, 1900 R.I. LEXIS 107 (1900).

Where petition under this statute to enforce a mechanic’s lien was pending, mortgagee could not proceed, as a matter of right, to foreclose under a power of sale, even though mortgage was prior in time to the contract under which lien arose. Jepherson v. Green, 22 R.I. 276 , 47 A. 599, 1900 R.I. LEXIS 107 (1900).

Right to Appeal.

A decree by the superior court that petition for mechanic’s lien showed a legal claim against the property and referring the cause to a master for further disposition was a final decree from which an appeal could be taken. Robert v. Rousseau, 28 R.I. 335 , 67 A. 330, 1907 R.I. LEXIS 54 (1907), overruled, Lederer v. Rosen, 43 R.I. 315 , 111 A. 872, 1920 R.I. LEXIS 74 (1920).

Subcontractor claiming lien for labor and materials could appeal from interlocutory order dismissing claim for lien for materials under general discretion of supreme court to avoid irreparable injury and injustice. Art Metal Constr. Co. v. Knight, 56 R.I. 228 , 185 A. 136, 1936 R.I. LEXIS 98 (1936).

Scope of Discretion.

The trial justice has broad discretion in instructing the master in regard to the sale of debtor’s property, and a review of the record revealed no error or abuse of discretion on the part of trial justice’s confirmation for appointment of a master to bring about the sale of defendant’s property to satisfy mechanic’s lien arising out of contractual agreement. R.J. Murgo Housesmith, Inc. v. Murphy, 633 A.2d 1354, 1993 R.I. LEXIS 218 (1993).

Collateral References.

Personal judgment as essential to enforcement of mechanic’s lien. 147 A.L.R. 1099.

Redemption by lienor from own sale. 108 A.L.R. 996.

34-28-22. Court instructions as to sale.

In every decree of sale the court shall prescribe the notice that shall be given of the sale, and shall also give therein instructions and particular directions as each case may require, and upon application to the court, at any time, further instructions and directions may be given from time to time in relation thereto.

History of Section. G.L. 1896, ch. 206, § 22; G.L. 1909, ch. 257, § 22; G.L. 1923, ch. 301, § 22; G.L. 1938, ch. 445, § 22; G.L. 1956, § 34-28-17 ; G.L. 1956, § 34-28-22 ; P.L. 1965, ch. 235, § 1.

NOTES TO DECISIONS

Scope of Discretion.

The trial justice has broad discretion in instructing the master in regard to the sale of debtor’s property, and a review of the record revealed no error or abuse of discretion on the part of trial justice’s confirmation for appointment of a master to bring about the sale of defendant’s property to satisfy mechanic’s lien arising out of contractual agreement. R.J. Murgo Housesmith, Inc. v. Murphy, 633 A.2d 1354, 1993 R.I. LEXIS 218 (1993).

34-28-23. Application of proceeds of sale.

The proceeds of the sale, after payment of the master’s fees, costs and incidental charges as shall be allowed by the court, shall be applied by the master, according to his or her instructions from the court, to the payment of the claims as marshaled and ascertained, and the balance, if any, which shall remain after payment thereof, shall be paid over by the master to the owner or the lessee or tenant of the property, as the case may be.

History of Section. G.L. 1896, ch. 206, § 17; G.L. 1909, ch. 257, § 17; G.L. 1923, ch. 301, § 17; G.L. 1938, ch. 445, § 17; G.L. 1956, § 34-28-18 ; G.L. 1956, § 34-28-23 ; P.L. 1965, ch. 235, § 1.

NOTES TO DECISIONS

Prior Mortgagee.

In a proceeding to foreclose a lien for material against real estate, a prior mortgagee was entitled to keep his security intact and was liable only for the cost of sale where he bid the property in at less than the amount of the mortgage. Jepherson v. Greene, 24 R.I. 83 , 52 A. 808, 1902 R.I. LEXIS 33 (1902).

34-28-24. Master’s bond.

The court may, in its discretion, require of the master bond or bonds with surety or sureties in such sum and to the person or persons as it may direct, securing the faithful application of the proceeds of sale, and may from time to time remove the master on account of any noncompliance with its order or decree, and appoint a new master in his or her stead.

History of Section. G.L. 1896, ch. 206, § 18; G.L. 1909, ch. 257, § 18; G.L. 1923, ch. 301, § 18; G.L. 1938, ch. 445, § 18; G.L. 1956, § 34-28-19 ; G.L. 1956, § 34-28-24 ; P.L. 1965, ch. 235, § 1.

34-28-25. Priority of liens.

  1. The priority of liens under §§ 34-28-1 , 34-28-2 , 34-28-3 and 34-28-7 shall be as follows:
    1. Except as provided in subdivision (a)(3), as between persons having valid liens under this chapter, all of the lien holders shall share pro rata in the distribution of funds received by deposit under § 34-28-1 7 or of the proceeds of any sale under § 34-28-2 1, based on the amount of their claim plus their additional expenses of filing and advertising, if any.
    2. Except as provided in subdivision (1), the priority of persons mailing and filing notices of intention under § 34-28-4 shall date from the date of the filing; the lien of the persons shall be senior to any subsequently recorded title, claim, lease, mortgage, attachment, or other lien or encumbrance (other than under § 34-28-1, 34-28-2, 34-28-3 or 34-28-7 ), and the lien of such persons shall be junior to any prior recorded title, claim, lease, mortgage, attachment, or other lien or encumbrance (other than under § 34-28-1, 34-28-2, 34-28-3 or 34-28-7). Any person having an existing lien under § 34-28-1, 34-28-2, 34-28-3 or 34-28-7 subject to any prior recorded mortgage, attachment, or other lien or encumbrance may pay off the prior mortgage, attachment, or other lien or encumbrance and shall be subrogated to all of the rights of the holder of the prior mortgage, attachment, or other lien or encumbrance.
    3. In the event that there shall be recorded any title, claim, lease, mortgage, attachment, or other lien or encumbrance (other than under § 34-28-1, 34-28-2, 34-28-3 or 34-28-7) junior to any liens under § 34-28-1, 34-28-2, 34-28-3 or 34-28-7 in accordance with subdivision (2) and senior to other liens, then the liens under § 34-28-1, 34-28-2, 34-28-3 or 34-28-7 senior to the title, claim, lease, mortgage, attachment, or other lien or encumbrance shall be separated from the liens junior to the lien or encumbrance, and the senior liens shall be senior to the title, claim, lease, mortgage, attachment, or other lien or encumbrance, and the junior liens shall be junior thereto.
  2. Priority between persons whose claims are not specifically provided for in this section shall be determined by the court or master in accordance with equity and good conscience.

History of Section. P.L. 1965, ch. 235, § 1; P.L. 1991, ch. 328, § 1.

Collateral References.

Right of mortgagee and/or lienor to compensation when property subject to mortgage and/or lien is taken by federal government forfeiture based on criminal acts of owner. 136 A.L.R. Fed. 593.

34-28-26. Subordination or release of lien.

Any subordination agreement or release, bearing the signature of any person with authority to sign the agreement or release, or of the person who is designated in a notice of intention under § 34-28-4 as the person whose signature will bind the person filing the notice, which purports to subordinate or release any lien under § 34-28-1 , 34-28-2 , 34-28-3 or 34-28-7 whether for work done or materials furnished prior to the agreement or release, or thereafter, or both, notwithstanding the fact that no consideration is given therefor, shall be enforceable according to its terms, by any other person who has changed his or her position in any way in reliance upon the subordination agreement or release, whether the other person is otherwise obligated to make the change of position or not.

History of Section. P.L. 1965, ch. 235, § 1; P.L. 1991, ch. 328, § 1.

34-28-27. Direct payment on release of lien.

Any person entitled to any lien under § 34-28-1 , 34-28-2 or 34-28-3 who releases the lien before receiving payment for the work done or materials furnished forming the basis of the lien, shall be entitled to demand and receive direct payment therefor from the owner or lessee or tenant or other person as may be obligated or permitted to make the payment on behalf of the owner or lessee or tenant, provided that the person entitled to the lien first obtains the written consent of all persons in line of privity between him or her and the owner or other person; on presentation of a proper demand for the payment, the owner or lessee or tenant or other person shall, if satisfied as to the amount thereof, make payment, on proper receipt therefor, and credit shall be given therefor by all persons in line of privity between the owner or other person and the person releasing the lien.

History of Section. P.L. 1965, ch. 235, § 1.

34-28-28. Damages on withholding direct payment or consent thereto.

No person in the line of privity referred to in § 34-28-27 shall unreasonably withhold his or her written consent to a direct payment, nor shall any owner or lessee or tenant or other person referred to in § 34-28-27 unreasonably withhold a direct payment, and, if the person or owner or lessee or tenant or other person shall unreasonably withhold consent therefor or payment thereof, he or she shall be liable for any damages as may accrue as the natural and probable consequences thereof.

History of Section. P.L. 1965, ch. 235, § 1.

34-28-29. Form of demand for direct payment.

A demand for direct payment under § 34-28-27 shall be sufficient in substantially the following form:

DEMAND FOR DIRECT PAYMENT To: (here insert name of owner or lessee or tenant, or of other person as may be obligated or permitted to make payments on behalf of the owner or lessee or tenant). The undersigned hereby releases his or her lien against (here describe the building, canal, turnpike, railroad, or other improvement and the land on which it is situated, which description shall be sufficient to identify it generally with reasonable certainty) owned by or leased to (here insert name of owner or lessee) for work done or materials furnished by the undersigned, as follows: (Here insert a general description of the work done or materials furnished, with amounts and dates the work was performed). The undersigned had taken the following steps to perfect the lien: (Here insert the steps taken to perfect the lien under this chapter). The persons in line of privity between you and the undersigned are as follows: (Here insert names of all persons in line of privity). Each of the persons has endorsed his or her approval to this demand. Wherefore, the undersigned demands payment from you of the sum of (here insert amount). (Here insert signature and address of person making demand) Approved: (Here insert signatures of persons in line of privity) Payment received (For signature of person demanding payment, when he or she has received the same)

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History of Section. P.L. 1965, ch. 235, § 1.

34-28-30. Suit on bond to secure payment.

If any bond is given to secure payment for work done or materials furnished on account of the construction, erection, alteration, or reparation of any building, canal, turnpike, railroad, or other improvement or on account of any contract between the owner or lessee or tenant of the land on which the improvement is or shall be constructed, erected, altered, or repaired and any other person, the bond shall enure to the benefit of any person who does any work in the construction, erection, alteration, or reparation thereof, or who furnishes any materials used for that purpose, and the person doing the work or furnishing the materials may bring suit in his or her own name on the bond against any party thereto, notwithstanding the fact that no notice of intention under § 34-28-4 has been mailed or filed, and, further, notwithstanding the fact that he or she is not a party to the bond or to the contract between the owner or lessee or tenant and other person, and, further, notwithstanding the fact that he or she did not know of or rely on the bond or give any notice to the surety on the bond, and further, notwithstanding the fact that he or she did work or furnished materials for use on any subcontract, mediate or immediate, to such contract between the owner or lessee or tenant and the other person.

History of Section. P.L. 1965, ch. 235, § 1.

NOTES TO DECISIONS

Purpose.

The intent of the legislature in enacting this section was to provide a remedy by which a supplier of labor or materials could recover on a bond, this remedy to be in addition to other statutory remedies whose notice provisions are inapplicable. Providence Elec. Co. v. Donatelli Bldg. Co., 116 R.I. 340 , 356 A.2d 483, 1976 R.I. LEXIS 1283 (1976).

Alternate Remedies.

Steel supplier could maintain an action under this section, regardless of the remedy that might have been available to it under the contractors’ bond provisions of Chapter 12 of Title 37. Bethlehem Rebar Indus. v. Fidelity & Deposit Co., 582 A.2d 442, 1990 R.I. LEXIS 165 (1990).

Application of Mechanics’ Lien Statutes.

A supplier of material can recover from a general contractor for the value of material supplied without giving notice to the general contractor by certified mail as is contemplated in the contractors’ bonds statute, because the supplier’s remedy is provided for by the mechanics’ lien statutes which act as a supplement to the contractors’ bonds provisions. Atlantic States Cast Iron Pipe Co. v. Forte Bros., Inc., 474 A.2d 1250, 1984 R.I. LEXIS 505 (1984).

Subcontractor could sue an insurer under a payment bond that failed to limit the scope of its coverage to just construction-management services and allowed subcontractors to sue on the bond in assumpsit for unpaid supplies, materials, and labor. Extrusions Inc., Win-Vent Div. v. Nat'l Grange Mut. Ins. Co., 824 A.2d 439, 2003 R.I. LEXIS 152 (2003).

Notification of Claim.

Union is not estopped from bringing a claim for unpaid fringe benefits against a general contractor and the contractor’s surety because of its failure to notify them of the claim prior to instituting court action. This section clearly states that such notice is not required before an action may lie. International Bhd. of Elec. Workers, Local No. 99 v. United Pac. Ins. Co., 573 A.2d 270, 1990 R.I. LEXIS 81 (1990).

Time Limitations.

Where contractor’s bond for labor and materials contained a clause stating that any action on the bond must be commenced within one year after the principal ceased work on the project a suit brought after such period was properly dismissed. Vaudreuil v. Nelson Eng'g & Constr. Co., 121 R.I. 418 , 399 A.2d 1220, 1979 R.I. LEXIS 1794 (1979).

34-28-31. Application to governmental agencies.

No lien under § 34-28-1 , 34-28-2 or 34-28-3 shall attach to any building, canal, turnpike, railroad, or other improvement, if the improvement is being constructed, erected, altered, or repaired by or for the state, or any city or town, or any subdivision or agency thereof, or to any land upon which the improvement exists, if the land is owned by the state or any city or town, or any subdivision or agency thereof, but the provisions of § 34-28-3 0 shall apply to buildings, canals, turnpikes, railroads, or other improvements being so constructed, erected, altered, or repaired.

History of Section. P.L. 1965, ch. 235, § 1.

34-28-32. Contractor excused from completing work upon filing of complaint.

Whenever any such building, canal, turnpike, railroad, or other improvement shall be subject to sale under this chapter, from and after the filing of any complaint under §§ 34-28-10 and 34-28-13 , any contractor who shall not have fully completed his or her contract in relation to the erection, construction, alteration, or reparation thereof, shall thereafter be excused from completing the contract, unless unreasonable conduct by the contractor has contributed materially to the facts giving rise to the filing of the complaint (in which case the person contracting with the contractor may at his or her option excuse the contractor), but the excuse from completing the contract shall terminate if and when the building, canal, turnpike, railroad, or other improvement and the land on which the improvement exists, shall be released and discharged under the provisions of § 34-28-17 , unless unreasonable conduct by the owner or lessee or tenant has contributed materially to the facts giving rise to the filing of the complaint.

History of Section. G.L. 1896, ch. 206, § 21; G.L. 1909, ch. 257, § 21; G.L. 1923, ch. 301, § 21; G.L. 1938, ch. 445, § 21; G.L. 1956, § 34-28-22 ; G.L. 1956, § 34-28-32 ; P.L. 1965, ch. 235, § 1; P.L. 2006, ch. 630, § 1.

34-28-32.2. Construction.

This chapter is intended to afford a liberal remedy to all who have contributed labor, material, or equipment towards adding to the value of property to which the lien attaches and should be construed accordingly.

History of Section. P.L. 1991, ch. 328, § 3.

34-28-33. Remedy of chapter not exclusive.

Except as otherwise specified, nothing in this chapter shall be construed to limit the right of any person, whether he or she have a valid lien hereunder or not, to remedies otherwise available to him or her under law; and the rights, if any, of any person who has filed his or her account and demand or claim under § 34-28-1 6 for any deficiency, or the rights, if any, of any person who has failed to file his or her account and demand or claim thereunder, against any other person (rather than against the property which is the subject matter of any complaint under this chapter) shall not be impaired by the provisions of this chapter. In the event that there is a conflict as to procedures between § 34-28-1 et seq. and the rules of civil procedure, then the procedures noted in § 34-28-1 et seq. shall prevail.

History of Section. P.L. 1965, ch. 235, § 1; P.L. 2006, ch. 630, § 1.

NOTES TO DECISIONS

Claim for Work Done During Lien Period.

A judgment in a mechanics’ lien proceeding did not bar a contractor’s claim for work done during the lien period, although the superior court’s determination of the amount owed to the contractor for that work is conclusive and binding on the parties in this case under the doctrine of collateral estoppel. Commercial Assoc. v. Tilcon Gammino, Inc., 801 F. Supp. 939, 1992 U.S. Dist. LEXIS 14787 (D.R.I. 1992), aff'd, 998 F.2d 1092, 1993 U.S. App. LEXIS 18520 (1st Cir. 1993).

Since a contractor did not have to waive its right to arbitrate a contractual dispute, as a matter of law, by filing a notice of intention to claim a mechanic’s lien, pursuant to R.I. Gen. Laws § 34-28-33 the contractor could proceed to arbitration after first encumbering the subject real estate with a mechanic’s lien. Newman v. Valleywood Assocs., 874 A.2d 1286, 2005 R.I. LEXIS 122 (2005).

Remedies.

Trial court erred in granting a property owner’s motion to dismiss an action by an adjusting company and a remediation company for quasi-contract and unjust enrichment because the express language of the statute specifically allowed for the companies to pursue remedies in addition to those provided for in the mechanics’ liens statute. Multi-State Restoration, Inc. v. DWS Props., LLC, 61 A.3d 414, 2013 R.I. LEXIS 4 (2013).

34-28-34. Definitions.

  1. “Construction, erection, alteration or reparation” and “constructed, erected, altered or repaired,” as used in this chapter, means excavation and demolition preparatory to actual construction, erection, alteration, or reparation, except where used in the phrase “actual and visible commencement, by excavation or otherwise, of such construction, erection, alteration or reparation,” in §§ 34-28-7 and 34-28-10 , which phrase shall be construed to include the excavation or otherwise, but not demolition.
  2. “Mortgage” as used in this chapter means construction mortgages, so called, which are given to secure the payment of a sum certain which is to be advanced at stated times or intervals.
  3. “Person” as used in this chapter means corporations, partnerships, or other organizations or entities, except that the words “individual person” means only a natural person.

History of Section. P.L. 1965, ch. 235, § 1; P.L. 1966, ch. 197, § 5.

34-28-35. Form of real estate description.

Whenever any description of real estate is required under the provisions of this chapter, it shall be deemed sufficient to describe the real estate by metes and bounds description and street address, or by recitation of the taxing authority’s assessor’s plat and lot designation and street address, or by recitation of the book and page of mortgage and street address.

History of Section. P.L. 1965, ch. 235, § 1; P.L. 2006, ch. 630, § 3.

34-28-36. Short title.

This chapter may be cited as the “Rhode Island Mechanics’ Lien Law.”

History of Section. P.L. 1965, ch. 235, § 1; P.L. 2006, ch. 630, § 3.

34-28-37. Severability.

If any part or parts of this chapter shall be held to be unconstitutional, that unconstitutionality shall not affect the validity of the remaining parts of this chapter. The general assembly hereby declares that it would have enacted the remaining parts of this chapter if it had known that the part or parts thereof would be declared unconstitutional.

History of Section. P.L. 1990, ch. 452, § 1; P.L. 2006, ch. 630, § 3.

Chapter 29 Textile Processors’ Liens

34-29-1. Definitions.

The terms used in this chapter shall be construed as follows, unless other meaning is clearly apparent from the language or context, or unless such construction is inconsistent with the manifest intention of the legislature:

  1. “Debtor” means all persons, partnerships, and corporations who may be indebted to a “processor” for work and labor performed and materials furnished in and about the business of spinning, throwing, manufacturing, bleaching, mercerizing, dyeing, weighting, printing, finishing, dressing or scraping of linen, cotton, wool, silk, artificial silk, yarns or goods, skins, pelts, furs, or hides or goods of which linen, cotton, wool, silk, artificial silk, skins, pelts, furs, or hides form a component part.
  2. “Owner” means all persons, partnerships, and corporations having title to the property herein described, either at law or in equity, or having a lien or encumbrance on the same or having any interest whatsoever in the same, excepting the lien of the processor herein created.
  3. “Processor” means all persons, partnerships, and corporations engaged or that may be engaged in the business of spinning, throwing, manufacturing, bleaching, mercerizing, dyeing, weighting, printing, finishing, dressing, or scraping, or otherwise treating or processing of linen, cotton, wool, silk, artificial silks, yarns, or goods, skins, pelts, furs, or hides, or goods of which linen, cotton, wool, silk, artificial silk, skins, pelts, furs, or hides form a component part.
  4. “Property” means linen, cotton, wool, silk, artificial silk, yarn or goods, skins, pelts, furs, or hides, or goods of which linen, cotton, wool, silk, artificial silk, skins, pelts, furs, or hides form a component part.

History of Section. P.L. 1929, ch. 1354, § 1; G.L. 1938, ch. 446, § 1; G.L. 1956, § 34-29-1 .

Comparative Legislation.

Lien on manufacturers’ materials:

Conn. Gen. Stat. § 49-71.

Mass. Ann. Laws ch. 255, §§ 31A, 31B.

34-29-2. Lien on textiles for processing.

All processors shall be entitled to a lien upon the property of others which may come or may have come into their possession, for the entire indebtedness of the persons, partnership, or corporation for whose account, and to create which indebtedness work and labor was performed or materials furnished in and about the spinning, throwing, manufacturing, bleaching, mercerizing, dyeing, weighting, printing, finishing, dressing, or scraping or otherwise treating or processing, or shipping, trucking, and storing of the property for the debtor.

History of Section. P.L. 1929, ch. 1354, § 2; G.L. 1938, ch. 446, § 2; G.L. 1956, § 34-29-2 .

Cross References.

Effect of assignment for benefit of creditors, § 10-4-6 .

34-29-3. Priority of lien over owner’s interest.

The lien created hereby shall be paramount to the title, lien, interest, or incumbrance of any owner or owners, as herein defined, unless the owner or owners shall have notified the processor by registered or certified mail of the interest of the owner or owners prior to the time when the processor shall commence to perform work or labor or to furnish materials in and about the activities set forth in § 34-29-2 and prior to the time that any lien on the goods shall have arisen by virtue of the provisions of this chapter; and this paramount right of the processor shall not be surrendered or waived excepting by express written agreement between the parties involved.

History of Section. P.L. 1929, ch. 1354, § 5; G.L. 1938, ch. 446, § 5; P.L. 1956, ch. 3780, § 1; G.L. 1956, § 34-29-3 .

34-29-4. Lien unimpaired by judgment or taking of bill or note for debt.

The lien shall not be waived, merged, suspended, or impaired by the recovery of any judgment or the taking of any bill or note for the money due for such work, labor, or materials, and such lien may be enforced as though the judgment had not been recovered or the bill or note taken.

History of Section. P.L. 1929, ch. 1354, § 3; G.L. 1938, ch. 446, § 3; G.L. 1956, § 34-29-4 .

34-29-5. Sale of goods — Notice — Disposition of proceeds.

When any processor may have a lien upon the goods and property of others that may have come into their possession, and the amount due shall remain due and unpaid either in whole or in part, for two (2) months after the lien becomes due and payable, it shall be lawful for the processor to expose the goods and property for sale, and sell at public auction, upon notice of sale being first published for two (2) weeks at least once in each week, preceding the day of sale, in some newspaper published in the county in which the goods or property are located, and a copy of the printed notice being mailed to the owner or owners, if known, at least five (5) days before the day of sale, if their post office addresses can be ascertained; and the proceeds of the sale shall be applied to the payment of the lien and the expenses of the sale; and no more of the goods or property shall be sold, if easily separated or divided, than shall be necessary, as near as may be, to pay the lien and expenses, and the balance of the proceeds of sale of the goods or property, if any, shall be paid to those entitled thereto. Nothing in this section shall be construed to be in derogation of the right of the lienor to enforce the lien by any other lawful procedure.

History of Section. P.L. 1929, ch. 1354, § 4; G.L. 1938, ch. 446, § 4; G.L. 1956, § 34-29-5 .

34-29-6. Contractual liens.

The lien hereby created is in addition to any lien created by contract. Any contractual lien may be enforced by the same procedure as is provided in this chapter for the statutory lien, insofar as the contract does not provide otherwise.

History of Section. P.L. 1929, ch. 1354, § 6; G.L. 1938, ch. 446, § 6; G.L. 1956, § 34-29-6 .

34-29-7. Severability.

In case, for any reason, any section, part of section, clause or provision of this chapter shall be questioned in any court or determined to be unconstitutional or invalid, the clause or provision shall not in any way affect any other section, part of section, clause or provision of this chapter.

History of Section. P.L. 1929, ch. 1354, § 9; G.L. 1938, ch. 446, § 9; G.L. 1956, § 34-29-7 .

Chapter 30 Jewelers’, Watchmakers’, and Silversmiths’ Liens

34-30-1. Lien for alteration or repair work.

Every jeweler, watchmaker, or silversmith who shall alter, repair, or do any work on any article of personal property at the request of the owner or legal possessor thereof shall have a lien upon and may retain the possession of the article until the charges for the alteration, repairing, or other work have been paid.

History of Section. G.L., ch. 257, § 30, as enacted by P.L. 1919, ch. 1785, § 1; G.L. 1923, ch. 301, § 30; G.L. 1938, ch. 448, § 1; G.L. 1956, § 34-30-1 .

Cross References.

Effect of assignment for benefit of creditors, § 10-4-6 .

Comparative Legislation.

Jewelers’ lien:

Conn. Gen. Stat. § 49-60.

Mass. Ann. Laws ch. 255, § 31C.

34-30-2. Sale of property to enforce lien.

If the charge or charges remain unpaid for a period of one year or more any jeweler, watchmaker, or silversmith may sell the article at private or public sale, and the proceeds, after first paying the expense of sale, shall be applied in payment of the charge or charges, and the balance, if any, shall be paid over to the person at whose request the alteration, repairing, or other work was done.

History of Section. G.L., ch. 257, § 30, as enacted by P.L. 1919, ch. 1785, § 1; G.L. 1923, ch. 301, § 30; G.L. 1938, ch. 448, § 1; G.L. 1956, § 34-30-2 .

34-30-3. Notice of sale.

  1. Before the sale is held, notice in writing must be given to the person from whom the article to be sold was received, of the amount due for such alteration, repair, or other work, and the time and place of sale; if the residence of the person is known the notice must be mailed to his or her last known street address; but if it is unknown then the notice of the sale shall be published at least six (6) days previous to the sale in a newspaper, published in English, in the city or town in which the jeweler, watchmaker, or silversmith carries on business if the item to be sold has a fair market value in excess of one hundred dollars ($100).
  2. Fair market value as used in this section shall mean the price a willing buyer would pay to a willing seller and which the seller would accept on the open market.

History of Section. G.L., ch. 257, § 30; P.L. 1919, ch. 1785, § 1; G.L. 1923, ch. 301, § 30; G.L. 1938, ch. 448, § 1; G.L. 1956, § 34-30-3 ; P.L. 1988, ch. 178, § 1.

Chapter 30.1 Manufacturer’s Mold Lien

34-30.1-1. Manufacturer’s mold lien.

Molders shall have a lien on all dies, molds, forms or patterns in their possession belonging to a customer, for the balance due them from such customer for any manufacturing or fabrication work and in the value of all material related to such work. The molder may lawfully retain possession of the die, mold, form or pattern until the debts are paid.

History of Section. P.L. 1998, ch. 265, § 1.

34-30.1-2. Enforcement of lien — Notice.

  1. Before enforcing such lien, notice in writing shall be given to the customer either by delivering the notice personally or sending the notice by registered mail to the last known address of the customer. This notice shall state that a lien is being claimed for the damages set forth in or attached to such writing for manufacturing or fabrication work contracted or performed for the customer. This notice shall also include a demand for payment in a specific amount.
  2. If the molder has not been paid the amount due within sixty (60) days after the notice has been received by the customer as provided in § 34-30.1-2(1), the molder may sell the die, mold, form or pattern at a public auction and retain the proceeds.

History of Section. P.L. 1998, ch. 265, § 1; P.L. 2011, ch. 363, § 17.

34-30.1-3. Notice of sale.

  1. Prior to the sale at public auction the molder shall notify the customer by registered mail return receipt requested. The notice shall include the following information:
    1. The molder’s intention to sell the die, mold, form or pattern thirty (30) days after the customer’s receipt of the notice.
    2. A description of the die, mold, form or pattern to be sold.
    3. The time and place of the sale.
    4. An itemized statement of the amount due.
    1. If there is not a return of the receipt of the mailing or if the postal service returns the notice as being nondeliverable, the molder shall publish notice of the molder’s intention to sell the die, mold, form or pattern in a newspaper of general circulation in the city or town of the customer’s last known place of business. The notice shall include a description of the die, mold, form or pattern.
  3. If the sale is for a sum greater than the amount of the lien, the excess shall be paid to any prior lienholder of which the molder has actual knowledge at the time of sale and any remainder to the customer, if the customer’s address is known, or to the state treasurer for deposit in the general fund if the customer’s address is unknown to the molder at the time of the sale.

History of Section. P.L. 1998, ch. 265, § 1.

34-30.1-4. Sale in violation of federal patent or copyright law.

  1. If any sale is made under this chapter in violation of any right of a customer under federal patent or copyright law said sale shall be void and unenforceable and all proceeds shall be returned to the customer.
  2. A lien under this chapter does not take priority over and shall be subject to an existing perfected security interest.

History of Section. P.L. 1998, ch. 265, § 1; P.L. 2011, ch. 363, § 17.

Chapter 31 Launderers’ and Cleaners’ Lien

34-31-1. Lien for service and storage charges.

Every launderer or cleanser who shall launder, cleanse or store any article of apparel or other personal property at the request of the owner or legal possessor thereof shall have a lien on and may retain the possession of the article until the charges for such laundering, cleansing or storage have been paid.

History of Section. P.L. 1955, ch. 3529, § 1; G.L. 1956, § 34-31-1 .

Cross References.

Effect of assignment for benefit of creditors, § 10-4-6 .

Comparative Legislation.

Launderers’ and cleaners’ lien:

Conn. Gen. Stat. § 49-74.

Mass. Gen. Laws Ann., ch. 255, § 31D.

34-31-2. Sale to enforce lien.

If the charge or charges remain unpaid for a period of at least six (6) months the launderer or cleanser may sell the article at private or public sale or may dispose of the article in any other manner. After the six-months period has expired the owner and/or legal possessor of the article shall have no further right, title, or interest in and to the article.

History of Section. P.L. 1955, ch. 3529, § 1; G.L. 1956, § 34-31-2 ; P.L. 1962, ch. 208, § 1; P.L. 1977, ch. 208, § 1; P.L. 1983, ch. 49, § 1.

34-31-3, 34-31-4. Repealed.

History of Section. P.L. 1955, ch. 3529, § 1; G.L. 1956, § 34-31-3 ; P.L. 1962, ch. 208, § 1; G.L., § 34-31-4, as enacted by P.L. 1962, ch. 208, § 2; Repealed by P.L. 1977, ch. 208, § 2.

Compiler’s Notes.

Former §§ 34-31-3 and 34-31-4 concerned notice of sale to enforce a lien and records of sales.

Chapter 32 Liens on Motor Vehicles

34-32-1. Liens on motor vehicles.

No person shall attach or cause a lien to be levied upon any motor vehicle for money due for repairs to the motor vehicle in an amount exceeding an authorization signed by the owner indicating the cost of the repairs.

History of Section. P.L. 1976, ch. 286, § 1.

Repealed Sections.

Former chapter 32 of this title (G.L. 1896, ch. 158, §§ 1-5; G.L. 1909, ch. 187, §§ 1-5; G.L. 1923, ch. 215, §§ 1-5; G.L. 1938, ch. 392, §§ 1-5; G.L. 1938, ch. 447, §§ 1-10; P.L. 1938, ch. 2568, §§ 1-10; P.L. 1952, ch. 3033, § 1; G.L. 1956, §§ 34-32-1 to 34-32-1 6) was repealed by P.L. 1960, ch. 147, § 2. For present provisions of law, see Uniform Commercial Code, title 6A.

NOTES TO DECISIONS

Elements.

Where creditor conceded that no written work authorization was obtained from the creditor prior to its commencing repairs, the creditor did not comply with the requirements set forth in R.I. Gen. Laws § 34-32-1 and accordingly did not have a secured claim for the repair work; a repair order signed by the debtor was not a work authorization, but rather a bill that was presented after the repairs were completed. Montes v. Independent Auto Sales Inc. (In re Montes), 2006 Bankr. LEXIS 3792 (Bankr. D.R.I. July 28, 2006).

Oral Agreement.

Because an oral agreement between plaintiff and defendant for repairs to defendant’s automobile did not comply with the provisions of this section, a valid lien for repairs could not attach, and plaintiff could not assert a lien for storage. Case v. Bogosian, 708 A.2d 905, 1998 R.I. LEXIS 116 (1998).

Collateral References.

Loss of garageman’s lien on repaired vehicle by owner’s use of vehicle. 74 A.L.R.4th 90.

Chapter 33 Innkeepers’ Liens

34-33-1. Lien on baggage and property of guests.

Every hotelkeeper or innkeeper shall be entitled to a lien upon, and may detain, the baggage, goods, chattels, and property of a guest brought upon his or her premises for the proper charges due from the guest on account of his or her accommodation, board and lodging and for all extras furnished at the request of the guest, and for all moneys advanced or credit extended to the guest by the hotelkeeper or innkeeper.

History of Section. P.L. 1939, ch. 710, § 1; G.L. 1956, § 34-33-1 .

Cross References.

Effect of assignment for benefit of creditors, § 10-4-6 .

Obtaining food or accommodations with intent to defraud, penalty, § 11-18-26 .

Safekeeping of valuables of guests, §§ 5-14-1 , 5-14-2 .

Collateral References.

Automobile as subject to innkeeper’s lien. 50 A.L.R. 1102.

Conditional sale, innkeeper’s lien on property sold to guest on. 45 A.L.R. 960.

Landlord’s distress for rent on goods of guest at inn. 62 A.L.R. 1126; 1155.

What constitutes a hotel or inn. 19 A.L.R. 517; 53 A.L.R. 989.

34-33-2. Sale of goods — Notice.

Any hotelkeeper or innkeeper who shall have a lien for accommodation, board and lodging or extras upon any baggage, goods, chattels, or property as provided in § 34-33-1 , or who, for a period of six (6) months shall have in his or her custody any unclaimed trunk, box, valise, package or parcel, or other chattel property, may sell the property at public auction to the highest bidder for cash and out of the proceeds of the sale may retain the expense of storage, advertisement, and sale thereof, as well as the amount of lien, if any; provided, however, that not less than fifteen (15) days prior to the date of the sale, a notice designating the time and place of the sale, and containing a brief general description of the goods, baggage, or articles to be sold, shall be published in a newspaper published in the city or town in which the hotel or inn is situated, and if there is no newspaper published in the city or town, then in a newspaper published in the county where the hotel or inn is situated; and provided, further, that if the name and address of the guest or owner of the goods, baggage or articles appears on the records of the hotelkeeper or innkeeper, a copy of the published notice shall be mailed to the guest or owner at the address by registered or certified mail, postage prepaid, not less than ten (10) days prior to the date of the sale.

History of Section. P.L. 1939, ch. 710, § 2; impl. am. P.L. 1956, ch. 3717, § 1; G.L. 1956, § 34-33-2 .

Chapter 34 Federal Liens

34-34-1. Duty of city or town to receive and file liens.

It shall be the duty of the recorder of deeds or the city or town clerk, having custody of the land records, in the several cities and towns in this state, to receive, file and index any and all notices of liens in favor of the United States for taxes due the United States, and of other liens notices of which under any act of congress or any regulation adopted pursuant thereto are required or permitted to be filed, or any copies thereof, duly certified by the director of internal revenue in whose district the state is situated, or by any other officer having legal custody of the records of notices of liens, with like effect as by existing law he or she is required to receive and record liens, deeds, and conveyances.

History of Section. G.L., ch. 301, § 33; P.L. 1923, ch. 460, § 1; G.L. 1938, ch. 451, § 1; G.L. 1956, § 34-34-1 ; P.L. 1987, ch. 279, § 1; P.L. 1987, ch. 322, § 1.

Cross References.

Effect of assignment for benefit of creditors, § 10-4-6 .

Comparative Legislation.

Federal tax lien filing:

Conn. Gen. Stat. § 47-36.

Mass. Ann. Laws ch. 36, § 24.

NOTES TO DECISIONS

Filing.

This section designates the office of the recorder of deeds as the one office within the state where the Internal Revenue Service is required to file “notice of liens in favor of the United States for taxes due”. In re Elliott, 67 B.R. 866, 1986 Bankr. LEXIS 4840 (Bankr. D.R.I. 1986).

Collateral References.

Federal and state taxes, priority between. 62 A.L.R. 146.

Federal tax liens. 105 A.L.R. 1244; 174 A.L.R. 1373.

Sufficiency of designation of taxpayer in recorded notice of federal tax lien. 3 A.L.R.3d 633.

Chapter 35 Enforcement of Common Law and Contractual Liens

34-35-1. Complaint for order of sale.

Whoever has a lien for money due him or her on account of work and labor, care and diligence, or money expended on or about personal property or for storage of personal property or has a lien therefor on account by reason of any contract expressed or implied, if the money is not paid within thirty (30) days after a demand in writing delivered to the owner or one of the owners, or left at his or her usual place of abode, if within this state, with some person living there, or made by letter mailed to him or her at his or her usual post office address outside the state, may apply for an order for the sale of the property in satisfaction of the debt by civil action in the superior court for the county where the plaintiff or one of the plaintiffs resides.

History of Section. G.L. 1896, ch. 206, § 28; C.P.A. 1905, § 1142; G.L. 1909, ch. 257, § 24; G.L. 1923, ch. 301, § 24; G.L. 1938, ch. 452, § 1; G.L. 1956, § 34-35-1 ; P.L. 1991, ch. 197, § 1.

Cross References.

Assignment for benefit of creditors, effect, § 10-4-6 .

Disinfection of imported goods, lien for, § 23-9-19 .

Jurisdiction of superior court, § 8-2-14 .

Vendor’s lien on goods, §§ 6A-2-609 , 6A-2-702 , 6A-2-707 .

Comparative Legislation.

Enforcement of liens:

Mass. Ann. Laws ch. 255, §§ 26, 29.

NOTES TO DECISIONS

Common-Law Liens.

A garage keeper has no common-law lien for charges for storage of a vehicle. Case v. Bogosian, 708 A.2d 905, 1998 R.I. LEXIS 116 (1998).

Effect on Common Law.

This chapter merely serves to enhance the existing common-law lien, providing a method by which the lien holder can satisfy its lien, but does not transform the common-law lien into a statutory lien, nor change the general rule that common-law lien perfection is achieved by possession. In re DiPasquale, 105 B.R. 187, 1989 Bankr. LEXIS 1685 (Bankr. D.R.I. 1989).

Collateral References.

Alien enemy, enforcement of lien on property of. 137 A.L.R. 1370; 153 A.L.R. 1419.

Assignee’s right to enforce lien on automobile for storage. 85 A.L.R.3d 199.

Judgment denying recovery on indebtedness as bar to action to enforce lien. 4 A.L.R. 1178.

Loss of garageman’s lien on repaired vehicle by owner’s use of vehicle. 74 A.L.R.4th 90.

Seed or nursery stock lien, enforcement of. 149 A.L.R. 1393.

Soldiers’ and Sailors’ Civil Relief Act, effect of. 147 A.L.R. 1392; 149 A.L.R. 1463; 150 A.L.R. 1428; 151 A.L.R. 1460; 152 A.L.R. 1457; 153 A.L.R. 1429; 157 A.L.R. 1454; 158 A.L.R. 1456.

34-35-2. Citation to owner.

Upon filing the complaint, the clerk of the court shall issue a citation to the owner of the property to appear before the court at a time and place designated, to show cause why such lien should not be allowed and enforced by the court for the amount claimed.

History of Section. G.L. 1896, ch. 206, § 29; C.P.A. 1905, § 1227; G.L. 1909, ch. 257, § 25; G.L. 1923, ch. 301, § 25; G.L. 1938, ch. 452, § 2; G.L. 1956, § 34-35-2 .

34-35-3. Service of citation.

The citation shall contain the substance of the complaint and shall be served on the owner by a deputy sheriff, at least ten (10) days before the return day of the citation, by leaving an attested copy at the last and usual place of abode of the owner, or by reading the same in his or her presence and hearing, if he or she resides in this state. If the owner resides outside the state, the citation may be served upon him or her in the manner prescribed by law for service of subpoenas on nonresident defendants.

History of Section. G.L. 1896, ch. 206, § 30; G.L. 1909, ch. 257, § 26; G.L. 1923, ch. 301, § 26; G.L. 1938, ch. 452, § 3; G.L. 1956, § 34-35-3 ; P.L. 2012, ch. 324, § 69.

34-35-4. Citation of unknown owner.

If the owner of the property is unknown, the complaint may be filed thirty (30) days after the money becomes due, and a citation may issue “to the unknown owner,” describing the property. In that case, or if the residence of the owner is unknown, the citation may be served by publication in the manner as the court may direct.

History of Section. G.L. 1896, ch. 206, § 31; G.L. 1909, ch. 257, § 27; G.L. 1923, ch. 301, § 27; G.L. 1938, ch. 452, § 4; G.L. 1956, § 34-35-4 .

34-35-5. Order of sale — Distribution of proceeds.

If the owner makes default at the time appointed, or if, upon a hearing of the parties, it appears that a lien exists upon the property, and that the property ought to be sold for the satisfaction of the debt, the court may make an order for that purpose, and the property may be sold in conformity with the order. The court shall ascertain the amount due up to the time of the entering of the order, and any surplus of the proceeds of the sale, after satisfying the debt and all costs and charges, shall be paid into the registry of the court for the benefit of the lawful owner of the property.

History of Section. G.L. 1896, ch. 206, § 32; G.L. 1909, ch. 257, § 28; G.L. 1923, ch. 301, § 28; G.L. 1938, ch. 452, § 5; G.L. 1956, § 34-35-5 .

34-35-6. Alternative remedies unimpaired.

This chapter shall not limit or restrict the right of any party having a lien upon property to hold or dispose of the property in any other manner authorized by law, or by contract of parties.

History of Section. G.L. 1896, ch. 206, § 33; G.L. 1909, ch. 257, § 29; G.L. 1923, ch. 301, § 29; G.L. 1938, ch. 452, § 6; G.L. 1956, § 34-35-6 .

Chapter 36 Condominium Ownership

34-36-1. Short title.

This chapter shall be known and may be cited as the “Condominium Ownership Act”.

History of Section. P.L. 1963, ch. 181, § 1.

Cross References.

Uniform condominium law, § 34-36.1-1.01 et seq.

Comparative Legislation.

Condominiums:

Conn. Gen. Stat. § 47-68a et seq.

Mass. Ann. Laws ch. 183A, § 1 et seq.

34-36-2. Applicability.

This chapter shall be applicable only to property which the sole owner or all the owners submit to the provisions of the chapter by duly executing and recording a declaration as provided in the chapter.

History of Section. P.L. 1963, ch. 181, § 1.

34-36-3. Definitions.

As used in this chapter:

  1. “Association of unit owners” means all of the unit owners acting as a group in accordance with the declaration and bylaws.
  2. “Building” means a building, containing four (4) or more units, or two (2) or more buildings, with a total of four (4) or more units for all the buildings, and comprising a part of the property.
  3. “Common areas and facilities,” unless otherwise provided in the declaration or lawful amendments thereto, means and includes:
    1. The land on which the building is located;
    2. The foundations, columns, girders, beams, supports, main walls, roofs, halls, corridors, lobbies, stairs, stairways, fire escapes, and entrances and exits of the building;
    3. The basements, yards, gardens, parking areas, and storage spaces;
    4. The premises for lodging of janitors or persons in charge of the property;
    5. Installations of central services such as power, light, gas, hot and cold water, heating, refrigeration, air conditioning, and incinerating;
    6. The elevators, tanks, pumps, motors, fans, compressors, ducts, and in general all apparatus and installations existing for common use;
    7. Such community and commercial facilities as may be provided for in the declaration; and
    8. All other parts of the property necessary or convenient to its existence, maintenance, and safety, or normally in common use.
  4. “Common expenses” means and includes:
    1. All sums lawfully assessed against the unit owners;
    2. Expenses of administration, maintenance, repair, or replacement of the common areas and facilities;
    3. Expenses agreed upon as common expenses by the association of unit owners;
    4. Expenses declared common expenses by provisions of this chapter, or by the declaration or the bylaws.
  5. “Common profits,” unless otherwise provided in the declaration or lawful amendments thereto, means and includes the balance of all income, rents, profits, and revenues from the common areas and facilities remaining after the deduction of the common expenses.
  6. “Condominium” means the ownership of a single unit in a multi-unit project together with an undivided interest in common in the common areas and facilities of the property.
  7. “Condominium project” means a real estate condominium project; a plan or project whereby four (4) or more apartments, rooms, office spaces, or other units in existing or proposed apartment, commercial, or industrial buildings or structures are separately offered or proposed to be offered for sale.
  8. “Declaration” means the instrument by which the property is submitted to the provisions of this chapter, as it from time to time may be lawfully amended.
  9. “Limited common areas and facilities” means and include those common areas and facilities designated in the declaration as reserved for use of a certain unit or units to the exclusion of the other units.
  10. “Majority” or “majority of the unit owners” unless otherwise provided in the declaration or lawful amendments thereto, mean the owners of more than fifty per cent (50%) in the aggregate in interest of the undivided ownership of the common areas and facilities.
  11. “Management committee” means the committee as provided in the declaration charged with and having the responsibility and authority to make and to enforce all of the reasonable rules and regulations covering the operation and maintenance of the property.
  12. “Person” means individual, corporation, partnership, association, trustee or other legal entity.
  13. “Property” means and includes the land, the building, all improvements and structures thereon, all easements, rights, and appurtenances belonging thereto, and all articles of personal property intended for use in connection therewith.
  14. “Record,” “recording,” “recorded,” and “recorder” shall have the meaning stated in chapter 13 of this title.
  15. “Record of survey map” means a plat or plats of survey of the property and of all units in the property submitted to the provisions of this chapter, which may consist of a three-dimensional, horizontal, and vertical delineation of all such units.
  16. “Unit” means a part of the property intended for any type of independent use, including one or more rooms or spaces located in one or more floors (or part or parts of floors) in a building.
  17. “Unit number” means the number, letter or combination thereof designating the unit in the declaration and in the record of survey map.
  18. “Unit owner” means the person or persons owning a unit in fee simple and an undivided interest in the fee simple estate of the common areas and facilities in the percentage specified and established in the declaration.

History of Section. P.L. 1963, ch. 181, § 1.

34-36-4. Units deemed separable.

Each unit, together with its undivided interest in the common areas and facilities, shall, for all purposes, constitute real property and may be individually conveyed, leased, and encumbered and may be inherited or devised by will and be subject to all types of juridic acts inter vivos or mortis causa as if it were sole and entirely independent of all other units, and the separate units shall have the same incidents as real property, and the corresponding individual titles and interests therein shall be recordable.

History of Section. P.L. 1963, ch. 181, § 1.

Collateral References.

Standing to bring action relating to real property of condominium. 74 A.L.R.4th 165.

34-36-5. Units may be held in ownership as in other property.

Any unit may be held and owned by more than one person as joint tenants, or as tenants in common, or in any other real property tenancy relationship recognized under the laws of the state.

History of Section. P.L. 1963, ch. 181, § 1.

34-36-6. Exclusive ownership and possession.

Each unit owner shall be entitled to the exclusive ownership and possession of his or her unit.

History of Section. P.L. 1963, ch. 181, § 1.

34-36-7. Incidents of ownership.

  1. Each unit owner shall be entitled to an undivided interest in the common areas and facilities in the percentage expressed in the declaration. The percentage shall be computed by taking as a basis the value of the unit in relation to the value of the property.
  2. The percentage of the undivided interest of each unit owner in the common areas and facilities as expressed in the declaration shall have a permanent character and shall not be altered without the consent of all of the unit owners expressed in an amended declaration duly recorded. The percentage of the undivided interest in the common areas and facilities shall not be separated from the unit to which it appertains and shall be deemed to be conveyed or encumbered or released from liens with the unit even though the interest is not expressly mentioned or described in the conveyance or other instrument.
  3. The common areas and facilities shall remain undivided and no unit owner or any other person shall bring any action for partition or division of any part thereof, unless the property has been removed from the provisions of this chapter as provided in §§ 34-36-22 and 34-36-31 . Any covenants to the contrary shall be null and void.
  4. Each unit owner may use the common areas and facilities in accordance with the purpose for which they were intended without hindering or encroaching upon the lawful rights of the other unit owners.
  5. The necessary work of maintenance, repair, and replacement of the common areas and facilities and the making of any additions or improvements thereon shall be carried out only as provided in this chapter or in the declaration or bylaws.
  6. The manager or management committee shall have the irrevocable right to have access to each unit from time to time during reasonable hours as may be necessary for the maintenance, repair, or replacement of any of the common areas and facilities or for making emergency repairs necessary to prevent damage to the common areas and facilities or to another unit or units.

History of Section. P.L. 1963, ch. 181, § 1.

NOTES TO DECISIONS

Unlawful Expansion.

When a trust’s expansion of the trust’s condominium unit was found to violate R.I. Gen. Laws §§ 34-36-7(b) and 34-36.1-2.17(d) , the trust was also properly found liable for breach of contract because the trust’s actions violated an applicable provision of the condominium declaration that mirrored the statutes. Am. Condo. Ass'n v. Mardo, 140 A.3d 106, 2016 R.I. LEXIS 94 (2016).

34-36-8. Compliance with declaration and rules.

Each unit owner shall comply strictly with the covenants, conditions, and restrictions as set forth in the declaration or in the deed to his or her unit, and with the bylaws and/or house rules and with the administrative rules and regulations drafted pursuant thereto, as either of the same may be lawfully amended from time to time, and failure to comply shall be ground for an action to recover sums due for damages or injunctive relief or both, maintainable by the manager or management committee on behalf of the unit owners, or in a proper case, by an aggrieved unit owner.

History of Section. P.L. 1963, ch. 181, § 1.

NOTES TO DECISIONS

Declaration Interpretation.

In a condominium association’s declaratory judgment action, a trial court properly determined that a condominium unit owner was not permitted to rent his unit to a third tenant because the unambiguous condominium declaration clearly stated that a unit could not be rented more than two times in a single calendar year, the owner held individual, month-to-month tenancies with two tenants and, as such, the owner had reached the maximum number of annual rentals that were allowed under the declaration; thus, the owner’s proposed third lease agreement violated the declaration. Town Houses at Bonnet Shores Condo. Ass'n v. Langlois, 45 A.3d 577, 2012 R.I. LEXIS 93 (2012).

Dispute Over Administration.

The condominium statutes and condominium declaration controlled the relationship between the parties where the administration of a condominium complex was at issue. Artesani v. Glenwood Park Condo. Ass'n, 750 A.2d 961, 2000 R.I. LEXIS 107 (2000).

Collateral References.

Validity and construction of regulations of governing body of condominium or cooperative apartment pertaining to parking. 60 A.L.R.5th 647.

34-36-9. Alterations.

No unit owner shall do any work or make any alterations or changes which would jeopardize the soundness or safety of the property, reduce its value or impair any easement or hereditament, without in every such case the unanimous written consent of all the other unit owners being first obtained.

History of Section. P.L. 1963, ch. 181, § 1.

34-36-10. Declaration — Recording.

The owner or developer of a condominium project shall, prior to the conveyance of any unit, record a declaration containing covenants, conditions, and restrictions relating to the project, which shall be enforceable equitable servitudes where reasonable, and shall run with the land. Such servitudes unless otherwise provided, may be enforced by any unit owner, and his or her successors in interest, and may contain, among other things, the following particulars:

  1. A description of the land on which the building and improvements are or are to be located.
  2. A description of the building, stating the number of stories and basements and the number of units and the principal materials of which it is or is to be constructed.
  3. The unit number of each unit, and a statement of its location, approximate areas, number of rooms, and immediate common area to which it has access, and any other data necessary to its proper identification.
  4. A description of the common areas and facilities.
  5. A description of the limited common areas and facilities, if any, stating to which units such use is reserved.
  6. The value of the property and of each unit, and the percentage of undivided interest in the common areas and facilities appurtenant to each unit and its owner for all purposes, including voting.
  7. A statement of the purposes for which the building and each of its units are intended and restricted as to use.
  8. The name of a person to receive service of process, in the cases described in this chapter, together with the residence or place of business of the person which shall be within the city or county in which the building is located.
  9. Provisions, not inconsistent with this chapter, as to the percentage of votes by the unit owners which shall be determinative of whether to rebuild, repair, restore, or sell the property in the event of damage or destruction of all or part of the property, or of any other question.
  10. The method by which the declaration may be amended consistent with the provisions of this chapter.
  11. Any further matters in connection with the property which the person or persons executing the declaration may deem desirable to set forth consistent with this chapter.

History of Section. P.L. 1963, ch. 181, § 1.

34-36-11. Deeds — Contents.

Deeds of units shall include the following particulars:

  1. A description of the land as provided in § 34-36-10 , including the book and page or entry number and date of recording of the declaration.
  2. The unit number of the unit and any other data necessary for its proper identification.
  3. The percentage of undivided interest appertaining to the unit in the common areas and facilities.
  4. Any further particulars which the grantor and grantee may deem desirable to set forth consistent with the declaration and this chapter.

History of Section. P.L. 1963, ch. 181, § 1.

34-36-12. Recording of instruments affecting property — Separate index.

  1. The declaration, any amendment, any instrument by which the provisions of this chapter may be waived, and every instrument affecting the property or any unit shall be entitled to be recorded. Neither the declaration nor any amendment thereof shall be valid unless recorded.
  2. In addition to the records and indexes required to be maintained by the recorder, the recorder may maintain an index whereby the record of each condominium project contains a reference to the declaration, each conveyance of, lien against, and all other instruments referring to a unit affected by the declaration, and the record of each conveyance of, lien against, and all other instruments referring to a unit shall contain a reference to the declaration of the property of which the unit is a part.

History of Section. P.L. 1963, ch. 181, § 1; P.L. 1987, ch. 431, § 1.

NOTES TO DECISIONS

Condominium Index Discretionary.

This section does not mandate the maintenance of a condominium index, in addition to the general index, as a recording index or system; it merely states that an additional condominium index may be maintained in a particular town. In re Barnacle, 623 A.2d 445, 1993 R.I. LEXIS 115 (1993).

34-36-13. Survey map.

  1. Simultaneously with the recording of the declaration there shall be recorded a standard size, original linen/mylar (21" X 31") record of survey map, as defined in § 34-36-3(15) , with 61/4" X 11/2" recording information block, which map shall be made by a registered land surveyor and shall set forth (1) a description of the surface of the land included within the project, including all angular and linear data along the exterior boundaries of the property; (2) the linear measurement and location, with reference to the exterior boundaries, of the building or buildings located on the property; (3) diagrammatic floor plans of the building or buildings built or to be built thereon in sufficient detail to identify each unit, including its identifying number or symbol, the official datum elevations of the finished or unfinished interior surfaces of the floors and ceilings and the linear measurements of the finished or unfinished interior surfaces of the perimeter walls, and the lateral extensions, of every unit in the building; and (4) a certificate consenting to the recordation of such record of survey map pursuant to this chapter, signed and acknowledged by the record owner of such property. Every unit shall be identified on the record of survey map by a distinguishing number or other symbol.
  2. In interpreting the record of survey map or any deed or other instrument affecting a building or unit, the boundaries of the building or unit constructed or reconstructed in substantial accordance with the record of survey map shall be conclusively presumed to be the actual boundaries rather than the description expressed in the record of survey map, regardless of the settling or lateral movement of the building and regardless of minor variance between boundaries shown on the record of survey map and those of the building or unit.

History of Section. P.L. 1963, ch. 181, § 1; P.L. 1992, ch. 319, § 1.

34-36-14. Descriptions of unit.

Every deed, lease, mortgage, or other instrument may legally describe a unit by its identifying number or symbol as designated in the declaration or as shown on the record of survey map, and every description shall be deemed good and sufficient for all purposes, and shall be deemed to convey, transfer, encumber, or otherwise affect the unit owner’s corresponding percentage of ownership in the common areas and facilities even though the description is not expressly mentioned or described.

History of Section. P.L. 1963, ch. 181, § 1.

NOTES TO DECISIONS

General Description Sufficient.

A legal description contained in a mortgage deed, which does not describe the particular condominium unit intended to be conveyed, but instead describes the entire condominium building by a metes-and-bounds description, still gives constructive notice to a bona fide purchaser of the single condominium unit. In re Barnacle, 623 A.2d 445, 1993 R.I. LEXIS 115 (1993).

34-36-15. Bylaws — Recording.

The administration of every property shall be governed by bylaws, which may either be embodied in the declaration or in a separate instrument, a true copy of which shall be appended to and recorded with the declaration. No modification or amendment of the declaration or bylaws shall be valid unless the modification is set forth in an amendment and the amendment is recorded.

History of Section. P.L. 1963, ch. 181, § 1.

34-36-16. Bylaw provisions.

The bylaws may provide for the following:

  1. The establishment of a management committee, the number of persons constituting the committee and the method of selecting the members of the committee; the powers and duties of the management committee; and whether or not the management committee may engage the services of a manager.
  2. The method of calling meetings of the unit owners; what percentage of the unit owners shall constitute a quorum, and be authorized to transact business.
  3. The maintenance, repair, and replacement of the common areas and facilities and payment therefor.
  4. The manner of collecting from the unit owners their share of the common expenses.
  5. The designation and removal of personnel necessary for the maintenance, repair, and replacement of the common areas and facilities.
  6. The method of adopting and of amending administrative rules and regulations governing the details of the operation and use of the common areas and facilities.
  7. Restrictions on and requirements respecting the use and maintenance of the units and the use of the common areas and facilities as are designed to prevent unreasonable interference with the use of their respective units and of the common areas and facilities by the several unit owners.
  8. The percentage of votes required to amend the bylaws.
  9. Other provisions as may be deemed necessary for the administration of the property consistent with this chapter.

History of Section. P.L. 1963, ch. 181, § 1.

Collateral References.

Validity and construction of condominium bylaws or regulations placing special regulations, burdens, or restrictions on nonresident unit owners. 76 A.L.R.4th 295.

Validity and construction of regulations of governing body of condominium or cooperative apartment pertaining to parking. 60 A.L.R.5th 647.

34-36-17. Records of management.

The manager or management committee shall keep detailed, accurate records in chronological order, of the receipts and expenditures affecting the common areas and facilities, specifying and itemizing the maintenance and repair expenses of the common areas and facilities and any other expenses incurred. Records and the vouchers authorizing the payments involved shall be available for examination by the unit owners at convenient hours of weekdays.

History of Section. P.L. 1963, ch. 181, § 1.

34-36-18. Release of initial liens.

At the time of the first conveyance of each unit, every mortgage and other lien affecting the unit, including the percentage of undivided interest of the unit in the common areas and facilities, shall have been paid and satisfied of record, or the unit being conveyed and its percentage of undivided interest in the common areas and facilities shall have been released therefrom by partial release recorded.

History of Section. P.L. 1963, ch. 181, § 1.

34-36-19. Unit liens.

  1. Subsequent to recording the declaration as provided in this chapter, and while the property remains subject to this chapter, no lien shall thereafter arise or be effective against the property. During the period liens or encumbrances shall arise or be created only against each unit and the percentage of undivided interest in the common areas and facilities appurtenant to the unit in the same manner and under the same conditions in every respect as liens or encumbrances may arise or be created upon or against any other separate parcel of real property subject to individual ownership; provided that no labor performed or materials furnished with the consent or at the request of a unit owner or his or her agent or his or her contractor or subcontractor shall be the basis for the filing of a lien pursuant to the lien law against the unit of any other unit owner not expressly consenting to or requesting the labor or materials, except that the express consent shall be deemed to be given by the owner of any unit in the case of emergency repairs. Labor performed or materials furnished for the common areas and facilities, if authorized by the unit owners, the manager or management committee in accordance with §§ 34-36-1 — 34-36-34 , 34-36-35 and 34-36-36 the declaration or bylaws or the house rules, shall be deemed to be performed or furnished with the express consent of each unit owner and shall be the basis for the filing of a lien pursuant to the lien law against each of the units.
  2. In the event a lien against two (2) or more units becomes effective, the unit owners of the separate units may remove their unit and the percentage of undivided interest in the common areas and facilities appurtenant to the unit from the lien by payment of the fractional or proportional amount attributable to each of the units affected. The individual payment shall be computed by reference to the percentages appearing in the declaration. Subsequent to any payment, discharge, or other satisfaction, the unit and the percentage of undivided interest in the common areas and facilities appurtenant thereto shall be free and clear of the lien so paid, satisfied, or discharged. Partial payment, satisfaction or discharge shall not prevent the lienor from proceeding to enforce his or her rights against any unit and the percentage of undivided interest in the common areas and facilities appurtenant thereto not so paid, satisfied, or discharged.

History of Section. P.L. 1963, ch. 181, § 1.

34-36-20. Common expenses — Payment.

  1. It shall be the duty of every unit owner to pay his or her proportionate share of the common expenses. Payment shall be in amounts and at such times as determined by the management committee in accordance with the terms of the declaration or the bylaws.
  2. The amount of common expenses assessed against each unit shall be a debt of the owner at the time the assessment is made and shall be collectible as such. Suit to recover a money judgment for unpaid common expenses shall be maintainable without foreclosing or waiving the lien securing the same. If any unit owner shall fail or refuse to make any payment of the common expenses when due, the amount thereof shall constitute a lien on the interest of the owner in the property, and upon the recording of notice thereof by the manager or management committee shall be a lien upon the unit owner’s interest in the property prior to all other liens and encumbrances, recorded or unrecorded, except only:
    1. Tax and special assessment liens on the unit in favor of any assessing unit, and special district, and
    2. Encumbrances on the interest of the unit owner recorded prior to the date the notice is recorded which by law would be a lien prior to subsequently recorded encumbrances.
  3. The manager or management committee shall, upon the written request of any unit owner or any encumbrancer or prospective encumbrancer of a unit, upon payment of a reasonable fee not to exceed ten dollars ($10.00), issue to a person so requesting a written statement setting forth the unpaid common expenses with respect to the unit covered by the request, which shall be conclusive upon the remaining unit owners and upon the manager and management committee in favor of all persons who rely thereon in good faith. Unless the request for a statement of indebtedness shall be complied with within ten (10) days, all unpaid common expenses which became due prior to the date of the making of the request shall be subordinate to the lien held by the person requesting the statement. Any encumbrancer holding a lien on a unit may pay any unpaid common expenses payable with respect to the unit and upon the payment the encumbrancer shall have a lien on such unit for the amounts paid of the same rank as the lien of his or her encumbrance.
  4. The lien for nonpayment of common expenses may be enforced by sale or foreclosure of the unit owner’s interest by the manager or management committee, the sale or foreclosure to be conducted in accordance with the provisions of law applicable to the exercise of powers of sale or foreclosure in deeds of trust or mortgages or in any manner permitted by law. In any foreclosure or sale, the unit owner shall be required to pay the costs and expenses of the proceedings and reasonable attorney’s fees. If so provided in the declaration or bylaws, in the case of foreclosure, the owner shall be required to pay a reasonable rental for the unit, and the plaintiff in the foreclosure action shall be entitled to the appointment of a receiver to collect the rental without regard to the value of the mortgage security.
  5. Unless otherwise provided in the declaration, the manager or management committee shall have power to bid in the unit at foreclosure or other sale and to hold, lease, mortgage, and convey the unit.

History of Section. P.L. 1963, ch. 181, § 1.

34-36-21. Interest of unit owner acquired on forced sale.

In the event any person shall acquire, through foreclosure, exercise of power of sale, or other enforcement of any lien, or by tax deed, the interest of any unit owner, the interest acquired shall be subject to all the provisions of this chapter and to the covenants, conditions, and restrictions contained in the declaration, the record of survey map, the bylaws, the house rules, or any deed affecting the interest then in force.

History of Section. P.L. 1963, ch. 181, § 1.

34-36-22. Removal of property from application of chapter.

  1. All of the unit owners may remove a property from the provisions of this chapter by an instrument duly recorded to that effect, provided that the holders of all liens affecting any of the units consent or agree by instruments duly recorded, that their liens be transferred to the percentage of the undivided interest of the unit owner in the property.
  2. Upon removal of the property from the provisions of this chapter, the property shall be deemed to be owned in common by the unit owners. The undivided interest in the property owned in common which shall appertain to each unit owner shall be the percentage of undivided interest previously owned by such owner in the common areas and facilities.

History of Section. P.L. 1963, ch. 181, § 1.

34-36-23. Resubmission of property to chapter.

The removal provided for in § 34-36-22 shall not bar the subsequent resubmission of the property to the provisions of this chapter.

History of Section. P.L. 1963, ch. 181, § 1.

34-36-24. Common profits and expenses — Distribution and charging.

Unless otherwise provided in the declaration or lawful amendments thereto, the common profits of the property shall be distributed among, and the common expenses shall be charged to, the unit owners according to the percentage of their undivided interest in the common areas and facilities.

History of Section. P.L. 1963, ch. 181, § 1.

34-36-25. Voluntary conveyance of unit.

In 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 his or her share of the common expenses up to the time of the grant or conveyance, without prejudice to the grantee’s rights to recover from the grantor the amounts paid by the grantee. However, the grantee shall be entitled to a statement from the manager or management committee setting forth the amounts of the unpaid assessments against the grantor, and the grantee shall not be liable for, nor shall the unit conveyed be subject to a lien for, any unpaid assessments against the grantor in excess of the amount set forth.

History of Section. P.L. 1963, ch. 181, § 1.

34-36-26. Liability of unit owner for common expenses absolute.

No unit owner may exempt himself or herself from liability for his or her contribution towards the common expenses by waiver of the use or enjoyment of any of the common areas and facilities or by abandonment of his or her unit.

History of Section. P.L. 1963, ch. 181, § 1.

34-36-27. Separate assessment for taxation.

  1. Each unit and its percentage of undivided interest in the common areas and facilities shall be deemed to be a parcel and shall be subject to separate assessment and taxation by each assessing unit and special district for all types of taxes authorized by law including but not limited to ad valorem levies and special assessments. Neither the building or buildings, the property nor any of the common areas and facilities shall be deemed to be a parcel.
  2. No forfeiture or sale of the improvements or the property as a whole for delinquent real estate taxes, special assessments, or charges shall ever divest or in any way affect the title to an individual unit so long as the real estate taxes or duly levied share of the assessments and charges on the individual unit are currently paid.
  3. Any exemption from taxes that may exist on real property or the ownership thereof shall not be denied by virtue of the submission of the property to the provisions of this chapter.

History of Section. P.L. 1963, ch. 181, § 1.

34-36-28. Perpetuities and restraints on alienation.

The rule of property known as the rule against perpetuities and the rule of property known as the rule restricting unreasonable restraints on alienation shall not be applied to defeat any of the provisions of this chapter, or of any declaration, bylaws or other document executed in accordance with this chapter.

History of Section. P.L. 1963, ch. 181, § 1.

34-36-29. Insurance.

  1. The manager, management committee, or association of unit owners, if required by the declaration, bylaws, or by a majority of the unit owners, or at the request of a mortgagee having a first mortgage of record covering a unit, shall have the authority to, and shall, obtain insurance for the property against loss or damage by fire and other hazards under the terms and for amounts as shall be required or requested. Insurance coverage shall be written on the property in the name of the manager, management committee, or association of unit owners, as trustee for each of the unit owners in the percentages established in the declaration. Premiums on insurance shall be common expenses. Provision for insurance shall be without prejudice to the right of each unit owner to insure his or her own unit for his or her benefit.
  2. In the event a unit owner sustains damage to their unit as a result of an event that is covered under the insurance coverage purchased in accordance with subsection (a), then, upon written request to the condominium association, the unit owner shall be entitled to a written copy from the condominium association of the insurance company damage appraisal, or any damage appraisal in regard to damage to the owner’s unit, within fourteen (14) calendar days of the date of the unit owner’s request, or within fourteen (14) days of the association’s receipt of the damage appraisal, whichever is later. If coverage for the damage to a unit is denied for any reason, or is deemed to be valued below the policy deductible, then the unit owner shall also be entitled to receive, from the association, a copy of the letter detailing the determination.

History of Section. P.L. 1963, ch. 181, § 1; P.L. 2016, ch. 433, § 1; P.L. 2016, ch. 434, § 1.

Compiler’s Notes.

P.L. 2016, ch. 433, § 1, and P.L. 2016, ch. 434, § 1 enacted identical amendments to this section.

34-36-30. Reconstruction on insured loss.

In case of fire or any other disaster, the insurance proceeds, if sufficient to reconstruct the building, shall be applied to such reconstruction. Reconstruction of the building, as used in this section and § 34-36-31 means restoring the building to substantially the same condition in which it existed prior to the fire or other disaster, with each unit and the common elements having the same vertical and horizontal boundaries as before.

History of Section. P.L. 1963, ch. 181, § 1.

34-36-31. Repairs on insured loss.

Unless otherwise provided in the declaration or bylaws, if the insurance proceeds are insufficient to reconstruct the building, damage to, or destruction of, the building shall be promptly repaired and restored by the manager or management committee, using proceeds of insurance, if any, on the building for that purpose, and the unit owners shall be liable for assessment for any deficiency. However, if three-fourths (3/4) or more of the building is destroyed or substantially damaged and if the unit owners, by a vote of at least three-fourths (3/4) of the unit owners, do not voluntarily, within one hundred (100) days after such destruction or damage, make provision for reconstruction, the manager or management committee shall record, with the county recorder, a notice setting forth those facts, and upon the recording of the notice:

  1. The property shall be deemed to be owned in common by the unit owners;
  2. The undivided interest in the property owned in common which shall appertain to each unit owner shall be the percentage of undivided interest previously owned by the owner in the common elements;
  3. Any liens affecting any of the units shall be deemed to be transferred in accordance with the existing priorities to the undivided interest of the unit owner in the property; and
  4. The property shall be subject to an action for partition at the suit of any unit owner, in which event the net proceeds of sale, together with the net proceeds of the insurance on the property, if any, shall be considered as one fund and shall be divided among all the unit owners in a percentage equal to the percentage of undivided interest owned by each owner in the property, after first paying out of the respective shares of the unit owners, to the extent sufficient for the purposes, all liens on the undivided interest in the property owned by each unit owner.

History of Section. P.L. 1963, ch. 181, § 1.

34-36-32. Sale or disposition of entirety.

Unless otherwise provided in the declaration or bylaws, and notwithstanding the provisions of §§ 34-36-30 and 34-36-31 , the unit owners may, by an affirmative vote of at least three-fourths (3/4) of the unit owners, at a meeting of unit owners duly called for that purpose, elect to sell or otherwise dispose of the property. The action shall be binding upon all unit owners and it shall become the duty of every unit owner to execute and deliver the instruments and to perform all acts as in manner and form may be necessary to effect the sale.

History of Section. P.L. 1963, ch. 181, § 1.

34-36-33. Actions relating to common areas.

Without limiting the rights of any unit owner, actions may be brought by the manager or management committee, in either case in the discretion of the management committee, on behalf of two (2) or more of the unit owners, as their respective interest may appear, with respect to any cause of action relating to the common areas and facilities or more than one unit. Service of process on two (2) or more unit owners in any action relating to the common areas and facilities or more than one unit may be made on the person designated in the declaration to receive service of process.

History of Section. P.L. 1963, ch. 181, § 1.

Collateral References.

Standing to bring action relating to real property of condominium. 74 A.L.R.4th 165.

34-36-34. Liability of unit owners, tenants, employees.

  1. All unit owners, tenants of the owners, employees of owners and tenants, or any other person who may in any manner use the property or any part thereof submitted to the provisions of this chapter shall be subject to this chapter and to the declaration and bylaws adopted pursuant to the provisions of this chapter.
  2. All agreements, decisions, and determinations lawfully made by the manager, management committees, or by the association of unit owners in accordance with this chapter, the declaration or bylaws, shall be deemed to be binding on all unit owners.

History of Section. P.L. 1963, ch. 181, § 1.

34-36-34.1. Rescission of purchase agreement or action for damages — Limitations of action.

  1. Any person who, in reasonable reliance upon any material, false or misleading statements or information published by or under authority from the owner or developer, in advertising and promotional materials, including but not limited to brochures and newspaper advertising, pays anything of value toward the purchase of or acquiring an interest in a condominium located in this state shall have a cause of action to rescind the contract or collect damages from the owner or developer for his or her loss or damages prior to closing of the transaction by which he or she purchases or acquires the interest. After the closing of the transaction, the purchaser shall have a cause of action against the owner or developer for damages under this section from the time of closing until one year after the date upon which the last of the events described in subdivisions (1) through (4) shall occur:
    1. The date of closing of the transaction; or
    2. The first issuance by the applicable governmental authority of a certificate of occupancy or other evidence of sufficient completion of construction of the building containing the apartment to allow lawful occupancy of the apartment; or
    3. The completion by the owner or developer of the common elements and recreational facilities (whether or not the recreational facilities are common elements) which the owner or developer is obligated to complete or provide under the terms of the written contract or written agreement for purchase and sale of the apartment; or
    4. In the event there shall not be a written contract of agreement for purchase and sale of the apartment, then the completion by the owner or developer of the common elements and such recreational facilities (whether or not the recreational facilities are common elements) which the owner or developer would be obligated to complete under any rule of law applicable to the owner’s or developer’s obligations, provided however that nothing contained herein shall be deemed to create a cause of action otherwise barred by the statute of frauds.
  2. Under no circumstances shall a cause of action created or recognized under this section survive for a period of more than five (5) years after the closing of the transaction.

History of Section. P.L. 1976, ch. 227, § 1.

34-36-34.2. Punitive damages — Attorney’s fees.

The court may, in its discretion, award punitive damages and may award reasonable attorney’s fees and costs.

History of Section. P.L. 1976, ch. 227, § 1.

34-36-35. Chapter supplemental.

The provisions of this chapter shall be in addition and supplemental to all other provisions of law, statutory or judicially declared, provided that wherever the application of the provisions of this chapter conflicts with the application of the other provisions, this chapter shall prevail.

History of Section. P.L. 1963, ch. 181, § 1.

34-36-36. Severability.

If any provision of this chapter, or its application to any person or circumstances is held invalid, such invalidity shall not affect other provisions or application of the chapter which can be given effect without the invalid provisions or application and to this end the provisions of this chapter are declared to be severable.

History of Section. P.L. 1963, ch. 181, § 1; P.L. 1981, ch. 242, § 2.

34-36-37. Rights of tenants upon conversion to condominium ownership.

Whenever there is a conversion of residential real estate from rental status to condominium ownership the following provisions shall apply to the owner, developer, and tenants of the property:

  1. All tenants shall be given at least one hundred twenty (120) days notice of the conversion. Rents shall not be increased during the notice period.
  2. Tenants shall have the right to cancel their lease and receive no penalties for the cancellation as long as all obligations of the lease have been met.
  3. The owner or developer shall honor all leases.
  4. All tenants shall be extended the first opportunity to purchase their units.
  5. An owner or developer shall not offer units for sale to the general public at terms more favorable than offered to the tenants, for a period of one hundred twenty (120) days subsequent to the tenant’s failure to exercise his or her right to purchase.
  6. Tenants shall have sixty (60) days to inform the owner or developer of their intentions, and during this period the owner or developer shall not sell the units to the general public.
  7. Any tenant who has attained the age of sixty-two (62) shall be given one-year notice. Rents shall not be increased during the notice period.
  8. The owner or developer shall pay reasonable moving expenses and costs, to any tenant who has attained the age of sixty-two (62), within a fifty (50) mile radius.

History of Section. P.L. 1981, ch. 242, § 1.

34-36-38. Applicability of local ordinance, regulation, and building codes.

A zoning, subdivision, building code, or other real estate use ordinance, regulation, or any other municipal ordinance, rule or regulation may not prohibit the condominium form of ownership or impose any requirement upon a condominium which would not be imposed upon a physically identical development under a different form of ownership or otherwise regulate the creation, governance or existence of the condominium form of ownership, provided, however, that no provision of this section shall invalidate or modify any provision of any zoning, subdivision, building code, or other real estate use law, ordinance, or regulation.

History of Section. P.L. 1981, ch. 242, § 1.

34-36-39. Chapter continuity.

This chapter shall not apply to new declarations of condominiums filed after July 1, 1982; nor shall this chapter apply to condominiums declared before July 1, 1982 where construction has not been commenced, but said condominiums shall be governed by chapter 36.1 of this title. Provided however certain activities of condominiums created under this chapter may be subject to chapter 36.1 of this title as defined in § 34-36.1-1.02 . Public offering statements and sales contracts shall clearly disclose that such offering or sale is not covered by the Rhode Island Condominium Act, chapter 36.1 of this title; pursuant thereto any public offering statement and any sales contract shall contain the following language in bold-faced type: “This condominium is not covered by the Rhode Island Condominium Act of 1982.”

History of Section. P.L. 1982, ch. 329, § 1.

Chapter 36.1 Condominium Law

Article I General Provisions

34-36.1-1.01. Short title.

This act shall be known and may be cited as the “Rhode Island Condominium Act”.

History of Section. P.L. 1982, ch. 329, § 2.

Compiler’s Notes.

P.L. 1982, ch. 329, § 3 directed that the official comments (commissioners’ comments) to the Uniform Condominium Act (1980) be inserted following the corresponding sections of this chapter and that they be used as guidance as to the intent of the legislature in adopting this chapter unless the statutory language clearly expressed otherwise in which case the statutory language prevails.

Within the Commissioner’s Comments, bracketed references to the R.I. General Laws sections were substituted for the section designations in the Uniform Condominium Act and the bracketed reference “Enacting instructions” substituted for those comments dealing only with instructions on adopting optional language and not with the interpretation of statutory language.

Cross References.

Condominium ownership, § 34-36-1 et seq.

34-36.1-1.02. Applicability.

    1. This chapter applies to all condominiums created within this state after July 1, 1982, except that any condominium created within this state prior to July 1, 1982, may voluntarily accept the provisions of this chapter in lieu of the provisions under which it was originally organized. Acceptance shall be evidenced by an agreement in writing executed by and in behalf of the condominium association and by all of the owners of all of the individual condominium units within the condominium, in which agreement it is clearly stated that they all accept the provisions of this chapter in lieu of those in the statute under which the condominium was organized and wish to be governed in the future by the provisions of this chapter. The agreement shall be recorded in the land evidence records of each and every town or city where all or any part of the land in the condominium concerned may be located and shall become effective when first so recorded. The acceptance shall only apply to the governance of the condominium concerned as to all matters which are prospective or executory in nature; and nothing herein shall be deemed to abrogate, amend, limit, effect, or impair the continued effectiveness, legality, or validity of all actions lawfully taken by or in behalf of the condominium prior to the effective date of the acceptance, including, but without limitation, the condominium declaration and all amendments thereto, the by-laws of the condominium and/or of its association, all deeds, mortgages, leases and any further documents affecting the titles or rights of unit owners, or of the condominium or the prior lawful acts or deeds of any kind, of the condominium association, its officers, directors, or members.
    2. Sections 34-36.1-1.05 (separate titles and taxation), 34-36.1-1.06 (applicability of local ordinances, regulations, and building codes), 34-36.1-1.07 (eminent domain), 34-36.1-2.03 (construction and validity of declaration and bylaws), 34-36.1-2.04 (description of units), 34-36.1-3.02(a)(1) — (6) and (11) — (17) (powers of unit owners’ association), 34-36.1-3.11 (tort and contract liability), 34-36.1-3.16 (lien for assessments), 34-36.1-3.18 (association records), 34-36.1-4.09 (resale of units), and 34-36.1-4.17 (effect of violation on rights of action; attorney’s fees), § 34-36.1-3.20 (enforcement of declaration, bylaws and rules), and 34-36.1-1.03 (definitions), to the extent necessary in construing any of those sections, apply to all condominiums created in this state before July 1, 1982; but those sections apply only with respect to events and circumstances occurring after July 1, 1982 and do not invalidate existing provisions of the declaration, bylaws, plats, or plans of those condominiums.
    3. A condominium created as an additional phase by amendment of a condominium created prior to July 1, 1982, if the original declaration contemplated the amendment, shall be deemed to be a condominium created prior to July 1, 1982; provided, however, the provisions of subdivision (a)(2) shall apply as defined therein.
    4. Section 34-36.1-3.21 (foreclosure of condominium lien) applies, with respect to all condominiums created in this state prior to June 19, 1991, only with respect to events and circumstances occurring after June 18, 1991, does not invalidate existing provisions of the declarations, bylaws, plats, or plans of those condominiums, and applies in all respects to all condominiums created in this state after June 18, 1991.
  2. The provisions of the Condominium Ownership Act, chapter 36 of this title, do not apply to condominiums created after July 1, 1982 and do not invalidate any amendment to the declaration, bylaws, plats, and plans of any condominium created before July 1, 1982 if the amendment would be permitted by this chapter. The amendment must be adopted in conformity with the procedures and requirements specified by those instruments and by chapter 36 of this title. If the amendment grants to any person any rights, powers, or privileges permitted by this chapter, all correlative obligations, liabilities, and restrictions in this chapter also apply to that person.
  3. This chapter does not apply to condominiums or units located outside this state, but the public offering statement provisions (§§ 34-36.1-4.02 — 34-36.1-4.07 ) apply to all contracts for the disposition thereof signed in this state by any party unless exempt under § 34-36.1-4.01(b) .

History of Section. P.L. 1982, ch. 329, § 2; P.L. 1991, ch. 247, § 1; P.L. 1991, ch. 369, § 1; P.L. 1992, ch. 8, § 1; P.L. 1994, ch. 356, § 1.

COMMISSIONER’S COMMENT

  1. The question of the extent to which a state statute should apply to particular condominiums involves two problems: first, the extent to which the statute should require or permit different results from condominiums created before and after the statute becomes effective; and second, whether the statute should impose any or all of its substantive requirements on condominiums located outside the state.
  2. In carrying out this philosophy with respect to “new” condominiums, the Act applies to all condominiums “created” within the state after the Act’s effective date. This is the effect of the first sentence of subsection (a). The first sentence of subsection (b) makes clear that the provisions of old statutes expressly applicable to condominiums do not apply to condominiums created after the effective date of this Act.
  3. The section adopts a novel three-step approach to condominiums created before the effective date of the Act. First, certain provisions of the Act automatically apply to “old” condominiums, but only prospectively, and only in a manner which does not invalidate provisions of condominium declarations and bylaws valid under “old” law. Second, “old” law remains applicable to previously created condominiums where not automatically displaced by the Act. Third, owners of “old” condominiums may amend any provisions of their declaration or bylaws, even if the amendment would not be permitted by “old” law, so long as (a) the amendment is adopted in accordance with the procedure required by “old” law and the existing declaration and bylaws, and (b) the substance of the amendment does not violate this Act.
  4. Elaboration of the principles described in Comment 3 may be helpful.
  5. In considering the permissible amendments under subsection (b), it is important to distinguish between the law governing the procedure for amending declarations, and the substance of the amendments themselves. An amendment to the declaration of the condominium created under “old” law, even if permissible under this Act, must nevertheless be adopted “in conformity with the procedures and requirements specified” by the original condominium instruments, and in compliance with the old law.
  6. The last sentence of subsection (b) addresses the potential problem of a declarant seeking to take undue advantage of the amendment provisions to assume a power granted by the Act without being subject to the Act’s limitations on the power. The last sentence insures that, if declarants or other persons assume any of the powers and rights which the Act grants, the correlative obligations, liabilities, and restrictions of the Act also apply to that person, even if the amendment itself does not require that result.
  7. [Enacting instructions.]
  8. [Enacting instructions.]
  9. This section does not permit a pre-existing condominium to elect to come entirely within the provisions of the Act, disregarding old law. However, the owners of a pre-existing condominium may elect to terminate the condominium under pre-existing law and create a new condominium which would be subject to all the provisions of this Act.
  10. Subsection (c) reflects the fact that there are practical as well as constitutional limits regarding the extent to which a state should or may extend its jurisdiction to out-of-state transactions. A state may, of course, properly exercise its authority to protect its citizens from false or misleading information relating to condominiums located in other states but sold in this state. However, where sale contracts are executed solely outside the enacting state and relate to condominiums located outside the state, it seems more appropriate for the courts of the jurisdiction(s) in which the condominium is located and where the transaction occurs to have jurisdiction over the transaction.

Two conflicting policies are proposed when considering the applicability of this Act to “old” and “new” condominiums located in the enacting state. On the one hand, it is desirable, for reasons of uniformity, for the Act to apply to all condominiums located in a particular state, regardless of whether the condominium was created before or after adoption of the Act in that state. To the extent that different laws apply within the same state to different condominiums, confusion results in the minds of both lenders and consumers. Moreover, because of the inadequacies and uncertainties of condominiums created under old law, and because of the requirements placed on declarants and unit owners’ associations by this Act which might increase the costs of new condominiums, different markets might tend to develop for condominiums created before and after adoption of the Act.

On the other hand, to make all provisions of this Act automatically apply to “old” condominiums might violate the constitutional prohibition of impairment of contracts. In addition, aside from the constitutional issue, automatic applicability of the entire Act almost certainly would unduly alter the legitimate expectations of some present unit owners and declarants.

Accordingly, the philosophy of this section reflects a desire to maximize the uniform applicability of the Act to all condominiums in the enacting state, while avoiding the difficulties raised by automatic application of the entire Act to pre-existing condominiums.

“Creation” of a condominium pursuant to this Act occurs upon recordation of a declaration pursuant to Section [34-36.1-2.01]; however, the definition of “condominium” in Section [34-36.1-1.03(7)] contemplates that de facto condominiums may exist, if the nature of the ownership interest fits the definition, and the Act would apply to such a condominium. Any real estate project which includes individually owned units and common elements owned by the unit owners as tenants in common is therefore subject to the Act if created within the state after the Act’s effective date. No intent to subject the condominium to the Act is required, and an express intention to the contrary would be invalid and ineffective.

First, the second sentence of subsection (a) provides that the enumerated provisions automatically apply to condominiums created under pre-existing law, even though no action is taken by the unit owners. Many of the sections which do apply should measurably increase the ability of the unit owners to effectively manage the association, and should help to encourage the marketability of condominiums created under early condominium statutes. To avoid possible constitutional challenges, these provisions, as applied to “old” condominiums, apply only to “events and circumstances occurring after the effective date of this Act”; moreover, the provisions of this Act are subject to the provisions of the instruments creating the condominium, and this Act does not invalidate those instruments.

NOTES TO DECISIONS

Illustrative Cases.

Attempt by corporations that acquired development rights on an island to extend the date on which their rights expired was void ab initio because they did not obtain the unanimous approval from individual unit owners to an extension, pursuant to R.I. Gen. Laws § 34-36.1-2.17(d) , and the Supreme Court ruled that individual unit owners acquired title to a regatta club which one of the corporations built while condominium associations that represented individual unit owners were contesting the corporation’s right to build the club. Am. Condo. Ass'n v. IDC, Inc., 844 A.2d 117, 2004 R.I. LEXIS 56 (2004).

Retroactive Application.

Where a condominium was created prior to July 1, 1982, and all of the events in question occurred after June 18, 1991, subsections (2) and (4) of this section were subject to retroactive application, unless those provisions invalidated any of the association’s bylaws. Foley v. Osborne Court Condo., 724 A.2d 436, 1999 R.I. LEXIS 55 (1999).

34-36.1-1.03. Definitions.

In the declaration and bylaws, unless specifically provided otherwise or the context otherwise requires, and in this chapter:

  1. “Affiliate of a declarant” means any person who controls, is controlled by, or is under common control with a declarant.
    1. A person “controls” a declarant if the person:
      1. Is a general partner, officer, director, or employer of the declarant,
      2. Directly or indirectly or acting in concert with one or more other persons, or through one or more subsidiaries, owns, controls, holds with power to vote, or holds proxies representing, more than twenty percent (20%) of the voting interest in the declarant,
      3. Controls in any manner the election of a majority of the directors of the declarant, or
      4. Has contributed more than twenty percent (20%) of the capital of the declarant.
    2. A person “is controlled by” a declarant if the declarant:
      1. Is a general partner, officer, director, or employer of the person,
      2. Directly or indirectly or acting in concert with one or more other persons, or through one or more subsidiaries, owns, controls, holds with power to vote, or holds proxies representing, more than twenty percent (20%) of the voting interest in the person,
      3. Controls in any manner the election of a majority of the directors of the person, or
      4. Has contributed more than twenty percent (20%) of the capital of the person.
    3. Control does not exist if the powers described in this subdivision are held solely as security for an obligation and are not exercised.
  2. “Allocated interests” means the undivided interest in the common elements, the common expense liability, and votes in the association allocated to each unit.
  3. “Association” or “unit owners’ association” means the unit owners’ association organized under § 34-36.1-3.01 .
  4. “Common elements” means all portions of a condominium other than the units.
  5. “Common expenses” means expenditures made by or financial liabilities of the association, together with any allocations to reserves.
  6. “Common expense liability” means the liability for common expenses allocated to each unit pursuant to § 34-36.1-2.07 .
    1. “Condominium” means real estate, portions of which are designated for separate ownership and the remainder of which is designated for common ownership solely by the owners of those portions. Real estate is not a condominium unless the undivided interests in the common elements are vested in the unit owners.
    2. Provided that each unit owner has a vested, undivided interest in the common elements greater that 0.0 percent, no minimum percentage interest in the common elements is otherwise required by this chapter.
  8. “Conversion building” means a building that at any time before creation of the condominium was occupied wholly or partially by persons other than purchasers and persons who occupy with the consent of purchasers.
  9. “Declarant” means any person or group of persons acting in concert who:
    1. As part of a common promotional plan, offers to dispose of his, her or its interest in a unit not previously disposed of; or
    2. Reserves or succeeds to any special declarant right.
  10. “Declaration” means any instruments, however denominated, that create a condominium, and any amendments to those instruments.
  11. “Development rights” means any right or combination of rights reserved by a declarant in the declaration to:
    1. Add real estate to a condominium,
    2. Create units, common elements, or limited common elements within a condominium,
    3. Subdivide units or convert units into common elements, or
    4. Withdraw real estate from a condominium.
  12. “Person with a disability” means any person who is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or has lasted or can be expected to last for a continuous period of not less than twelve (12) months or any person having an impairment of mobility or vision which is expected to be of at least twelve (12) months duration, and is a substantial impediment to his or her ability to live independently.
  13. “Dispose” or “disposition” means a voluntary transfer to a purchaser of any legal or equitable interest in a unit, but does not include the transfer or release of a security interest.
  14. “Executive board” means the body, regardless of name, designated in the declaration to act on behalf of the association.
  15. [Deleted by P.L. 1999, ch. 83, § 80, and P.L. 1999, ch. 130, § 80 which enacted identical amendments to this section.]
  16. “Identifying number” means a symbol or address that identifies only one unit in a condominium.
  17. “Land only units” shall mean units designated as land only units on the plats and plans which units may be comprised entirely or partially of unimproved real property and the air space above the real property. The boundaries of a land only unit are to be described pursuant to § 34-36.1-2.05(a)(5) . Land only units may, but need not, contain a physical structure. The declaration may provide for the conversion of land only units to other types of units and/or common elements provided the conversion shall be effective only upon the recording of an amendment to the declaration which amendment will include new plats and plans identifying any portion of the land only unit converted to another type of unit and/or common element.
  18. “Leasehold condominium” means a condominium in which all or a portion of the real estate is subject to a lease the expiration or termination of which will terminate the condominium or reduce its size.
  19. “Limited common element” means a portion of the common elements allocated by the declaration or by operation of § 34-36.1-2.02(2) or (4) for the exclusive use of one or more but fewer than all of the units.
  20. “Master association” means an organization described in § 34-36.1-2.20 , whether or not it is also an association described in § 34-36.1-3.01 .
  21. “Offering” means any advertisement, inducement, solicitation, or attempt to encourage any person to acquire any interest in a unit, other than as security for an obligation. An advertisement in a newspaper or other periodical of general circulation, or in any broadcast medium to the general public, of a condominium not located in this state, is not an offering if the advertisement states that an offering may be made only in compliance with the law of the jurisdiction in which the condominium is located.
  22. “Person” means a natural person, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision or agency, or other legal or commercial entity. (In the case of a land trust, however, “person” means the beneficiary of the trust rather than the trust or the trustee.)
  23. “Purchaser” means any person, other than a declarant or a person in the business of selling real estate for his or her own account, who by means of a voluntary transfer acquires a legal or equitable interest in a unit other than:
    1. A leasehold interest including renewal options of less than twenty (20) years, or
    2. As security for an obligation.
  24. “Real estate” means any leasehold or other estate or interest in, over, or under land, including structures, fixtures, and other improvements and interests which by custom, usage, or law pass with a conveyance of land though not described in the contract of sale or instrument of conveyance. “Real estate” includes parcels with or without upper or lower boundaries, and spaces that may be filled with air or water.
  25. “Residential purposes” means use for dwelling or recreational purposes, or both.
  26. “Special declarant rights” means rights reserved for the benefit of a declarant to:
    1. Complete improvements indicated on plats and plans filed with the declaration, (§ 34-36.1-2.09 ),
    2. To exercise any development right, (§ 34-36.1-2.10 ),
    3. To maintain sales offices, management offices, signs advertising the condominium, and models, (§ 34-36.1-2.15 ),
    4. To use easements through the common elements for the purpose of making improvements within the condominium or within real estate which may be added to the condominium, (§ 34-36.1-2.16 ),
    5. To make the condominium part of a larger condominium or a planned community, (§ 34-36.1-2.21 ),
    6. To make the condominium subject to a master association, (§ 34-36.1-2.20 ),
    7. Or to appoint or remove any officer of the association or any master association or any executive board member during any period of declarant control, (§ 34-36.1-3.03(d) ).
  27. “Time share” means a right to occupy a unit or any of several units during five (5) or more separated time periods over a period of at least five (5) years, including renewal options, whether or not coupled with an estate or interest in a condominium or a specified portion thereof.
  28. “Unit” means a physical portion of the condominium designated for separate ownership or occupancy, the boundaries of which are described pursuant to § 34-36.1-2.05(a)(5) .
  29. “Unit owner” means a declarant or other person who owns a unit, or a lessee of a unit in a leasehold condominium whose lease expires simultaneously with any lease, the expiration or termination of which will remove the unit from the condominium, but does not include a person having an interest in a unit solely as security for an obligation.

History of Section. P.L. 1982, ch. 329, § 2; P.L. 1988, ch. 340, § 1; P.L. 1991, ch. 369, § 2; P.L. 1999, ch. 83, § 80; P.L. 1999, ch. 130, § 80.

COMMISSIONER’S COMMENT

  1. The first clause of this section permits the defined terms used in the Act to be defined differently in the declaration and bylaws. Regardless of how terms are used in those documents, however, terms have an unvarying meaning in the Act, and any restricted practice which depends on the definition of a term is not affected by a changed term in the documents.
  2. The definition of “affiliate of a declarant” (Section [34-36.1-1.03(1)]) is similar to the definitions in 12 U.S.C. § 1730(a), which prescribes the authority of the Federal Savings and Loan Insurance Corporation to regulate the activities of savings and loan holding companies, and in 15 U.S.C. § 78(c)(18), which defines persons deemed to be associated with a broker or dealer for purposes of the federal securities laws.
  3. Definition (2), “allocated interests,” refers to all of the interests which this Act requires the declaration to allocate. See Section [34-36.1-2.07].
  4. Definitions (4) and (25) [(28)], treating “common elements” and “units,” should be examined in light of Section [34-36.1-2.02], which specifies in detail how the precise differentiation between units and common elements is to be determined in any given condominium to the extent that the declaration does not provide a different scheme. No exhaustive list of items comprising the common elements is necessary in this Act or in the declaration; as long as the boundaries between units and common elements can be ascertained with certainty, the common elements include by definition all of the real estate in the condominium not designated as part of the units.
  5. Definition (7), “condominium,” makes clear that, unless the ownership interest in the common elements is vested in the owners of the units, the project is not a condominium. Thus, for example, if the common elements were owned by an association in which each unit owner was a member, the project would not be a condominium. Similarly, if a declarant sold units in a building but retained title to the common areas, granting easements over them to unit owners, no condominium would have been created. Such projects have many of the attributes of condominiums, but they are not covered by this Act.
  6. Definition (8), “conversion building,” is important because of the protection which the Act provides in Section [34-36.1-1.10] for tenants of buildings which are being converted into a condominium. The definition distinguishes between buildings which have never been occupied by any person before the time that the building is submitted to the condominium form of ownership, and buildings, whether new or old, which have been previously occupied by tenants. In the former case, because there have been no tenants in the building, the building would not be a conversion building, and no protection of tenants is necessary.
  7. Definition (9), “declarant,” is designed to exclude persons who may be called upon to execute the declaration in order to ratify the creation of the condominium, but who are not intended to be charged with the responsibilities imposed on declarants by this Act if that is all they do. Examples of such persons include holders of pre-existing liens and, in the case of leasehold condominiums, ground lessors. (Of course, such a person could become a declarant by subsequently succeeding to a special declarant right.) Other persons similarly protected by the narrow wording of this definition include real estate brokers, because they do not offer to dispose of their own interest in a unit. Similarly, unit owners reselling their units are not declarants because their units were “previously disposed of ” when originally conveyed.
  8. Definition (11), “development rights,” includes a panoply of sophisticated development techniques that have evolved over time throughout the United States and which have been expressly recognized (and regulated) in an increasing number of jurisdictions, beginning with Virginia in 1974.
  9. Definition (12) [(13)], “dispose” or “disposition,” includes voluntary transfers to purchasers of any interest in a unit, other than as security for an obligation. Consequently, the grant of a mortgage or other security interest is not a “disposition,” nor is any transfer of any interest to a person who is excluded from the definition of “purchaser,” infra. However, the term includes more than conveyances and would, for example, cover contracts of sale.
  10. Definition (15) [(18)], “leasehold condominium,” should be distinguished from land which is leased to a condominium but not subjected to the condominium regime. A leasehold condominium means, by definition, real estate which has been subjected to the condominium form of ownership. In such a case, units located on the leasehold real estate are typically leased for long terms. At the expiration of such a lease, the condominium unit or the real estate underlying the unit would be removed from the condominium if the lease were not extended or renewed. On the other hand, real estate may not be subjected to condominium ownership, but may be leased directly to the association or to one or more unit owners for a term of years.
  11. Definition (20) [(23)], “purchaser,” includes a person who acquires any interest in a unit, even as a tenant, if his tenancy entitles him to occupy the premises for more than 20 years. This would include a tenant who holds a lease of a unit in a fee simple condominium for one year, if the lease entitles the tenant to renew the lease for more than 4 additional years. Excluded from the definition, however, are mortgagees, declarants, and people in the business of selling real estate for their account. Persons excluded from the definition of “purchaser” do not receive certain benefits under Article 4, such as the right to a public offering statement (Section [34-36.1-4.02(c)]) and the right to rescind (Section [34-36.1-4.08] ).
  12. Definition (21) [(24)], “real estate,” is very broad, and is very similar to the definition of “real estate” in Section 1-201(16) of the Uniform Land Transactions Act.
  13. Definition (23) [(26)], “special declarant rights,” seeks to isolate those rights reserved for the benefit of a declarant which are unique to the declarant and not shared in common with other unit owners. The list, while short, encompasses virtually every significant right which a declarant might seek in the course of creating or expanding a condominium.
  14. Definition (24) [(27)], “time share,” is based on Section 1-102(14) and (18) of the Uniform Law Commissioners’ Model Real Estate Time-Share Act.
  15. Definition (25) [(28)], “unit,” describes a tangible, physical part of the project, rather than a right in, or claim to, a tangible physical part of the property. Therefore, for example, a “time-share” arrangement in which a unit is sold to 12 different persons each of whom has the right to occupy the unit for one month does not create 12 new units — there are, rather, 12 owners of the unit. (Under the section on voting (Section [34-36.1-2.10]), a majority of the time-share owners of a unit are entitled to cast the votes assigned to that unit.)
  16. Definition (26) [(29)], “unit owners,” contemplates that a seller under a land installment contract would remain the unit owner until the contract is fulfilled. As between the seller and the buyer, various rights and responsibilities might be assigned to the buyer by the contract itself, but the association would continue to look to the seller (for payment of any arrears in common expense assessments, for example) as long as the seller holds title.

The objective standards of the definition permit a ready determination of the existence of affiliate status to be made. Unlike 12 U.S.C. § 1730(a)(2)(B), no power is vested in an agency to subjectively determine the existence of “control” necessary to establish affiliate status. Thus, affiliate status does not exist under the Act unless these objective criteria are met.

[Enacting instruction.]

Some of these techniques relate to the phased (or incremental) development of condominiums which the declarant hopes, but cannot be sure, will be successful enough to grow to include more land than he is initially willing to commit to the condominium. For example, a declarant may be building (or converting) a 50-unit building on Parcel A with the intention, if all goes well, to “expand” the condominium by adding an additional building on Parcel B, containing additional units, as part of the same condominium. If he reserves the right to do so, i. e., to “add real estate to a condominium,” he has reserved a “development right.”

In certain cases, however, the declarant may desire, for a variety of reasons, to include both parcels in the condominium from the outset, even though he may subsequently be obliged to withdraw all or part of one parcel. Assume, for example, that in the example just given the declarant intends to build an underground parking garage that will extend into both parcels. If the project is a success, his documentation will be simpler if both parcels were included in the condominium from the beginning. If his hopes are not realized, however, and it becomes necessary to withdraw all or part of Parcel B from the condominium and devote it to some other use, he may do so if he has reserved such a development right “to withdraw real estate from a condominium.” The portion of the garage which extends into Parcel B may be left in the condominium (separated from the remainder of Parcel B by a horizontal boundary), or the garage may be divided between Parcels A and B with appropriate cross-easement agreements.

The right “to create units, common elements, or limited common elements” is frequently useful in commercial or mixed-use condominiums where the declarant needs to retain a high degree of flexibility to meet the space requirements of prospective purchasers who may not approach him until the condominium has already been created. For example, an entire floor of a high-rise building may be intended for commercial buyers, but the declarant may not know in advance whether one purchaser will want to buy the whole floor as a single unit or whether several purchasers will want the floor divided into several units, separated by common element walls and served by a limited common element corridor. This development right is sometimes useful even in purely residential condominiums, especially those designed to appeal to affluent buyers. Similarly, the development rights “to subdivide units or convert units into common elements” is most often of value in commercial condominiums, but can occasionally be useful in certain kinds of residential condominiums as well.

This distinction is very significant. Under Section [34-36.1-3.05], the unit owners’ association is empowered, following expiration of the period of declarant control, to cancel any lease of recreational or parking areas or facilities to which it is a party, regardless of who the lessor is. The association also has the power to cancel any lease for any land if the declarant or an affiliate of the declarant is a party to that lease. If the leased real estate, however, is subjected by the declarant to condominium form of ownership, that lease may not be cancelled unless it is unconscionable or unless the real estate was submitted to the condominium regime for the purpose of avoiding the right to terminate the lease. See Section [34-36.1-3.05].

While the subjective test of declarant’s “purpose” may not always be clear, the rights of the association to cancel a lease depend upon the test. Thus, for example, a declarant who wishes to lease a swimming pool to the unit owners would have a choice of subjecting the pool for, say, a term of 20 years to the condominium form of ownership as a common element. At the end of the term, the lease would terminate and the real estate containing the pool would be automatically removed from the condominium unless there were a right to renew the lease. During the 20-year term, the lease would not be cancellable, regardless of the terms, unless it were found to be unconscionable under Section [34-36.1-1.10], or cancellable because submitted for the purpose of avoiding the right to cancel. On the other hand, if the pool were not submitted to the condominium form of ownership and was leased directly to the association for a 20-year term, the association could cancel that lease 90 days after the period of declarant control expired, even if, for example, 18 years remained of the term.

In either case, the terms of the lease would have to be disclosed in the public offering statement.

Although often thought of in two-dimensional terms, real estate is a three-dimensional concept and the third dimension is unusually important in the condominium context. Where real estate is described in only two dimensions (length and width), it is correctly assumed that the property extends indefinitely above the earth’s surface and downwards toward a point in the center of the planet. In most condominiums, however, as in so-called “air rights” projects, ownership does not extend ab solo usque ad coelum, because units are stacked on top of units or units and common elements are interstratified. In such cases the upper and lower boundaries must be identified with the same precision as the other boundaries.

Any person who possesses a special declarant right would be a “declarant”, including any who succeed under Section [34-36.1-3.04] to any of those rights. Thus, the concept of special declarant rights triggers the imposition of obligations on those who possess the rights. Under Section [34-36.1-3.04], those obligations vary significantly, depending upon the particular special declarant rights possessed by a particular declarant. These circumstances are described more fully in the comments to Section [34-36.1-3.04].

While a separately described part of the project is not a unit unless it is designed for, and is subject to, separate ownership by persons other than the association, the association developer can hold or acquire units unless otherwise provided in the declaration. See, also, Comment 4.

The definition makes it clear that declarants, so long as they own units in the condominium, are unit owners and are therefore subject to all of the obligations imposed on other unit owners, including the obligation to pay common expense assessments against those units. This provision is designed to resolve ambiguities on this point which have arisen under several existing state statutes.

NOTES TO DECISIONS

Allocated Interests.

Second amended restated master declaration did not violate R.I. Gen. Laws § 34-36.1-1.03(2) as it employed precisely the type of voting scheme called for in prior litigation. IDC Props. v. Goat Island S. Condo. Ass'n, 128 A.3d 383, 2015 R.I. LEXIS 120 (2015).

Common Elements.

Once development rights held by a developers’ successors in interest expired, the Rhode Island Supreme Court refused to change its initial ruling upon a motion for reargument by the successors that title to a regatta club in a condominium complex remained in the individual unit owners; hence, those areas in which the developer intended to build into so-called master units but never did, lost their character as planned units and became common elements. Am. Condo. Ass'n v. IDC, Inc., 870 A.2d 434, 2005 R.I. LEXIS 58 (2005).

“Condominium” Defined.

A proposed parking condominium satisfied the Condominium Act’s definition of condominium, where the purchasers would own a fee interest in their airspace unit and an undivided interest in all the common areas with the other purchasers as tenants in common. McConnell v. Wilson, 543 A.2d 249, 1988 R.I. LEXIS 103 (1988).

Unexercised Declarant Rights.

Where plaintiff acquired a foreclosing mortgagee’s interest in a parcel that had been mortgaged by a condominium declarant, as plaintiff did not exercise the right under R.I. Gen. Laws § 34-36.1-2.18(i) to exclude the parcel from the condominium until after the condominium declaration’s time limit within which to withdraw the parcel had expired, the parcel no longer was withdrawable and, pursuant to R.I. Gen. Laws § 34-36.1-2.10(c)(4) , title to unexercised declarant rights passed to the condominium association as a matter of law. Alessi v. Bowen Court Condo., 44 A.3d 736, 2012 R.I. LEXIS 70 (2012).

Unit.

Although a condominium unit owner had standing to file his application for the expansion of his unit with the Coastal Resources Management Council (CRMC), and although the condominium declarations did not require the consent of the other unit owners, because the expansion would change the boundaries of his unit, he was required to obtain the unanimous consent of all other unit owners pursuant to R.I. Gen. Laws § 34-36.1-2.17(d) . Sisto v. Am. Condo. Ass'n, 68 A.3d 603, 2013 R.I. LEXIS 114 (2013).

Collateral References.

Standing to bring action relating to real property of condominium. 74 A.L.R.4th 165.

34-36.1-1.04. Variation by agreement.

Except as expressly provided in this chapter, provisions of this chapter may not be varied by agreement, and rights conferred by this chapter may not be waived. A declarant may not act under a power of attorney, or use any other device, to evade the limitations or prohibitions of this chapter or the declaration.

History of Section. P.L. 1982, ch. 329, § 2.

COMMISSIONER’S COMMENT

  1. The Act is generally designed to provide great flexibility in the creation of condominiums and, to that end, the Act permits the parties to vary many of its provisions. In many instances, however, provisions of the Act may not be varied, because of the need to protect purchasers, lenders, and declarants. Accordingly, this section adopts the approach of prohibiting variation by agreement except in those cases where it is expressly permitted by the terms of the Act itself.
  2. One of the consumer protections in this Act is the requirement for consent by specified percentages of unit owners to particular actions or changes in the declaration. In order to prevent declarants from evading these requirements by obtaining powers of attorney from all unit owners, or in some other fashion controlling the votes of unit owners, this section forbids the use by a declarant of any device to evade the limitations or prohibitions of the Act or of the declaration.
  3. The following sections permit variation:
  4. The second sentence of the section is an important limitation upon the rights of a declarant. It is the practice in many jurisdictions today, particularly jurisdictions which do not permit expansion of a condominium by statute, for a declarant to secure powers of attorney from all unit purchasers permitting the declarant unilaterally to expand the condominium by “unanimous consent” to include new units and to reallocate common element interests, common expense liability, and votes. With such powers of attorney, many declarants have purported to comply with the typical provision of “first generation” condominium statutes requiring unanimous consent for amendments of the declaration concerning such matters.
  5. While freedom of contract is a principle of this Act, and variation by agreement is accordingly widely available, freedom of contract does not extend so far as to permit parties to disclaim obligations of good faith, see Section [34-36.1-1.03], or to enter into contracts which are unconscionable when viewed as a whole, or which contain unconscionable terms. See Section [34-36.1-1.10]. This section derives from Section 1-102(3) of the Uniform Commercial Code.

Section [34-36.1-1.02]. Applicability. Pre-existing condominiums may elect to conform to the Act.

Section [34-36.1-1.03]. Definitions. All definitions used in the declaration and bylaws may be varied in the declaration, but not in interpretation of the Act.

Section [34-36.1-1.07]. Eminent Domain. The formulas for reallocation upon taking a part of a unit, and for allocation of proceeds attributable to limited common elements, may be varied.

Section [34-36.1-2.02]. Unit Boundaries. The declaration may vary the distinctions as to what constitutes the units and common elements.

Section [34-36.1-2.05]. Contents of Declaration. A declarant may add any information he desires to the required content of the declaration.

Section [34-36.1-2.07]. Allocation of Common Element Interests, Votes, and Common Expense Liabilities. A declarant may allocate the interests in any way desired, subject to certain limitations.

Section [34-36.1-2.08]. Limited Common Elements. The Act permits reallocation of limited common elements unless prohibited by the declaration.

Section [34-36.1-2.09]. Plats and Plans. There is a presumption regarding horizontal boundaries of units, unless the declaration provides otherwise.

Section [34-36.1-2.11]. Alterations Within Units. Subject to the provisions of the declaration, unit owners may make alterations and improvements to units.

Section [34-36.1-2.12]. Relocation of Boundaries Between Adjoining Units. Subject to the provisions of the declaration, boundaries between adjoining units may be relocated by affected unit owners.

Section [34-36.1-2.13]. Subdivision of Units. If the declaration expressly so permits, a unit may be subdivided into two or more units.

Section [34-36.1-2.15]. Use for Sales Purposes. The declarant may maintain sales offices, management offices, and model units only if the declaration so provides. Unless the declaration provides otherwise, the declarant may maintain advertising on the common elements.

Section [34-36.1-2.16]. Easement Rights. Subject to the provisions of the declaration, the declarant has an easement for these purposes.

Section [34-36.1-2.17]. Amendment of Declaration. The declaration of a non-residential condominium may specify less than a two-thirds vote to amend the declaration. Any declaration may require a larger majority.

Section [34-36.1-2.18]. Termination of a Condominium. The declaration may specify a majority larger than 80 percent to terminate and, in a non-residential condominium, a smaller majority. The declarant may require that the units be sold following termination even though none of them have horizontal boundaries.

Section [34-36.1-2.20]. Master Associations. The declaration may provide for some of the powers of the Executive Board to be exercised by a master association.

Section [34-36.1-3.02]. Powers of Unit Owners’ Association. The declaration may limit the right of the association to exercise any of the listed powers, except in a manner which discriminates in favor of a declarant. The declaration may authorize the association to assign its rights to future income.

Section [34-36.1-3.03]. Executive Board Members and Officers. Except as limited by the declaration or bylaws, the Executive Board may act for the association.

Section [34-36.1-3.06]. Bylaws. Subject to the provisions of the declaration, the bylaws may contain any matter in addition to that required by the Act.

Section [34-36.1-3.07]. Upkeep of Condominium. Except to the extent otherwise provided by the declaration, maintenance responsibilities are set forth in this section, and income from real estate subject to development rights inures to the declarant.

Section [34-36.1-3.08]. Meetings. The bylaws may provide for special meetings at the call of less than 20 percent of the Executive Board or the unit owners.

Section [34-36.1-3.09]. Quorums. This section permits statutory quorum requirements to be varied by the bylaws.

Section [34-36.1-3.10]. Voting-Proxies. A majority in interest of the multiple owners of a single unit determine how that unit’s vote is to be cast unless the declaration provides otherwise. The declaration may require that lessees vote on specified matters.

Section [34-36.1-3.13]. Insurance. The declaration may vary the provisions of this section in non-residential condominiums, and may require additional insurance in any condominium.

Section [34-36.1-3.14]. Surplus Funds. Unless otherwise provided in the declaration, surplus funds are paid or credited to unit owners in proportion to common expense liability.

Section [34-36.1-3.15]. Assessments for Common Expenses. To the extent otherwise provided in the declaration, common expenses for limited common elements must be assessed against the units to which they are assigned, common expenses benefiting fewer than all the units must be assessed only against the units benefited, insurance costs must be assessed in proportion to risk, and utility costs must be assessed in proportion to usage.

Section [34-36.1-4.01]. Applicability; Waiver. All of Article 4 is modifiable or waivable by agreement in a condominium restricted to non-residential use.

Section [34-36.1-4.15]. Exclusion or Modification of Implied Warranties of Quality. Implied warranties of quality may be excluded or modified by agreement.

Section [34-36.1-4.16]. Statute of Limitations for Warranties. The 6-year limitation may be modified by agreement of the parties.

Section [34-36.1-2.17] requires unanimous consent to make certain amendments to the declaration and bylaws. If a declarant were permitted to use powers of attorney to accomplish such changes, the substantial protection which Section [34-36.1-2.17(d)] provides to unit owners would be illusory. Section [34-36.1-1.04] prohibits the declarant from using powers of attorney for such purposes.

NOTES TO DECISIONS

Common Elements.

Once development rights held by a developers’ successors in interest expired, the Rhode Island Supreme Court refused to change its initial ruling upon a motion for reargument by the successors that title to a regatta club in a condominium complex remained in the individual unit owners; hence, those areas in which the developer intended to build into so-called master units but never did, lost their character as planned units and became common elements. Am. Condo. Ass'n v. IDC, Inc., 870 A.2d 434, 2005 R.I. LEXIS 58 (2005).

Declaration Conflicts With Condominium Act.

Although a condominium unit owner had standing to file his application for the expansion of his unit with the Coastal Resources Management Council (CRMC), and although the condominium declarations did not require the consent of the other unit owners, because the expansion would change the boundaries of his unit, he was required to obtain the unanimous consent of all other unit owners pursuant to R.I. Gen. Laws § 34-36.1-2.17(d) . Sisto v. Am. Condo. Ass'n, 68 A.3d 603, 2013 R.I. LEXIS 114 (2013).

34-36.1-1.05. Separate titles and taxation.

  1. If there is any unit owner other than a declarant, each unit that has been created, together with its interest in the common elements, constitutes for all purposes a separate parcel of real estate.
  2. If there is any unit owner other than a declarant, each unit must be separately taxed and assessed, and no separate tax or assessment may be rendered against any common elements for which a declarant has reserved no development rights.
  3. Any portion of the common elements for which the declarant has reserved any development rights must be separately taxed and assessed against the declarant, and the declarant alone is liable for payment of those taxes.
  4. If there is no unit owner other than a declarant, the real estate comprising the condominium may be taxed and assessed in any manner provided by law.

History of Section. P.L. 1982, ch. 329, § 2.

COMMISSIONER’S COMMENT

  1. A condominium may be created, by the recordation of a declaration, long before the first unit is conveyed. This happens frequently with existing rental apartment projects which are converted into condominiums. Subsection (d) spares the local taxing authorities from having to assess each unit separately until such time as the declarant begins conveying units, although separate assessment from the date the condominium is created may be permitted under other law. See subsection (d). When separate tax assessments become mandatory under this section, the assessment for each unit must include the value of that unit’s common element interest, and no separate tax bill on the common elements is to be rendered to the association or the unit owners collectively. Any common elements subject to development rights, however, are separately taxed to the declarant.
  2. Even if real estate subject to development rights is a part of the condominium and lawfully “owned” by the unit owners in common, it is in fact an asset of the declarant, and must not be taxed and assessed against unit owners. Under subsection (c), the declarant is exclusively liable for those taxes.
  3. If there is any question in a particular state that a unit occupied as a residential dwelling is not entitled to treatment as any other residential single-family detached dwelling under the homestead statutes, this section should be modified to insure that units are similarly treated.
  4. Unlike the law of New York and perhaps other states, this section imposes no limitation on the power of a jurisdiction to tax the condominium unit based on its fair market value. In most jurisdictions, experience has shown that the conversion of an apartment building to the condominium form of ownership greatly increases the fair market value of that building. Accordingly, a jurisdiction under this Act may impose real estate taxes on condominium units which reflect the fair market value of those units in the same way that the jurisdiction taxes other forms of real estate.

Collateral References.

Real-estate taxation of condominiums. 71 A.L.R.3d 952.

34-36.1-1.06. Applicability of local ordinances, regulations, and building codes.

A zoning, subdivision, building code, or other real estate use law, ordinance, or regulation may not prohibit the condominium form of ownership or impose any requirement upon a condominium which it would not impose upon a physically identical development under a different form of ownership, or otherwise regulate the creation, governance, or existence of the condominium form of ownership. Otherwise, no provision of this chapter invalidates or modifies any provision of any zoning, subdivision, building code, or other real estate use law, ordinance, or regulation.

History of Section. P.L. 1982, ch. 329, § 2.

COMMISSIONER’S COMMENT

  1. The first sentence of this section prohibits discrimination against condominiums by local law-making authorities. Thus, if a local law, ordinance, or regulation imposes a requirement which cannot be met if property is subdivided as a condominium but which would not be violated if all of the property constituting the condominium were owned by a single owner, this section makes it unlawful to apply that requirement or restriction to the condominium. For example, in the case of a high-rise apartment building, if a local requirement imposing a minimum number of parking spaces per apartment would not prevent a rental apartment building from being built, this Act would override any requirement that might impose a higher number of spaces per apartment merely by virtue of the same building being owned as a condominium.
  2. The second sentence makes clear that, except for the prohibition on discrimination against condominiums, the Act has no effect on real estate use laws. For example, a particular piece of real estate submitted to the condominium form of ownership might be of such size that all of the real estate is required to support a proposed density of units or to satisfy minimum setback requirements. Under this Act, part of the submitted real estate might be subject to a development right entitling the declarant to withdraw it from the condominium, but the mere reservation of this right would not constitute a subdivision of the parcel into separate ownership. If a declarant or foreclosing lender at a later time sought to exercise the option to withdraw the real estate, however, withdrawal would constitute a subdivision and would be illegal if the effect of withdrawal would be to violate setback requirements, or to exceed the density of units permitted on the remaining parcel.

NOTES TO DECISIONS

Change in Form of Ownership.

A condominium conversion of a parking lot, which involves a mere change in the form of ownership and not a subdivision of land, is not subject to a town’s subdivision regulations. McConnell v. Wilson, 543 A.2d 249, 1988 R.I. LEXIS 103 (1988).

Collateral References.

Zoning or building regulations as applied to condominiums. 71 A.L.R.3d 866.

34-36.1-1.07. Eminent domain.

  1. If a unit is acquired by eminent domain, or if part of a unit is acquired by eminent domain leaving the unit owner with a remnant which may not practically or lawfully be used for any purpose permitted by the declaration, the award must compensate the unit owner for his or her unit and its interest in the common elements, whether or not any common elements are acquired. Upon acquisition, unless the decree otherwise provides, that unit’s allocated interests are automatically reallocated to the remaining units in proportion to the respective allocated interests of those units before the taking, and the association shall promptly prepare, execute, and record an amendment to the declaration reflecting the reallocations. Any remnant of a unit remaining after part of a unit is taken under this subsection is thereafter a common element.
  2. Except as provided in subsection (a), if part of a unit is acquired by eminent domain, the award must compensate the unit owner for the reduction in value of the unit and its interest in the common elements, whether or not any common elements are acquired. Upon acquisition, unless the decree otherwise provides:
    1. That unit’s allocated interests are reduced in proportion to the reduction in the size of the unit, or on any other basis specified in the declaration, and
    2. The portion of the allocated interests divested from the partially acquired unit are automatically reallocated to that unit and the remaining units in proportion to the respective allocated interests of those units before the taking, with the partially acquired unit participating in the reallocation on the basis of its reduced allocated interests.
  3. If part of the common elements is acquired by eminent domain the portion of the award attributable to the common elements taken must be paid to the association. Unless the declaration provides otherwise, any portion of the award attributable to the acquisition of a limited common element must be equally divided among the owners of the units to which that limited common element was allocated at the time of acquisition.
  4. The court decree shall be recorded in every municipality in which any portion of the condominium is located.

History of Section. P.L. 1982, ch. 329, § 2.

COMMISSIONER’S COMMENT

  1. The provisions of this statute are not intended to supplant the usual rules of eminent domain but merely to supplement the rules to address the unique problems which eminent domain raises in the context of a condominium. Nevertheless, because the law of eminent domain differs widely among the various states, the law of each state should be reviewed to ensure that the eminent domain code and this section are properly integrated.
  2. When a unit is taken or partially taken by eminent domain, this section provides for a recalculation of the allocated interests of all units.
  3. An important issue raised by this section is whether or not a governmental body acquiring a unit by eminent domain has a right to also take that unit’s allocated interests and thereby assume membership in the association by virtue of its power of eminent domain. While there is no question that a governmental body may acquire any real property by eminent domain, there is no case law on the question of whether or not the governmental body may take a condominium unit as a part of the condominium or must take the unit and have the unit excluded from the condominium.
  4. In the circumstances of a taking of part of a unit, it is important to have some objective test by which to measure the portion of allocated interest to be reallocated. Subsection (b) sets forth a formula based on relative size, but permits the declaration to vary that formula to some other more appropriate formula in a particular circumstance. This right to vary the formula in the declaration is important, since it is clear that the formula set forth in the statute may in some instances result in gross inequities.
  5. Even before the amendment formally acknowledging the reallocation of percentages required by this section is recorded, the reallocation is deemed to have occurred simultaneously with the taking. This rule is necessary to avoid the hiatus that otherwise could occur between the taking and reallocation of interests, votes, and liabilities.
  6. Subsection (c) provides that, if part of the common elements is acquired, the award is paid to the association. This would not normally be the rule in the absence of such a provision.

Subsection (a) merely requires that the taking body compensate the unit owner for all of his unit and its interest in the common elements, whether or not the common element interest is acquired. The Act also requires that the allocated interests are automatically reallocated upon taking to the remaining units unless the decree provides otherwise. Whether or not the decree may constitutionally provide otherwise in the case of a particular taking (for example, by allocating the common element interest, votes, and common expense liability to the government) is an unanswered question.

Collateral References.

Eminent domain: compensability of loss of visibility of owner’s property. 7 A.L.R.5th 113.

34-36.1-1.08. Supplemental general principles of law applicable.

The principles of law and equity, including the law of corporations and unincorporated associations, the law of real property and the law relative to capacity to contract, principal and agent, eminent domain, estoppel, fraud, misrepresentation, duress, coercion, mistake, receivership, substantial performance, or other validating or invalidating cause supplement the provisions of this chapter, except to the extent inconsistent with this chapter.

History of Section. P.L. 1982, ch. 329, § 2.

Law Reviews.

James Caleb Bass, 2016 Survey, Cases: Mortgage Law: Twenty Eleven, LLC v. Botelho, 22 Roger Williams U. L. Rev. 857 (2017).

COMMISSIONER’S COMMENT

  1. This Act displaces existing law relating to condominiums and other law only as stated by specific sections and by reasonable implication therefrom. Moreover, unless specifically displaced by this statute, common law rights are retained. The listing given in this section is merely an illustration: no listing could be exhaustive.
  2. [Enacting instructions].

34-36.1-1.09. Severability.

If any provision of this chapter or the application thereof to any person or circumstances is held invalid, the invalidity does not affect other provisions or applications of this chapter which can be given effect without the invalid provisions or applications, and to this end the provisions of this chapter are severable.

History of Section. P.L. 1982, ch. 329, § 2.

34-36.1-1.10. Unconscionable agreement or term of contract.

  1. The court, upon finding as a matter of law that a contract or contract clause was unconscionable at the time the contract was made, may refuse to enforce the contract, enforce the remainder of the contract without the unconscionable clause, or limit the application of any unconscionable clause in order to avoid an unconscionable result.
  2. Whenever it is claimed, or appears to the court, that a contract or any contract clause is or may be unconscionable, the parties, in order to aid the court in making the determination, shall be afforded a reasonable opportunity to present evidence as to:
    1. The commercial setting of the negotiations;
    2. Whether a party has knowingly taken advantage of the inability of the other party reasonably to protect his or her interests by reason of physical or mental infirmity, illiteracy, or inability to understand the language of the agreement or similar factors;
    3. The effect and purpose of the contract or clause; and
    4. If a sale, any gross disparity, at the time of contracting, between the amount charged for the real estate and the value of the real estate measured by the price at which similar real estate was readily obtainable in similar transactions, but a disparity between the contract price and the value of the real estate measured by the price at which similar real estate was readily obtainable in similar transactions does not, of itself, render the contract unconscionable.

History of Section. P.L. 1982, ch. 329, § 2.

COMMISSIONER’S COMMENT

This section is similar to Section [6A-2-302] of the Uniform Commercial Code and Section 1-311 of the Uniform Land Transactions Act. The rationale and comments provided in those sections are equally applicable to this section.

34-36.1-1.11. Obligation of good faith.

Every contract or duty governed by this chapter imposes an obligation of good faith in its performance or enforcement.

History of Section. P.L. 1982, ch. 329, § 2.

COMMISSIONER’S COMMENT

This section sets forth a basic principle running throughout this Act: in condominium transactions, good faith is required in the performance and enforcement of all agreements and duties. Good faith, as used in this Act, means observance of two standards, “honesty in fact” and observance of reasonable standards of fair dealing. While the term is not defined, the term is derived from and used in the same manner as in Section 1-201 of the Uniform Simplification of Land Transfers Act, and Sections [6A-2-103(1)(b)] and [6A-7-404] of the Uniform Commercial Code.

34-36.1-1.12. Remedies to be liberally administered.

  1. The remedies provided by this chapter shall be liberally administered to the end that the aggrieved party is put in as good position as if the other party had fully performed. However, consequential, special, or punitive damages may not be awarded except as specifically provided in this chapter or by other rule of law.
  2. Any right or obligation declared by this chapter is enforceable by judicial proceeding.

History of Section. P.L. 1982, ch. 329, § 2.

Article II Creation, Alteration, and Termination of Condominiums

34-36.1-2.01. Creation of condominium.

  1. A condominium may be created pursuant to this chapter only by recording a declaration in the municipal land evidence records. The declaration must be recorded in every municipality in which any portion of the condominium is located, and must be indexed in the grantee’s index in the name of the condominium and the association and in the grantor’s index in the name of each person executing the declaration.
  2. A declaration or an amendment to a declaration adding units to a condominium, may not be recorded unless all structural components and mechanical systems of the building containing or comprising any units thereby created are substantially completed in accordance with the plans of that building, as evidenced by a certificate of completion executed by an independent registered engineer or architect which shall be recorded in the local land evidence records. No provision of this chapter shall be construed as prohibiting the recording of a declaration or amendment to a declaration which creates a condominium containing land only units or adds land only units to an existing condominium.
  3. A declaration or an amendment to a declaration creating land only units shall set forth restrictions on the development of such land only units which address at a minimum the following items:
    1. Floor area square footage,
    2. Lot coverage,
    3. Height,
    4. Set backs from unit boundaries,
    5. Use, and
    6. Architectural and design standards.

History of Section. P.L. 1982, ch. 329, § 2; P.L. 1991; ch. 369, § 2.

COMMISSIONER’S COMMENT

  1. A condominium is created pursuant to this Act only by recording a declaration. As with any instrument affecting real estate, the declaration must be recorded in every recording district in which any portion of the condominium is located and must be indexed in the manner described in subsection (a). Specific indexing rules are suggested in brackets and should be used in those states where this result would not otherwise occur. For example, the declaration commonly has not been indexed in the grantee’s index in the name of the condominium. Moreover, when multiple persons execute the declaration, the declaration has often been indexed solely in the name of the declarant and not in the name, for example, of lenders and other persons who might have executed the declaration. Because it is important that the names of the association and all persons executing the declaration appear in the index in order to locate all instruments in the land records, that language is not included in brackets.
  2. In Section [34-36.1-1.03], the Act defines the term “Declaration” as any instruments, however denominated, which create a condominium, and any amendments to those instruments. “Condominium,” in turn, is defined as “real estate, portions of which are designated for separate ownership and the remainder of which is designated for common ownership solely by the owners of those portions.” It is important to emphasize that other covenants, conditions or restrictions applicable to the real estate in the condominium might be recorded before or after the instruments are recorded which divide the real estate into units and common elements, thereby creating the condominium.
  3. A condominium has not been lawfully created unless the requirements of this section have been complied with. Nevertheless, a project which meets the definition of “condominium” in Section [34-36.1-1.03(7)] is subject to this Act even if this or other sections of the Act have not been complied with.
  4. Mortgagees and other lienholders need not execute the declaration, and foreclosure of a mortgage or other lien will not, of itself, terminate the condominium. However, if that lien is prior to the declaration itself, the lienholder may exclude that real estate from the condominium. See Sections [34-36.1-2.18(i) and (j)]. Moreover, the declarant may wish to obtain agreements from mortgagees or other lienholders that they will give partial releases permitting lien-free conveyance of the condominium units. See Section [34-36.1-4.11(a)].
  5. Except when development proceeds pursuant to Section 5-103 [Not enacted in Rhode Island], this Act contemplates that two different stages of construction must be reached before (1) a condominium may be created or (2) a unit in the condominium may be conveyed. These stages are described, respectively, in subsection (b) and Section [34-36.1-4.20]. The purpose of imposing these requirements is to insure that a purchaser will in fact take title to a unit which may be used for its intended purpose.
  6. Section [34-36.1-2.01(b)] requires that “all structural components and mechanical systems of all buildings containing or comprising any units” which will be created by recording a declaration, must be substantially completed in accordance with the plans. The intent of subsection (b) is that if any buildings are depicted on the plats and plans which are required by Section [34-36.1-2.09], and these buildings contain or comprise spaces which become units by virtue of recording the declaration, the structural components and mechanical systems of these buildings must be substantially complete before the declaration is recorded. This is required even though the plats and plans recorded pursuant to Section [34-36.1-2.09] depict only the boundaries of the buildings and the units created in those buildings, and not the structural components or mechanical systems (which need not be shown). If the boundaries of units are not depicted, of course, then no units are created. If the declarant fails to comply with this section, title is not affected. See Comment 8, below.
  7. Section [34-36.1-4.20], requires that, before an individual unit is conveyed, the unit must be “substantially completed.” “Substantial completion” is a well understood term in the construction industry. For example, the American Institute of Architects Document A201, General Conditions of the Contract for Construction (1976 Ed.) at para. 8.1.3, states:
  8. Sections [34-36.1-2.01(b)] and [34-36.1-4.20] require that completion certificates be recorded, or local certificates of occupancy be issued, as evidence of the fact that the required levels of construction have been met. In the case of “substantial completion,” issuance of “a certificate of occupancy authorized by law,” as is commonly required by local ordinance or state building codes, will suffice. Once the certificates have been recorded, or issued, as the case may be, good title to the units may be conveyed in reliance on the record. It is possible, of course, that the declarant may have failed to complete the required levels of construction; the architect, surveyor or engineer (whichever is appropriate in a particular jurisdiction) may have filed a false certificate. Such acts would create a cause of action in the purchaser under Section [34-36.1-4.15], but would not affect the validity of the purchasers’ title to the condominium.
  9. The requirement of “substantial completion” does not mean that the declarant must complete all buildings in which all possible units would be located before creating the condominium. If only some of the buildings in which units which may ultimately be located have been “structurally” completed, the declarant may create a condominium in which he reserves particular development rights (Section [34-36.1-2.05(a)(8)]). In such a project, only the completed units might be treated as units from the outset, and the development rights would be reserved to create additional units, either by adding additional real estate and units to the condominium, by creating new units on common elements, or by subdividing units previously created. The optional units may never be completed or added to the condominium; however, this will not affect the integrity of the condominium as originally created.
  10. Requiring “substantial completion” of the structural components and mechanical systems in the buildings containing or comprising the units in a condominium may encourage creation of more phased condominiums under Section [34-36.1-2.05] in projects which once were in fact built in phases, but under a single nonexpandable declaration. Experience in the several states where significantly more rigorous requirements are imposed by statute, however, has shown that this does not create a difficult situation either for the developer or the lender. Moreover, it appears likely that the size of the initial phase of a multi-building project will be dictated largely by economics, as occurs in most jurisdictions today, rather than this Act. Finally, many lenders and developers are increasingly sensitive to the secondary mortgage market requirements particularly those of the Federal National Mortgage Association (FNMA) and the Federal Home Loan Mortgage Corporation (FHLMC). Experience indicates that the pre-sale requirements imposed by FNMA and FHLMC frequently dictate that multi-building condominium projects be structured on a phased or expandable condominium basis.
  11. The requirement of completion would be irrelevant in some types of condominiums, such as campsite condominiums or some subdivision condominiums where the units might consist of unimproved lots, and the airspace above them, within which each purchaser would be free to construct or not construct a residence. Any residence actually constructed would ordinarily become a part of the “unit” by the doctrine of fixtures, but nothing in this Act would require any residence to be built before the lots could be treated as units.
  12. The term “independent” architect, surveyor or engineer in subsection (b) and elsewhere in the Act distinguishes any such professional person who acts as an independent contractor in his relationship to the declarant or lender.

Until the actual recordation of the document which accomplished that result, however, the condominium has not been created.

If a condominium were said to consist from the beginning of a certain number of units, even though some of those units had not yet been completed or even begun, serious problems would arise if the remaining units were never constructed and if no obligation to complete the construction could be enforced against any solvent person. If the insolvent owner of the unbuilt units failed to pay his common expense assessments for example, the unit owners’ association might be left with no remedy except a lien of doubtful value against mere cubicles of airspace. Moreover, votes in the unit owners’ association could be assigned to units, and those votes could be cast, even though the units were never built. The Act therefore requires that significant construction take place before units are assigned an interest in the common elements, a vote in the association, and a share of the common expense liabilities, and before units are conveyed. This requirement of substantial completion (or the alternative bonding procedure and other assurances required by Section 5-103 [Not enacted in Rhode Island]) reduces the possibility that a failure to complete will upset the expectations of purchasers or otherwise harm their interests in case the declarant becomes insolvent and no solvent person has the obligation to complete the unit.

The concept of “structural components and mechanical systems” is one commonly understood in the construction field and this comment is not intended as a comprehensive list of those components. For example, however, the term “structural components” is generally understood to include those portions of a building necessary to keep any part of the building from collapsing, and to maintain the building in a weathertight condition. This would include the foundations, bearing walls and columns, exterior walls, roof, floors and similar components. It would clearly not include such components as interior non-bearing partitions, surface finishes, interior doors, carpeting, and the like. Similarly, typical examples of “mechanical systems” include the plumbing, heating, air conditioning and other like systems. Whether or not “electrical systems” are included within the meaning of the term depends on local practice.

The Date of Substantial Completion of the Work . . . is the date certified by the Architect when construction is sufficiently complete, in accordance with the Contract Documents (that is, the owner-contractor agreement, the conditions of the contract, and the specifications and all addenda and modifications), so the Owner can occupy or utilize the Work . . . for the use for which it is intended.

This standard is also one often used by building officials in issuing certificates of occupancy. It does not suggest that the unit is “entirely completed” as that term is understood in the construction industry; lesser details, such as sticking doors, leaking windows, or some decorative items, might still remain, and the Act contemplates that they need not be completed prior to lawful conveyance.

NOTES TO DECISIONS

Common Elements.

Once development rights held by a developers’ successors in interest expired, the Rhode Island Supreme Court refused to change its initial ruling upon a motion for reargument by the successors that title to a regatta club in a condominium complex remained in the individual unit owners; hence, those areas in which the developer intended to build into so-called master units but never did, lost their character as planned units and became common elements. Am. Condo. Ass'n v. IDC, Inc., 870 A.2d 434, 2005 R.I. LEXIS 58 (2005).

Lack of Units.

Argument that the second amended restated master declaration (SAR) failed for lack of units following decisions stating that the undeveloped north, south, and west air space units were not valid units failed where those units had been completed units at the time the SAR was filed. IDC Props. v. Goat Island S. Condo. Ass'n, 128 A.3d 383, 2015 R.I. LEXIS 120 (2015).

Collateral References.

Standing to bring action relating to real property of condominium. 74 A.L.R.4th 165.

34-36.1-2.02. Unit boundaries.

Except as provided by the declaration:

  1. If walls, floors or ceilings are designated as boundaries of a unit, all lath, furring, wallboard, plasterboard, plaster, paneling, tiles, wallpaper, paint, finished flooring, and any other materials constituting any part of the finished surfaces thereof are a part of the unit, and all other portions of the walls, floors, or ceilings are a part of the common elements.
  2. If any chute, flue, duct, wire, conduit, bearing wall, bearing column, or any other fixture lies partially within and partially outside the designated boundaries of a unit, any portion thereof serving only that unit is a limited common element allocated solely to that unit, and any portion thereof serving more than one unit or any portion of the common elements is a part of the common elements.
  3. Subject to the provisions of subdivision (2), all spaces, interior partitions, and other fixtures and improvements within the boundaries of a unit are a part of the unit.
  4. Any shutters, awnings, window boxes, doorsteps, stoops, porches, balconies, patios, and all exterior doors and windows or other fixtures designed to serve a single unit, but located outside the unit’s boundaries, are limited common elements allocated exclusively to that unit.

History of Section. P.L. 1982, ch. 329, § 2.

COMMISSIONER’S COMMENT

  1. It is important for title purposes and other reasons to have a clear guide as to precisely which parts of a condominium constitute the units and which parts constitute the common elements. This section fills the gap left when the declaration merely defines unit boundaries in terms of floors, ceilings, and perimetric walls.
  2. The differentiation between components constituting common elements and components which are part of the units is particularly important in light of Section [34-36.1-3.07(a)], which (subject to the exceptions therein mentioned) makes the association responsible for upkeep of common elements and each unit owner individually responsible for upkeep of his unit.
  3. The differentiation between unit components and common element components may or may not be important for insurance purposes under this Act. While the common elements in a project must always be insured, the units themselves need not be insured by the association unless the project contains units divided by horizontal boundaries; see Section [34-36.1-3.13(b)]. In a “high rise” configuration, however, Section [34-36.1-3.13(a)] contemplates that both will normally be insured by the association (exclusive of improvements and betterments in individual units) and that the cost of such insurance will be a common expense. That common expense may be allocated, however, on the basis of risk if the declaration so requires. See Section [34-36.1-3.15(c)(3)].

The provisions of this section may be varied, of course, to the extent that the declarant wishes to modify the details for a particular condominium.

For example, in a townhouse project structured as a condominium, it may be desirable that the boundaries of the unit constitute the exterior surfaces of the roof and exterior walls, with the center line of the party walls constituting the perimetric boundaries of the units in that plane, and the undersurface of the bottom slab dividing the unit itself from the underlying land. Alternatively, the boundaries of the units at the party walls might be extended to include actual division of underlying land itself. In those cases it would not be appropriate for walls, floors and ceilings to be designated as boundaries, and the declaration would describe the boundaries in the above manner. The differentiations made clear here, in conjunction with the provisions of Section [34-36.1-3.07], will assist in minimizing disputes which have historically arisen in association administration with respect to liability for repair of such things as pipes, porches and other components of a building which unit owners may expect the association to pay for and which the association may wish to have repaired by unit owners. Problems which may arise as a result of negligence in the use of components — such as stoops and pipes — are resolved by Section [34-36.1-3.07], which imposes liability on the unit owner who causes damage to common elements, or under the broader provisions of Section [34-36.1-3.15(e)], which permits the association to assess common expenses “caused by the misconduct of any unit owner” exclusively against that owner. This would include, of course, not only damages to common elements, but fines or unusual service fees, such as cleanup costs, incurred as a result of the unit owner’s misuse of common elements.

34-36.1-2.03. Construction and validity of declaration and bylaws.

  1. All provisions of the declaration and bylaws are severable, except a housing restriction as set forth in § 34-39.1-3 , may not be severed from the declaration and bylaws.
  2. The rule against perpetuities may not be applied to defeat any provision of the declaration, bylaws, rules, or regulations adopted pursuant to § 34-36.1-3.02(a)(1) .
  3. In the event of a conflict between the provisions of the declaration and the bylaws, the declaration prevails except to the extent the declaration is inconsistent with this chapter.
  4. Title to a unit and common elements is not rendered unmarketable or otherwise affected by reason of an insubstantial failure of the declaration to comply with this chapter. Whether a substantial failure impairs marketability is not affected by this chapter.

History of Section. P.L. 1982, ch. 329, § 2; P.L. 2006, ch. 368, § 3; P.L. 2006, ch. 464, § 3.

COMMISSIONER’S COMMENT

  1. Subsection (b) does not totally invalidate the rule against perpetuities as applied to condominiums. The language does provide that the rule against perpetuities is ineffective as to documents which would govern the condominium during the entire life of the project, regardless of how long that should be. With respect to deeds or devises of units, however, the policies underlying the rule against perpetuities continue to have validity and remain applicable under this Act.
  2. In considering the effect of failures to comply with this Act on title matters, subsection (d) refers only to defects in the declaration — which includes the plats and plans — because the declaration is the instrument which creates and defines the units and common elements. No reference is made to other instruments, such as bylaws, because these instruments have no impact on title, whether or not recorded. However, in all cases of violations of the Act, a failure of the bylaws — or any other instrument — to comply with the Act, would entitle any affected persons to appropriate relief under Section [34-36.1-4.17].
  3. No special prohibition against racial or other forms of discrimination is included in this Act because the provisions of generally applicable federal and state law apply as much to condominiums as to other forms of real estate.
  4. Some examples may help to clarify what sorts of defects in the declaration are to be regarded as “insubstantial” within the meaning of the first sentence of subsection (d).
  5. Each state has case or statutory law dealing with marketability of titles, and the question of whether substantial failures of the declaration to comply with the Act affect marketability of title should be determined by that law and not by this Act.

Suppose the declaration allocates common element interests to all the units, but fails to indicate the formula for the allocation as required by Section [34-36.1-2.07]. This would be a substantial defect if the assigned interests were unequal, but if all units were assigned identical interests it would be possible to infer that the basis of allocation was equality — and the failure of the declaration to say so would be an insubstantial defect. Were this to happen in a condominium where the right to add new units is reserved, however, it should be noted that a subsequent amendment to the declaration adding new units could not use any formula other than equality for reallocating the common element interests unless a different formula were specified pursuant to Section [34-36.1-2.07(b)].

Other examples of insubstantial defects that might occur include failure of the declaration to include the word “condominium” in the name of the project, as required by Section [34-36.1-2.05(a)(1)], or failure of the plats and plans to comply satisfactorily with the requirement of Section [34-36.1-2.09(a)] that they be “clear and legible,” so long as they can at least be deciphered by persons with proper expertise. Failure to organize the unit owners’ association at the time specified in Section [34-36.1-3.01] would not be a defect in the declaration at all, and would not affect the validity or marketability of titles in the condominium. It would, however, be a violation of this Act, and create a claim for relief under Section [34-36.1-4.17].

Collateral References.

Validity and construction of regulations of governing body of condominium or cooperative apartment pertaining to parking. 60 A.L.R.5th 647.

34-36.1-2.04. Description of units.

A description of a unit which sets forth the name of the condominium, the recording data for the declaration, the municipality, city or town, in which the condominium is located, and the identifying number of the unit, is a sufficient legal description of that unit and all rights, obligations, and interests appurtenant to that unit which were created by the declaration or bylaws.

History of Section. P.L. 1982, ch. 329, § 2.

COMMISSIONER’S COMMENT

  1. The intent of this section is that no description of a unit in a deed, lease, deed of trust, mortgage, or any other instrument or document shall be subject to challenge for failure to meet any common law or other requirements so long as the requirements of this section are satisfied, and so long as the declaration itself, together with the plats and plans which are a part of the declaration, provides a legally sufficient description.
  2. The last sentence makes clear that an instrument which does meet those requirements includes all interests appurtenant to the unit. As a result, it will not be necessary under this Act to continue the practice, common in some jurisdictions, of describing the common element interests, or limited common elements, that are appurtenant to a unit in the instrument conveying title to that unit.

34-36.1-2.05. Contents of declaration.

  1. The declaration for a condominium must contain:
    1. The name of the condominium, which must include the word “condominium” or be followed by the words “a condominium,” and the association;
    2. The name of every municipality in which any part of the condominium is situated;
    3. A legally sufficient description of the real estate included in the condominium;
    4. A statement of the maximum number of units which the declarant reserves the right to create;
    5. A description of the boundaries of each unit created by the declaration, including the unit’s identifying number;
    6. A description of any limited common elements, other than those specified in § 34-36.1-2.02(2) and (4), or as provided in § 34-36.1-2.09 (b)(10);
    7. A description of any real estate (except real estate subject to development rights) which may be allocated subsequently as limited common elements, other than limited common elements specified in § 34-36.1-2.02(2) and (4), together with a statement that they may be so allocated;
    8. A description of any development rights and other special declarant rights (§ 34-36.1-1.03(26) ) reserved by the declarant, together with a legally sufficient description of the real estate to which each of those rights applies, and a time limit within which each of those rights must be exercised;
    9. If any development right may be exercised with respect to different parcels of real estate at different times, a statement to that effect together with:
      1. Either a statement fixing the boundaries of those portions and regulating the order in which those portions may be subjected to the exercise of each development right, or a statement that no assurances are made in those regards, and
      2. A statement as to whether, if any development right is exercised in any portion of the real estate subject to that development right, that development right must be exercised in all or in any other portion of the remainder of that real estate;
    10. Any other conditions or limitations under which the rights described in subdivision (8) of this section may be exercised or will lapse;
    11. An allocation to each unit of the allocated interests in the manner described in § 34-36.1-2.07 ;
    12. Any restrictions on use, occupancy, and alienation of the units, including any housing restrictions as set forth in § 34-39.1-3 ;
    13. The recording data for recorded easements and licenses appurtenant to or included in the condominium or to which any portion of the condominium is or may become subject by virtue of a reservation in the declaration; and
    14. All matters required by §§ 34-36.1-2.06 , 34-36.1-2.07 , 34-36.1-2.08 , 34-36.1-2.09 , 34-36.1-2.15 , 34-36.1-2.16 , and 34-36.1-3.03(d) .
  2. The declaration may contain any other matters the declarant deems appropriate.

History of Section. P.L. 1982, ch. 329, § 2; P.L. 2006, ch. 368, § 3; P.L. 2006, ch. 464, § 3.

COMMISSIONER’S COMMENT

  1. Many statutes and other regulatory schemes in the multi-owner project field do not separate the functions of a recorded declaration and unrecorded public offering statements or disclosure documents. As a result, many of the developer’s representations and assurances concerning his future plans must appear in the declaration as well as the public offering statement, even though they may have nothing to do with the legal structure or title of the project. See e.g., Section 47-70, Conn.Gen.Stat. (1980). This results in duplicative requirements and unnecessarily complex declarations.
  2. This section requires a statement of the name of the association for the condominium as well as the name of the condominium itself, in order that the declaration may be indexed in the name of the association. See Section [34-36.1-2.01].
  3. The Act requires that the declaration for a condominium situated in two or more recording districts be recorded in each of those districts. [Enacting Instruction].
  4. Paragraph (a)(5) requires the declarant to state the largest number of units he reserves the right to build. Unlike many current condominium statutes, this Act imposes no time limit, measured by an absolute number of years, at the expiration of which the declarant must relinquish control of the association. Instead, declarant control ends when 75% of the maximum number of units which may be created by the declarant have been sold, or at the end of a 2-year period during which development is not proceeding. See Section [34-36.1-3.03(d)]. The flexibility afforded by this section may be important to a declarant as he responds to unanticipated future changes in his market.
  5. Paragraph (a)(5) requires that the boundaries of each unit created by the declaration be identified. The words “created by the declaration” emphasize that in an expandable project, new units may be created in the future by amendments to the declaration. Until those new units are actually added to the project by amending the declaration, however, they are not units within the meaning of that defined term, and they need not be described.
  6. Section [34-36.1-2.02] makes it possible in many projects to satisfy paragraph (a)(5) of this section by merely providing the identifying number of the units and stating that each unit is bounded by its ceiling, floor, and walls. The plats and plans will show where those ceilings, floors, and perimetric walls are located, and Section [34-36.1-2.02] provides all other details, except to the extent the declaration may make additional or contradictory specifications because of the unique nature of the project.
  7. Paragraph (a)(6) makes clear that the limited common elements described in Section [34-36.1-2.02(2) and (4)] need not be described in the declaration. These limited common elements are typically porches, balconies, patios, or other amenities which may be included in a project. Such improvements are treated by the Act as limited common elements, rather than either common elements or parts of units, in order to minimize the attention which the documents need to give them, and to secure the result that would be desired in the usual case. Thus, if these improvements remain limited common elements, and no special provisions concerning them are included in the declaration, they may be used only by the units to which they are physically attached; maintenance of those improvements must be paid for by the association; and such improvements need not be specially referred to in the declaration. Porches, balconies and patios must be shown on the plats and plans (see Section [34-36.1-2.09(b)(10)]), but other limited common elements described in Section [34-36.1-2.02(2) and (4)] need not be shown.
  8. Paragraph (a)(7) contemplates that the common elements in the project may be allocated as limited common elements at some future time, either by the declarant or the association. For example, a swimming pool might serve an entire project during early phases of development. At the outset, that pool might be a common element which all the unit owners may use. At a later time, with more units and additional pools built in subsequent phases, either the declarant or the association might determine that the first pool should become a limited common element reserved for the use only of units in the first phase, while the other pools should be reserved exclusively for units in the subsequent phases. Such a potential allocation should be described in the declaration pursuant to this section.
  9. Paragraph (a)(8) requires the declaration to describe all development rights and other special declarant rights which the declarant reserves. The declaration must describe the real estate to which each right applies, and state the time limit within which each of those rights must be exercised. The Act imposes no maximum time limit for the exercise of those rights, and the particular language of a declaration will vary from project to project depending on the requirements of each project. This Act contemplates that those rights may be exercised after the period of declarant control terminates.
  10. Plats and plans are made a part of the declaration for legal purposes by Section [34-36.1-2.10], and their content may in part provide some of the information required by this section.
  11. Paragraph (a)(14) is a cross-reference to other sections of the Act which require the declaration to contain particular matters. Some of these sections, such as [34-36.1-2.07] on the allocations of allocated interests or [34-36.1-2.09] on plats and plans, will affect all projects. Others, such as [34-36.1-2.06] on leasehold condominiums, will apply only to particular kinds of projects.
  12. Subsection (b) contemplates that, in addition to the content required by subsection (a), other matters may also be included in the declaration if the declarant or lender feel they are appropriate to the particular project. In particular, the draftsman should carefully consider any desired provisions which would vary any of the many sections of the Act where variation is permitted, including such matters as expanding or restricting the association’s powers. A list of sections which may be varied appears in the comment to Section [34-36.1-1.04].

This Act seeks functionally to distinguish between the declaration and the public offering statement. It requires the declaration to contain only those matters which affect the legal structure or title of the condominium. This includes the reserved powers of the declarant to exercise development rights within the condominium. A narrative description of those rights, however, and the possible consequences flowing from their exercise, are required to be disclosed only in the public offering statement and not in the declaration.

In theory, a declarant might overstate the maximum number of units in an attempt to artificially extend the period of declarant control, since the time might never come when a declarant had sold 75% of that number of units. As a practical matter, however, such a practice would not likely achieve long-term control.

NOTES TO DECISIONS

Declaration Valid.

Supreme Court of Rhode Island’s statement in a prior case that a master declaration did not include a specific definition of a unit by no means purported to declare that the declaration did not contain a description of the boundaries of each unit in contravention of the Rhode Island Condominium Act. IDC Props. v. Goat Island S. Condo. Ass'n, 128 A.3d 383, 2015 R.I. LEXIS 120 (2015).

Time Limit for Execising Development Rights.

Where plaintiff acquired a foreclosing mortgagee’s interest in a parcel that had been mortgaged by a condominium declarant, as plaintiff did not exercise the right under R.I. Gen. Laws § 34-36.1-2.18(i) to exclude the parcel from the condominium until after the condominium declaration’s time limit within which to withdraw the parcel had expired, the parcel no longer was withdrawable and, pursuant to R.I. Gen. Laws § 34-36.1-2.10(c)(4) , title to unexercised declarant rights passed to the condominium association as a matter of law. Alessi v. Bowen Court Condo., 44 A.3d 736, 2012 R.I. LEXIS 70 (2012).

Collateral References.

May easement or right of way be appurtenant where servient tenement is not adjacent to dominant. 15 A.L.R.7th Art. 1 (2016).

34-36.1-2.06. Leasehold condominiums.

  1. Any lease the expiration or termination of which may terminate the condominium or reduce its size, or a memorandum thereof, shall be recorded. Every lessor of those leases must sign the declaration, and the declaration shall state:
    1. The recording data for the lease (or a statement of where the complete lease may be inspected);
    2. The date on which the lease is scheduled to expire;
    3. A legally sufficient description of the real estate subject to the lease;
    4. Any right of the unit owners to redeem the reversion and the manner whereby those rights may be exercised, or a statement that they do not have those rights;
    5. Any right of the unit owners to remove any improvements within a reasonable time after the expiration or termination of the lease, or a statement that they do not have those rights;
    6. Any rights of the unit owners to renew the lease and the conditions of any renewal, or a statement that they do not have those rights; and
    7. Any housing restriction as set forth in § 34-39.1-3 , and the details thereof.
  2. After the declaration for a leasehold condominium is recorded, neither the lessor nor his or her successor in interest may terminate the leasehold interest of a unit owner who makes timely payment of his or her share of the rent and otherwise complies with all covenants which, if violated, would entitle the lessor to terminate the lease. A unit owner’s leasehold interest is not affected by failure of any other person to pay rent or fulfill any other covenant.
  3. Acquisition of the leasehold interest of any unit owner by the owner of the reversion or remainder does not merge the leasehold and fee simple interests unless the leasehold interests of all unit owners subject to that reversion or remainder are acquired.
  4. If the expiration or termination of a lease decreases the number of units in a condominium, the allocated interests shall be reallocated in accordance with § 34-36-7(a) as though those units had been taken by eminent domain. Reallocations shall be confirmed by an amendment to the declaration prepared, executed, and recorded by the association.

History of Section. P.L. 1982, ch. 329, § 2; P.L. 2006, ch. 368, § 3; P.L. 2006, ch. 464, § 3.

COMMISSIONER’S COMMENT

  1. Subsection (a) requires that the lessor of any lease, which upon termination will terminate the condominium or reduce its size, must sign the declaration. This requirement insures that the lessor has consented to use of his land as a condominium.
  2. [Enacting Instructions].
  3. This section sets out requirements concerning leasehold condominiums which are not typically contained in the statutes of most states. In particular, it requires that the declaration describe the rights of the unit owners, or state that they have no rights concerning a variety of significant matters. The section also contains a number of other consumer protection provisions. However, in contrast to the result under some states’ laws, unit owners have no statutory right to renewal of a lease upon termination.
  4. The most significant matter of consumer protection in this section is subsection (b), which provides that unit owners who pay their share of the rent of the underlying lease may not be deprived of their enjoyment of the leasehold premises.
  5. Subsection (d) considers the problems created when termination of a lease reduces the size of a condominium. In the event that some units are thereby withdrawn from the condominium, reallocation of the allocated interests would be required; the section describes how that reallocation would occur.

Subsection (b) is intended to protect the “unit owner” regardless of whether he is a lessee, sublessee, or even further down in a chain of transfer of leasehold interests. Thus, for example, if the “unit owner” is a sublessee, the term “lessor (or) his successor in interest” includes not only the lessor, but also the lessee.

Subsection (b) further protects the unit owner by assuring that he will not share with his fellow unit owners any collective obligations toward their common lessor. All obligations are instead fractionalized so that no unit owner can be made liable or otherwise penalized for a default by any of his fellows. Thus, a default by the association in payment of the rent due the lessor, in a case where the lease of common elements ran to the association, would not permit the lessor to terminate continued use of those common elements by those unit owners who then pay their share of the rent.

Collateral References.

Self-dealing by developers of condominium project as affecting contracts or leases with condominium association. 73 A.L.R.3d 613.

34-36.1-2.07. Allocation of common element interest, votes, and common expense liabilities.

  1. The declaration shall allocate a fraction or percentage of undivided interests in the common elements and in the common expenses of the association, and a portion of the votes in the association, to each unit including land only units and state the formulas used to establish those allocations. Those allocations may not discriminate in favor of units owned by the declarant, but may discriminate in favor of units subject to a housing restriction as set forth in § 34-39.1-3 . Except as set forth in § 34-36.1-1.03(7) , no minimum percentage interest in the common elements is otherwise required.
  2. If units may be added to or withdrawn from the condominium, the declaration must state the formulas to be used to reallocate the allocated interests among all units included in the condominium after the addition or withdrawal.
  3. The declaration may provide: (i) That different allocations of votes shall be made to the units on particular matters specified in the declaration; (ii) For cumulative voting only for the purpose of electing members of the executive board; and (iii) For the class voting on specified issues affecting the class if necessary to protect valid interests of the class. A declarant may not utilize cumulative or class voting for the purpose of evading any limitation imposed on declarants by this chapter, nor may units constitute a class because they are owned by a declarant.
  4. Except for minor variations due to rounding, the sum of the undivided interests in the common elements and common expense liabilities allocated at any time to all the units must each equal one if stated as fractions or one hundred percent (100%) if stated as percentages. In the event of discrepancy between an allocated interest and the results derived from application of the pertinent formula, the allocated interest prevails.
  5. The common elements are not subject to partition, and any purported conveyance, encumbrance, judicial sale, or other voluntary or involuntary transfer of an undivided interest in the common elements made without the unit to which that interest is allocated, is void.
  6. Subject to the provisions of the declaration and other provisions of law, and except as provided in § 34-36.1-2.12 which provides for the relocation of boundaries between adjoining units, the owners of any two (2) or more units may apply for a reallocation of their respective allocated interests to the executive board; but their application shall not attempt to alter common element interests except as they relate to the proposed reallocation of unit interests. Unless the executive board determines within thirty (30) days, that the reallocations are unreasonable, the association shall prepare an amendment that identifies the units involved, states the reallocations, is executed by those unit owners, contains words of conveyance between them, and upon recordation, is indexed in the name of the grantor and the grantee.

History of Section. P.L. 1982, ch. 329, § 2; P.L. 1983, ch. 202, § 1; P.L. 1991, ch. 369, § 2; P.L. 2006, ch. 368, § 3; P.L. 2006, ch. 464, § 3.

COMMISSIONER’S COMMENT

  1. Most existing condominium statutes require a single common basis, usually related to the “value” of the units, to be used in the allocation of common element interests, votes in the association, and common expense liabilities. This Act departs radically from such requirements by permitting each of these allocations to be made on different bases, and by permitting allocations which are unrelated to value.
  2. While the flexibility permitted in allocations is broader than that permitted by any present statutes, it is likely that the traditional bases for allocation will continue to be used, and that the allocations for all allocated interests will often be based on the same formulas. Most commonly, those bases include size, equality, or value of units. Each of these is discussed below.
  3. If size is chosen as a basis of allocation, the declarant must choose between reliance on area or volume, and the choice must be indicated in the declaration. The declarant might further refine the formula by, for example, excluding unheated areas from the calculation or by partially discounting such areas by means of a ratio. Again, the declarant must indicate the choices he has made and explain the formulas he has chosen.
  4. Most existing condominium statutes require that “value” be used as the basis of all allocations. Under this Act a declarant is free to select such a basis if he wishes to do so. For example, he might designate the “par value” of each unit as a stated number of dollars or points. However, the formula used to develop the par values of the various units would have to be explained in the declaration. For example, the declaration for a high-rise condominium might disclose that the par value of each unit is based on the relative area of each unit on the lower floors, but increases by specified percentages at designated higher levels. The formula for determining area in this example could be further refined in the manner suggested in Comment 2, above, and any other factors (such as the direction in which a unit faces) could also be given weight so long as the weight given to each factor is explained in the declaration.
  5. The purpose of subsection (b) is to afford some advance disclosure to purchasers of units in the first phase of a flexible condominium of how common element interests, votes and common expense liabilities will be reallocated if additional units are added.
  6. Subsection (e) means what it says when it states that a lien or encumbrance on a common element interest without the unit to which that common element interest is allocated is void. Thus, consider the case of a flexible condominium in which there are 50 units in the first phase, each of which initially has a 2 percent undivided interest in the common elements. The declarant borrows money by mortgaging additional real estate. When the declarant expands the condominium by adding phase 2 containing an additional 50 units, he reallocates the common element interests in the manner described in his original declaration, to give each of the 100 units a 1 percent undivided interest in the common elements in both phases of the condominium. At this point, the construction lender cannot have a lien on the undivided interest of phase 1 owners in the common elements of phase 2 because of the wording of the statute. Thus, the most that the construction lender can have is a lien on the phase 2 units together with their common element interests. The mortgage documents may be written to reflect the fact that upon the addition of phase 2 of the condominium, the lien on the additional real estate will be converted into a lien on the phase 2 units and on the common element interest as they pertain to those units in both phase 1 and phase 2; however, see Comment to Section [34-36.1-2.10].
  7. If a unit owned only by the declarant — as opposed to the same unit if owned by another person — may be subdivided into 2 or more units but cannot be converted in whole or in part into common elements, it is still a unit that may be subdivided or converted into 2 or more units or common elements, within the meaning of the definition of development rights, and is not governed by Section [34-36.1-2.13] (Subdivision of Units).
  8. Subsection (c) represents a significant departure from practice in most states concerning the allocation of votes. The usual rule is that a single allocation of votes is made to each unit, and that allocation applies to all matters on which those votes may be cast. This section recognizes that the increasingly complex nature of some projects requires different allocation on particular questions. It may be appropriate, for example, in a project where common expense liabilities, or questions concerning rules and regulations, affect different units differently.
  9. This section recognizes that there may be certain instances in which class voting in the association would be desirable. For example, in a mixed-use condominium consisting of both residential and commercial units, there may be certain kinds of issues upon which the residential or commercial unit owners should have a special voice, and the device described in Comment 9 was not desired. To prevent abuse of class voting by the declarant, subsection (c) permits class voting only with respect to specified issues directly affecting the designated class and only insofar as necessary to protect valid interests of the designated class.
  10. The last clause of subsection (c) prohibits a practice common in the planned community or other non-condominium multi-ownership projects, where units owned by declarant constitute a separate class of units for voting and other purposes. Upon transfer of title, those units lose these more favorable voting rights. This section makes clear that the votes and other attributes of ownership of a unit may not change by virtue of the identity of the owner. In those circumstances which such classes were legitimately intended to address, principally control of the association, the Act provides other, more balanced devices for declarant control. See Section [34-36.1-3.03(d)].

Thus, all three allocations might be made equally among all units, or in proportion to the relative size of each unit, or on the basis of any other formula the declarant may select, regardless of the values of those units. Moreover, “size” might be used, for example, in allocating common expenses and common element interests, while equality is used in allocating votes in the association. This section does not require that the formulas used by the declarant be justified, but it does require that the formulas be explained. The sole restriction on the formulas to be used in these allocations is that they not discriminate in favor of the units owned by the declarant. Otherwise, each of the separate allocations may be made on any basis which the declarant chooses, and none of the allocations need be tied to any other allocation.

Unless the lender also requires phase 2 to be designated as withdrawable real estate, the phase 2 portion may not be foreclosed upon other than as condominium units and the construction lender may not dispose of phase 2 other than as units which are a part of the condominium. In the event that phase 2 is designated as withdrawable land, then the construction lender may force withdrawal of phase 2 and dispose of it as he wishes, subject to the provisions of the declaration. If one unit in phase 2, however, has been sold to anyone other than the declarant, then phase 2 ceases to be withdrawable land by operation of Section [34-36.1-2.10(d)(2)].

NOTES TO DECISIONS

Partition.

A plain reading of the condominium statute indicates that the common elements of the condominium cannot be partitioned or transferred, voluntarily or otherwise, in favor of a member of the association or one who holds jointly or in common with said member in the absence of a vote by at least 80 percent of the membership of the association. St. Jean Place Condo. Ass'n v. DeLeo, 745 A.2d 738, 2000 R.I. LEXIS 23 (2000).

34-36.1-2.08. Limited common elements.

  1. Except for the limited common elements described in § 34-36.1-2.02(2) and (4), the declaration shall specify to which unit or units each limited common element is allocated. That allocation may not be altered without the consent of the unit owners whose units are affected.
  2. Except as the declaration otherwise provides, a limited common element may be reallocated by an amendment to the declaration executed by the unit owners between or among whose units the reallocation is made. The persons executing the amendment shall provide a copy thereof to the association, which shall record it. The amendment shall be recorded in the names of the parties and the condominium.
  3. A common element not previously allocated as a limited common element may not be so allocated except pursuant to provisions in the declaration made in accordance with § 34-36.1-2.05(a)(7) . The allocations shall be made by amendments to the declaration.

History of Section. P.L. 1982, ch. 329, § 2.

COMMISSIONER’S COMMENT

  1. Like all other common elements, limited common elements are owned in common by all unit owners. The use of a limited common element, however, is reserved to less than all of the unit owners. Unless the declaration provides otherwise, the association is responsible for the upkeep of a limited common element and the cost of such upkeep is assessed against all the units. See Sections [34-36.1-3.07(a)] and [34-36.1-3.15(c)(1)]. This might include the costs of repainting all shutters, or balconies, for example, which are limited common elements pursuant to Section [34-36.1-2.02(4)]. Accordingly, there may be occasions where, to meet the expectations of owners and to have costs borne directly by those who benefit from those amenities, the declaration might provide that the costs will be borne, not by all unit owners as part of their common expense assessments, but only by the owners to which the limited common elements are assigned.
  2. Even common elements which are not “limited” within the meaning of this Act may nevertheless be restricted by the unit owners’ association pursuant to the powers set forth in Section [34-36.1-3.02(6) and (10)], unless that power is limited in the declaration. For example, the association might assign reserved parking spaces to designated unit owners, or even to persons who are not unit owners. Such a parking space would differ from a limited common element in that its use would be merely a personal right of the person to whom it is assigned and this section would not have to be complied with to allocate it or to reallocate it.
  3. Because a mortgage or deed of trust may restrict the borrower’s right to transfer the use of a limited common element without the lender’s consent, the terms of the encumbrance should be examined to determine whether the lender’s consent or release is needed to transfer that right of use to another person.

34-36.1-2.09. Plats and plans.

  1. Plats and plans are a part of the declaration. Separate plats and plans are not required by this chapter if all the information required by this section is contained in either a plat or plan. Each plat and plan must be clear and legible and contain a certification that the plat or plan contains all information required by this section.
  2. Each plat must show:
    1. The name and a boundary survey of the entire condominium;
    2. The location and dimensions of all real estate not subject to development rights, or subject only to the development right to withdraw, and the location and dimensions of all existing improvements within that real estate;
    3. A legally sufficient description of any real estate subject to development rights, labeled to identify the rights applicable to each parcel;
    4. The extent of any encroachments by or upon any portion of the condominium;
    5. To the extent feasible, a legally sufficient description of all easements serving or burdening any portion of the condominium;
    6. The location and dimensions of any vertical unit boundaries not shown or projected on plans recorded pursuant to subsection (d) and that unit’s identifying number;
    7. The location with reference to an established datum of any horizontal unit boundaries not shown or projected on plans recorded pursuant to subsection (d) and that unit’s identifying number;
    8. A legally sufficient description of any real estate in which the unit owners will own only an estate for years, labeled as “leasehold real estate”;
    9. The distance between noncontiguous parcels of real estate comprising the condominium;
    10. The location and dimensions of limited common elements, including porches, balconies and patios, other than parking spaces and the other limited common elements described in § 34-36.1-2.02(2) and (4);
    11. In the case of real estate not subject to development rights, all other matters customarily shown on land surveys.
  3. A plat may also show the intended location and dimensions of any contemplated improvement to be constructed anywhere within the condominium. Any contemplated improvement shown must be labeled either “MUST BE BUILT” or “NEED NOT BE BUILT”.
  4. To the extent not shown or projected on the plats, plans of the units must show or project:
    1. The location and dimensions of the vertical boundaries of each unit, and that unit’s identifying number, provided, that if two (2) or more units have the same vertical boundaries one plan may be used for such units if so designated;
    2. Any horizontal unit boundaries, with reference to an established datum, and that unit’s identifying number; and
    3. Any units in which the declarant has reserved the right to create additional units or common elements (§ 34-36.1-2.10 ), identified appropriately.
  5. Unless the declaration provides otherwise, the horizontal boundaries of part of a unit located outside of a building have the same elevation as the horizontal boundaries of the inside part, and need not be depicted on the plats and plans.
  6. Upon exercising any development right, the declarant shall record either new plats and plans necessary to conform to the requirements of subsections (a), (b), and (d), or new certifications of plats and plans previously recorded if those plats and plans otherwise conform to the requirements of those subsections.
  7. Any certification of a plat or plan required by this section or § 34-36.1-2.01(b) must be made by an independent registered surveyor, architect, or engineer.

History of Section. P.L. 1982, ch. 329, § 2.

COMMISSIONER’S COMMENT

  1. The terms “plat” or “plan” have been given a variety of meanings by custom and usage in the various jurisdictions. Under this Act, it is important to recognize that a “plat” need not mean a “survey” of the entire real estate constituting a project at the time the initial plat is recorded, although, through amendments to the plat as development proceeds, it ultimately becomes a survey of the entire project.
  2. Subsection (c) permits, but does not require, the plats to show the location of contemplated improvements. Since construction of contemplated improvements by a declarant involves the exercise of development rights, a declarant may not create any improvement within real estate where no development rights have been reserved, unless the plats actually show that proposed improvement or unless the association (which the declarant may control) makes the improvement pursuant to Section [34-36.1-3.02(7)]. Should the association attempt that improvement, in the face of unit owner’s objections, it may involve risk of challenge. Within land subject to development rights, of course, construction may take place in accordance with the reserved rights, even if no contemplated improvements are shown on the plats. As to the declarant’s obligation to complete an improvement that is shown, see Section [34-36.1-4.19(a)].
  3. As noted in the Comments to Section [34-36.1-2.01], a condominium unit may consist of unenclosed ground and/or airspace, with no “building” involved. If this were true of all units in a particular condominium, the provisions of Section [34-36.1-2.09] relating to plans (but not plats) would be inapplicable.
  4. In detailing the required contents of the plats, two different types of legal description are contemplated. First, in subsection (b)(1), the plat must show at least a general schematic map of the entire project. While this may be by survey, the Act recognizes that a survey may be unduly expensive or impractical in a large project, and accordingly permits a general schematic map of the entire project at the commencement of development. With respect to those portions of the project, however, where no future development may take place, the flexibility of a general schematic map is not necessary. At the same time, it becomes important for title purposes to be able to identify precisely that portion of the project which is essentially completed. Accordingly, as development ceases in particular phases, subsection (b)(2) contemplates that the locations and dimensions of that real estate will be identified. As this process continues, all of the real estate originally shown in a general schematic map will have been surveyed, and the location and dimensions of that real estate identified, at the expiration of development rights. In addition, subsection (2) contemplates that existing improvements must be shown within real estate where no further development will take place. This does not mean the units which may be within each building, but it does mean the external physical dimensions of the buildings themselves. As implied by subsection (11), the nature of “existing improvements” required to be surveyed under subsection (2) should be determined by local practices in the particular state.
  5. Subsection (b)(3) requires that the real estate which is subject to development rights must be identified with a legally sufficient description, that is, either a metes and bounds description, or reference to the deeds of that real estate. Since different portions of the real estate may be subject to differing development rights — for example, only a portion of the total real estate may be added as well as withdrawn from the project — the plan must identify the rights applicable to each portion of that real estate. The same reasoning applies to the legally sufficient description of easements affecting the condominium and any leasehold real estate.
  6. Subsection (f) describes the amendments to the plats and plans which must be made as development rights are exercised. This section requires that the plats and plans be amended at each stage of development to reflect actual progress to date. If an original schematic map was initially recorded as required by subsection (b)(1), the survey required by (b)(2) would also constitute the amendments required by subsection (f).
  7. The terms “horizontal” and “vertical” are now commonly understood in condominium parlance to refer, respectively, to “upper and lower” and “lateral or perimetric.” Thus, Section [34-36.1-2.02] contemplates that the perimetric walls may be designated as the “vertical” boundaries of a unit and the floor and ceiling as its “horizontal” boundaries. That is the sense in which the words “horizontal” and “vertical” are to be understood in this section and throughout this Act.
  8. Sections [34-36.1-4.18] and [34-36.1- 4.19] reveal the effect of labeling an improvement “MUST BE BUILT” or “NEED NOT BE BUILT,” as required by subsection (b)(3).

As to “plan,” the Act does not use that term to mean the actual building plans used for construction of the project. Instead, the required content of the plans in this Act is described in subsection (d). Essentially, the plans constitute a boundary survey of each unit. Typically, the walls will be the vertical (“up and down” or “perimetric”) boundaries, and the floors and ceilings will be the horizontal boundaries. Importantly, these boundaries need not be physically measured, but may instead be projected from the plat or from actual building construction plans. Thus, the plans under this Act are not conceived to be “as built” plans.

34-36.1-2.10. Exercise of development rights.

  1. To exercise any development right reserved under § 34-36.1-2.05(a)(8) , the declarant shall prepare, execute, and record an amendment to the declaration (§ 34-36.1-2.17 ) and comply with § 34-36.1-2.09 . The declarant is the unit owner of any units thereby created. The amendment to the declaration must assign an identifying number to each new unit created; and, except in the case of subdivision or conversion of units described in subsection (c), reallocate the allocated interests among all units. The amendment must describe any common elements and any limited common elements thereby created and, in the case of limited common elements, designate the unit to which each is allocated to the extent required by § 34-36.1-2.08 .
  2. Development rights may be reserved within any real estate added to the condominium if the amendment adding that real estate includes all matters required by §§ 34-36.1-2.05 or 34-36.1-2.06 as the case may be, and the plats and plans include all matters required by § 34-36.1-2.09 . This provision does not extend the time limit on the exercise of development rights imposed by the declaration pursuant to § 34-36.1-2.05(a)(8) .
  3. Whenever a declarant exercises a development right to subdivide or convert a unit previously created into additional units, common elements, or both:
    1. If the declarant converts the unit entirely to common elements, the amendment to the declaration must reallocate all the allocated interests of that unit among the other units as if that unit has been taken by eminent domain § 34-36.1-1.07 .
    2. If the declarant subdivides the unit into two (2) or more units, whether or not any part of the unit is converted into common elements, the amendment to the declaration must reallocate all the allocated interests of the unit among the units created by the subdivision in any reasonable manner prescribed by the declarant.
    3. The time limit set forth in the declaration within which any development rights and other special declarant rights reserved by the declarant must be exercised pursuant to § 34-36.1-2.05 (a)(8) may be extended by an affirmation of seventy-five percent (75%) of unit owners and their mortgagees (if any).
    4. Development rights and other special declarant rights reserved by the declarant that expire unexercised shall become the property of the unit owners’ association which unit owners’ association shall have the power and right by vote or agreement of seventy-five percent (75%) of unit owners and their mortgagees (if any) to establish a new time limit within which each of such unexercised rights must be exercised by the unit owners’ association or its assignee.
  4. If the declarant provides, pursuant to § 34-36.1-2.05(a)(8) , that all or a portion of the real estate is subject to the development right of withdrawal:
    1. If all the real estate is subject to withdrawal, and the declaration does not describe separate portions of real estate subject to that right, none of the real estate may be withdrawn after a unit has been conveyed to a purchaser; and
    2. If a portion or portions are subject to withdrawal, no portion may be withdrawn after a unit in that portion has been conveyed to a purchaser.
  5. Development rights and other special declarant rights reserved by the declarant that have expired unexercised and which have become the property of the association and which have already received a vote or agreement of seventy-five percent (75%) of unit owners and their mortgagees (if any) to establish a new time limit within which each of such unexercised rights must be exercised by the unit owners’ association or its assignee may be included upon any new plat plan or real estate added to the condominium as an amendment to the declaration as described in subsection (b) of this section. An amendment to the declaration pursuant to this section permitting real estate to be added to the condominium property shall require that the association receive a vote or agreement of fifty-one percent (51%) of unit owners.

History of Section. P.L. 1982, ch. 329, § 2; P.L. 1999, ch. 408, § 1; P.L. 2004, ch. 404, § 1.

COMMISSIONER’S COMMENT

  1. This section generally describes the method by which any development right may be exercised. Importantly, while new development rights may be reserved within new real estate which is added to the condominium, the original time limits on the exercise of these rights which the declarant must include in the original declaration may not be extended. Thus, the development process may continue only within the self-determined constraints originally described by the declarant.
  2. The reservation and exercise of development rights is and must be closely co-ordinated with financing for the project. As a result, lender review and control of that process is common, and the financing documents should reflect the proposed development process.
  3. A lender who holds a mortgage lien on one portion of a condominium may not cause that portion to be withdrawn from the condominium unless the portion constitutes withdrawable real estate in which there is no unit owner other than the declarant. Even then, the amendment effectuating the withdrawal must be executed by the declarant. Consequently, unless the lender wishes to become a declarant subsequent to foreclosure or a deed in lieu of foreclosure in order to execute the amendment, or forecloses in order to require an amendment from the association under Section [34-36.1-2.18(i)], a lender might require that the signed amendment be deposited in escrow at the time the loan is made in order to protect against a recalcitrant borrower.
  4. As indicated in the Comments to Sections [34-36.1-1.03(24)] and [34-36.1-1.06], the withdrawal of real estate from a condominium may constitute a subdivision of land under the applicable subdivision ordinance. Under most subdivision ordinances, the owner of the real estate is regarded as the “subdivider.” In the event of a withdrawal under this section, however, the declarant is in fact the subdivider because of his unique interest in and control over the real estate, even though the real estate, for title purposes, is a common element until withdrawn. Accordingly, he would bear the cost of compliance with any subdivision ordinance required to withdraw a part of the real estate from the condominium.
  5. Subsection (c) deals with special problems surrounding allocated interests when the declarant subdivides or converts units which were originally created in the declaration into additional units, common elements or both. This development right permits the declarant to defer a final decision as to the size of certain units by permitting the subdivision of larger interior spaces into smaller units. The declarant may thus “build to suit” for purchasers’ needs or to meet changing market demand. The concept is called “convertible space” in several existing state statutes.

A typical construction loan mortgage on a portion of a phased condominium might provide that as soon as new units are built on new land to be added (or, if the portion is also designated withdrawable land, as soon thereafter as anyone other than the declarant becomes the unit owner of a unit in the withdrawable land) the mortgage on that land converts into a mortgage on all of the units located within that portion, together with their respective common element interests. The common element interest of those units will, of course, extend to the common elements in other sections of the condominium. However, failure of a construction loan mortgage to so provide is inconsequential, because conveyance of the units in that phase to the lender or to a purchaser at a foreclosure sale would automatically transfer all of those units’ common element interests, as a result of the requirements of Sections [34-36.1-2.07(d)] and [34-36.1-2.07(a)].

For example, a declarant of a 5-story office building condominium may have purchasers committed at the time of the filing of the condominium declaration but a lack of purchasers for the upper 2 floors. In such a circumstance, the declarant could designate the upper 2 floors as a unit, reserving to himself the right to subdivide or convert that unit into additional units, common elements or a combination of units and common elements as needed to suit the requirements of ultimate purchasers.

If, at a later time, a purchaser wishes to purchase half of one floor as unit, the declarant could exercise the development right to subdivide his 2-floor unit into 2 or more units. He may also wish to reserve a portion of the divided floor as a corridor which will constitute common elements. In that case, he would proceed pursuant to this subsection to reallocate the allocated interests among the units in the manner described in this section.

Alternatively, the declarant may ultimately decide that the entire 2 floors should be turned over to the unit owners’ association not as a unit but as common elements to be used perhaps as a cafeteria serving the balance of the building, or for retail space to be rented by the association. In that case, should he choose to make the entire 2 floors common elements, the provisions of paragraph (c)(1) would apply.

NOTES TO DECISIONS

Particular Cases.

Where plaintiff acquired a foreclosing mortgagee’s interest in a parcel that had been mortgaged by a condominium declarant, as plaintiff did not exercise the right under R.I. Gen. Laws § 34-36.1-2.18(i) to exclude the parcel from the condominium until after the condominium declaration’s time limit within which to withdraw the parcel had expired, the parcel no longer was withdrawable and, pursuant to R.I. Gen. Laws § 34-36.1-2.10(c)(4) , title to unexercised declarant rights passed to the condominium association as a matter of law. Alessi v. Bowen Court Condo., 44 A.3d 736, 2012 R.I. LEXIS 70 (2012).

34-36.1-2.11. Alterations of units.

Subject to the provisions of the declaration and other provisions of law, a unit owner:

  1. May make any improvements or alterations to his or her unit that do not impair the structural integrity or mechanical systems or lessen the support of any portion of the condominium;
  2. May not change the appearance of the common elements, or the exterior appearance of a unit or any other portion of the condominium, without permission of the association;
  3. After acquiring an adjoining unit or an adjoining part of an adjoining unit, may remove or alter any intervening partition or create apertures therein, even if the partition in whole or in part is a common element, if those acts do not impair the structural integrity or mechanical systems or lessen the support of any portion of the condominium. Removal of partitions or creation of apertures under this subdivision is not an alteration of boundaries.

History of Section. P.L. 1982, ch. 329, § 2.

COMMISSIONER’S COMMENT

  1. This section deals with permissible alterations of the interior of a unit, and impermissible alterations of the exterior of a unit and the common elements, in ways which reflect common practice. The stated rules, of course, may be varied by the declaration where desired.
  2. Subsection (3) deals in a unique manner with the problem of creating access between adjoining units owned by the same person. The subsection provides a specific rule which would permit a door, stairwell, or removal of a partition wall between those units, so long as structural integrity is not impaired. That alteration would not be an alteration of boundaries, but would be an exception to the basic rule stated in subsection (2).
  3. In considering permissible alteration of the interior of a unit, an example may be useful. A nail driven by a unit owner to hang a picture might enter a portion of the wall designated as part of the common elements, but this section would not be violated because structural integrity would not be impaired. Moreover, no trespass would be committed because each unit owner, as a part owner of the common elements, has a right to utilize them subject only to such restrictions as may be created by the Act, the declaration, bylaws, and the unit owners’ association pursuant to Section [34-36.1-3.02].
  4. Removal of a partition or the creation of an aperture between adjoining units would permit the units to be used as one, but they would not become one unit. They would continue to be separate units within the meaning of Section [34-36.1-1.04] and would continue to be treated separately for the purposes of this Act.
  5. In addition to the restrictions placed on unit owners by this section, the declaration or bylaws may restrict a unit owner from altering the interior appearance of his unit. Although this might be an undue restriction if imposed upon the primary residence of a unit owner, it may be appropriate in the case of time-share or other condominiums.

34-36.1-2.12. Relocation of boundaries between adjoining units.

  1. Subject to the provisions of the declaration and other provisions of law, the boundaries between adjoining units may be relocated by an amendment to the declaration upon application to the association by the owners of those units. If the owners of the adjoining units have specified a reallocation between their units of their allocated interests, the application must state the proposed reallocations. Unless the executive board determines, within thirty (30) days, that the reallocations are unreasonable, the association shall prepare an amendment that identifies the units involved, states the reallocations, is executed by those unit owners, contains words of conveyance between them, and upon recordation, is indexed in the name of the grantor and the grantee.
  2. The association shall prepare and record plats or plans necessary to show the altered boundaries between adjoining units, and their dimensions and identifying numbers.

History of Section. P.L. 1982, ch. 329, § 2.

COMMISSIONER’S COMMENT

  1. This section changes the effect of most current condominium statutes, under which the boundaries between units may not be altered without unanimous or nearly unanimous consent of the unit owners. As the section makes clear, this result may be varied by restrictions in the declaration.
  2. This section contemplates that, upon relocation of the unit boundaries, no reallocation of allocated interests will occur if none is specified in the application. If a reallocation is specified but the executive board deems it unreasonable, then the applicants have the choice of resubmitting the application with a reallocation more acceptable to the board, or going to court to challenge the board’s finding as unreasonable.

34-36.1-2.13. Subdivisions of units.

  1. If the declaration expressly so permits, a unit may be subdivided into two (2) or more units. Subject to the provisions of the declaration and other provisions of law, upon application of a unit owner to subdivide a unit, the association shall prepare, execute, and record an amendment to the declaration including the plats and plans, subdividing that unit.
  2. The amendment to the declaration must be executed by the owner of the unit to be subdivided, assign an identifying number to each unit created, and reallocate the allocated interest formerly allocated to the subdivided unit to the new units in any reasonable manner prescribed by the owner of the subdivided unit.

History of Section. P.L. 1982, ch. 329, § 2.

COMMISSIONER’S COMMENT

  1. This section provides for subdivision of units by unit owners, thereby creating more and smaller units than were originally created. The underlying policy of this section is that the original development plan of the project must be followed, and the expectations of unit owners realized. Accordingly, unless subdivision of the units is expressly permitted by the original declaration, a unit may not be subdivided into 2 or more units unless the declaration is amended to permit it. A subdivision itself is accomplished by an amendment to the declaration.
  2. At the same time, situations will often occur where future subdivision is appropriate, and this section permits the declaration to provide for it. Most state statutes do not presently provide for subdivision of units.

An analogous concept in the context of development rights is subdivision of units by a declarant. The development right is described in Section [34-36.1-2.10].

34-36.1-2.14. Easement for encroachments.

To the extent that any unit or common element encroaches on any other unit or common element, a valid easement for the encroachment exists. The easement does not relieve a unit owner of liability in case of his or her willful misconduct nor relieve a declarant or any other person of liability for failure to adhere to the plats and plans.

History of Section. P.L. 1982, ch. 329, § 2.

COMMISSIONER’S COMMENT

Two approaches are presented here as alternatives [Rhode Island adopted Alternative A], since uniformity on this issue is not essential, and various states have adopted one approach or the other. Both theories recognize the fact that the actual physical boundaries may differ somewhat from what is shown on the plats and plans, and the practical effect of both is the same.

The easement approach of Alternative A creates easements for whatever discrepancies may arise, while the “monuments as boundaries” approach of Alternative B would make the title lines move to follow movement of the physical boundaries caused by such discrepancies or subsequent settling or shifting.

34-36.1-2.15. Use for sales purposes.

A declarant may maintain sales offices, management offices, and models in units or on common elements in the condominium only if the declaration so provides and specifies the rights of a declarant with regard to the number, size, location, and relocation thereof. Any sales office, management office, or model not designated a unit by the declaration is a common element, and if a declarant ceases to be a unit owner, he or she ceases to have any rights with regard thereto unless it is removed promptly from the condominium in accordance with a right to remove reserved in the declaration. Subject to any limitations in the declaration, a declarant may maintain signs on the common elements advertising the condominium. The provisions of this section are subject to the provisions of other state law, and to local ordinances.

History of Section. P.L. 1982, ch. 329, § 2.

COMMISSIONER’S COMMENT

  1. This section prescribes the circumstances under which portions of the condominium — either units or common elements — may be used for sales offices, management offices, or models. The basic requirement is that the declarant must describe his rights to maintain such offices in the declaration. There are no limitations on that right, so that either units owned by the declarant or other persons, or the common elements themselves, may be used for that purpose. Typical common element uses might include a sales booth in the lobby of the building, or a trailer or temporary building located outside the buildings on the grounds of the property.
  2. In addition, this section contains a permissive provision permitting advertising on the common elements. The declarant may choose to limit his rights in terms of the size, location, or other matters affecting the advertising. The Act, however, imposes no limitation. At the same time, the last sentence of the section recognizes that state or local zoning or other laws may limit advertising, both in terms of size and content of the advertising, or the use of the units or common elements for such purposes. This section makes it clear that local law would apply in those cases.

34-36.1-2.16. Easement rights.

Subject to the provisions of the declaration, a declarant has an easement through the common elements as may be reasonably necessary for the purpose of discharging a declarant’s obligations or exercising special declarant rights, whether arising under this chapter or reserved in the declaration.

History of Section. P.L. 1982, ch. 329, § 2.

COMMISSIONER’S COMMENT

  1. This section grants to declarant an easement across the common elements, subject to any self-imposed restrictions on that easement contained in the declaration. At the same time, the easement is not an easement for all purposes and under all circumstances, but only a grant of such rights as may be reasonably necessary for the purpose of exercising the declarant’s rights. Thus, for example, if other access were equally available to the land where new units are being created, which did not require the declarant’s construction equipment to pass and repass over the common elements in a manner which significantly inconvenienced the unit owners, a court might apply the “reasonably necessary” test contained in this section to consider limitations on the declarant’s easement. The rights granted by this section may be enlarged by a specific reservation in the declaration.
  2. The declarant is also required to repair and restore any portion of the condominium used for the easement granted under this section. See Section [34-36.1-4.19(b)].

34-36.1-2.17. Amendment of declaration.

  1. Except in cases of amendments that may be executed by a declarant under § 34-36.1-2.09(f) or 34-36.1-2.10 ; the association under § 34-36.1-1.07 , 34-36.1-2.06(d) , 34-36.1-2.07(f) , 34-36.1-2.08(c) , 34-36.1-2.12 (a), or 34-36.1-2.13 ; or certain unit owners under § 34-36.1-2.07(f) , 34-36.1-2.08(b) , 34-36.1-2.12 , 34-36.1-2.13 (b), or 34-36.1-2.18(b) , and except as limited by subsection (d) of this section, the declaration, including the plats and plans, may be amended only by vote or agreement of unit owners of units to which at least sixty-seven percent (67%) of the votes in the association are allocated, or any larger majority the declaration specifies. The declaration may specify a smaller number only if all the units are restricted exclusively to nonresidential use.
  2. No action to challenge the validity of an amendment adopted by the association pursuant to this section may be brought more than one year after the amendment is recorded.
  3. Every amendment to the declaration must be recorded in every municipality in which any portion of the condominium is located, and is effective only upon recordation. An amendment shall be indexed in the grantee’s index in the name of the condominium and the association and in the grantor’s index in the name of the parties executing the amendment.
  4. Except to the extent expressly permitted or required by other provisions of this chapter, no amendment may create or increase special declarant rights, increase the number of units, change the boundaries of any unit, the allocated interests of a unit, or the uses to which any unit is restricted, in the absence of unanimous consent of the unit owners.
  5. Amendments to the declaration required by this chapter to be recorded by the association shall be prepared, executed, recorded, and certified on behalf of the association by any officer of the association designated for that purpose or, in the absence of designation, by the president of the association.
  6. A declaration and bylaws may require that amendments to any sections dealing with housing restrictions as set forth in § 34-39.1-3 , may also require notice to and/or consent of the restriction holder before such amendments shall take effect.

History of Section. P.L. 1982, ch. 329, § 2; P.L. 1983, ch. 202, § 1; P.L. 2006, ch. 368, § 3; P.L. 2006, ch. 464, § 3.

COMMISSIONER’S COMMENT

  1. This section recognizes that the declaration, as the perpetual governing instrument for the condominium, may be amended by various parties at various times in the life of the project. The basic rule, stated in subsection (a), is that the declaration, including the plats and plans, may only be amended by vote of 67% of the unit owners. The section permits a larger percentage to be required by the declaration, and also recognizes that, in an entirely non-residential condominium, a smaller percentage might be appropriate.
  2. Section [34-36.1-1.04] does not permit the declarant to use any device, such as powers of attorney executed by purchasers at closings, to circumvent subsection (d)’s requirement of unanimous consent. This section does not supplant any requirements of common law or of other statutes with respect to conveyancing if title to real property is to be affected.
  3. Subsection (e) describes the mechanics by which amendments recorded by the association are filed, and resolves a number of matters often neglected by bylaws.

In addition to that basic rule, subsection (a) lists those other instances where the declaration may be amended by the declarant alone without association approval, or by the association acting through its board of directors.

NOTES TO DECISIONS

Illustrative Cases.

Attempt by corporations that acquired development rights on an island to extend the date on which their rights expired was void ab initio because they did not obtain the unanimous approval from individual unit owners to an extension, pursuant to R.I. Gen. Laws § 34-36.1-2.17(d) , and the Supreme Court ruled that individual unit owners acquired title to a regatta club which one of the corporations built while condominium associations that represented individual unit owners were contesting the corporation’s right to build the club. Am. Condo. Ass'n v. IDC, Inc., 844 A.2d 117, 2004 R.I. LEXIS 56 (2004).

Although a condominium unit owner had standing to file his application for the expansion of his unit with the Coastal Resources Management Council (CRMC), and although the condominium declarations did not require the consent of the other unit owners, because the expansion would change the boundaries of his unit, he was required to obtain the unanimous consent of all other unit owners pursuant to R.I. Gen. Laws § 34-36.1-2.17(d) . Sisto v. Am. Condo. Ass'n, 68 A.3d 603, 2013 R.I. LEXIS 114 (2013).

When a trust’s expansion of the trust’s condominium unit was found to violate R.I. Gen. Laws §§ 34-36-7(b) and 34-36.1-2.17(d) , the trust was also properly found liable for breach of contract because the trust’s actions violated an applicable provision of the condominium declaration that mirrored the statutes. Am. Condo. Ass'n v. Mardo, 140 A.3d 106, 2016 R.I. LEXIS 94 (2016).

As this section clearly states that no amendment to a declaration may change the use to which a condominium unit or units is restricted without the unanimous approval of all unit owners, defendant’s second amendment to the declaration was invalid; the original declaration expressly prohibited a restaurant use, and defendant, who was the majority-interest holder, unilaterally and without the approval of all unit owners adopted a second amendment of the declaration that deleted the language prohibiting a restaurant use. Epic Enters. LLC v. Bard Grp., LLC, 186 A.3d 587, 2018 R.I. LEXIS 89 (2018).

Unanimous Consent Not Required.

Where the interest of the unit owners was merely adjusted to include the common elements using the same formula set out in the original and first amended restated master declarations, there was no change to the allocated interests requiring unanimous consent of the unit owners under R.I. Gen. Laws § 34-36.1-2.17(d) . IDC Props. v. Goat Island S. Condo. Ass'n, 128 A.3d 383, 2015 R.I. LEXIS 120 (2015).

34-36.1-2.18. Termination of a condominium.

  1. Except in the case of a taking of all the units by eminent domain § 34-36.1-1.07 , a condominium may be terminated only by agreement of unit owners of units to which at least eighty percent (80%) of the votes in the association are allocated, or any larger percentage the declaration specifies. The declaration may specify a smaller percentage only if all of the units in the condominium are restricted exclusively to nonresidential uses.
  2. An agreement to terminate must be evidenced by the execution of a termination agreement, or ratifications thereof, in the same manner as a deed, by the requisite number of unit owners. The termination agreement must specify a date after which the agreement will be void unless it is recorded before that date. A termination agreement and all ratifications thereof must be recorded in every municipality in which a portion of the condominium is situated, and is effective only upon recordation.
  3. In the case of a condominium containing only units having horizontal boundaries described in the declaration, a termination agreement may provide that all the common elements and units of the condominium shall be sold following termination. If, pursuant to the agreement, any real estate in the condominium is to be sold following termination, the termination agreement must set forth the minimum terms of the sale.
  4. In the case of a condominium containing any units not having horizontal boundaries described in the declaration, a termination agreement may provide for sale of the common elements, but may not require that the units be sold following termination, unless the declaration as originally recorded provided otherwise or unless all the unit owners consent to the sale.
  5. The association, on behalf of the unit owners, may contract for the sale of real estate in the condominium, but the contract is not binding on the unit owners until approved pursuant to subsections (a) and (b). If any real estate in the condominium is to be sold following termination, title to that real estate, upon termination, vests in the association as trustee for the holders of all interests in the units. Thereafter, the association has all powers necessary and appropriate to effect the sale. Until the sale has been concluded and the proceeds thereof distributed, the association continues in existence with all powers it had before termination. Proceeds of the sale must be distributed to unit owners and lien holders as their interests may appear, in proportion to the respective interests of unit owners as provided in subsection (h). Unless otherwise specified in the termination agreement, as long as the association holds title to the real estate, each unit owner and his or her successors in interest have an exclusive right to occupancy of the portion of the real estate that formerly constituted his or her unit. During the period of that occupancy, each unit owner and his or her successors in interest remain liable for all assessments and other obligations imposed on unit owners by this chapter or the declaration.
  6. If the real estate constituting the condominium is not to be sold following termination, title to the common elements and, in a condominium containing only units having horizontal boundaries described in the declaration, title to all the real estate in the condominium, vests in the unit owners upon termination as tenants in common in proportion to their respective interests as provided in subsection (h), and liens on the units shift accordingly. While the tenancy in common exists, each unit owner and his or her successors in interest have an exclusive right to occupancy of the portion of the real estate that formerly constituted his or her unit.
  7. Following termination of the condominium, the proceeds of any sale of real estate, together with the assets of the association, are held by the association as trustee for unit owners and holders of liens on the units as their interests may appear. Following termination, creditors of the association holding liens on the units, which were recorded prior to termination, may enforce those liens in the same manner as any lien holder. All other creditors of the association shall be treated as if they had perfected liens on the units immediately prior to termination.
  8. The respective interests of unit owners referred to in subsections (e), (f), and (g) are as follows:
    1. Except as provided in subdivision (h)(2), the respective interests of unit owners are the fair market values of their units, limited common elements, and common elements interests immediately before the termination, as determined by one or more independent appraisers selected by the association. The decision of the independent appraisers shall be distributed to the unit owners and becomes final unless disapproved within thirty (30) days after distribution by unit owners of units to which a majority of the votes in the association are allocated. The proportion of any unit owner’s interest to that of all unit owners is determined by dividing the fair market value of that unit owner’s unit and common element interest by the total fair market values of all the units and common elements.
    2. If any unit or any limited common element is destroyed to the extent that an appraisal of the fair market value thereof prior to destruction cannot be made, the interests of all unit owners are their respective common element interests immediately before the termination.
  9. Except as provided in subsection (j), foreclosure or enforcement of a lien or encumbrance against the entire condominium does not of itself terminate the condominium, and foreclosure or enforcement of a lien or encumbrance against a portion of the condominium, other than withdrawable real estate, does not withdraw that portion from the condominium. Foreclosure or enforcement of a lien or encumbrance against withdrawable real estate does not of itself withdraw that real estate from the condominium, but the person taking title thereto has the right to require from the association, upon request, an amendment excluding the real estate from the condominium.
  10. If a lien or encumbrance against a portion of the real estate comprising the condominium has priority over the declaration, and the lien or encumbrance has not been partially released, the parties foreclosing the lien or encumbrance may upon foreclosure, record an instrument excluding the real estate subject to that lien or encumbrance from the condominium.

History of Section. P.L. 1982, ch. 329, § 2.

COMMISSIONER’S COMMENT

  1. While few condominiums have yet been terminated under present state law, a number of problems are certain to arise upon termination which have not been adequately addressed by most of those statutes. These include such matters as the percentage of unit owners which should be required for termination; the time frame within which written consents from all unit owners must be secured; the manner in which common elements and units should be disposed of following termination, both in the case of sale and non-sale of all of the real estate; the circumstances under which sale of units may be imposed on dissenting owners; the powers held by the Board of Directors on behalf of the association to negotiate a sales agreement; the practical consequences to the project from the time the unit owners approve the termination until the transfer of title and occupancy actually occurs; the impact of termination on liens on the units and common elements; distribution of sales proceeds; the effect of foreclosure or enforcement of liens against the entire condominium with respect to the validity of the project; and other matters.
  2. Recognizing that unanimous consent from all unit owners would be impossible to secure as a practical matter on a project of any size, subsection (a) states a general rule that 80% consent of the unit owners would be required for termination of a project. The declaration may require a larger percentage of the unit owners and, in a non-residential project, it may also require a smaller percentage. Pursuant to Section [34-36.1-2.19] (Rights of Secured Lenders), lenders may require that the declaration specify a larger percentage of unit owner consent or, more typically, will require the consent of a percentage of the lenders before the project may be terminated.
  3. As a result of subsection (d), unless the declaration requires unanimous consent for termination, the declarant may be able to terminate the condominium despite the unanimous opposition of other unit owners if the declarant owns units to which the requisite number of votes are allocated. Such a result might occur, for example, should a declarant be unable to continue sales in a project where some sales have been made.
  4. Subsection (a) describes the procedure for execution of the termination agreement. It recognizes that not all unit owners will be able to execute the same instrument, and permits execution or ratification of the master termination agreement. Since the transfer of an interest in real estate is being accomplished by the agreements, each of the ratifications must be executed in the same manner as a deed. Importantly, the agreement must specify the time within which it will be effective; otherwise, the project might be indefinitely in “limbo” if ratifications had been signed by some, but not all, required unit owners, and the signing unit owners fail to revoke their agreements. Importantly, the agreement becomes effective only when it is recorded.
  5. Subsections (c) and (d) deal with the question of when all the real estate in the condominium, or the common elements, may be sold without unanimous consent of the unit owners. The section reaches a different result based on the physical configuration of the project.
  6. Subsection (e) describes the powers of the association during the pendency of the termination proceedings. It empowers the association to negotiate for the sale, but makes the validity of any contract dependent on unit owner approval. This section also makes clear that, upon termination, title to the real estate shall be held by the association, so that the association may convey title without the necessity of each unit owner signing the deed. Finally, this section makes clear that, until the association delivers title to the condominium property, the project will continue to operate as it had prior to the termination, thus insuring that the practical necessities of operation of the real estate will not be impaired.
  7. Subsection (f) contemplates the possibility that a condominium might be terminated but the real estate not sold. While this is not likely to be the usual case, it is important to provide for the possibility.
  8. A complex series of creditors’ rights questions may arise upon termination. Those questions involve competing claims of first mortgage holders on individual units, other secured and unsecured creditors of individual unit owners, judgment creditors of the association, creditors of the association to whom a security interest in the common elements has been granted, and unsecured creditors of the association. Subsection (g) attempts to establish general rules with respect to these competing claims, but leaves to state law the resolution of the priorities of those competing claims.
  9. Subsection (h) departs significantly from the usual result under most condominium acts. Under those acts the proceeds of the sale of the entire project are distributed upon termination to each unit owner in accordance with the common element interest which was allocated at the outset of the project. Of course, in an older development, those original allocations will bear little resemblance to the actual value of the units. For that reason, the Act adopts an appraisal procedure for distribution of the sales proceeds. This appraisal may dramatically affect the amount of dollars actually received by unit owners. Accordingly, it is likely the appraisal will be required to be distributed prior to the time the termination agreement is approved, so that unit owners may understand the likely financial consequences of the termination.
  10. Subsection (h)(2) is an exception to the “fair market value” rule. It provides that, if appraisal of any unit cannot be made, either through pictures or comparison with other units, so that any unit’s appropriate share in the overall proceeds cannot be calculated, then the distribution will fall back on the only objective, albeit artificial, standard available, which is the common element interest allocated to each unit.
  11. Foreclosure of a mortgage or other lien or encumbrance does not automatically terminate the condominium, but, if a mortgagee or other lienholder (or any other party) acquires units with a sufficient number of votes, that party can cause the condominium to be terminated pursuant to subsection (a) of this section.
  12. A mortgage or deed of trust on a condominium unit may provide for the lien to shift, upon termination, to become a lien on what will then be the borrower’s undivided interest in the whole property. However, such a shift would be deemed to occur even in the absence of express language, pursuant to the first sentence of subsection (d).
  13. With respect to the association’s role as trustee under subsection (c), see Section [34-36.1-3.17].
  14. If an initial appraisal made pursuant to subsection (f) were rejected by vote of the unit owners, the association would be obligated to secure a new appraisal.
  15. “Foreclosure” in subsection (i) includes deeds in lieu of foreclosure, and “liens” includes tax and other liens on real estate which may be converted or withdrawn from the project.
  16. The termination agreement should adopt or contain any restrictions, covenants and other provisions for the governance and operation of the property formerly constituting the condominium which the owners deem appropriate. These might closely parallel the provisions of the declaration and bylaws. This is particularly important in the case of a condominium which is not to be sold pursuant to the terms of the termination agreement. In the absence of such provisions, the general law of the state governing tenancies in common would apply.
  17. Subsection (j) recognizes the possibility that a pre-existing lien might not have been released prior to the time the condominium declaration was recorded. In the absence of a provision such as subsection (j), recordation of the declaration would constitute a changing of the priority of those liens; and it is contrary to all expectations that a prior lienholder may be involuntarily subjected to the condominium documents. For that reason, this section permits the non consenting prior lienholder upon foreclosure to exclude the real estate subject to his lien from the condominium.

Subsection (c) states that if a condominium contains only units having horizontal boundaries — a typical high rise building — the unit owners may be required to sell their units upon termination despite objection. Under subsection (d), however, if the project contains any units which do not have horizontal boundaries — for example, a single family home project where some of the units include title to land and could theoretically continue apart from a condominium as a title matter — then the termination agreement may not force dissenting unit owners to sell their units unless the declaration as originally recorded provided otherwise. Obviously, of course, if all the unit owners consent to the sale of the units, sale of the entire development would be possible.

NOTES TO DECISIONS

Foreclosure.

Where plaintiff acquired a foreclosing mortgagee’s interest in a parcel that had been mortgaged by a condominium declarant, as plaintiff did not exercise the right under R.I. Gen. Laws § 34-36.1-2.18(i) to exclude the parcel from the condominium until after the condominium declaration’s time limit within which to withdraw the parcel had expired, the parcel no longer was withdrawable and, pursuant to R.I. Gen. Laws § 34-36.1-2.10(c)(4) , title to unexercised declarant rights passed to the condominium association as a matter of law. Alessi v. Bowen Court Condo., 44 A.3d 736, 2012 R.I. LEXIS 70 (2012).

Foreclosure by a mortgagee on condominium property does not transmute withdrawable real estate into a title in fee simple; “the person taking title thereto” referenced in R.I. Gen. Laws § 34-36.1-2.18(i) may only take that which his or her successor in interest was capable of transferring to him or her. Alessi v. Bowen Court Condo., 44 A.3d 736, 2012 R.I. LEXIS 70 (2012).

34-36.1-2.19. Rights of secured lenders.

The declaration may require that all or a specified number or percentage of the mortgagees or beneficiaries of deeds of trust encumbering the units approve specified actions of the unit owners or the association as a condition to the effectiveness of those actions, but no requirement for approval may operate to:

  1. Deny or delegate control over the general administrative affairs of the association by the unit owners or the executive board, or
  2. Prevent the association or the executive board from commencing, intervening in, or settling any litigation or proceedings, or receiving and distributing any insurance proceeds except pursuant to § 34-36.1-3.13 .

History of Section. P.L. 1982, ch. 329, § 2.

COMMISSIONER’S COMMENT

  1. In a number of instances, particularly sale or encumbrance of common elements, or termination of a condominium, a lender’s security may be dramatically affected by acts of the association. For that reason, this section permits ratification of those acts of the association which are specified in that declaration as a condition of their effectiveness.
  2. There are three important limitations on the rights of lender consent. They are: (1) a prohibition on control over the general administrative affairs of the association; (2) restrictions on control over the association’s powers during litigation or other proceedings; and (3) prohibition of receipt or distribution of insurance proceeds prior to application of those proceeds for rebuilding.
  3. It is important that lenders not be able to step in and unilaterally act as receiver or trustee of the association. There may, of course, be occasions when a court of competent jurisdiction would order appointment of a receiver for an association. While this would be possible in a court proceeding, the Act prohibits private contractual granting of such a power.
  4. Since it may well be that the association might find itself involved in litigation which would be adverse to the interests of the lender or the declarant, it is inappropriate for a secured party to be able to control the course of litigation in the absence of the consent of the other parties. In an appropriate case, of course, where the lenders’ interests are affected, a lender might seek to intervene as a party in that proceeding.
  5. Section [34-36.1-3.13] provides for the distribution of insurance proceeds in a particular manner. In particular, it prevents distribution of those proceeds to lenders until the intended purpose of the insurance has been met. For that reason, under this section the declaration may not provide the lender a right to receive insurance proceeds in any manner except the manner provided in Section [34-36.1-3.13].
  6. In addition to the provision of the declaration, the provisions of individual deeds to units may require that unit owner to secure his lender’s consent before taking particular actions.

34-36.1-2.20. Master associations.

  1. If the declaration for a condominium provides that any of the powers described in § 34-36.1-3.02 are to be exercised by or may be delegated to a profit or nonprofit corporation or unincorporated association which exercises those or other powers on behalf of one or more condominiums or for the benefit of the unit owners of one or more condominiums, all provisions of this chapter applicable to unit owners’ associations apply to the corporation or unincorporated association, except as modified by this section.
  2. Unless a master association is acting in the capacity of an association described in § 34-36.1-3.01 , it may exercise the powers set forth in § 34-36.1-3.02(a)(2) only to the extent expressly permitted in the declarations of condominiums which are part of the master association or expressly described in the delegations of power from those condominiums to the master association.
  3. If the declaration of any condominium provides that the executive board may delegate certain powers to a master association, the members of the executive board have no liability for the acts or omissions of the master association with respect to those powers following delegation.
  4. The rights and responsibilities of unit owners with respect to the unit owners’ association set forth in §§ 34-36.1-3.03 , 34-36.1-3.08 — 34-36.1-3.10 , and 34-36.1-3.12 apply in the conduct of the affairs of a master association only to those persons who elect the board of a master association, whether or not those persons are otherwise unit owners within the meaning of this chapter.
  5. Notwithstanding the provisions of § 34-36.1-3.03(f) with respect to the election of the executive board of an association, by all unit owners after the period of declarant control ends, and even if a master association is also an association described in § 34-36.1-3.01 , the certificate of incorporation or other instrument creating the master association and the declaration of each condominium the powers of which are assigned by the declaration or delegated to the master association, may provide that the executive board of the master association must be elected after the period of declarant control in any of the following ways:
    1. All unit owners of all condominiums subject to the master association may elect all members of that executive board.
    2. All members of the executive boards of all condominiums subject to the master association may elect all members of that executive board.
    3. All unit owners of each condominium subject to the master association may elect specified members of that executive board.
    4. All members of the executive board of each condominium subject to the master association may elect specified members of that executive board.

History of Section. P.L. 1982, ch. 329, § 2.

COMMISSIONER’S COMMENT

  1. It is very common in large or multi-phased condominiums, particularly those developed under existing laws, for the declarant to create a master or umbrella association which provides management services or decision-making functions for a series of smaller condominiums. While it is expected that this phenomenon will be less necessary under this Act because of the permissible period of time for declarant control over the project, it is nonetheless possible in larger developments that this form of management will continue. Moreover, this section should be of significant benefit to the larger number of condominiums created under prior law which have need for the benefits of a provision on master associations.
  2. Subsection (a) states the general rule that the powers of a unit owners’ association may only be exercised by, or delegated to, a master association if the declaration for the condominium permits that result. The declaration may have originally provided for a master association; alternatively, the unit owners of several condominiums may amend their declarations in similar fashion to provide for this power. Subsection (a) makes it clear that, if any of the powers of the unit owners’ association may be exercised by, or delegated to, a master association, all other provisions of this Act which apply to a unit owners’ association apply to that master association except as modified by this section. Accordingly, such provisions on notice, voting, quorums, records, meetings, and other matters which apply to the unit owners’ association would apply with equal validity to such a master association.
  3. Subsection (b) changes the usual presumption with respect to the powers of the unit owners’ association, except in those cases where the master association is actually acting as the only association for one or more condominiums. In those cases where it is not so acting, however, the only powers of the unit owners’ association which the master association may exercise are the ones expressly permitted in the declaration or in the delegation of power. This is in significant contrast with the rule of Section [34-36.1-2.02] that all of the powers described in that section may be exercised unless limited by the declaration.
  4. Subsection (c) clarifies the liability of the members of the executive board of a unit owners’ association when the condominium for which the unit owners’ association acts has delegated some of its powers to a master association. In that instance, subsection (c) makes it clear that the members of the executive board of the unit owners’ association have no liability for acts and omissions of the master association board; under subsection (a), that liability lies with the members of the master association.
  5. Subsection (d) addresses the question of the rights and responsibilities of the unit owners in their dealings with the master board. A variety of sections enumerated in subsection (d) provide certain rights and powers to unit owners in their dealings with their association. In the affairs of the master association, however, it would be incongruous for the unit owners to maintain those same rights if those unit owners were not in fact electing the master board. Thus, for example, the question of election of directors, meetings, notice of meetings, quorums, and other matters enumerated in those sections would have little meaning if those sections were read literally when applied to a master board which was not elected by all members of the condominiums subject to the master board. For that reason, the rights of notice, voting, and other rights enumerated in the Act are available only to the persons who actually elect the board.
  6. Subsection (e) recognizes that there may be reasons for a representative form of election of directors of the master association. Alternatively, there may be cases where at-large election is reasonable. For that reason, subsection (e) provides that, after the period of declarant control has terminated, there may be 4 ways of electing the master association board. Those four ways are: (1) at-large election of the master board among all the condominiums subject to the master association; (2) at-large election of the master board only among the members of the executive boards of all condominiums subject to the master association; (3) each condominium might have designated positions on the master board, and those spaces could be filled by an at-large election among all the members of each condominium; or (4) the designated positions could be filled by an election only among the members of the executive board of the unit owners’ association for each condominium. It would only be in the case of an at-large election of the master board among all condominiums that subsection (d) would have no relevance.

34-36.1-2.21. Merger or consolidation of condominiums.

  1. Any two (2) or more condominiums, by agreement of the unit owners as provided in subsection (b), may be merged or consolidated into a single condominium. In the event of a merger or consolidation, unless the agreement otherwise provides, the resultant condominium is, for all purposes, the legal successor of all of the preexisting condominiums and the operations and activities of all associations of the preexisting condominiums shall be merged or consolidated into a single association which shall hold all powers, rights, obligations, assets, and liabilities of all preexisting associations.
  2. An agreement of two (2) or more condominiums to merge or consolidate pursuant to subsection (a) must be evidenced by an agreement prepared, executed, recorded, and certified by the president of the association of each of the preexisting condominiums following approval by owners of units to which are allocated the percentage of votes in each condominium required to terminate that condominium. The agreement must be recorded in every municipality in which a portion of the condominium is located and is not effective until recorded.
  3. Every merger or consolidation agreement must provide for the reallocation of the allocated interests in the new association among the units of the resultant condominium either:
    1. By stating the reallocations or the formulas upon which they are based; or
    2. By stating the percentage of overall allocated interests of the new condominium which are allocated to all of the units comprising each of the preexisting condominiums, and providing that the portion of the percentage allocated to each unit formerly comprising a part of the preexisting condominium must be equal to the percentages of allocated interests allocated to that unit by the declaration of the preexisting condominium.

History of Section. P.L. 1982, ch. 329, § 2.

COMMISSIONER’S COMMENT

  1. There may be circumstances where condominiums may wish to merge or consolidate their activities by the creation of a single condominium; this section provides for that possibility.
  2. Under subsection (b), the merger or consolidation agreement is treated for recording purposes as an amendment to the declaration, and the same requirements for approval are mandated as for termination.
  3. Subsection (c) does not state a minimum requirement for the contents of a merger or consolidation agreement, and any additional clauses not inconsistent with subsection (c) may be included. The important point that subsection (c) makes is that the reallocation of the common element interests, common expense liabilities and votes in the new association must be carefully stated.

Subsection (a) makes it clear that a merger or consolidation may occur by the same vote of the unit owners necessary to terminate the condominium. If 2 or more condominiums are merged or consolidated, the resulting condominium is for all purposes the legal successor of the pre-existing condominiums, with a single association for all purposes. In the event condominiums did not wish to completely merge or consolidate their affairs, it would also be possible for them to create a master association pursuant to Section [34-36.1-2.20].

Subsection (c) states 2 alternative rules in this respect. First, the reallocations may be accomplished by stating specifically the allocation of common element interests, common expense liability, and votes in the association to each unit, or by stating the formulas by which those interests may be allocated to each unit in all of the pre-existing condominiums.

Alternatively, the merger or consolidation agreement may state the percentage of overall common element interests, common expense liabilities, and votes in the association allocated to “all of the units comprising each of the pre-existing condominiums.” The agreement might then also provide that the portion of the percentage allocated to each unit from among the shares allocated to each condominium will be equal to the percentage of common expense liability and votes in the association allocated to that unit by the declaration of the preexisting condominium.

Article III Management of Condominium

34-36.1-3.01. Organization of unit owners’ association.

A unit owners’ association must be organized no later than the date the first unit in the condominium is conveyed to a purchaser. The membership of the association at all times shall consist exclusively of all the unit owners or, following termination of the condominium, of all former unit owners entitled to distributions of proceeds under § 34-36.1-2.18 , or their heirs, successors, or assigns. The association shall be organized as a profit or nonprofit corporation or as an unincorporated association. In the case of an unincorporated association, a certificate evidencing the names of the executive board members and mailing address for the association shall be recorded with the municipal land records department for the city or town in which the condominium is located, which shall be updated as often as necessary to reflect any changes in the composition of the executive board.

History of Section. P.L. 1982, ch. 329, § 2; P.L. 2009, ch. 246, § 1.

COMMISSIONER’S COMMENT

  1. The first purchaser of a unit is entitled to have in place the legal structure of the unit owners’ association. The existence of the structure clarifies the relationship between the developer and other unit owners and makes it easy for the developer to involve unit owners in the governance of the condominium even during a period of declarant control reserved pursuant to Section [34-36.1-3.03(d)].
  2. [Enacting Instructions].

NOTES TO DECISIONS

Filing of Certificate.

In a case in which plaintiff slipped and fell on a sidewalk adjacent to the lessor’s property, the superior court properly granted the lessor’s motion for summary judgment, even though the condominium association had not fully complied with the certificate provision of this statute, because plaintiff’s substantial rights were not prejudiced by the belated filing of the certificate establishing the condominium association as an unincorporated association under the Rhode Island Condominium Act; and the certificate requirement was directory rather than mandatory. Rosa v. PJC of Rhode Island, Inc., 270 A.3d 37, 2022 R.I. LEXIS 23 (2022).

Collateral References.

Standing to bring action relating to real property of condominium. 74 A.L.R.4th 165.

34-36.1-3.02. Powers of unit owners’ association.

  1. Except as provided in subsection (b), and subject to the provisions of the declaration, the association, even if unincorporated, may:
    1. Adopt and amend bylaws and rules and regulations;
    2. Adopt and amend budgets for revenues, expenditures, and reserves and collect assessments for common expenses from unit owners;
    3. Hire and discharge managing agents and other employees, agents and independent contractors;
    4. Institute, defend, or intervene in litigation or administrative proceedings in its own name on behalf of itself or two (2) or more unit owners on matters affecting the condominium;
    5. Make contracts and incur liabilities;
    6. Regulate the use, maintenance, repair, replacement and modification of common elements;
    7. Cause additional improvements to be made as a part of the common elements;
    8. Acquire, hold, encumber, and convey in its own name any right, title or interest to real or personal property, but common elements may be conveyed or subjected to a security interest or mortgage only pursuant to § 34-36.1-3.12 ;
    9. Grant easements, leases, licenses and concessions through or over the common elements;
    10. Impose and receive any payments, fees, or charges for the use, rental, or operation of the common elements other than limited common elements described in § 34-36.1-2.02(2) and (4) and for services provided to unit owners;
    11. Impose charges for late payment of assessments and, after notice and an opportunity to be heard, levy reasonable fines for violations of the declaration, bylaws, and rules and regulations of the association as provided in § 34-36.1-3.20 ;
    12. Impose reasonable charges for the preparation and recordation of amendments to the declaration, resale certificates required by § 34-36.1-4.09 or statements of unpaid assessments;
    13. Provide for the indemnification of its officers and executive board and maintain directors’ and officers’ liability insurance;
    14. Borrow funds including the right to assign and/or pledge its right to future income, including the right to receive common expense assessments;
    15. Exercise any other powers conferred by the declaration or bylaws;
    16. Exercise all other powers that may be exercised in this state by legal entities of the same type as the association; and
    17. Exercise any other powers necessary and proper for the governance and operation of the association.
  2. The declaration may not impose limitations on the powers of the association to deal with the declarant that are more restrictive than the limitations imposed on the power of the association to deal with other persons.

History of Section. P.L. 1982, ch. 329, § 2; P.L. 1984, ch. 380, § 6; P.L. 1984, ch. 444, § 1; P.L. 1991, ch. 247, § 1; P.L. 2009, ch. 246, § 1.

COMMISSIONER’S COMMENT

  1. This section permits the declaration, subject to the limitations of subsection (b), to include limitations on the exercise of any of the enumerated powers. [Enacting Instructions.]
  2. Required provisions of the bylaws of the association, referenced in paragraph (1), are set forth in Section [34-36.1-3.06].
  3. Many state condominium statutes give the association the power to sue and be sued in its own name. In the absence of a statutory grant of standing such as that set forth in paragraph (4), some courts have held that the association, because it has no ownership interest in the condominium, has no standing to bring, defend, or to intervene in litigation or administrative proceedings in its own name.
  4. Paragraph (8) refers to the power granted by Section [34-36.1-3.12] to sell or encumber common elements without a termination of the condominium upon a vote of the requisite number of unit owners. Paragraph (9) permits the association to grant easements, leases, licenses, and concessions with respect to the common elements without a vote of the unit owners.
  5. The powers granted the association in paragraph (11) to impose charges for late payment of assessments and to levy reasonable fines for violations of the association’s rules reflect the need to provide the association with sufficient powers to exercise its “governmental” functions as the ruling body of the condominium community. These powers are intended to be in addition to any rights which the association may have under other law.
  6. Under paragraph (14), the declaration may provide for the assignment of income of the association, including common expense assessment income, as security for, or payment of, debts of the association. The power may be limited in any manner specified in the declaration — for example, the power might be limited to specified purposes such as repair of existing structures, or to income from particular sources such as income from tenants, or to a specified percentage of common expense assessments. The power, in many instances, should help materially in securing credit for the association at favorable interest rates. The inability of associations to borrow because of a lack of assets, in spite of its income stream, has been a significant problem.
  7. If the association is incorporated, it may, pursuant to paragraph (16), exercise all other powers of a corporation. Similarly, if the association is unincorporated, the association may, by virtue of paragraph (16), exercise all other powers of an unincorporated association. Inconsistent provisions of state corporation or unincorporated association law are subject to the provisions of this Act, as provided in Section [34-36.1-1.08].

Collateral References.

Validity and construction of condominium association’s regulations governing members’ use of common facilities. 72 A.L.R.3d 308.

34-36.1-3.03. Executive board members and officers.

  1. Except as provided in the declaration, the bylaws, subsection (b), or in other provisions of this chapter, the executive board may act in all instances on behalf of the association. In the performance of their duties, the officers and members of the executive board are required to exercise:
    1. If appointed by the declarant, the care required of fiduciaries of the unit owners; and
    2. If elected by the unit owners, ordinary and reasonable care.
  2. The executive board may not act on behalf of the association to amend the declaration (§ 34-36.1-2.17 ), to terminate the condominium, or to elect members of the executive board or determine the qualifications, powers and duties, or terms of office of executive board members, but the executive board may fill vacancies in its membership for the unexpired portion of any term.
  3. Within thirty (30) days after adoption of any proposed budget for the condominium, the executive board shall provide a summary of the budget to all the unit owners, and shall set a date for a meeting of the unit owners to consider ratification of the budget not less than fourteen (14) nor more than thirty (30) days after mailing of the summary. Unless at that meeting a majority of all the unit owners or any larger vote specified in the declaration reject the budget, the budget is ratified, whether or not a quorum is present. In the event the proposed budget is rejected, the periodic budget last ratified by the unit owners shall be continued until such time as the unit owners ratify a subsequent budget proposed by the executive board.
    1. Subject to subsection (e), the declaration may provide for a period of declarant control of the association, during which period a declarant, or persons designated by him, may appoint and remove the officers and members of the executive board. Regardless of the period provided in the declaration, a period of declarant control terminates no later than the earlier of:
      1. Sixty (60) days after conveyance of eighty percent (80%) of the units which may be created to unit owners other than a declarant;
      2. Two (2) years after all declarants have ceased to offer units for sale in the ordinary course of business; or
      3. Two (2) years after any development right to add new units was last exercised.
    2. A declarant may voluntarily surrender the right to appoint and remove officers and members of the executive board before terminations of that period, but in that event he or she may require, for the duration of the period of declarant control, that specified actions of the association or executive board, as described in a recorded instrument executed by the declarant, be approved by the declarant before they become effective.
  5. Not later than sixty (60) days after conveyance of twenty-five percent (25%) of the units which may be created to unit owners other than a declarant, at least one member and not less than twenty-five percent (25%) of the members of the executive board must be elected by unit owners other than the declarant. Not later than sixty (60) days after conveyance of fifty percent (50%) of the units which may be created to unit owners other than a declarant, not less than one-third (1/3) of the members of the executive board must be elected by unit owners other than the declarant.
  6. Not later than the termination of any period of declarant control, the unit owners shall elect an executive board of at least three (3) members, at least a majority of whom must be unit owners. The executive board shall elect the officers. The executive board members and officers shall take office upon election.
  7. Notwithstanding any provision of the declaration or bylaws to the contrary, the unit owners, by a two-thirds (2/3) vote of all persons present and entitled to vote at any meeting of the unit owners at which a quorum is present, may remove any member of the executive board with or without cause, other than a member appointed by the declarant.

History of Section. P.L. 1982, ch. 329, § 2.

COMMISSIONER’S COMMENT

  1. Subsection (a) makes members of the executive board appointed by the declarant liable as fiduciaries of the unit owners with respect to their actions or omissions as members of the board. This provision imposes a very high standard of duty because the board is vested with great power over the property interests of unit owners, and because there is a great potential for conflicts of interest between the unit owners and the declarant.
  2. The provisions of paragraph (c) permit the unit owners to disapprove any proposed budget, but a rejection of the budget does not result in cessation of assessments until a budget is approved. Rather, assessments continue on the basis of the last approved periodic budget until the new budget is in effect.
  3. Subsections (d) and (e) recognize the practical necessity for the declarant to control the association during the developmental phases of a condominium project. However, any executive board member appointed by the declarant pursuant to subsection (d) is liable as a fiduciary to any unit owner for his acts or omissions in such capacity.
  4. Subsection (d) permits a declarant to surrender his right to appoint and remove officers and executive board members prior to the termination of the period of declarant control in exchange for a veto right over certain actions of the association or its executive board. This provision is designed to encourage transfer of control by declarants to unit owners as early as possible, without impinging upon the declarant’s rights (for the duration of the period of declarant control) to maintain ultimate control of those matters which he may deem particularly important to him. It might be noted that the declarant at all times (even after the expiration of the period of declarant control) is entitled to cast the votes allocated to his units in the same manner as any other unit owner.
  5. Subsection (e), in combination with subsection (d), provides for a gradual transfer of control of the association to the unit owners from the declarant. Such a gradual transfer is preferable to a one-time turnover of control since it assures that the unit owners will be involved, to some extent, in the affairs of the association from a relatively early date and that some unit owners will acquire experience in dealing with association matters.

Officers and board members elected by the unit owners are required only to exercise ordinary and reasonable care. This lower standard of care should increase the willingness of unit owners to serve as officers and members of the board.

NOTES TO DECISIONS

Construction.

Although R.I. Gen. Laws § 34-36.1-3.03 does permit the executive board of a condominium association to act in all instances on behalf of the association, it also provides for the exception that the executive board may not act on behalf of the association to amend the declaration, pursuant to R.I. Gen. Laws § 34-36.1-2.17 . Am. Condo. Ass'n v. IDC, Inc., 844 A.2d 117, 2004 R.I. LEXIS 56 (2004).

34-36.1-3.04. Transfer of special declarant rights.

  1. No special declarant right created or reserved under this chapter may be transferred except by an instrument evidencing the transfer recorded in every municipality in which any portion of the condominium is located. The instrument is not effective unless executed by the transferee.
  2. Upon transfer of any special declarant right, the liability of a transferor declarant is as follows:
    1. A transferor is not relieved of any obligation or liability arising before the transfer and remains liable for warranty obligations imposed upon him or her by this chapter. Lack of privity does not deprive any unit owner of standing to bring an action to enforce any obligations of the transferor.
    2. If the successor to any special declarant right is an affiliate of a declarant, the transferor is jointly and severally liable with the successor for any obligation or liability of the successor which relates to the condominium.
    3. If a transferor retains any special declarant right, but transfers other special declarant rights to a successor who is not an affiliate of the declarant, the transferor is liable for any obligations or liabilities imposed on declarant by this chapter or by the declaration relating to the retained special declarant rights and arising after the transfer.
    4. A transferor has no liability for any act or omission or any breach of a contractual or warranty obligation arising from the exercise of a special declarant right by a successor declarant who is not an affiliate of the transferor.
  3. Unless otherwise provided in a mortgage instrument or deed of trust, in case of foreclosure of a mortgage, tax sale, judicial sale, sale by a trustee under a deed of trust, or sale under the federal Bankruptcy Code, 11 U.S.C. § 101 et seq., or receivership proceedings, of any units owned by a declarant or real estate in a condominium subject to development rights, a person acquiring title to all the real estate being foreclosed or sold, but only upon his or her request, succeeds to all special declarant rights related to that real estate held by that declarant, or only to any rights reserved in the declaration pursuant to § 34-36.1-2.15 and held by that declarant to maintain models, sales and signs. The judgment or instrument conveying title shall provide for transfer of only the special declarant rights requested.
  4. Upon foreclosure, tax sale, judicial sale, sale by a trustee under a deed of trust, or sale under the federal Bankruptcy Code, 11 U.S.C. § 101 et seq., or receivership proceedings, of all units and other real estate in a condominium owned by a declarant:
    1. The declarant ceases to have any special declarant rights, and
    2. The period of declarant control terminates unless the judgment or instrument conveying title provides for transfer of all special declarant rights held by that declarant to a successor declarant.
    1. The liabilities and obligations of persons who succeed to special declarant rights are as follows:
      1. A successor to any special declarant right who is an affiliate of a declarant is subject to all obligations and liabilities imposed on the transferor by this chapter or by the declaration.
      2. A successor to any special declarant right, other than a successor described in subdivision (e)(2) or (3), who is not an affiliate of a declarant, is subject to all obligations and liabilities imposed by this chapter or the declaration:
        1. On a declarant which relates to his or her exercise or nonexercise of special declarant rights; or
        2. On his or her transferor, other than:
          1. Misrepresentations by any previous declarant;
          2. Warranty obligations on improvements made by any previous declarant, or made before the condominium was created;
          3. Breach of any fiduciary obligations by any previous declarant or his or her appointees to the executive board; or
          4. Any liability or obligations imposed on the transferor as a result of the transferor’s acts or omissions after the transfer.
    2. A successor to only a right reserved in the declaration to maintain models, sales offices, and signs, if he or she is not an affiliate of a declarant, may not exercise any other special declarant right, and is not subject to any liability or obligation as a declarant, except the obligations to provide a public offering statement and any liability arising as a result thereof.
    3. A successor to all special declarant rights held by his or her transferor who is not an affiliate of that declarant and who succeeded to those rights pursuant to a deed in lieu of foreclosure or a judgment or instrument conveying title to units under subsection (c), may declare his or her intention in a recorded instrument to hold those rights solely for transfer to another person. Thereafter, until transferring all special declarant rights to any person acquiring title to any unit owned by the successor, or until recording an instrument permitting exercise of all those rights, that successor may not exercise any of those rights other than any right held by his or her transferor to control the executive board in accordance with the provisions of § 34-36.1-3.03(d) for the duration of any period of declarant control, and any attempted exercise of those rights is void. So long as a successor declarant may not exercise special declarant rights under this subsection, he or she is not subject to any liability or obligation as a declarant other than liability for his or her acts and omissions under § 34-36.1-3.03(d) .
  6. Nothing in this section subjects any successor to a special declarant right to any claims against or other obligations of a transferor declarant, other than claims and obligations arising under this chapter or the declaration.

History of Section. P.L. 1982, ch. 329, § 2.

COMMISSIONER’S COMMENT

  1. This section deals with the issue of the extent to which obligations and liabilities imposed upon a declarant by this Act are transferred to a third party by a transfer of the declarant’s interest in a condominium. There are two parts to the problem. First, what obligations and liabilities to unit owners (both existing unit owners and persons who become unit owners in the future) should a declarant retain, notwithstanding his transfer of interests. Second, what obligations and liabilities may fairly be imposed upon the declarant’s successor in interest. No present condominium statute adequately addresses these issues.
  2. This section strikes a balance between the obvious need to protect the interests of unit owners and the equally important need to protect innocent successors to a declarant’s rights, especially persons such as mortgagees whose only interest in the condominium project is to protect their debt security. The general scheme of the section is to impose upon a declarant continuing obligations and liabilities for promises, acts, or omissions undertaken during the period that he was in control of the condominium, while relieving a declarant who transfers all or part of his special declarant rights in a project of such responsibilities with respect to the promises, acts, or omissions of a successor over whom he has no control. Similarly, the section imposes obligations and liabilities arising after the transfer upon a non-affiliated successor to a declarant’s interests, but absolves such a transferee of responsibility for the promises, acts, or omissions of a transferor declarant over which he had no control. Finally, the section makes special provision for the interests of certain successor declarants (e. g., a mortgagee who succeeds to the rights of the declarant pursuant to a “deed in lieu of foreclosure” and who holds the project solely for transfer to another person) by relieving such persons of virtually all of the obligations and liabilities imposed upon declarants by this Act.
  3. Subsection (a) provides that a successor in interest to a declarant may acquire the special rights of the declarant only by recording an instrument which reflects a transfer of those rights. This recordation requirement is important to determine the duration of the period of declarant control pursuant to Section [34-36.1-3.03(d) and (e)], as well as to place unit owners on notice of all persons entitled to exercise the special rights of a declarant under this Act. The transfer by a declarant of all of his interest in a condominium project to a successor, without a concomitant transfer of the special rights of a declarant pursuant to this subsection, results in the automatic termination of such special declarant rights and of any period of declarant control.
  4. Under subsection (b), a transferor declarant remains liable to unit owners (both existing unit owners and persons who subsequently become unit owners) for all obligations and liabilities, including warranty obligations on all improvements made by him, arising prior to the transfer. If a declarant transfers any special declarant right to an affiliate (as defined in Section [34-36.1-1.03(1)]), the transferor remains subject to all liabilities specified in paragraph (1) of subsection (b) and, in addition, is jointly and severally liable with his successor in interest for all obligations and liabilities of the successor.
  5. The obligations and liabilities imposed upon transferee declarants under the Act are set forth in subsection (e). In general, a transferee declarant (other than an affiliate of the original declarant and other than a successor whose interest in the project is solely for the protection of debt security) becomes subject to all obligations and liabilities imposed upon a declarant by the Act or by the declaration with respect to any promises, acts, or omissions undertaken subsequent to the transfer which relate to the rights he holds. Such a transferee is liable for the promises, acts, or omissions of the original declarant undertaken prior to the transfer, except as set forth in paragraph (e)(2)(ii). For example, a successor declarant would not be liable for the warranty obligations of the original declarant with respect to improvements to the project made by the original declarant. Similarly, a successor would not be liable, under normal circumstances, for any misrepresentation or breach of fiduciary duty by the original declarant prior to the transfer. The successor is liable, however, to complete improvements labeled “MUST BE BUILT” on the original plans.
  6. To preclude declarants from evading their obligations and liabilities under this Act by transferring their interests to affiliated companies, paragraph (1) of subsection (e) makes clear that any successor declarant who is an affiliate of the original declarant is subject to all obligations and liabilities imposed upon the original declarant by the Act or by the declaration. Similarly, as previously noted, paragraph (2) of subsection (b) provides that an original declarant who transfers his rights to an affiliate remains jointly and severally liable with his successor for all obligations and liabilities imposed upon declarants by the Act or by the declaration.
  7. The section handles the problem of certain successor declarants (i. e., persons whose sole interest in the condominium project is the protection of debt security) in three ways. First, subsection (c) provides that, in the case of a foreclosure of a mortgage, a sale by a trustee under a deed of trust, or a sale by a trustee in bankruptcy of any units owned by a declarant, any person acquiring title to all of the units being foreclosed or sold may request the transfer of special declarant rights. In that event, and only upon such request, such rights will be transferred in the instrument conveying title to the units and such transferee will thereafter become a successor declarant subject to the other provisions of this section. In the event of a foreclosure, sale by a trustee under a deed of trust, or sale by a trustee in bankruptcy of all units owned by a declarant, if the transferee of such units does not request the transfer of special declarant rights, then, under subsection (d), such special declarant rights cease to exist and any period of declarant control terminates.

Second, any person who succeeds to special declarant rights as a result of the transfers just described or by deed in lieu of foreclosure, may, pursuant to paragraph (4) of subsection (e), declare his intention (in a recorded instrument) to hold those rights solely for transfer to another person. Thereafter, such a successor may transfer all special declarant rights to a third party acquiring title to any units owned by the successor but may not, prior to such transfer, exercise any special declarant rights other than the right to control the executive board of the association in accordance with the provisions of Section [34-36.1-3.03(c)]. A successor declarant who exercises such a right is relieved of any liability under the Act except liability for any acts or omissions related to his control of the executive board of the association. This provision is designed to deal with the typical problem of a foreclosing mortgage lender who opts to bid in and obtain the project at the foreclosure sale solely for the purpose of subsequent resale. It permits such a foreclosing lender to undertake such a transaction without incurring the full burden of declarant obligations and liabilities. At the same time, the provision recognizes the need for continuing operation of the association and, to that end, permits a foreclosing lender to assume control of the association for the purpose of ensuring a smooth transition.

Third, paragraph (3) of subsection (e) provides that a successor who has only the right to maintain model units, sales offices, and signs does not thereby become subject to any obligations or liabilities as a declarant except for the obligation to provide a public offering statement and any liability resulting therefrom. This provision also is designed to protect mortgage lenders and contemplates the situation where a lender takes over a condominium project and desires to sell out existing units without making any additional improvements to the project. This provision facilitates such a transaction by relieving the mortgage lender, in that instance, from the full burden of obligations and liabilities ordinarily imposed upon a declarant under the Act.

Under Section [34-36.1-2.10], a declarant may reserve the right to create additional units in portions of the condominium which were originally designated as common elements. The declarant becomes the owner of any units created, but, prior to creation of units, the title to those portions of the condominium is in the unit owners. The right to create the units is an interest in land in which a security interest might be granted. If the mortgagee of that interest forecloses, the purchaser at the foreclosure sale has the choices concerning development rights and resulting liability which are described in the preceding paragraph. That is, under subsections (c) and (d), the purchaser may limit his liability by agreeing to hold the developments only for the purpose of transfer as provided by paragraph (e)(4) or may buy the rights under paragraph (c).

NOTES TO DECISIONS

Failure to Record Instrument Evidencing Transfer.

Where a third party acquired title to condominium property, but did not record an instrument evidencing the transfer of special declarant rights, the third party did not become a successor to special declarant rights and, as such, incurred no concomitant obligation. Greensleeves, Inc. v. Lee's Wharf Marina Ass'n, 711 A.2d 1140, 1998 R.I. LEXIS 226 (1998).

34-36.1-3.05. Termination of contracts and leases of declarant.

If entered into before the executive board elected by the unit owners pursuant to § 34-36.1-3.03(f) takes office, (1) any management contract, employment contract, or lease of recreational or parking areas or facilities, (2) any other contract or lease between the association and a declarant or an affiliate of a declarant, or (3) any contract or lease that is not bona fide or was unconscionable to the unit owners at the time entered into under the circumstances then prevailing, may be terminated without penalty by the association at any time after the executive board elected by the unit owners pursuant to § 34-36.1-3.03(f) takes office upon not less than ninety (90) days’ notice to the other party. This section does not apply to any lease the termination of which would terminate the condominium or reduce its size, unless the real estate subject to that lease was included in the condominium for the purpose of avoiding the right of the association to terminate a lease under this section.

History of Section. P.L. 1982, ch. 329, § 2.

COMMISSIONER’S COMMENT

  1. This section deals with a common problem in the development of condominium projects: the temptation on the part of the developer, while in control of the association, to enter into, on behalf of the association, long-term contracts and leases with himself or with an affiliated entity.
  2. In addition to contracts or leases made by a declarant with himself or with an affiliated entity, there are also certain contracts and leases so critical to the operation of the condominium and to the unit owners’ full enjoyment of their rights of ownership that they too should be voidable by the unit owners upon the expiration of any period of declarant control. At the same time, a statutorily-sanctioned right of cancellation should not be applicable to all contracts or leases which a declarant may enter into in the course of developing a condominium project. For example, a commercial tenant would not be willing to invest substantial amounts in equipment and other improvements for the operation of his business if the lease could unilaterally be cancelled by the association. Accordingly, this section provides that (subject to the exception set forth in the last sentence thereof), upon the expiration of any period of declarant control, the association may terminate without penalty, any “critical” contract (i.e., any management contract, employment contract, or lease of recreational or parking areas or facilities) entered into during a period of declarant control, any contract or lease to which the declarant or an affiliate of the declarant is a party, or any contract or lease previously entered into by the declarant which is not bona fide or which was unconscionable to the unit owners at the time entered into under the circumstances then prevailing.
  3. The last sentence of the section addresses the usual leasehold condominium situation where the underlying real estate is subject to a long-term ground lease which is then submitted to the Act. Because termination of the ground lease would terminate the condominium, this sentence prevents cancellation. However, in order to avoid the possibility that recreation and other leases otherwise cancellable under subsection (a) will be restructured to come within the exception, a subjective test of “intent” is imposed. Under the test, if a declarant’s principal purpose in subjecting the leased real estate to the condominium was to prevent termination of the lease, the lease may nevertheless be terminated.

The Act deals with this problem in two ways. First, Section [34-36.1-3.03(a)] imposes upon all executive board members appointed by the declarant liability as fiduciaries of the unit owners for all of their acts or omissions as members of the board. Second, Section [34-36.1-3.05] provides for the termination of certain contracts and leases made during a period of declarant control.

Collateral References.

Self-dealing by developers of condominium project as affecting contracts or leases with condominium association. 73 A.L.R.3d 613.

34-36.1-3.06. Bylaws.

  1. The bylaws of the association must provide for:
    1. The number of members of the executive board and the titles of the officers of the association;
    2. Election by the executive board of a president, treasurer, secretary, and any other officers of the association the bylaws specify;
    3. The qualifications, powers and duties, terms of office, and manner of electing and removing executive board members and officers and filling vacancies;
    4. Which, if any, of its powers the executive board or officers may delegate to other persons or to a managing agent;
    5. Which of its officers may prepare, execute, certify and record amendments to the declaration on behalf of the association; and
    6. The method of amending the bylaws.
  2. Subject to the provisions of the declaration, the bylaws may provide for any other matters the association deems necessary and appropriate.

History of Section. P.L. 1982, ch. 329, § 2.

COMMISSIONER’S COMMENT

  1. Because the Act does not require the recordation of bylaws, it is contemplated that unrecorded bylaws will set forth only matters relating to the internal operations of the association and various “housekeeping” matters with respect to the condominium. The Act requires specific matters to be set forth in the recorded declaration and not in the bylaws, unless the bylaws are to be recorded as an exhibit to the declaration.
  2. The requirement, set forth in subsection (a)(5), that the bylaws designate which of the officers of the association has the responsibility to prepare, execute, certify, and record amendments to the declaration reflects the obligation imposed upon the association by several provisions of this Act to record such amendments in certain circumstances. These provisions include Section [34-36.1-1.07] (Eminent Domain), Section [34-36.1-2.06] (Leasehold Condominiums), Section [34-36.1-2.12] (Relocation of Boundaries Between Adjoining Units), and Section [34-36.1-2.13] (Subdivision of Units). Section [34-36.1-2.17(e)] provides that, if no officer is designated for this purpose, it shall be the duty of the president.

Collateral References.

Enforceability of bylaw or other rule of condominium or co-operative association restricting occupancy by children. 100 A.L.R.3d 241.

Validity and construction of condominium association’s regulations governing members’ use of common facilities. 72 A.L.R.3d 308.

Validity and construction of condominium bylaws or regulations placing special regulations, burdens, or restrictions on nonresident unit owners. 76 A.L.R.4th 295.

34-36.1-3.07. Upkeep of condominium.

  1. Except to the extent provided by the declaration, subsection (b), or § 34-36.1-3.13(h) , the association is responsible for maintenance, repair, and replacement of the common elements, and each unit owner is responsible for maintenance, repair, and replacement of his or her unit. Each unit owner shall afford to the association and the other unit owners, and to their agents or employees, access through his or her unit reasonably necessary for those purposes. If damage is inflicted on the common elements, or on any unit through which access is taken, the unit owner responsible for the damage, or the association if it is responsible, is liable for the prompt repair thereof.
  2. In addition to the liability that a declarant as a unit owner has under this chapter, the declarant alone is liable for all expenses in connection with real estate subject to development rights. No other unit owner and no other portion of the condominium is subject to a claim for payment of those expenses. Unless the declaration provides otherwise, any income or proceeds from real estate subject to development rights inures to the declarant.

History of Section. P.L. 1982, ch. 329, § 2.

COMMISSIONER’S COMMENT

  1. The Act permits the declaration to separate maintenance responsibility from ownership. This is commonly done in practice. In the absence of any provision in the declaration, maintenance responsibility follows ownership of the unit or rests with the association in the case of common elements. Under this Act, limited common elements (which might include, for example, patios, balconies, and parking spaces) are common elements. See Section [34-36.1-1.03(16)]. As a result, under subsection (a), unless the declaration requires that unit owners are responsible for the upkeep of such limited common elements, the association will be responsible for their maintenance. Under Section [34-36.1-3.15(c)], the cost of maintenance, repair, and replacement for such limited common elements is assessed against all the units in the condominium, unless the declaration provides for such expenses to be paid only by the units benefited. See Comment 1 to Section [34-36.1-2.08].
  2. Under Section [34-36.1-2.10], a declarant may reserve the right to create units in portions of the condominium originally designated as common elements. Prior to creation of the units, title to those portions of the condominium is in the unit owners. However, under Section [34-36.1-3.07(b)], the developer is obligated to pay all of the expenses of (including real estate taxes properly apportionable to) that real estate. As to real estate taxes, see Section [34-36.1-1.05(c)].

Collateral References.

Liability of condominium association or corporation for injury allegedly caused by condition of premises. 45 A.L.R.3d 1171.

34-36.1-3.08. Meetings.

A meeting of the association must be held at least once each year. Special meetings of the association may be called by the president, a majority of the executive board or by unit owners having twenty percent (20%), or any lower percentage specified in the bylaws, of the votes in the association. Not less than ten (10) nor more than sixty (60) days in advance of any meeting, the secretary or other officer specified in the bylaws shall cause notice to be hand delivered or sent prepaid by United States mail to the mailing address of each unit or to any other mailing address designated in writing by the unit owner. The notice of any meeting must state the time and place of the meeting and the items on the agenda, including the general nature of any proposed amendment to the declaration or bylaws, any budget changes, and any proposal to remove a director or officer.

History of Section. P.L. 1982, ch. 329, § 2.

34-36.1-3.09. Quorums.

  1. Unless the bylaws provide otherwise, a quorum is present throughout any meeting of the association if persons entitled to cast twenty percent (20%) of the votes which may be cast for election of the executive board are present in person or by proxy at the beginning of the meeting.
  2. Unless the bylaws specify a larger percentage, a quorum is deemed present throughout any meeting of the executive board if persons entitled to cast fifty percent (50%) of the votes on that board are present at the beginning of the meeting.

History of Section. P.L. 1982, ch. 329, § 2.

COMMISSIONER’S COMMENT

Mandatory quorum requirements lower than 50 percent for meetings of the association are often justified because of the common difficulty of inducing unit owners to attend meetings. The problem is particularly acute in the case of resort condominiums where many owners may reside elsewhere, often at considerable distances, for most of the year.

34-36.1-3.10. Voting — Proxies.

  1. If only one of the multiple owners of a unit is present at a meeting of the association, that person is entitled to cast all the votes allocated to that unit. If more than one of the multiple owners are present, the votes allocated to that unit may be cast only in accordance with the agreement of a majority in interest of the multiple owners, unless the declaration expressly provides otherwise. There is majority agreement if any one of the multiple owners casts the votes allocated to that unit without protest being made promptly to the person presiding over the meeting by any of the other owners of the unit.
  2. Votes allocated to a unit may be cast pursuant to a proxy duly executed by a unit owner. If a unit is owned by more than one person, each owner of the unit may vote or register protest to the casting of votes by the other owners of the unit through a duly executed proxy. A unit owner may not revoke a proxy given pursuant to this section except by actual notice of revocation to the person presiding over a meeting of the association. A proxy is void if it is not dated or purports to be revocable without notice. A proxy terminates one year after its date, unless it specifies a shorter term.
  3. If the declaration requires that votes on specified matters affecting the condominium be cast by lessees rather than unit owners of leased units: (1) the provisions of subsections (a) and (b) apply to lessees as if they were unit owners; (2) unit owners who have leased their units to other persons may not cast votes on those specified matters; and (3) lessees are entitled to notice of meetings, access to records, and other rights respecting those matters as if they were unit owners. Unit owners must also be given notice, in the manner provided in § 34-36.1-3.08 , of all meetings at which lessees may be entitled to vote.
  4. No votes allocated to a unit owned by the association may be cast.

History of Section. P.L. 1982, ch. 329, § 2.

COMMISSIONER’S COMMENT

Subsection (c) addresses an increasingly important matter in the governance of condominiums: the role of tenants occupying units owned by investors or other persons. Most present statutes require voting by owners in the association. However, it may be desirable to give lessees, rather than lessors, of units the right to vote on issues involving day-to-day operation both because the lessees may have a greater interest than the lessors and because it is desirable to have lessees feel they are an integral part of the condominium community.

34-36.1-3.11. Tort and contract liability.

Neither the association nor any unit owner except the declarant is liable for that declarant’s torts in connection with any part of the condominium which that declarant has the responsibility to maintain. Otherwise, an action alleging a wrong done by the association must be brought against the association and not against any unit owner. If the wrong occurred during any period of declarant control and the association gives the declarant reasonable notice of and an opportunity to defend against the action, the declarant who then controlled the association is liable to the association or to any unit owner: (1) for all tort losses not covered by insurance suffered by the association or that unit owner, and (2) for all costs which the association would not have incurred but for a breach of contract or other wrongful act or omission. Whenever the declarant is liable to the association under this section, the declarant is also liable for all litigation expenses, including reasonable attorneys’ fees, incurred by the association. Any statute of limitation affecting the association’s right of action under this section is tolled until the period of declarant control terminates. A unit owner is not precluded from bringing an action contemplated by this section because he or she is a unit owner or a member or officer of the association. Liens resulting from judgments against the association are governed by § 34-36.1-3.17 .

History of Section. P.L. 1982, ch. 329, § 2.

COMMISSIONER’S COMMENT

  1. This section provides that any action in tort or contract arising out of acts or omissions of the association shall be brought against the association and not against the individual unit owners. This changes the law in states where plaintiffs are forced to name individual unit owners as the real parties in interest to any action brought against the association. The subsection also provides that a unit owner is not precluded from bringing an action in tort or contract against the association solely because he is a unit owner or a member or officer of the association.
  2. In recognition of the practical control that can (and in most cases will) be exercised by a declarant over the affairs of the association during any period of declarant control permitted pursuant to Section [34-36.1-3.03], subsection (a) provides that the association or any unit owner shall have a right of action against the declarant for any losses (including both payment of damages and attorneys’ fees) suffered by the association or any unit owner as a result of an action based upon a tort or breach of contract arising during any period of declarant control. To assure that the decision to bring such an action can be made by an executive board free from the influence of the declarant, the subsection also provides that any statute of limitations affecting such a right of action by the association shall be tolled until the expiration of any period of declarant control.
  3. If a suit based on a claim which accrued during the period of developer control is brought against the association after control of the association has passed from the developer, reasonable notice to, and grant of an opportunity to the developer to defend, are conditions to developer liability. If, however, suit is brought against the association while the developer is still in control, obviously the developer cannot later resist a suit by the association for reimbursement on the grounds of failure to notify.

Collateral References.

Liability of condominium association or corporation for injury allegedly caused by condition of premises. 45 A.L.R.3d 1171.

Liability of vendor of condominiums for damages occasioned by defective condition thereof. 50 A.L.R.3d 1071.

Proper party plaintiff in action for injury to common areas of condominium development. 69 A.L.R.3d 1148.

Standing to bring action relating to real property of condominium. 74 A.L.R.4th 165.

34-36.1-3.12. Conveyance or encumbrance of common elements.

  1. Portions of the common elements may be conveyed or subjected to a security interest or mortgage by the association if persons entitled to cast at least eighty percent (80%) of the votes in the association, including 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; but all the owners of 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 or mortgage. 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.
  2. An agreement to convey common elements or subject them to a security interest must be evidenced by the execution of an agreement, or ratifications thereof, in the same manner as a deed, by the requisite number of unit owners. The agreement must specify a date after which the agreement will be void unless recorded before that date. The agreement and all ratifications thereof must be recorded in every municipality in which a portion of the condominium is situated, and is effective only upon recordation.
  3. 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.
  4. Any purported conveyance, encumbrance, judicial sale or other voluntary transfer of common elements, unless made pursuant to this section, is void.
  5. A conveyance or encumbrance of common elements pursuant to this section does not deprive any unit of its rights of access and support.
  6. Unless the declaration otherwise provides, a conveyance or encumbrance of common elements pursuant to this section does not affect the priority or validity of preexisting encumbrances.

History of Section. P.L. 1982, ch. 329, § 2.

COMMISSIONER’S COMMENT

  1. Subsection (a) provides that, on agreement of unit owners holding 80% of the votes in the association, parts of the common elements may be sold or encumbered. (80% is the percentage required for termination of the condominium under Section [34-36.1-2.18].) This power may be exercised during the period of declarant control, but, in order to be effective, 80% of non-declarant unit owners must approve the action.
  2. Subsection (b) requires that the agreement for sale or encumbrance be evidenced by the execution of an agreement in the same manner as a deed by the requisite majority of the unit owners. The agreement then must be recorded in the land records. The recorded agreement signed by the unit owners is not the conveyance itself, but is rather a supporting document which shows that the association has full power to execute a deed or mortgage. Under subsection (c), it is contemplated that the association will execute the actual instrument of conveyance. Under subsection (e), a conveyance or encumbrance of common elements may not deprive a unit owner of rights of access and support.
  3. Under the condominium form of ownership, each unit owner owns a share of the common elements as an appurtenant interest to his unit and, when the unit owner mortgages his unit, he also mortgages his appurtenant interest. The unit owner himself cannot convey his unit separately from its interest in the common elements nor can he convey his common element interest separately from the unit. Therefore, if there is a mortgage or other lien against any unit, the problem arises as to whether the association under this section can convey a part of the common elements free from the mortgage interest of the unit mortgagee. Subsection (f) answers that question no. Therefore, a sale or encumbrance of common elements under this section would be subject to the superior priority of any prior mortgagee on the unit unless the mortgagee releases his interest therein.

The ability to sell a portion of the common elements without termination of the condominium gives the condominium regime desirable flexibility. For example, the unit owners, some years after the initial creation of the condominium, may decide to convey away a portion of the open space which has been reserved as a part of the common elements because they no longer find the area useful or because they wish to use sale proceeds to make other improvements. Similarly, the ability to encumber common elements gives the association power to raise money for improvements through the device of mortgaging the improvements themselves. Of course, recreational improvements will frequently not be sufficient security for a loan for their construction. Nevertheless, the ability to take a security interest in such improvements may lead lenders to be more favorably disposed toward making a loan in larger amounts and at lower interest rates.

The introductory language is intended to permit the declaration to vary the rule of subsection (f). The declaration might provide, for example, that any subsequent conveyance of specified portions of the common elements would be free of prior security interests. In that case, the security interest in the common elements held by unit mortgagees would be cut off. Since the loss of the security interest in the common elements could significantly affect mortgagees, states considering inclusion of the bracketed language probably should consult mortgagee groups. If limited to particular common element real estate such as portions of recreational area land, and if protections are provided for lender interests, the ability to convey free of prior security interests could contribute significantly to the continued economic viability of a project.

The declaration could protect lender interests in connection with a conveyance free of the security interests in a number of ways. For example, the declaration might provide for payment of a specified percentage of the sales price to unit mortgagees or it might provide that a specified percentage of the mortgage debt be paid to them. Also, the declaration might provide that no sale or encumbrance of common elements would be effective without the approval of a specified percentage of lenders. There are, no doubt, other devices which could afford substantial protection to lenders.

NOTES TO DECISIONS

Adverse Possession.

The owner of a separate residential unit in a condominium, who thereby enjoyed possession of an undivided interest in the unit, held an ownership interest in the common elements of the condominium and thus could not claim adverse possession. St. Jean Place Condo. Ass'n v. DeLeo, 745 A.2d 738, 2000 R.I. LEXIS 23 (2000).

Partition.

A plain reading of the condominium statute indicates that the common elements of the condominium cannot be partitioned or transferred, voluntarily or otherwise, in favor of a member of the association or one who holds jointly or in common with said member in the absence of a vote by at least 80 percent of the membership of the association. St. Jean Place Condo. Ass'n v. DeLeo, 745 A.2d 738, 2000 R.I. LEXIS 23 (2000).

34-36.1-3.13. Insurance.

  1. Commencing not later than the time of the first conveyance of a unit to a person other than a declarant, the association shall maintain, to the extent reasonably available:
    1. Property insurance on the common elements insuring against all risks of direct, physical loss commonly insured against or, in the case of a conversion building, against fire and extended coverage perils. The total amount of insurance after application of any deductibles shall be not less than eighty percent (80%) of the actual cash value of the insured property at the time the insurance is purchased and at each renewal date, exclusive of land, excavations, foundations, and other items normally excluded from property policies; and
    2. Liability insurance, including medical payments insurance, in an amount determined by the executive board, but not less than any amount specified in the declaration, covering all occurrences commonly insured against for death, bodily injury, and property damage arising out of, or in connection with, the use, ownership, or maintenance of the common elements and any property owned or leased by the association.
  2. In the case of a building containing units having horizontal boundaries described in the declaration, the insurance maintained under subdivision (a)(1), to the extent reasonably available, shall include the units, but need not include improvements and betterments installed by unit owners.
  3. If the insurance described in subsections (a) and (b) is not reasonably available, the association promptly shall cause notice of that fact to be hand delivered or sent prepaid by United States mail to all unit owners. The declaration may require the association to carry any other insurance, and the association in any event may carry any other insurance it deems appropriate to protect the association or the unit owners.
  4. Insurance policies carried pursuant to subsection (a) must provide that:
    1. Each unit owner is an insured person under the policy with respect to liability arising out of the owner’s interest in the common elements or membership in the association;
    2. The insurer waives its right to subrogation under the policy against any unit owner or member of the owner’s household;
    3. No act or omission by any unit owner, unless acting within the scope of his or her authority on behalf of the association, will void the policy or be a condition to recovery under the policy; and
    4. If, at the time of a loss under the policy, there is other insurance in the name of a unit owner covering the same risk covered by the policy, the association’s policy provides primary insurance.
  5. Any loss covered by the property policy under subdivision (a)(1) and subsection (b) must be adjusted with the association, but the insurance proceeds for that loss are payable to any insurance trustee designated for that purpose, or otherwise to the association, and not to any mortgagee or beneficiary under a deed of trust. The insurance trustee or the association shall hold any insurance proceeds in trust for unit owners and lien holders as their interests may appear. Subject to the provisions of subsection (h), the proceeds must be disbursed first for the repair or restoration of the damaged property, and unit owners and lien holders are not entitled to receive payment of any portion of the proceeds unless there is a surplus of proceeds after the property has been completed, repaired or restored, or the condominium is terminated.
  6. An insurance policy issued to the association does not prevent a unit owner from obtaining insurance for his or her own benefit.
  7. An insurer that has issued an insurance policy under this section shall issue certificates or memoranda of insurance to the association and, upon written request, to any unit owner, mortgagee, or beneficiary under a deed of trust. The insurer issuing the policy may not cancel or refuse to renew it until thirty (30) days after notice of the proposed cancellation or nonrenewal has been mailed to the association, each unit owner, and each mortgagee or beneficiary under a deed of trust to whom a certificate or memorandum of insurance has been issued at their respective last known addresses.
  8. Any portion of the condominium for which insurance is required under this section that is damaged or destroyed shall be repaired or replaced promptly by the association unless (1) the condominium is terminated; (2) repair or replacement would be illegal under any state or local health or safety statute or ordinance; or (3) eighty percent (80%) of the unit owners, including every owner of a unit or assigned, limited common element that will not be rebuilt, vote not to rebuild unless insurance proceeds are adequate to rebuild. The cost of repair or replacement in excess of insurance proceeds and reserves is a common expense. If the entire condominium is not repaired or replaced, (1) the insurance proceeds attributable to the damaged common elements must be used to restore the damaged area to a condition compatible with the remainder of the condominium; (2) the insurance proceeds attributable to units and limited, common elements that are not rebuilt must be distributed to the owners of those units and the owners of the units to which those limited common elements were allocated, or to lienholders, as their interests may appear; and (3) the remainder of the proceeds must be distributed to all the unit owners or lienholders, as their interests may appear, in proportion to the common element interests of all the units. If the unit owners vote not to rebuild any unit, that unit’s allocated interests are automatically reallocated upon the vote as if the unit had been condemned under § 34-36.1-1.07(a) and the association promptly shall prepare, execute, and record an amendment to the declaration reflecting the reallocations. Notwithstanding the provisions of this subsection, § 34-36.1-2.18 governs the distribution of insurance proceeds if the condominium is terminated.
  9. In the event a unit owner sustains damage to the owner’s unit as a result of an event that is covered under the insurance coverage purchased in accordance with this section, then upon written request to the condominium association, the unit owner shall be entitled to a written copy from the condominium association of the insurance company damage appraisal or any damage appraisal in regard to damage to the owner’s unit, within fourteen (14) calendar days of the date of the unit owner’s request, or within fourteen (14) days of the association’s receipt of the damage appraisal, whichever is later. If coverage for the damage to a unit is denied for any reason or is deemed to be valued below the policy deductible, then the unit owner shall also be entitled to receive, from the association, a copy of the letter detailing the determination.
  10. The provisions of this section may be varied or waived in the case of a condominium all of whose units are restricted to nonresidential use.

History of Section. P.L. 1982, ch. 329, § 2; P.L. 2017, ch. 78, § 1; P.L. 2017, ch. 88, § 1.

Compiler’s Notes.

P.L. 2017, ch. 78, § 1, and P.L. 2017, ch. 88, § 1 enacted identical amendments to this section.

COMMISSIONER’S COMMENT

  1. Subsections (a) and (b) provide that the required insurance must be maintained only to the extent reasonably available. This permits the association to comply with the insurance requirements even if certain coverages are unavailable or unreasonably expensive.
  2. Subsection (b) represents a significant departure from the present law in virtually all states by requiring that the association obtain and maintain property insurance on both the common elements and the units within buildings with “stacked” units. See Comment 3. While it has been common practice in many parts of the country (either by custom or as mandated by statute) for associations to maintain property insurance on the common elements, it has generally not been the practice for the property insurance policy to cover individual units as well. However, given the great interdependence of the unit owners in the stacked unit condominium situation, mandating property insurance for the entire building is the preferable approach. Moreover, such an approach will greatly simplify claims procedures, particularly where both common elements and portions of a unit have been destroyed. If common elements and units are insured separately, the insurers could be involved in disputes as to the coverage provided by each policy.
  3. The distinction between what is a common element and what is a unit with respect to the insurance coverage required by this section is complex. The definitions of common elements and a unit in Section [34-36.1-1.03(4) and (28)] are not sufficient for this purpose. To determine the distinction between the common elements and units, one must refer first to the declaration’s section on unit boundaries. That section will define the unit boundaries. If the declaration fails to do so, the provisions of Section [34-36.1-2.02] apply.
  4. Although “all risk” coverage is not required as to conversion buildings, but merely fire and extended coverage, this is not intended to imply that such coverage is unnecessary. “All risk” coverage is not required because it may not be appropriate in the case of an unrenovated conversion where cost is a critical factor.
  5. The minimum requirement as to the amount of insurance, which is 80% of the actual cash value, should not be viewed as a recommendation; rather, the 80% is a floor. Typically, many condominium documents require insurance in an amount equal to 100% of the replacement cost of the insured property. The Act permits greater flexibility, however, inasmuch as different types of construction and varieties of projects may not require such total coverage with its attendant higher premium cost.
  6. Subsection (a)(2) covers only the liability of the association, and unit owners as members, but does not cover the unit owner’s individual liability for his acts or omissions or liability for occurrences within his unit.
  7. Clause (1) of the third sentence of subsection (h) would operate as follows: (1) if the condominium consists of campsites, restoration after fire damage might consist of merely resodding the area damaged; (2) if the condominium consists of separate garden-type buildings, restoration after fire damage might consist of demolishing the remaining structure and paving or landscaping the area; and (3) if the condominium consists of a single highrise building, restoration may not be required (if the building is substantially destroyed) inasmuch as “a condition compatible with the remainder of the condominium” would be damaged and unrestored.
  8. The scheme of this section, as set forth in subsection (h), is that any damage or destruction to any portion of the condominium must be repaired (if repairs can be made consistent with applicable safety and health laws) absent a decision to terminate the condominium or a decision by 80% of the unit owners (including the owners of any damaged units) not to rebuild. Unless a decision is made not to rebuild, any available insurance proceeds must be used to effectuate such repairs. For this reason, subsection (e) provides that any loss covered by the association’s property insurance policy shall be adjusted with the association and that the proceeds for any loss shall be payable to the association or to any insurance trustee that may be designated for such purpose. Significantly, such insurance proceeds may not be paid to any mortgagee or other outside party. This provision is necessary to insure that insurance proceeds are available to effectuate any repairs or restoration to the condominium that may be required.
  9. In the case of commercial or industrial condominiums, unit owners may prefer to act as self-insurers or make other arrangements with respect to property insurance. Accordingly, subsection (i) provides that the insurance requirements of this section may be varied or waived in the case of a condominium all of the units of which are reserved exclusively for non-residential use. Such waiver or modification is not possible in the case of a mixed-use condominium, some of the units of which are used for residential purposes.

The Act does not mandate association insurance on units in town house or other arrangements in which there are no stacked units. However, if the developer wishes, the declaration may require association insurance as to units having shared walls or as to all units in the development. Many developments will have some units with horizontal boundaries and other units with no horizontal boundaries. In that case, association insurance as to the units having horizontal boundaries is required, but it is not necessary as to other units.

In summary, Section [34-36.1-2.02] provides that, if the declaration is silent, all non-loadbearing and non-structural portions of the walls, floors and ceilings are part of the unit, while all loadbearing and structural portions of the walls, floors and ceilings are common elements. Further, with respect to any structure partially within and partially outside of the boundaries of a unit, any portion thereof serving only that unit is a limited common element ( see definition in Section [34-36.1-1.03(19)]), and any portion thereof serving more than one unit or any portion of the common elements is a part of the common elements. This treats and defines ownership of all portions of the electrical, plumbing and mechanical systems serving the building not entirely within the boundaries of a unit.

All spaces, interior partitions, electrical, plumbing and mechanical systems, and all other items within the boundaries of the unit which are attached to the unit boundaries, whether or not deemed fixtures under state law, are part of the unit.

Put simply, if any item is installed, constructed, repaired or replaced by the declarant or his successor in connection with the original sale of a stacked unit, the item is insured by the association. Clearly, this does not include items of personal property easily movable within the unit or easily removable from the unit (whether or not deemed a fixture under state law), such as a vase, table or other furnishings. If installed by the unit owner, the item should be insured by the unit owner. Those items, installed by the unit owner and not covered by the association policy, are called “improvements and betterments”.

Collateral References.

Coverage under all-risk insurance. 30 A.L.R.5th 170.

34-36.1-3.14. Surplus funds.

Unless otherwise provided in the declaration, any surplus funds of the association remaining after payment of or provision for common expenses and any prepayment of reserves must be paid to the unit owners in proportion to their common expense liability or credited to them to reduce their future common expense assessments.

History of Section. P.L. 1982, ch. 329, § 2.

COMMISSIONER’S COMMENT

Surplus funds of the association are generally used first for the pre-payment of reserves, and remaining funds are thereafter credited to the account of unit owners or paid to them. In some cases, however, unit owners might prefer that surplus funds be used for other purposes ( e.g., the purchase of recreational equipment). Accordingly, this section permits the declaration to specify any other use of surplus funds.

34-36.1-3.15. Assessments for common expenses.

  1. Until the association makes a common expense assessment, the declarant shall pay all common expenses. After any assessment has been made by the association, assessments must be made at least annually, based on a budget adopted at least annually by the association.
    1. Except for assessments under subsections (c) — (e), all common expenses must be assessed against all the units in accordance with the allocations set forth in the declaration pursuant to § 34-36.1-2.07(a) . Any past due common expense assessment or installment thereof bears interest at the rate established by the association not exceeding twenty-one percent (21%) per year.
    2. Except in the case of a condominium in which all units are restricted to non-residential use, the declarant must pay common expense assessments to the association on all units it owns once a common expense assessment is imposed; the obligation of the declarant to pay common expense assessments on the units it owns shall commence when the declaration or an amendment to a declaration adding units to a condominium is recorded, for those units referenced in the declaration or in any amendment to the declaration, pursuant to § 34-36.1-2.01 .
  3. To the extent required by the declaration:
    1. Any common expense associated with the maintenance, repair or replacement of a limited common element must be assessed against the units to which that limited common element is assigned, equally, or in any other proportion that the declaration provides;
    2. Any common expense or portion thereof benefiting fewer than all of the units must be assessed exclusively against the units benefitted; and
    3. The costs of insurance must be assessed in proportion to risk and the costs of utilities must be assessed in proportion to usage.
  4. Assessments to pay a judgment against the association may be made only against the units in the condominium at the time the judgment was entered, in proportion to their common expense liabilities.
  5. If any common expense is caused by the misconduct of any unit owner, the association may assess that expense exclusively against his or her unit.
  6. If common expenses liabilities are reallocated, common expense assessments and any installment thereof not yet due shall be recalculated in accordance with the reallocated common expense liabilities.
    1. Whenever an assessment for common expenses has remained unpaid for a period of sixty (60) days, and the condominium unit is occupied by a tenant, the association may subject to the rights of a superior lienholder make demand upon the tenant for payment of the amount in arrears, and for payment of succeeding assessments on a monthly basis. All amounts paid directly to the association shall be used as a credit against the rent owed for occupancy of the unit.
    2. Acceptance by an association of payments made by a tenant shall not constitute a waiver of any other rights an association may have with respect to the collection of assessments.

History of Section. P.L. 1982, ch. 329, § 2; P.L. 1993, ch. 355, § 1; P.L. 1995, ch. 57, § 1.

COMMISSIONER’S COMMENT

  1. This section contemplates that a declarant might find it advantageous, particularly in the early stages of condominium development, to pay all of the expenses of the condominium himself rather than assessing each unit individually. Such a situation might arise, for example, where a declarant owns most of the units in the condominium and wishes to avoid billing the costs of each unit separately and crediting payment to each unit. It might also arise in the case of a declarant who, although willing to assume all expenses of the condominium, is unwilling to make payments for replacement reserves or for other expenses which he expects will ultimately be part of the association’s budget. Subsection (a) grants the declarant such flexibility while at the same time providing that once an assessment is made against any unit, all units, including those owned by the declarant, must be assessed for their full portion of the common expense liability.
  2. Under subsection (c), the declaration may provide for assessment on a basis other than the allocation made in Section [34-36.1-2.07] as to limited common elements, other expenses benefiting less than all units, insurance costs, and utility costs.
  3. If additional units are added to a condominium after a judgment has been entered against the association, the new units are not assessed any part of the judgment debt. Since unit owners will know the assessment, and since such unpaid judgment assessments would affect the price paid by purchasers of units, it would be complicated and unnecessary to fairness to reallocate judgment assessments when new units are added.
  4. Subsection (f) refers to those instances in which various provisions of this Act require that common expense liabilities be reallocated among the units of a condominium by amendment to the declaration. These provisions include Section [34-36.1-1.07] (Eminent Domain), Section [34-36.1-2.06] (Leasehold Condominiums), Section [34-36.1-2.10] (Exercise of Development Rights) and Section [34-36.1-2.13(b)] (Subdivision of Units).

NOTES TO DECISIONS

Validity of Declaration Modification.

Since in no sense could the language of an amendment to a condominium declaration, which vested the board of directors with discretion to change the method of assessing the marina’s costs, be read to require that a footage-based method of assessment be employed, it violated the crucial criterion set forth in R.I. Gen. Laws § 34-36.1-3.15 . Mullowney v. Masopust, 943 A.2d 1029, 2008 R.I. LEXIS 28 (2008).

Collateral References.

Expenses for which condominium association may assess unit owners. 77 A.L.R.3d 1290.

34-36.1-3.16. Lien for assessments.

  1. The association has a lien on a unit for any assessment levied against that unit or fines imposed against its unit owner from the time the assessment or fine becomes due. The association’s lien may be foreclosed in accordance with and subject to the provisions of § 34-36.1-3.21 . Unless the declaration otherwise provides, attorney’s fees, charges, late charges, fines, and interest charged pursuant to § 34-36.1-3.02(a)(10) — (12) are enforceable as assessments under this section. If an assessment is payable in installments, the full amount of the assessment is a lien from the time the first installment thereof becomes due.
    1. A lien under this section is prior to all other liens and encumbrances on a unit except:
      1. Liens and encumbrances recorded before the recordation of the declaration and not subordinated to the declaration,
      2. A first mortgage or deed of trust on the unit recorded before the date on which the assessment sought to be enforced became delinquent, and
      3. Liens for real estate taxes and other governmental assessments or charges against the unit.
    2. The lien is also prior to any mortgage or deed of trust described in subdivision (b)(1)(ii) of this section to the extent of the common expense assessments based on the periodic budget adopted by the association pursuant to § 34-36.1-3.15(a) which would have become due in the absence of acceleration during the six (6) months immediately preceding the foreclosure of the interest of the unit owner including any costs and reasonable attorney’s fees not to exceed two thousand five hundred dollars ($2,500), incurred in the collection of any delinquent assessment or other charges by legal proceedings or otherwise and all costs of foreclosure held pursuant to section 34-36.1-3.21 , including, but not limited to, publication, advertising and auctioneer costs, said foreclosure costs not to exceed five thousand dollars ($5,000) (for a total aggregate of attorney’s fees and costs of seven thousand five hundred dollars ($7,500)).
    3. The priority amount under subdivision (b)(2) above shall not include any amounts attributable to special assessments, late charges, fines, penalties, and interest assessed by the association.
    4. When any portion of the unit owner’s share of the common expenses has been delinquent for at least sixty (60) days the association shall first send a notice stating the amount of the delinquency to the unit owner by certified mail, return receipt requested, and first class mail. The association shall also send a notice by certified mail, return receipt requested, and first class mail, stating the amount of the delinquency to the holder of the first mortgage or deed of trust as it appears in the land evidence records at the address appearing in the mortgage or deed of trust or such other address as the first mortgagee may provide in writing to the association.
    5. The failure of the association to send the first mortgagee the notice of sixty (60) days delinquency of common expense assessments, as described in subsection (b)(4) above, shall not affect the priority of the lien for up to six (6) months common expense assessments, but the priority amount shall not include any costs or attorney’s fees.
    6. This subsection does not affect the priority of mechanics’ or materialmen’s liens, or the priority of liens for other assessments made by the association.
  3. Unless the declaration otherwise provides, if two (2) or more associations have liens for assessments created at any time on the same real estate, those liens have equal priority.
  4. Recording of the declaration constitutes record notice and perfection of the lien. No further recordation of any claim of lien for assessment under this section is required but is permitted.
  5. A lien for unpaid assessments is extinguished unless proceedings to enforce the lien are instituted within six (6) years after the full amount of the assessments becomes due.
  6. This section does not prohibit actions to recover sums for which subsection (a) creates a lien or prohibit an association from taking a deed in lieu of foreclosure.
  7. A judgment or decree in any action brought under this section must include costs and reasonable attorney’s fees for the prevailing party.
  8. The association, upon written request shall furnish to a unit owner or the holder of a first mortgage or deed of trust granted with respect to such unit owner’s unit a recordable statement setting forth the amount of unpaid assessments against his or her unit. The statement must be furnished within ten (10) business days after receipt of the request and is binding on the association, the executive board, and every unit owner.
  9. The association may take action for failure of a unit owner to pay any assessment or other charges pursuant to this section. The delinquent unit owner shall be obligated to pay all expenses of the executive board, including reasonable attorney’s fees, incurred in the collection of the delinquent assessment or other charges by legal proceedings or otherwise, such attorney’s fees and other charges also being a lien on the unit. The delinquent unit owner shall also be obligated to pay any amounts paid by the executive board for taxes or on account of superior liens or otherwise to protect its lien, which expenses and amounts, together with accrued interest, shall be deemed to constitute part of the delinquent assessment and shall be collectible as such.

History of Section. P.L. 1982, ch. 329, § 2; P.L. 1991, ch. 247, § 1; P.L. 1991, ch. 369, § 1; P.L. 1992, ch. 8, § 1; P.L. 1997, ch. 324, § 1; P.L. 2001, ch. 84, § 1; P.L. 2008, ch. 459, § 1; P.L. 2008, ch. 479, § 1; P.L. 2009, ch. 246, § 1.

Law Reviews.

James Caleb Bass, 2016 Survey, Cases: Mortgage Law: Twenty Eleven, LLC v. Botelho, 22 Roger Williams U. L. Rev. 857 (2017).

COMMISSIONER’S COMMENT

  1. Subsection (a) provides that the association’s lien on a unit for unpaid assessments shall be enforceable in the same manner as mortgage liens. [Enacting Instructions].
  2. To ensure prompt and efficient enforcement of the association’s lien for unpaid assessments, such liens should enjoy statutory priority over most other liens. Accordingly, subsection (a) provides that the association’s lien takes priority over all other liens and encumbrances except those recorded prior to the recordation of the declaration, those imposed for real estate taxes or other governmental assessments or charges against the unit, and first mortgages recorded before the date the assessment became delinquent. However, as to prior first mortgages, the association’s lien does have priority for 6 months’ assessments based on the periodic budget. A significant departure from existing practice, the 6 months’ priority for the assessment lien strikes an equitable balance between the need to enforce collection of unpaid assessments and the obvious necessity for protecting the priority of the security interests of mortgage lenders. As a practical matter, mortgage lenders will most likely pay the 6 months’ assessments demanded by the association rather than having the association foreclose on the unit. If the mortgage lender wishes, an escrow for assessments can be required. Since this provision may conflict with the provisions of some state statutes which forbid some lending institutions from making loans not secured by first priority liens, the law of each state should be reviewed and amended when necessary.
  3. Subsection (e) makes clear that the association may have remedies short of foreclosure of its lien that can be used to collect unpaid assessments. The association, for example, might bring an action in debt or breach of contract against a recalcitrant unit owner rather than resorting to foreclosure.
  4. In view of the association’s powers to enforce its lien for unpaid assessments, subsection (f) provides unit owners with a method to determine the amount presently due and owing. A unit owner may obtain a statement of any unpaid assessment, including fines and other charges enforceable as assessments under subsection (a), currently levied against his unit. The statement is binding on the association, the executive board, and every unit owner in any subsequent action to collect such unpaid assessments.
  5. Units may be part of a condominium and of a larger real estate regime (see the Uniform Planned Community Act, promulgated by the National Conference of Commissioners on Uniform State Laws in 1980, which would govern most associations with assessment powers). For example, a large real estate development may consist of a larger planned community which contains detached single family dwellings and town houses which are not part of any condominium and a highrise building which is organized as a condominium within the planned community. In that case, the planned community association might assess the condominium units for the general maintenance expenses of the planned community and the condominium association would assess for the direct maintenance expenses of the building itself. In such a situation, subsection (c) provides that unpaid liens of the two associations have equal priority regardless of the relative time of creation of the two regimes and regardless of the time the assessments were made or become delinquent.

NOTES TO DECISIONS

Priority of Lien.

Liens and encumbrances which are recorded prior to recordation of the condominium’s declaration and, therefore, have priority over the lien created by this section do not lose that priority merely because the lienholder had knowledge of the condominium project. In re Brenton's Cove Dev. Co., 52 B.R. 287, 1985 Bankr. LEXIS 5480 (Bankr. D.R.I. 1985).

When the purchaser of a condominium unit at a condominium association lien foreclosure sale sued to prevent a bank from foreclosing on the bank’s first mortgage recorded before the association’s lien, it was error to dismiss the suit because (1) R.I. Gen. Laws § 34-36.1-3.16(b)(2) gave the association a super-priority lien superior to the mortgage, under R.I. Gen. Laws § 34-36.1-3.16(b)(1)(ii) , up to a certain value, and (2) the bank did not exercise a right of redemption in R.I. Gen. Laws § 34-36.1-3.21(c) , so foreclosure of the assessment lien extinguished the bank’s mortgage, as the proceeds of the foreclosure sale were insufficient to satisfy the lien. Twenty Eleven, LLC v. Botelho, 127 A.3d 897, 2015 R.I. LEXIS 112 (2015).

Property to Which Lien Applies.

The statutory lien of this section applies only against the particular unit or to the proceeds from the sale thereof for which assessments are unpaid. In re Brenton's Cove Dev. Co., 52 B.R. 287, 1985 Bankr. LEXIS 5480 (Bankr. D.R.I. 1985).

34-36.1-3.17. Other liens affecting the condominium.

  1. Except as provided in subsection (b), a judgment for money against the association if recorded is not a lien on the common elements, but is a lien in favor of the judgment lienholder against all of the units in the condominium at the time the judgment was entered. No other property of a unit owner is subject to the claims of creditors of the association.
  2. If the association has granted a security interest in the common elements to a creditor or the association pursuant to § 34-36.1-3.12 , the holder of that security interest shall exercise its right against the common elements before its judgment lien on any unit may be enforced.
  3. Whether perfected before or after the creation of the condominium, if a lien other than a deed of trust or mortgage, including a judgment lien or lien attributable to work performed or materials supplied before creation of the condominium, becomes effective against two (2) or more units, the unit owner of an affected unit may pay to the lienholder the amount of the lien attributable to his or her unit, and the lienholder, upon receipt of payment, promptly shall deliver a release of the lien covering that unit. The amount of the payment must be proportionate to the ratio which that unit owner’s common expense liability bears to the common expense liabilities of all unit owners whose units are subject to the lien. After payment, the association may not assess or have a lien against that unit owner’s unit for any portion of the common expenses incurred in connection with that lien.
  4. A judgment against the association must be indexed in the name of the condominium and the association and, when so indexed, is notice of the lien against the units.

History of Section. P.L. 1982, ch. 329, § 2.

COMMISSIONER’S COMMENT

  1. This section deals with the effect on unit owners of judgments against the association. The issue is not free from difficulty. Presently, in most states, if the association is organized as a corporation, the unit owners are likely to receive the insulation from liability given shareholders of a corporation, so that the judgment lienholder can satisfy his judgment only against the property of the association. On the other hand, if the association is organized as an unincorporated association, under the law of most states each unit owner would have joint and several liability on the judgment. This Act strikes a balance between the two extremes, making the judgment lien a direct lien against each individual unit, but allowing the individual unit owner to discharge the lien by payment of his pro-rata share of the judgment. The judgment would also be a lien against any property owned by the association.
  2. It should be noted that, while the judgment lien runs directly against unit owners, the actual liability of the unit owner is almost identical with what it would be if the ordinary corporation rule insulating the unit owner from direct liability were applied. If the incorporated association only is liable for a judgment, it will, of course, have no assets to satisfy the judgment except whatever personal property and real estate not a part of the common elements it owns. If a checking account or other cash funds of the association are attached or garnisheed by the creditor, the association, in order to maintain its operations and fulfill its other obligations, will be obliged to make an additional assessment against the unit owners to cover the judgment. The same result follows if the association is to prevent the sale of other assets at an execution sale. That additional assessment would be in precisely the amount for which this Act gives a direct lien against the individual unit owners. Further, if an association which is without sufficient assets to satisfy a judgment refuses to make assessments from which the creditor can have his claim satisfied, it is very likely that a court, in a supplemental proceeding on the judgment, would direct the association to make the necessary assessments against the unit owners. Unpaid assessments made by the association constitute liens against units just as do judgments.
    1. The unit owner can discharge his unit from the lien and free it from the possibility of being subsequently assessed by the association for the judgment by making a payment directly to the lien holder. This ability may be valuable to a unit owner who is in the process of selling or securing a mortgage on his unit during the period between the time the judgment is entered and the time the association makes a formal assessment against individual unit owners for the amount of the judgment lien.
    2. The judgment creditor through his ability to threaten to foreclose the lien on an individual unit if the judgment is not paid is given some leverage over individual unit owners to encourage them to see that the association pays the judgment. Procuring an assessment through pressure on individual unit owners may be quicker and cheaper for the judgment creditor than using supplemental proceedings and having a judge order that the board of directors make the necessary assessment.

Therefore, whether the lien of the judgment creditor runs against the units directly, or whether the lien is only against the association which finds it necessary to make additional assessments to satisfy the judgment, the unit owner who does not pay his proportionate share will end up with a lien against his unit.

The differences, therefore, between the lien system established by Section [34-36.1-3.17] and the system which would be applicable if ordinary corporation rules were applied are these:

In the rare case where, under corporation law an association could avoid payment of a judgment by dissolution of the association and vesting of title to the units in the unit owners as tenants-in-common or otherwise, the National Conference of Commissioners on Uniform State Laws believes that that result is inappropriate, and that the unit in the condominium itself should be viewed as equity property of the association capable of being reached by judgment creditors in satisfaction of the judgment. As a matter of social policy the condominium association is in quite a different position than the ordinary corporation. The corporation statutes provide shareholders immunity from liability for debts of the corporation to encourage investment in corporations whose entrepreneurial activities in the marketplace contribute to the general wealth and well-being of society. The condominium association, in managing the affairs of the homeowners, does not serve the same entrepreneurial function. It seems reasonable, as a matter of social policy, that an individual homeowner who would be fully liable for debts incurred in the renovation and maintenance of his home or for torts caused by his failure to adequately maintain the premises should not be able to entirely avoid that liability through the device of organizing with other homeowners into a condominium association. On the other hand, it is perhaps not fair to a unit owner in a condominium regime to have all of his assets at risk based on the contracts of the association over which he has little control and as to which he has only a fractional interest or benefit.

It should be noted that, except for situations in which the association has given a mortgage or deed of trust on common elements, the judgment creditor cannot assert a lien against common elements, but is rather left to a lien against the units. That is, the judgment creditor has no power to levy on the golf course or on the swimming pool or other open spaces and sell them independently of the units to satisfy the judgment.

34-36.1-3.18. Association records.

The association shall keep financial records sufficiently detailed to enable the association to comply with § 34-36.1-4.09 . All financial and other records shall be made reasonably available for examination within thirty (30) days of a request by any unit owner and his or her authorized agent.

History of Section. P.L. 1982, ch. 329, § 2; P.L. 2019, ch. 285, § 1; P.L. 2019, ch. 309, § 1.

Compiler’s Notes.

P.L. 2019, ch. 285, § 1, and P.L. 2019, ch. 309, § 1 enacted identical amendments to this section.

34-36.1-3.19. Association as trustee.

With respect to a third person dealing with the association in the association’s capacity as a trustee, the existence of trust powers and their proper exercise by the association may be assumed without inquiry. A third person is not bound to inquire whether the association has power to act as trustee or is properly exercising trust powers. A third person, without actual knowledge that the association is exceeding or improperly exercising its powers, is fully protected in dealing with the association as if it possessed and properly exercised the powers it purports to exercise. A third person is not bound to assure the proper application of trust assets paid or delivered to the association in its capacity as trustee.

History of Section. P.L. 1982, ch. 329, § 2.

COMMISSIONER’S COMMENT

Based on Section 7 of the Uniform Trustees’ Powers Act, this section is intended to protect an innocent third party in its dealings with the association only when the association is acting as a trustee for the unit owners, either under Section [34-36.1-3.13] for insurance proceeds, or Section [34-36.1-2.18] following termination.

34-36.1-3.20. Enforcement of declaration, by-laws and rules.

  1. An executive board may impose and assess fines against a unit owner as a method of enforcing the association’s declaration, bylaws, and rules and regulations. Such fines may include, but are not limited to, daily fines for continued violative conduct in the future. Notice and the opportunity for a hearing must be provided to an alleged violator before a fine is imposed and assessed. All fines shall be a lien on the unit charged.
  2. Daily fines imposed and assessed pursuant to this section shall be no more than one hundred dollars ($100) per day for residential condominiums nor more than five hundred dollars ($500) per day for commercial condominiums.
  3. Fines other than daily fines imposed and assessed pursuant to this section shall be no more than five hundred dollars ($500) for residential condominiums and no more than one thousand dollars ($1,000) for commercial condominiums.
  4. Any condominium declaration, bylaw, rule or regulation which purports to establish a maximum fine or daily fine shall be invalid.
  5. Hearings conducted pursuant to this section shall be before the executive board or a person designated by the executive board.
  6. A decision in a hearing held pursuant to this section must include costs in all cases and reasonable attorney’s fees, if the prevailing party is represented by a member of the Rhode Island Bar. Such attorney’s fees and costs shall also be a lien on the unit charged.

History of Section. P.L. 1991, ch. 247, § 2.

34-36.1-3.21. Foreclosure of condominium lien.

    1. If a condominium unit owner shall default in the payment of any assessment, fine, or any other charge which is a lien on the unit in favor of the association or its assigns, then it shall be lawful for the association or its assigns, through its executive board, to sell the unit of any defaulting unit owner and the benefit and equity of redemption of the defaulting unit owner and his or her heirs, executors, administrators, and assigns therein, at public auction upon the premises or at such other place, if any, as may be designated for that purpose by the association or its assigns.
    2. The association must first mail written notice of the time and place of sale to the defaulting unit owner, at his or her last known address and the holder of the first mortgage or deed of trust of record at the address for service required by subdivision 34-36.1-3.16(b)(4) , both by certified mail, return receipt requested, at least twenty (20) days prior to publishing said notice; second, the association must publish the same at least once each week for two (2) successive weeks in a public newspaper. The time of sale shall be at least fifteen (15) days after the publication of the first notice in a public newspaper. Publication shall be as follows:
      1. If the condominium is situated in the city of Central Falls, in a public newspaper published daily in the city of Pawtucket;
      2. If the condominium is situated in the town of North Providence, in a public newspaper published daily in the city of Providence;
      3. If the condominium is situated in any of the towns of Cumberland, Lincoln, Smithfield or North Smithfield, in a public newspaper published daily in either the city of Pawtucket, Woonsocket, or Providence;
      4. If the condominium is situated in the county of Providence elsewhere than in the above last named cities and towns, in a public newspaper published daily in the city of Providence;
      5. If the condominium is situated in the county of Newport, in a public newspaper published daily in the city of Newport; but if there be no such newspaper so published, then in some public newspaper published anywhere in the county of Newport;
      6. If the condominium is situated in any of the counties of Bristol, Kent, or Washington, in a public newspaper published daily in the city or town in which the condominium is situated; or in some public newspaper published daily in the county in which the condominium is situated or in a public newspaper published daily in the city of Providence.
    3. The sale may be adjourned from time to time, provided that publishing of the notice shall be continued, together with a notice of the adjournment or adjournments, at least once each week in the same newspaper; and third, the association must mail written notice of the same to any person or entity having an interest of record in the unit, recorded not later than thirty (30) days prior to the date originally scheduled for the sale, including without limitation, the holder of any mortgage or deed of trust with respect to the unit, to the address of the person or entity may have provided for that purpose in the land evidence records or at any other address the person or entity may have provided the association in writing, such notice to be given by regular or certified mail, return receipt requested, at least ten (10) days prior to the date originally scheduled for such sale; and in his or her or their own name or names, or as the attorney or attorneys of the defaulting unit owner (for that purpose by these presents duly authorized and appointed with full power of substitution and revocation) to make, execute, and deliver to the purchaser or purchasers at the sale a good and sufficient deed or deeds of the defaulted condominium unit, in fee simple, and to receive the proceeds of the sale or sales, and from the proceeds to retain all sums secured by the lien in favor of the association as of the date of such sale together with all expenses incident to such sale or sales, or for making deeds hereunder, and for fees of counsel and attorneys, and all costs or expenses incurred in the exercise of such powers, and all taxes, assessments, and premiums for insurance, if any, either theretofore paid by the association, or its assigns, or then remaining unpaid upon the defaulted condominium unit, rendering and paying the surplus of the proceeds of sale, if any there be, over and above the amounts to be retained, and paid to other encumbrances of record, together with a true and particular account of such sale or sales, expenses, and charges, to the defaulting unit owner, or his or her heirs, executors, administrators or assigns. The sale or sales shall forever be a perpetual bar against the defaulting unit owner and his or her heirs, executors, administrators and assigns, and all persons claiming the defaulted condominium unit, so sold, by, through or under him, her, them or any of them.
    4. Within seven (7) days after the foreclosure sale, the association shall send an additional written notice to the holder of the first mortgage or deed of trust of record as appears in the land evidence records, as provided in subdivision 34-36.1-3.16(b)(4) by certified mail, return receipt requested, and first class mail, identifying the name of the highest bidder and the amount of the bid.
  2. Any foreclosure sale held by the association pursuant to subsection (a) above, and the title conveyed to any purchaser or purchasers pursuant to such sale, shall be subject to any lien or encumbrance entitled to a priority over the lien of the association pursuant to § 34-36.1-3.16(b) .
  3. Any foreclosure sale held by the association pursuant to subsection (a) above, shall be subject to a thirty (30) day right of redemption running in favor of the holder of the first mortgage or deed of trust of record. The right of redemption shall be exercised by tendering payment to the association in full of all assessments due on the unit together with all attorney’s fees and costs incurred by the association in connection with the collection and foreclosure process within thirty (30) days of the date of the post-foreclosure sale notice sent by the association pursuant to subdivision (a)(4) above. Otherwise, the right of redemption shall terminate thirty (30) days from the date of the post-foreclosure sale notice sent by the association pursuant to subdivision (a)(4) above.
  4. Upon request the association shall provide to any person or entity having an interest of record in the unit: (1) an itemized statement of the amounts owed the association by the defaulting unit owner, separating common expense assessments referred to in § 34-36.1-3.16(b)(2) from interest, attorney’s fees, fines and other charges secured by the lien of the association; and (2) a copy of the most recent periodic budget adopted by the association pursuant to § 34-36.1-3.15(a) .

History of Section. P.L. 1991, ch. 369, § 2; P.L. 1992, ch. 8, § 1; P.L. 2001, ch. 84, § 1; P.L. 2008, ch. 459, § 1; P.L. 2008, ch. 479, § 1; P.L. 2009, ch. 246, § 1.

Law Reviews.

James Caleb Bass, 2016 Survey, Cases: Mortgage Law: Twenty Eleven, LLC v. Botelho, 22 Roger Williams U. L. Rev. 857 (2017).

NOTES TO DECISIONS

Priority of Lien.

When the purchaser of a condominium unit at a condominium association lien foreclosure sale sued to prevent a bank from foreclosing on the bank’s first mortgage recorded before the association’s lien, it was error to dismiss the suit because (1) R.I. Gen. Laws § 34-36.1-3.16(b)(2) gave the association a super-priority lien superior to the mortgage, under R.I. Gen. Laws § 34-36.1-3.16(b)(1)(ii) , up to a certain value, and (2) the bank did not exercise a right of redemption in R.I. Gen. Laws § 34-36.1-3.21(c) , so foreclosure of the assessment lien extinguished the bank’s mortgage, as the proceeds of the foreclosure sale were insufficient to satisfy the lien. Twenty Eleven, LLC v. Botelho, 127 A.3d 897, 2015 R.I. LEXIS 112 (2015).

Use of Old Rules.

Where the bylaws of a condominium association did not specifically state that the foreclosure provisions set forth therein were the only and exclusive provisions, the 1982 statute merely provided an alternative, easier method for achieving the same result of lien and foreclosure, and did not preclude the management committee from following the old rule, namely the bylaws provision. Foley v. Osborne Court Condo., 724 A.2d 436, 1999 R.I. LEXIS 55 (1999).

Article IV Protection of Condominium Purchasers

34-36.1-4.01. Applicability — Waiver.

  1. This article applies to all units subject to this chapter except as provided in subsection (b) or as modified or waived by agreement of purchasers of units in a condominium in which all units are restricted to nonresidential use.
  2. Neither a public offering statement nor a resale certificate need be prepared or delivered in the case of:
    1. A gratuitous disposition of a unit;
    2. A disposition pursuant to court order;
    3. A disposition by a government or governmental agency;
    4. A disposition by foreclosure or deed in lieu of foreclosure;
    5. A disposition to a person in the business of selling real estate who intends to offer those units to purchasers or;
    6. A disposition that may be cancelled at any time and for any reason by the purchaser without penalty.

History of Section. P.L. 1982, ch. 329, § 2.

COMMISSIONER’S COMMENT

In the case of commercial and industrial condominiums, the purchaser is often more sophisticated than the purchaser of residential units and thus better able to bargain for the protections he believes necessary. While this may not always be true, no objective test can be developed which easily distinguishes those commercial purchasers who are able to protect themselves from those who, in the ordinary course of business, have not developed such sophistication. At the same time, the cost of protection imposed by Article 4 may be substantial. Accordingly, subsection (a) permits waiver or modification of Article 4 protections in condominiums where all units are restricted to non-residential use, e.g., in the case of most commercial and industrial condominiums. However, except for certain waivers of implied warranties of quality ( see Section [34-36.1-4.15]) and certain exemptions from public offering statement and resale certificate requirements ( see subsection (b)), no express waiver of the protections of this Article with respect to the purchasers of residential units is permitted by this subsection. Accordingly, by operation of Section [34-36.1-1.04], the rights provided by this Article may not be waived in the case of residential purchasers. Moreover, because of the interrelated rights of residential and commercial owners in mixed-use condominiums, waiver or modification of rights conferred by this Article is restricted to purchasers in wholly nonresidential condominiums.

Collateral References.

Disclosure Requirements Under State Condominium, Homeowner Association, or Planned Real Estate Statute. 44 A.L.R.7th Art. 6 (2019).

34-36.1-4.02. Liability for public offering statement requirements.

  1. Except as provided in subsection (b), a declarant, prior to the offering of any interest in a unit to the public, shall prepare a public offering statement conforming to the requirements of §§ 34-36.1-4.03 — 34-36.1-4.06 .
  2. A declarant may transfer responsibility for preparation of all or a part of the public offering statement to a successor declarant or to a person in the business of selling real estate who intends to offer units in the condominium for his or her own account. In the event of any such transfer, the transferor shall provide the transferee with any information necessary to enable the transferee to fulfill the requirements of subsection (a).
  3. Any declarant or other person in the business of selling real estate who offers a unit for his or her own account to a purchaser shall deliver a public offering statement in the manner prescribed in § 34-36.1-4.08(a) . As between the declarant or other person specified in subsection (b), the person who prepared all or a part of the public offering statement is liable under §§ 34-36.1-4.08 — 34-36.1-4.17 for any false or misleading statement set forth therein or for any omission of material fact therefrom with respect to that portion of the public offering statement which declarant prepared. If a declarant did not prepare any part of a public offering statement that he or she delivers, he or she is not liable for any false or misleading statement set forth therein or for any omission of material fact therefrom unless declarant had actual knowledge of the statement or omission or, in the exercise of reasonable care, should have known of the statement or omission.
  4. If a unit is part of a condominium and is part of any other real estate regime in connection with the sale of which the delivery of a public offering statement is required under the laws of this state, a single public offering statement conforming to the requirements of §§ 34-36.1-4.03 — 34-36.1-4.06 as those requirements relate to all real estate regimes in which the unit is located, and to any other requirements imposed under the laws of this state, may be prepared and delivered in lieu of providing two (2) or more public offering statements.

History of Section. P.L. 1982, ch. 329, § 2.

COMMISSIONER’S COMMENT

This section permits declarants to transfer responsibility for preparation of a public offering statement to successor declarants or dealers, provided the declarant furnishes the information needed by the successor or dealer to complete the statement. The person who prepares the public offering statement is liable for his own misrepresentations and material omissions. A person who delivers a public offering statement prepared by others is responsible for any such deficiencies only to the extent he knows or reasonably should have known of them.

Collateral References.

Broker’s liability for fraud or misrepresentation concerning development or nondevelopment of nearby property. 71 A.L.R.4th 511.

Disclosure Requirements Under State Condominium, Homeowner Association, or Planned Real Estate Statute. 44 A.L.R.7th Art. 6 (2019).

34-36.1-4.03. Public offering statement — General provisions.

  1. Except as provided in subsection (b), a public offering statement must contain or fully and accurately disclose:
    1. The name and principal address of the declarant and of the condominium;
    2. A general description of the condominium, including to the extent possible, the types, number, and declarant’s schedule of commencement and completion of construction of buildings, and amenities that declarant anticipates including in the condominium;
    3. The number of units in the condominium;
    4. Copies and a brief narrative description of the significant features of the declaration, other than the plats and plans, and any other recorded covenants, conditions, restrictions and reservations affecting the condominium; the bylaws, and any rules or regulations of the association; copies of any contracts and leases to be signed by purchasers at closing, and a brief narrative description of any contracts or leases that will or may be subject to cancellation by the association under § 34-36.1-3.05 ;
    5. Any current balance sheet and a projected budget for the association, either within or as an exhibit to the public offering statement, for one year after the date of the first conveyance to a purchaser, and thereafter the current budget of the association, a statement of who prepared the budget, and a statement of the budget’s assumptions concerning occupancy and inflation factors. The budget must include, without limitation:
      1. An annual amount to establish a sufficient reserve for the painting and/or staining of exterior wood surfaces, replacement of roof shingles, resurfacing of roadways, and replacement of other items subject to deterioration which shall include but not be limited to, exterior wooden decks and mulch;
      2. An itemization of the life-span and expense for restaining or repainting the exterior wood surfaces, resurfacing the roadways, and reshingling the roof, replacing exterior wooden decks, and replacing mulch, said expenses to be defined as annual and monthly sums per unit as part of the common expense assessment;
      3. The projected common expense assessment by category of expenditures for the association; and
      4. The projected monthly common expense assessment for each type of unit;
    6. Any services not reflected in the budget that the declarant provides, or expenses that he or she pays, and that he or she expects may become at any subsequent time a common expense of the association and the projected common expense assessment attributable to each of those services or expenses for the association and for each type of unit;
    7. Any initial or special fee due from the purchaser at closing, together with a description of the purpose and method of calculating the fee;
    8. A description of any liens, defects, or encumbrances on or affecting the title to the condominium;
    9. A description of any financing offered or arranged by the declarant;
    10. The terms and significant limitations of any warranties provided by the declarant, including statutory warranties and limitations on the enforcement thereof or on damages;
    11. A statement that:
      1. Within ten (10) days after receipt of a public offering statement a purchaser, before conveyance, may cancel any contract for purchase of a unit from a declarant;
      2. If a declarant fails to provide a public offering statement to a purchaser before conveying a unit, that purchaser may recover from the declarant ten percent (10%) of the sales price of the unit; and
      3. If a purchaser receives the public offering statement more than ten (10) days before signing a contract, he or she cannot cancel the contract;
    12. A statement of any unsatisfied judgments or pending suits against the association, and the status of any pending suits material to the condominium of which a declarant has actual knowledge;
    13. A statement that any deposit made in connection with the purchase of a unit will be held in an escrow account until closing and will be returned to the purchaser if the purchaser cancels the contract pursuant to § 34-36.1-4.08 , together with the name and address of the escrow agent;
    14. Any restraints on alienation of any portion of the condominium;
    15. A description of the insurance coverage provided for the benefit of unit owners;
    16. Any current or expected fees or charges to be paid by unit owners for the use of the common elements and other facilities related to the condominium;
    17. The extent to which financial arrangements have been provided for completion of all improvements labeled “MUST BE BUILT” pursuant to § 34-36.1-4.19 ;
    18. A brief narrative description of any zoning and other land use requirements affecting the condominium; and
    19. All unusual and material circumstances, features, and characteristics of the condominium and the units.
  2. If a condominium composed of not more than twelve (12) units is not subject to any development rights, and no power is reserved to a declarant to make the condominium part of a larger condominium, group of condominiums, or other real estate, a public offering statement may, but need not, include the information otherwise required by subdivisions (a)(9), (10), and (15) — (19) and the narrative descriptions of documents required by subdivision (a)(4).
  3. If a condominium composed of not more than twelve (12) units is not subject to any development rights, and no power is reserved to a declarant to make the condominium part of a larger condominium, group of condominiums, or other real estate, a declarant who owns units for more than two (2) years from the date of the sale of the first unit shall not be required to issue a public offering statement pursuant to this section for those units owned for more than two (2) years.
  4. A declarant promptly shall amend the public offering statement to report any material change in the information required by this section.

History of Section. P.L. 1982, ch. 329, § 2; P.L. 1988, ch. 662, § 1; P.L. 1990, ch. 432, § 1.

COMMISSIONER’S COMMENT

  1. The best “consumer protection” that the law can provide to any purchaser is to insure that he has an opportunity to acquire an understanding of the nature of the products which he is purchasing. Such a result is difficult to achieve, however, in the case of the condominium purchaser because of the complex nature of the bundle of rights and obligations which each unit owner obtains. For this reason, the Act, adopting the approach of many so-called “second generation” condominium statutes, sets forth a lengthy list of information which must be provided to each purchaser before he contracts for a unit. This list includes a number of important matters not typically required in public offering statements under existing law. The requirement for providing the public offering statement appears in Section [34-36.1-4.02(c)], and Section [34-36.1-4.08] provides purchasers with cancellation rights and imposes civil penalties upon declarants not complying with the public offering statement requirements of the Act.
  2. Paragraph (a)(2) requires a general description of the condominium and, to the extent possible, the declarant’s schedule for commencement and completion of construction for all building amenities that will comprise portions of the condominium. Under Section [34-36.1-2.09], the declarant is obligated to label all improvements which may be made in the condominium as either “MUST BE BUILT” or “NEED NOT BE BUILT.” Under Section [34-36.1-4.19], the declarant is obligated to complete all improvements labeled “MUST BE BUILT.” The estimated schedule of commencement and completion of construction dates provides a standard for judging whether a declarant has complied with the requirements of Section [34-36.1-4.19].
  3. Paragraph (4) requires the public offering statement to include copies of the declaration, bylaws, and any rules and regulations of the condominium, as well as copies of any contracts or leases to be executed by the purchaser. In addition, the paragraph requires the public offering statement to include a brief narrative description of the significant features of those documents, as well as of any management contract, leases of recreational facilities, and other sorts of contracts which may be subject to cancellation by the association after the period of declarant control expires, as provided in Section [34-36.1-3.05]. This latter requirement is intended to encourage the preparation of brief summaries of all condominium documents in laymen’s terms, i.e., the “brief narrative description” should be more than a simple explanation of what a declaration (or other document) is, but less than an extended legal analysis duplicating the contents of the documents themselves. The summary requirement is intended to alleviate the common problem of public offering statements being drafted in lawyers’ terms and being no more comprehensible to laymen than the documents themselves.
  4. The disclosure requirement of paragraph (6) is intended to eliminate the common deceptive sales practice known as “lowballing,” a practice by which a declarant intentionally underestimates the budget for the association by providing many of the services himself during the initial sales period. In such a circumstance, the declarant commonly intends that, after a certain time, these services (which might include lawn maintenance, painting, security, bookkeeping, or other services) will become expenses of the association, thereby substantially increasing the periodic common expense assessments which association members must ultimately bear. By requiring the disclosure of these services (including the projected common expense assessment attributable to each) in paragraph (6), the Act seeks to minimize “lowballing”. In order to comply fully with the provisions of paragraph (5), the declarant must calculate the budget on the basis of his best estimate of the number of units which will be part of the condominium during that budget year. This requirement as well operates to negate the effects of any attempted “lowballing.”
  5. Paragraph (9) requires disclosure of any financing “offered” by the declarant. The paragraph contemplates that a declarant disclose any arrangements for financing that may have been made, including arrangements with any unaffiliated lender to provide mortgages to qualified purchasers.
  6. Under paragraph (10), the declarant is required to disclose the terms of all warranties provided by the declarant (including the statutory warranties set forth in Section [34-36.1-4.14]) and to describe any significant limitations on such warranties, the enforcement thereof, or damages which may be collectible as a result of a breach thereof. This latter requirement would necessitate a description by the declarant of any exclusions or modifications of statutory warranties undertaken pursuant to Section [34-36.1-4.15]. The statute of limitations for warranties set forth in Section [34-36.1-4.16], together with any separate written agreement (as required by Section [34-36.1-4.16]) providing for reduction of the period of such statute of limitations, must also be disclosed.
  7. Paragraph (14) requires that the declarant disclose the existence of any right of first refusal or other restrictions on the uses for which or classes of persons to whom units may be sold.
  8. Paragraph (15) corrects a defect common to many condominium statutes by requiring the declarant to describe the insurance coverage provided for the benefit of unit owners. See Section [34-36.1-3.13].
  9. Under paragraph (16), the declarant is obligated to disclose any current or expected fees or charges which unit owners may be required to pay for the use of the common elements and other facilities related to the condominium. Such fees or charges might include swimming pool fees, golf course fees, or required membership fees for recreation associations. Such fees are often not disclosed to condominium purchasers and can represent a substantial addition to their monthly assessments.
  10. The “financial arrangements” required to be disclosed pursuant to paragraph (17) may vary substantially from one condominium development to another. It is the intent of the paragraph to give purchasers as much information as possible with which to assess the declarant’s ability to carry out his obligations to complete the improvements. For example, if a declarant has a commitment from a bank to provide construction financing for a swimming pool when 50% of the units in the condominium are completed, that fact should be disclosed to potential purchasers.
  11. In addition to the information required to be disclosed by paragraphs (1) through (18), paragraph (19) requires that the declarant disclose all other “unusual and material circumstances, features, and characteristics” of the condominium and all units therein. This requires only information which is both “unusual and material.” Thus, the provision does not require the disclosure of “material” factors which are commonly understood to be part of the condominium, e.g., the fact that a condominium has a roof, walls, doors, and windows. Similarly, the provision does not require the disclosure of “unusual” information about the condominium which is not also “material,” e.g., the fact that a condominium is the first condominium in a particular community. Information which would normally be required to be disclosed pursuant to paragraph (19) might include, to the extent that they are unusual and material, environmental conditions affecting the use or enjoyment of the condominium, features of the location of the condominium, e.g., near the end of an airport runway or a planned rendering plant, and the like.
  12. The cost of preparing a public offering statement can be substantial and may, particularly in the case of small condominiums, represent a significant portion of the cost of a unit. For that reason, subsection (b) permits a declarant to exclude from a public offering statement certain information in the case of a small condominium (i.e., less than 12 units) which is not subject to development rights and which is not potentially part of a larger condominium or group of condominiums. Essentially, subsection (b) permits a declarant to exclude from a public offering statement those materials which, as a practical matter, require extended preparation effort by an attorney or engineer in addition to the normal effort which must be exerted to provide the declaration, bylaws, plats and plans, or other documents required by the Act.

34-36.1-4.04. Public offering statement — Condominiums subject to development rights.

If the declaration provides that a condominium is subject to any development rights, the public offering statement must disclose, in addition to the information required by § 34-36.1-4.03 :

  1. The maximum number of units, and the maximum number of units per acre, that may be created;
  2. A statement of how many or what percentage of the units which may be created will be restricted exclusively to residential use, or a statement that no representations are made regarding use restrictions;
  3. If any of the units that may be build within real estate subject to development rights are not to be restricted exclusively to residential use, a statement, with respect to each portion of that real estate, of the maximum percentage of the real estate areas, and the maximum percentage of the floor areas of all units that may be created therein, that are not restricted exclusively to residential use;
  4. A brief narrative description of any development rights reserved by a declarant and of any conditions relating to or limitations upon the exercise of development rights;
  5. A statement of the maximum extent to which each unit’s allocated interests may be changed by the exercise of any development right described in subdivision (3);
  6. A statement of the extent to which any buildings or other improvements that may be erected pursuant to any development right in any part of the condominium will be compatible with existing buildings and improvements in the condominium in terms of architectural style, quality of construction, and size, or a statement that no assurances are made in those regards;
  7. General descriptions of all other improvements that may be made and limited common elements that may be created within any part of the condominium pursuant to any development right reserved by the declarant, or a statement that no assurances are made in that regard;
  8. A statement of any limitations as to the locations of any building or other improvement that may be made within any part of the condominium pursuant to any development right reserved by the declarant, or a statement that no assurances are made in that regard;
  9. A statement that any limited common elements created pursuant to any development right reserved by the declarant will be of the same general types and sizes as the limited common elements within other parts of the condominium, or a statement of the types and sizes planned, or a statement that no assurances are made in that regard;
  10. A statement that the proportion of limited common elements to units created pursuant to any development right reserved by the declarant will be approximately equal to the proportion existing within other parts of the condominium, or a statement of any other assurances in that regard, or a statement that no assurances are made in that regard;
  11. A statement that all restrictions in the declaration affecting use, occupancy, and alienation of units will apply to any units created pursuant to any development right reserved by the declarant, or a statement of any differentiations that may be made as to those units, or a statement that no assurances are made in that regard; and
  12. A statement of the extent to which any assurances made pursuant to this section apply or do not apply in the event that any development right is not exercised by the declarant.

History of Section. P.L. 1982, ch. 329, § 2.

COMMISSIONER’S COMMENT

This section requires disclosure in the public offering statement of the manner in which the declarant’s exercise of development rights may affect purchasers who acquire units before those rights have been fully exercised. The purpose is to put the purchaser on notice of the extent to which the exercise of those rights may alter, sometimes quite dramatically, both the physical and the legal aspects of the project. For example, the prospective purchaser may be contemplating the acquisition of a particular unit because it enjoys a view of open, undeveloped land over which the declarant has, however, reserved development rights. It may be that the boundary of the parcel as to which development rights have been reserved actually coincides with, or runs quite close to, the outer wall of the unit in question. The disclosures or statements made pursuant to paragraphs (8) and (12) of this section will indicate to the prospective purchaser the extent (if any) to which he can rely on the declarant not to do anything which would radically alter the view from the unit which he now finds so appealing.

34-36.1-4.05. Public offering statement — Time shares.

If the declaration provides that ownership or occupancy of any units is or may be in time shares, the public offering statement shall disclose, in addition to the information required by § 34-41-4.03 :

  1. The number and identity of units in which time shares may be created;
  2. The total number of time shares that may be created;
  3. The minimum duration of any time shares that may be created; and
  4. The extent to which the creation of time shares will or may affect the enforceability of the association’s lien for assessments provided in § 34-36.1-3.16 .

History of Section. P.L. 1982, ch. 329, § 2; P.L. 1984, ch. 141, § 3.

COMMISSIONER’S COMMENT

  1. Time sharing has become increasingly important in recent years, particularly with respect to resort condominiums. In recognition of this fact, this section requires the disclosure of certain information with respect to time sharing.
  2. Virtually all existing state condominium statutes are silent with respect to time-share ownership. The inclusion of disclosure provisions for certain forms of time sharing in this Act, however, does not imply that other law regulating time sharing is affected in any way in a state merely because that state enacts this Act.

The Uniform Law Commissioners’ Model Real Estate Time-Share Act specifies more extensive disclosures for time-share properties. A “time-share property” may include part or all of the condominium, and Section 1-109 of the Model Act [Not enacted in Rhode Island] governs conflicts between this Act and time-share legislation.

Collateral References.

Time-share or interval ownership interests: regulation of time-share or interval ownership interests in real estate. 6 A.L.R.4th 1288.

34-36.1-4.06. Public offering statement — Condominiums containing conversion buildings.

  1. The public offering statement of a condominium containing any conversion building must contain, in addition to the information required by § 34-36.1-4.03 :
    1. A statement by the declarant, based on a report prepared by a registered architect or engineer, describing the present condition of all structural components and mechanical and electrical installations material to the use and enjoyment of the building;
    2. A statement by the declarant of the expected useful life of each item reported on in subdivision (a)(1) or a statement that no representations are made in that regard; and
    3. A list of any outstanding notices of incurred violations of building code or other municipal regulations, together with the estimated cost of curing those violations.
  2. This section applies only to buildings containing units that may be occupied for residential use.

History of Section. P.L. 1982, ch. 329, § 2.

COMMISSIONER’S COMMENT

  1. In the case of a condominium containing one or more conversion buildings, the disclosure of additional information relating to the condition of those buildings is required in the public offering statement because of the difficulty inherent in a single purchaser attempting to determine the condition of what is likely to be an older building being renovated for the purpose of condominium sales.
  2. Paragraph (a)(1) requires the person who gives the public offering statement to retain an independent architect or engineer to report on the present condition of all structural components and fixed mechanical and electrical installations in the conversion building. Such information is as useful to declarant as to the purchaser since, under the implied warranty provisions of Section [34-36.1-4.14], a declarant impliedly warrants all improvements made by any person to the building “before creation of the condominium” unless such improvements are specifically excluded from the implied warranty of quality pursuant to Section [34-36.1-4.15(b)].
  3. See Comment 6 to Section [34-36.1-2.01] concerning the meaning of “structural components” as used in paragraph (a)(1). Any material changes in the “present condition” of these systems must be reported by an amendment to the public offering statement.
  4. Under paragraph (a)(3), the person required to give the public offering statement is required to provide purchasers with a list of all outstanding notices of uncured violations of building codes or other municipal regulations. The literal wording of this provision does not require disclosure of known violations of such building codes or municipal regulations (at least violations having no effect upon the structural components or fixed mechanical and electrical installations of the condominium) unless actual “notices” of such violations have been received. To the extent that outstanding notices of uncured violations do exist, the cost of curing such violations would become a liability of the unit owners or the association following transfer of the unit to a purchaser. For that reason, the estimated cost of curing any outstanding violations must also be disclosed.
  5. For the same reasons set forth in the Comment to Section [34-36.1-4.01(a)], this section does not apply to units which are restricted exclusively to non-residential use.

34-36.1-4.07. Public offering statement — Condominium securities.

If an interest in a condominium is currently registered with the securities and exchange commission of the United States, a declarant satisfies all requirements relating to the preparation of a public offering statement of this chapter if he delivers to the purchaser a copy of the public offering statement filed with the securities and exchange commission.

History of Section. P.L. 1982, ch. 329, § 2.

COMMISSIONER’S COMMENT

  1. Some condominiums are regarded as “investment contracts” or other “securities” under federal law because they exhibit certain investment features such as mandatory rental pools. See SEC Securities Act Release No. 5347 (January 1973). The purpose of this section is to permit the declarant to file or deliver, in lieu of a public offering statement specifically prepared to comply with the provisions of this Act, the prospectus filed with and distributed pursuant to the regulations of the United States Securities and Exchange Commission. Absent this provision, prospective purchasers of condominiums classified by the SEC as “securities” would have to be given two public offering statements, one prepared pursuant to this Act and the other prepared pursuant to the Securities Act of 1933. Not only would this result increase the declarant’s costs (and thus the price) of units, it might also reduce the likelihood of either public offering statement actually being read by prospective purchasers.
  2. [Enacting instructions].

34-36.1-4.08. Purchaser’s rights to cancel.

  1. A person required to deliver a public offering statement pursuant to § 34-36.1-4.02(c) shall provide a purchaser of a unit with a copy of the public offering statement and all amendments thereto before conveyance of that unit, and not later than the date of any contract of sale. Unless a purchaser is given the public offering statement more than ten (10) days before execution of a contract for the purchase of a unit the purchaser, before conveyance, may cancel the contract within ten (10) days after first receiving the public offering statement.
  2. If a purchaser elects to cancel a contract pursuant to subsection (a), he or she may do so by hand delivering notice thereof to the offeror or by mailing notice thereof by prepaid United States mail to the offeror or offeror’s agent for service of process. Cancellation is without penalty, and all payments made by the purchaser before cancellation shall be refunded promptly.
  3. If a person required to deliver a public offering statement pursuant to § 34-36.1-4.02(c) fails to provide a purchaser to whom a unit is conveyed with that public offering statement and all amendments thereto as required by subsection (a), the purchaser, in addition to any rights to damages or other relief, is entitled to receive from that person an amount equal to ten percent (10%) of the sales price of the unit.

History of Section. P.L. 1982, ch. 329, § 2.

COMMISSIONER’S COMMENT

  1. The “cooling off ” period provided to a purchaser in this section is similar to provisions in many current state condominium statutes.
  2. Subsection (a) requires that each purchaser be provided with both the public offering statement and all amendments thereto prior to the time that the unit is conveyed. If there is a contract for the sale of the unit, these documents must be provided not later than the date of the contract. The section makes clear that any amendments to the public offering statement prepared between the date of any contract and the date of conveyance must also be provided to the purchaser.
  3. This section does not require the delivery of a public offering statement prior to the execution by the purchaser of an agreement pursuant to which the purchaser reserves the right to buy a unit but is not contractually bound to do so. Because such agreements (frequently referred to as “non-binding reservation agreements”) may be unilaterally cancelled at any time by a prospective purchaser without penalty, they do not constitute “contract[s] of sale” within the meaning of the section.
  4. The requirement set forth in subsection (a) that a purchaser be provided with subsequent amendments to the public offering statement during the period between execution of the contract for purchase and conveyance of the unit does not, in itself, extend the “cooling off ” period. Indeed, the delivery of such amendments is required even if the “cooling off ” period has expired. The purpose of this requirement is to assure that purchasers of units are advised of any material change in the condominium which may affect their sales contracts under general law. While many such amendments will be merely technical and will not affect the bargain that the purchaser and declarant entered into, each purchaser should be permitted to judge for himself the materiality of any change in the nature of the condominium.
  5. Under the scheme set forth in this section, it is at least theoretically possible that there will be a contract for sale of the unit, and that a public offering statement will be given to the purchaser at closing just prior to conveyance. However, the available evidence suggests that such practice would be rare, and that the provision of a public offering statement moments prior to conveyance would, in itself, tend to dampen the enthusiasm of the purchaser for immediate closing. In such circumstances, under subsection (a), the purchaser would, as a matter of right, be able to extend the date of closing for 15 days from the time the public offering statement was provided. This fact, together with the generally unsatisfactory experience with mandatory “cooling off ” periods such as that imposed under the federal Real Estate Settlement Procedures Act, supports the conclusion that it is inappropriate to require a minimum period of delay between delivery of a public offering statement and conveyance.
  6. Under subsection (a), the failure to deliver a public offering statement before conveyance does not result in a statutory right by the purchaser to cancel the conveyance or to reconvey the unit once conveyance has occurred. Any such cancellation or reconveyance right following an actual conveyance could create serious mechanical and title problems that could not be easily resolved. The failure of the Act to provide for such cancellation or reconveyance is not, however, intended to diminish any right which a purchaser may otherwise have under general state law. For example, where it appears that a seller, by deliberately failing to disclose certain material information with respect to a transaction, substantially changed the bargain which he and the purchaser entered into, it is possible under the common law in some states that reconveyance would be an available remedy.

Even absent such resort to general law, however, the penalty provisions of subsection (c) are designed to provide a sufficient incentive to the seller to insure that the public offering statement is provided in the timely fashion required by the Act. The penalty so specified in the subsection is in addition to any right a prevailing purchaser may have under Section [34-36.1-4.17] to collect punitive damages and attorney’s fees in connection with his action against the declarant.

34-36.1-4.09. Resale of units.

  1. Except in the case of a sale where delivery of a public offering statement is required, or unless exempt under § 34-36.1-4.01(b) , a unit owner shall furnish to a purchaser before execution of any contract for sale of a unit, or otherwise before conveyance, a copy of the declaration (other than the plats and plans), the bylaws, the rules or regulations of the association, and a certificate containing:
    1. A statement disclosing the effect on the proposed disposition of any right of first refusal or other restraint on the free alienability of the unit;
    2. A statement setting forth the amount of the monthly common expense assessment and any unpaid common expense or special assessment currently due and payable from the selling unit owner;
    3. A statement of any other fees payable by unit owners;
    4. A statement of any capital expenditures anticipated by the association for the current and two (2) next succeeding fiscal years;
    5. A statement of the amount of any reserves for capital expenditures and of any portions of those reserves designated by the association for any specified projects;
    6. The most recent regularly prepared balance sheet and income and expense statement, if any, of the association;
    7. The current operating budget of the association;
    8. A statement of any unsatisfied judgments against the association and the status of any pending suits in which the association is a defendant;
    9. A statement describing any insurance coverage provided for the benefit of unit owners;
    10. A statement as to whether the executive board has knowledge that any alterations or improvements to the unit or to the limited common elements assigned thereto violate any provision of the declaration;
    11. A statement as to whether the executive board has knowledge of any violations of the health or building codes with respect to the unit, the limited common elements assigned thereto, or any other portion of the condominium; and
    12. A statement of the remaining term of any leasehold estate affecting the condominium and the provisions governing any extension or renewal thereof.
    1. The association, within ten (10) days after a request by a unit owner, shall furnish a certificate containing the information necessary to enable the unit owner to comply with this section.
    2. The association may require a unit owner to pay a fee that does not exceed one hundred twenty-five dollars ($125) to prepare and provide an electronic version or physical version of the resale certificate.
    3. In addition to those remedies as set forth in § 34-36.1-4.17 , any association that fails to provide a certificate to the unit owner within ten (10) days of a written request by the unit owner is subject to a civil penalty of not less than one hundred dollars ($100) nor more than five hundred dollars ($500) per occurrence.
    4. A unit owner providing a certificate pursuant to subsection (a) is not liable to the purchaser for any erroneous information provided by the association and included in the certificate.
  3. A purchaser is not liable for any unpaid assessment or fee greater than the amount set forth in the certificate prepared by the association. A unit owner is not liable to a purchaser for the failure or delay of the association to provide the certificate in a timely manner, but the purchaser contract is voidable by the purchaser until the certificate has been provided and for five (5) days thereafter or until conveyance, whichever first occurs.

History of Section. P.L. 1982, ch. 329, § 2; P.L. 2019, ch. 39, § 1; P.L. 2019, ch. 48, § 1; P.L. 2021, ch. 56, § 1, effective June 18, 2021; P.L. 2021, ch. 59, § 1, effective June 18, 2021.

Compiler’s Notes.

P.L. 2019, ch. 39, § 1, and P.L. 2019, ch. 48, § 1 enacted identical amendments to this section.

P.L. 2021, ch. 56, § 1, and P.L. 2021, ch. 59, § 1 enacted identical amendments to this section.

COMMISSIONER’S COMMENT

  1. In the case of the resale of a unit by a private unit owner who is not a declarant or a person in the business of selling real estate for his own account, a public offering statement need not be provided. See Section [34-36.1-4.02(c)]. Nevertheless, there are important facts which a purchaser should have in order to make a rational judgment about the advisability of purchasing the particular condominium unit. Accordingly, each unit owner not required to furnish a public offering statement under Section [34-36.1-4.02(c)] and not exempt under Section [34-36.1-4.01(b)] is required to furnish to a resale purchaser, before the execution of any contract of sale, a copy of the declaration, bylaws, and rules and regulations of the association and a variety of fiscal, insurance, and other information concerning the condominium and the unit.
  2. While the obligation to provide the information required by this section rests upon each unit owner (since the purchaser is in privity only with that unit owner), the association has an obligation to provide the information to the unit owner within 10 days after a request for such information. Under Section [34-36.1-3.02(a)(12)], the association is entitled to charge the unit owner a reasonable fee for the preparation of the certificate. Should the association fail to provide the certificate as required, the unit owner would have a right to action against the association pursuant to Section 34-36.1-4.17 .
  3. Under subsection (c), if a purchaser receives a resale certificate which fails to state the proper amount of the unpaid assessments due from the purchased unit, the purchaser is not liable for any amount greater than that disclosed in the resale certificate. Because a resale purchaser is dependent upon the association for information with respect to the outstanding assessments against the unit which he contemplates buying, it is altogether appropriate that the association should be prohibited from later collecting greater assessments than those disclosed prior to the time of the resale purchase.

34-36.1-4.10. Escrow of deposits.

Any deposit made in connection with the purchase or reservation of a unit from a person required to deliver a public offering statement pursuant to § 34-36.1-4.02(c) shall be placed in escrow and held either in this state or in the state where the unit is located in an account designated solely for that purpose by a licensed title insurance company, an attorney, a licensed real estate broker, an independent bonded escrow company, or any financial institution whose deposits are insured until:

  1. Delivered to the declarant at closing;
  2. Delivered to the declarant because of purchaser’s default under a contract to purchase the unit; or
  3. Refunded to the purchaser.

History of Section. P.L. 1982, ch. 329, § 2.

COMMISSIONER’S COMMENT

  1. This section applies to the sale by persons required to furnish public offering statements of residential units and of non-residential units unless waived pursuant to the provisions of Section [34-36.1-4.01]. It does not apply, however, to resales of units between private parties. Escrow provisions are not part of the law in several jurisdictions.
  2. This section provides declarant a number of choices as to the appropriate escrow agent. Whether the escrow agent must deposit the funds in an insured institutional depository, or in a particular type of account, depends on state law, or the agreement of the parties. To minimize record keeping, of course, the institutional depository could itself be the escrow agent. The section does not require a separate account for each unit, so that mingling of funds in a single escrow account would be permitted. The account may be held whether in the state where the unit is located, or in the enacting state, in recognition that buyers are often from outside the state where the unit is located.
  3. The escrow requirements of this section apply in connection with any deposit made by a purchaser, whether such deposit is made pursuant to a binding contract or pursuant to a nonbinding reservation agreement (with respect to which no public offering statement is required under Section [34-36.1-4.01(b)(6)]).
  4. [Enacting Instructions].
  5. Under this section, any interest earned on an escrow deposit may, but need not, be credited to the purchaser at closing, added to any deposit forfeited to the seller, or added to any deposit refunded to the purchaser. In short, disposition of any interest is left to agreement of the parties.
  6. In some states, such as New York, the substitution of a bond in place of a deposit escrow is permitted. The evidence indicates, however, that in many instances the use of the bonding device has forced purchasers to incur substantial costs and delay prior to obtaining refunds to which they are entitled. For this reason, this Act does not include bonding as an alternative to the required escrow of deposits.

34-36.1-4.11. Release of liens.

  1. In the case of a sale of a unit where delivery of a public offering statement is required pursuant to § 34-36.1-4.02(c) , a seller shall, before conveying a unit, record or furnish to the purchaser releases of all liens affecting that unit and its common element interest which the purchaser does not expressly agree to take subject to or assume. This subsection does not apply to any real estate which a declarant has the right to withdraw.
  2. Before conveying real estate to the association the declarant shall have that real estate released from:
    1. All liens the foreclosure of which would deprive unit owners of any right of access to or easement of support of their units, and
    2. All other liens on that real estate unless the public offering statement describes certain real estate which may be conveyed subject to liens in specified amounts.

History of Section. P.L. 1982, ch. 329, § 2.

COMMISSIONER’S COMMENT

The exemption for withdrawable real estate set forth in subsection (a) is designed to preserve flexibility for the declarant in terms of financing arrangements. Theoretically, a developer might partially avoid the lien release requirement of subsection (a) by placing part of the common element improvements such as a swimming pool or tennis court on withdrawable real estate. By doing so, it could separately mortgage that part of the common elements without being obligated to discharge the mortgage or secure partial releases when individual units are sold. (However, even if there were no withdrawable real estate exemption from the release of lien requirement, developers could still separately mortgage such improvements as pools and tennis courts without having to discharge the mortgage on sale of units. All they would have to do is leave the particular real estate out of the condominium and then convey it directly to the association subject to the mortgage.)

If a mortgage or other lien created by or arising against the developer attaches to withdrawable real estate after the declaration has been recorded, a lapse of the developer’s right to withdraw the real estate would also terminate the rights of the lienor, since the lien would attach only to the developer’s interest (the right to withdraw). However, an alert lienor would not permit the right to withdraw to lapse without taking steps to see that the right to withdraw is exercised. If the mortgage or other lien attached to the real estate and was perfected before the condominium declaration was recorded, lapse of the right to withdraw would not affect the lienor’s rights and it could foreclose on the real estate whether or not the developer had lost the right to withdraw. As a practical matter, whether the mortgage or other lien against withdrawable real estate arises before or after the declaration is recorded, unit owners may find that, if the association does not release liens on withdrawable real estate containing common elements, the lienor will be able to withdraw the land and deprive the unit owners of its use. Therefore, unit purchasers and their counsel should be alert to that possibility.

If units are created in withdrawable real estate, the units, when sold, are subject to the release-of-lien rule of subsection (b)(1) and after a unit in a particular withdrawable parcel is sold, that parcel can no longer be withdrawn. In that case, any lien created by or arising against the developer which attached to the real estate and is subordinate to the condominium declaration would automatically expire.

34-36.1-4.12. Conversion buildings.

  1. A declarant of a condominium containing conversion buildings, and any person in the business of selling real estate for his or her own account who intends to offer units in such a condominium shall give each of the residential tenants and any residential subtenant in possession of a portion of a conversion building notice of the conversion and provide those persons with the public offering statement no later than one hundred twenty (120) days before the tenants and any subtenant in possession are required to vacate. Rents shall not be increased during the notice period. The notice must set forth generally the rights of tenants and subtenants under this section and shall be hand delivered to the unit or mailed by prepaid United States mail to the tenant and subtenant at the address of the unit or any other mailing address provided by a tenant. No tenant or subtenant may be required to vacate upon less than one hundred twenty (120) days’ notice, except by reason of nonpayment of rent, waste, or conduct that disturbs other tenants’ peaceful enjoyment of the premises, and the terms of the tenancy may not be altered during that period. Failure to give notice as required by this section is a defense to an action for possession.
  2. For sixty (60) days after delivery or mailing of the notice described in subsection (a), the person required to give the notice shall offer to convey each unit or proposed unit occupied for residential use to the tenant who leases that unit. Tenants shall have the right to cancel their lease and receive no penalties for the cancellation as long as all obligations of the lease have been met. If a tenant fails to purchase the unit during that sixty (60) day period, the offeror may not offer to dispose of an interest in that unit during the following one hundred eighty (180) days at a price or on terms more favorable to the offeree than the price or terms offered to the tenant. This subsection does not apply to any unit in a conversion building if that unit will be restricted exclusively to nonresidential use or the boundaries of the converted unit do not substantially conform to the dimensions of the residential unit for conversion.
  3. If a seller, in violation of subsection (b), conveys a unit to a purchaser for value who has no knowledge of the violation, recordation of the deed conveying the unit extinguishes any right a tenant may have under subsection (b) to purchase that unit if the deed states that the seller has complied with subsection (b), but does not affect the right of a tenant to recover damages from the seller for a violation of subsection (b).
  4. If a notice of conversion specifies a date by which a unit or proposed unit must be vacated, and otherwise complies with the provisions of chapter 18 of this title the notice also constitutes a notice to vacate specified by that statute.
    1. Notwithstanding the notice provisions of subsection (a) herein any tenant who has continuously resided in the unit for ten (10) years or more or any tenant who has attained the age of sixty-two (62) shall be given one year notice. Rents shall not be increased during the notice period. A tenant as described in this subsection shall have one hundred eighty (180) days within which to purchase the unit as provided for in subsection (b) and the remaining provisions of that subsection shall apply.
    2. The owner or developer shall pay reasonable moving expenses and costs, to any tenant who is disabled or has attained the age of sixty-two (62), within a fifty (50) mile radius.
  6. Nothing in this section permits termination of a lease by a declarant in violation of its terms.

History of Section. P.L. 1982, ch. 329, § 2; P.L. 1988, ch. 340, § 1; P.L. 1999, ch. 83, § 80; P.L. 1999, ch. 130, § 80.

COMMISSIONER’S COMMENT

  1. One of the most controversial issues in the field of condominium development relates to conversion of rental buildings to condominiums. Opponents of conversions point out that the frequent result of conversions, which occur principally in large urban areas, is to displace low and moderate-income tenants and provide homes for more affluent persons able to afford the higher prices which the converted apartments command. Indeed, studies indicate that the burden of conversion displacement falls most frequently on low- and moderate-income and elderly persons. At the same time, the conversion of a building to condominium ownership can lead to a substantial increase in property value, a result which proponents believe can be an important factor in curtailing the problem of declining urban tax bases. Proponents also point out that the conversion of rental units in inner-city areas to individual ownership frequently results in the stabilization of the buildings concerned, thus providing an important technique for use in neighborhood preservation and revitalization. This section, which seeks to balance these competing interests, is based principally on similar provisions set forth in the condominium statutes of Virginia and the District of Columbia.
  2. In an attempt to strike a fair balance between the competing interests of rental tenants and prospective owners, subsection (b) provides the tenant a right for 60 days to purchase the unit which he leases at a price and on terms offered by the declarant. The subsection discourages unreasonable offers by declarants by providing that, if the tenant fails to accept the terms offered, the declarant may not thereafter sell the unit at a lower price or upon more favorable terms to a third person for at least 180 days. However, the declarant is not required to offer residential tenants the right to purchase commercial units or to offer to sell to tenants if the dimensions of their previous apartments have been substantially altered. The reason for this exception is that, if an apartment is subdivided or if two apartments are merged into a single condominium unit, compliance with the requirements of subsection (b) would be impossible.
  3. [Enacting Instructions].
  4. Except for the restrictions on permissible evictions stated in subsection (a), this Act does not change the law of summary process in a state. As a result, if a tenant refuses to vacate the premises following the 120-day notice, the usual provisions of the state’s summary process statutes would apply, while any defenses available to a tenant would also be available.

Collateral References.

Conversion of rental housing: validity and construction of law regulating conversion of rental housing to condominiums. 21 A.L.R.4th 1083.

34-36.1-4.13. Express warranties of quality.

  1. Express warranties made by any seller to a purchaser of a unit, if relied upon by the purchaser, are created as follows:
    1. Any written or printed affirmation of fact or promise which relates to the unit, its use, or rights appurtenant thereto, area improvements to the condominium that would directly benefit the unit, or the right to use or have the benefit of facilities not located in the condominium, creates an express warranty that the unit and related rights and uses will conform to the affirmation or promise;
    2. Any model or description of the physical characteristics of the condominium, including plans and specifications of or for improvements, creates an express warranty that the condominium will substantially conform to the model or description;
    3. Any description of the quantity or extent of the real estate comprising the condominium, including plats or surveys, creates an express warranty that the condominium will conform to the description, subject to customary tolerances; and
    4. A provision that a buyer may put a unit only to a specified use is an express warranty that the specified use is lawful.
  2. Neither formal words, such as “warranty” or “guarantee,” nor a specific intention to make a warranty, are necessary to create an express warranty of quality, but a statement purporting to be merely an opinion or commendation of the real estate or its value does not create a warranty.
  3. Any conveyance of a unit transfers to the purchaser all express warranties of quality made by previous sellers.

History of Section. P.L. 1982, ch. 329, § 2.

COMMISSIONER’S COMMENT

  1. This section, together with Sections [34-36.1-4.14, 34-36.1-4.15 , and 34-36.1-4.16 ], are adapted from the real estate warranty provisions contained in the Uniform Land Transactions Act (ULTA).
  2. This section, which parallels Section 2-308 of ULTA, deals with express warranties, that is, with the expectations of the purchaser created by particular conduct of the declarant in connection with inducement of the sale. It is based on the principle that, once it is established that the declarant has acted so as to create particular expectations in the purchaser, warranty should be found unless it is clear that, prior to the time of final agreement, the declarant has negated the conduct which created the expectation.
  3. Subsection (b) makes it clear that no specific intention to make a warranty is necessary if any of the factors mentioned in subsection (a) are made part of the basis of the bargain between the parties. In actual practice, representations made by a declarant concerning condominium property during the bargaining process are typically regarded as a part of the description. Therefore, no particular reliance on the representations need be shown in order to weave them into the fabric of the agreement. Rather, the burden is on the declarant to show that representations made in the bargaining process were not relied upon by the purchaser at the time of contracting.
  4. Subsection (a)(1) provides that representations as to improvements and facilities not located in the condominium may create express warranties. Declarants often assert that recreational facilities, such as swimming pools, golf courses, tennis courts, etc., will be constructed in the future and that unit owners will have the right to utilize such facilities once constructed. Such assertions are intended to be included within the language “have the benefit of facilities not located in the condominium.” If, under the circumstances, such improvements would benefit the unit being sold, then the declarant may be liable for breach of express warranty if they are not completed. Such liability is distinct from the declarant’s obligations, under Section [34-36.1-4.19], to complete all improvements labeled “MUST BE BUILT” on plats and plans.
  5. Under subsection (a)(4), a contract provision permitting the purchaser to use a condominium unit only for a specified use or uses creates an express warranty that the unit may lawfully be used for that purpose. Therefore, if there is a limitation on use, the resulting express warranty could not be disclaimed by a disclaimer of implied warranties under Section [34-36.1-4.15].
  6. The precise time when representations set forth in subsection (a) are made is not material. The sole question is whether the language or other representations of the declarant are fairly to be regarded as part of the contract between the parties.
  7. Subsection (b) makes clear that it is not necessary to the existence of a warranty that the declarant have intended to assume a warranty obligation. On the other hand, mere statements of opinion or commendations by the declarant do not necessarily create warranties. Whether a particular statement purports to be merely opinion or commendation is basically a question of whether the purchaser could reasonably rely upon the statement as a meaningful representation or promise with respect to the condominium. That determination depends, in turn, not merely upon the words used but also upon the relative characteristics and skills of the parties. Thus a representation by a declarant to a novice purchaser that a particular condominium unit is in “good condition” may be more than mere opinion or commendation, while the same statement by a novice seller to a professional buyer would likely be only opinion or commendation, and thus not a warranty.
  8. The provision of subsection (c) that the conveyance of a unit transfers to the purchaser all express warranties made by prior declarants is intended, in part, to avoid the possibility that a declarant could negate his warranty obligations through the device of transferring a unit through a shell entity to the ultimate purchaser.

Collateral References.

Disclosure Requirements Under State Condominium, Homeowner Association, or Planned Real Estate Statute. 44 A.L.R.7th Art. 6 (2019).

34-36.1-4.14. Implied warranties of quality.

  1. A declarant and any person in the business of selling real estate for his or her own account warrants that a unit will be in at least as good condition at the earlier of the time of the conveyance or delivery of possession as it was at the time of contracting, reasonable wear and tear excepted.
  2. A declarant and any person in the business of selling real estate for his or her own account impliedly warrants that a unit and the common elements in the condominium are suitable for the ordinary uses of real estate of its type and that any improvements made or contracted for by him or her, or made by any person before the creation of the condominium, will be:
    1. Free from defective materials; and
    2. Constructed in accordance with applicable law, according to sound engineering and construction standards, and in a workmanlike manner.
  3. In addition, a declarant and any person in the business of selling real estate for his or her own account warrants to a purchaser of a unit that may be used for residential use that an existing use, continuation of which is contemplated by the parties, does not violate applicable law at the earlier of the time of conveyance or delivery of possession.
  4. Warranties imposed by this section may be excluded or modified as specified in § 34-36.1-4.15 .
  5. For purposes of this section, improvements made or contracted for by an affiliate of a declarant are made or contracted for by the declarant.
  6. Any conveyance of a unit transfers to the purchaser all of the declarant’s implied warranties of quality.

History of Section. P.L. 1982, ch. 329, § 2.

COMMISSIONER’S COMMENT

  1. This section, which is based upon Section 2-309 of ULTA, overturns the rule still applied in many states that a professional seller of real estate makes no implied warranties of quality (the rule of “caveat emptor”). In recent years, that rule has been increasingly recognized as a relic of an earlier age whose continued existence defeats reasonable expectations of purchasers. Since the 1930’s, more and more courts have completely or partially abolished the caveat emptor rule, and it is clear that the judicial tide is now running in favor of seller liability.
  2. The principal warranty imposed under this section is that of suitability of both the unit and common elements for ordinary uses of real estate of similar type, and of quality of construction. Both of these warranties, which arise under subsection (b), are imposed only against declarants and not against unit owners selling their units to others.
  3. Many recent cases have held that a seller of new housing impliedly warrants that the houses sold are habitable. The warranty of suitability under this Act is similar to the warranty of habitability. However, under the Act, the warranty of suitability applies to both units and common elements in both commercial and residential condominiums. If, for example, a commercial unit is sold for commercial use although it is not suitable for the ordinary uses of condominium units of that type, the warranty of suitability has been breached. Moreover, this warranty of suitability arises in the case of used, as well as new, buildings or other improvements in the condominium.
  4. The warranty of suitability and of quality of construction arises only against a declarant and persons in the business of selling real estate for their own account. As in the case of sales of goods, a non-professional seller is liable, if at all, only for any express warranties made by him. However, if a non-professional seller fails to disclose defects of which he is aware, he may be liable to the purchaser for fraud or misrepresentation under the common law of the state where the transaction occurred. Also, the warranties imposed by this section may be used to give content to a general “guarantee” by a non-professional seller.
  5. The warranty as to quality of construction for improvements made or contracted for by the declarant or made by any person before the creation of the condominium is broader than the warranty of suitability. Particularly, it imposes liability for defects which may not be so serious as to render the condominium unsuitable for ordinary purposes of real estate of similar type. Moreover, subsection (e) prevents a declarant from avoiding liability with respect to the quality of construction warranty by having an affiliated entity make the desired improvements.
  6. Under subsection (c), a declarant also warrants to a residential purchaser that an existing use contemplated by the parties does not violate applicable law. The declarant, therefore, is liable for any violation of housing codes or other laws which renders any existing use of the condominium unlawful.
  7. The issue of declarant liability for warranties is an important one in cases where a transfer of the declarant’s rights occurs, either as an arm’s length transaction, as a transfer to an affiliate, or as a transfer by foreclosure or a deed in lieu of foreclosure. Subsection (f) makes clear that a conveyance of a unit transfers to the purchaser all warranties of quality made by any declarant, and Section [34-36.1-3.04(b)(1)] makes clear that the original declarant remains liable for all warranties of quality with respect to improvements made by him, even after he transfers all declarant rights, regardless of whether the unit is purchased from the declarant who made the improvements. If the successor declarant is an affiliate of the original declarant, it is clear, under both Sections [34-36.1-3.04(b)(2)] and [34-36.1-4.14(f)], that the original declarant remains liable for warranties of quality or improvements made by his successor even after the declarant himself ceases to have any special declarant rights.
  8. As to the liabilities of successor declarants for warranties of quality, a successor who is an affiliate of a declarant is liable, pursuant to Section [34-36.1-3.04(e)(1)], for warranties or improvements made by his predecessor. However, any non-affiliated successor of the original declarant is liable only for warranties of quality for improvements made or contracted for by him, and is not liable for warranties which may lie against the original declarant even if the successor sells units completed by the original declarant to a purchaser. See Section [34-36.1-3.04(e)(2)]. In the case of a foreclosing lender, this is the same result as that reached under Section 2-309(f) of ULTA. The same result is also reached under ULTA in the case of a successor who, under ULTA Section 3-309(b), would be a seller in the business of selling real estate since under that subsection the seller is liable only for warranties or improvements made or contracted for by him.

Collateral References.

Financing agency’s liability to purchaser of new home or structure for consequences of construction defects. 20 A.L.R.5th 499.

34-36.1-4.15. Exclusion or modification of implied warranties of quality.

  1. Except as limited by subsection (b) with respect to a purchaser of a unit that may be used for residential use, implied warranties of quality:
    1. May be excluded or modified by agreement of the parties; and
    2. Are excluded by expression of disclaimer, such as “as is,” “with all faults,” or other language which in common understanding calls the buyer’s attention to the exclusion of warranties.
  2. With respect to a purchaser of a unit that may be occupied for residential use, no general disclaimer of implied warranties of quality is effective, but a declarant may disclaim liability in an instrument signed by the purchaser for a specified defect or specified failure to comply with applicable law, if the defect or failure entered into and became a part of the basis of the bargain.

History of Section. P.L. 1982, ch. 329, § 2.

COMMISSIONER’S COMMENT

  1. This section parallels Section 2-311(b) and (c) of ULTA.
  2. Under this section, implied warranties of quality may be disclaimed. However, a warranty disclaimer clause, like any other contract clause, is subject to a possible court holding of unconscionability. Although the section imposes no requirement that a disclaimer be in writing, except in the case of residential units, an oral disclaimer might be ineffective under the law of parole and extrinsic evidence.
  3. Except as against purchasers of residential units, there are no formal standards for the effectiveness of a disclaimer clause. All that is necessary under this section is that the disclaimer be calculated to effectively notify the purchaser of the nature of the disclaimer.
  4. Under subsection (b), general disclaimers of implied warranties are not permitted with respect to purchasers of residential units. However, a declarant may disclaim liability for a specified defect or a specified failure to comply with applicable law in an instrument signed by such a purchaser. The requirement that the disclaimer as to each defect or failure be in a signed instrument is designed to insure that the declarant sufficiently calls each defect or failure to the purchaser’s attention and that the purchaser has the opportunity to consider the effect of the particular defect or failure upon the bargain of the parties. Consequently, this section imposes a special burden upon the declarant who desires to make a “laundry list” of defects or failures by requiring him to emphasize each item on such a list and make its import clear to prospective purchasers. For example, the declarant of a conversion condominium might, consistent with this subsection, disclaim certain warranties for “all electrical wiring and fixtures in the building, the furnace, all materials comprising or supporting the roof, and all components of the air conditioning system.”
  5. This section is not intended to be inconsistent with, or to prevent, the use of insured warranty programs offered by some home builders. However, under the Act, the implied warranty that a new condominium unit will be suitable for ordinary uses (i.e., habitable) and will be constructed in a sound, workmanlike manner, and free of defective materials, cannot be disclaimed by general language.

34-36.1-4.16. Statute of limitations for warranties.

  1. A judicial proceeding for breach of any obligation arising under § 34-36.1-4.13 or § 34-36.1-4.14 must be commenced within six (6) years after the cause of action accrues, but the parties may agree to reduce the period of limitation to not less than two (2) years. With respect to a unit that may be occupied for residential use, an agreement to reduce the period of limitation must be evidenced by a separate instrument executed by the purchaser.
  2. Subject to subsection (c), a cause of action for breach of warranty of quality, regardless of the purchaser’s lack of knowledge of the breach, accrues:
    1. As to a unit, at the time the purchaser to whom the warranty is first made enters into possession if a possessory interest was conveyed or at the time of acceptance of the instrument of conveyance if a nonpossessory interest was conveyed; and
    2. As to each common element, at the time the common element is completed or, if later:
      1. As to a common element that may be added to the condominium or portion thereof, at the time the first unit therein is conveyed to a bona fide purchaser, or
      2. As to a common element within any other portion of the condominium, at the time the first unit in the condominium is conveyed to a bona fide purchaser.
  3. If a warranty of quality explicitly extends to future performance or duration of any improvement or component of the condominium, the cause of action accrues at the time the breach is discovered or at the end of the period for which the warranty explicitly extends, whichever is earlier.

History of Section. P.L. 1982, ch. 329, § 2.

COMMISSIONER’S COMMENT

  1. Under subsection (a), the parties may agree that the statute of limitations be reduced to as little as 2 years. However, such a contract provision (which, in the case of residential units, must be reflected in a separate written instrument executed by the purchaser) could, like other contract provisions, be subject to attack on grounds of unconscionability in particular cases.
  2. Except for warranties of quality which explicitly refer to future performance or duration, a cause of action for breach of a warranty of quality would normally arise when the purchaser to whom it is first made enters into possession. Suit on such a warranty would thus have to be brought within 6 years thereafter. Even an inability to discover the breach would not delay the running of the statute of limitations in this regard.
  3. Real estate sales frequently include warranties that certain components (e.g., furnaces, hot water heaters, air conditioning systems, and roofs) will last for a particular period of time. In the case of such warranties, the statute of limitations would not start running until the breach is discovered, or, if not discovered before the end of the warranty term, until the end of the term.

34-36.1-4.17. Effect of violations on rights of action — Attorney’s fees.

If a declarant or any other person subject to this chapter fails to comply with any provision hereof or any provision of the declaration or bylaws, any person or class of persons adversely affected by the failure to comply has a claim for appropriate relief. Punitive damages may be awarded in the case of a willful failure to comply with this chapter. The court, in an appropriate case, may award reasonable attorney’s fees.

History of Section. P.L. 1982, ch. 329, § 2.

COMMISSIONER’S COMMENT

This section provides a general cause of action or claim for relief for failure to comply with the Act by either a declarant or any other person subject to the Act’s provisions. Such persons might include unit owners, persons exercising a declarant’s rights of appointment pursuant to Section [34-36.1-3.03(d)], or the association itself. A claim for appropriate relief might include damages, injunctive relief, specific performance, rescission or reconveyance if appropriate under the law of the state, or any other remedy normally available under state law. The section specifically refers to “any person or class of persons” to indicate that any relief available under the state class action statute would be available in circumstances where a failure to comply with this Act has occurred. This section specifically permits punitive damages to be awarded in the case of willful failure to comply with the Act and also permits attorney’s fees to be awarded in the discretion of the court to any party that prevails in an action.

NOTES TO DECISIONS

Attorney’s Fees.

Because the record sufficiently supported the hearing justice’s conclusion that a condominium association board of directors acted unreasonably in regard to attempting to modify a declaration so as to alter the assessment of the costs of operating a marina, the award of attorneys’ fees was upheld. Mullowney v. Masopust, 943 A.2d 1029, 2008 R.I. LEXIS 28 (2008).

34-36.1-4.18. Labeling of promotional material.

If any improvement contemplated in a condominium is labeled “NEED NOT BE BUILT” on a plat or plan, or is to be located within a portion of the condominium with respect to which the declarant has reserved a development right, no promotional material may be displayed or delivered to prospective purchasers which describes or portrays that improvement unless the description or portrayal of the improvement in the promotional material is conspicuously labeled or identified as “NEED NOT BE BUILT.”

History of Section. P.L. 1982, ch. 329, § 2.

COMMISSIONER’S COMMENT

  1. Section [34-36.1-2.09(c)] requires that the plats and plans for every condominium indicate whether or not any improvement that might be built in the condominium must be built. However, Section [34-36.1-4.03] does not require that copies of the plats and plans be provided to purchasers as part of the public offering statement. Consequently, this section requiring the labeling of improvements depicted on promotional material is necessary to assure that purchasers are not deceived with respect to which improvements the declarant is obligated to make in a particular condominium project.
  2. Since no contemplated improvements on real estate subject to development rights need be shown on plats and plans, additional labeling is required by this section to insure that, if the declarant shows any contemplated improvements in his promotional material which are not shown on the plats and plans, those improvements must also be appropriately labeled.

34-36.1-4.19. Declarant’s obligation to complete and restore.

  1. The declarant shall complete all improvements labeled “MUST BE BUILT” on plats or plans prepared pursuant to § 34-36.1-2.09 .
  2. The declarant is subject to liability for the prompt repair and restoration, to a condition compatible with the remainder of the condominium, of any portion of the condominium affected by the exercise of rights reserved pursuant to or created by §§ 34-36.1-2.10 — 34-36.1-2.13 , 34-36.1-2.15 and 34-36.1-2.16 .

History of Section. P.L. 1982, ch. 329, § 2.

COMMISSIONER’S COMMENT

  1. Subsection (a) requires the declarant to complete any improvement which the plats or plans indicate, pursuant to the requirements of Section [34-36.1-2.09(c)], “MUST BE BUILT.” This is a fundamental obligation of the declarant and is one with which a successor declarant is obligated to comply under Section [34-36.1-3.04].
  2. Under subsection (b), in the event that a declarant exercises the right to use an easement which is created by Section [34-36.1-2.16], or in the event the declarant maintains model units or signs on the condominium, the declarant is obligated to restore the portions of the condominiums used to a condition compatible with the remainder of the condominium.

34-36.1-4.20. Substantial completion of units.

In the case of a sale of a unit where delivery of a public offering statement is required, a contract of sale may be executed, but no interest in that unit may be conveyed until the declaration is recorded and the unit is substantially completed, as evidenced by a recorded certificate of substantial completion executed by an independent registered architect or engineer, or by issuance of a certificate of occupancy authorized by law.

History of Section. P.L. 1982, ch. 329, § 2.

COMMISSIONER’S COMMENT

The purpose of this section, complemented by Section [34-36.1-4.10], is to assure that the declarant is not able to obtain use of the purchaser’s money until the purchaser is able to get a completed unit.

Chapter 37 Rhode Island Fair Housing Practices Act

34-37-1. Finding and declaration of policy.

  1. In the State of Rhode Island, hereinafter referred to as the state, many people are denied equal opportunity in obtaining housing accommodations and are forced to live in circumscribed areas because of discriminatory housing practices based upon race, color, religion, sex, sexual orientation, gender identity or expression, marital status, lawful source of income, military status as a veteran with an honorable discharge or an honorable or general administrative discharge, servicemember in the armed forces, country of ancestral origin, disability, age, familial status, or on the basis that a tenant or applicant or a member of the household is, or has been, or is threatened with being the victim of domestic abuse, or that the tenant or applicant has obtained, or sought, or is seeking, relief from any court in the form of a restraining order for protection from domestic abuse. These practices tend unjustly to condemn large groups of inhabitants to dwell in segregated districts or under depressed living conditions in crowded, unsanitary, substandard, and unhealthful accommodations. These conditions breed intergroup tension as well as vice, disease, juvenile delinquency, and crime; increase the fire hazard; endanger the public health; jeopardize the public safety, general welfare, and good order of the entire state; and impose substantial burdens on the public revenues for the abatement and relief of conditions so created. These discriminatory and segregative housing practices are inimical to and subvert the basic principles upon which the colony of Rhode Island was founded and upon which the state and the United States were later established. Discrimination and segregation in housing tend to result in segregation in our public schools and other public facilities, which is contrary to the policy of the state and the constitution of the United States. Further, discrimination and segregation in housing adversely affect urban renewal programs and the growth, progress, and prosperity of the state. In order to aid in the correction of these evils, it is necessary to safeguard the right of all individuals to equal opportunity in obtaining housing accommodations free of discrimination.
  2. It is hereby declared to be the policy of the state to assure to all individuals regardless of race, color, religion, sex, sexual orientation, gender identity or expression, marital status, lawful source of income, military status as a veteran with an honorable discharge or an honorable or general administrative discharge, servicemember in the armed forces, country of ancestral origin, or disability, age, familial status, housing status, or those tenants or applicants or members of a household who are, or have been, or are threatened with being the victims of domestic abuse, or those tenants or applicants who have obtained, or sought, or are seeking relief from any court in the form of a restraining order for protection from domestic abuse, equal opportunity to live in decent, safe, sanitary, and healthful accommodations anywhere within the state in order that the peace, health, safety, and general welfare of all the inhabitants of the state may be protected and ensured.
  3. The practice of discrimination in rental housing based on the lawful source of income of an applicant for tenancy, or the potential or actual tenancy of a person with a minor child, or on the basis that a tenant or applicant or a member of the household is, or has been, or is threatened with being the victim of domestic abuse, or that the tenant or applicant has obtained, or sought, or is seeking relief from any court in the form of a restraining order for protection from domestic abuse is declared to be against public policy.
  4. This chapter shall be deemed an exercise of the police power of the state for the protection of the public welfare, prosperity, health, and peace of the people of the state.
  5. Nothing in this section shall prevent a landlord from proceeding with eviction action against a tenant who fails to comply with § 34-18-24(7) .

History of Section. P.L. 1965, ch. 27, § 1; P.L. 1977, ch. 214, § 1; P.L. 1979, ch. 144, § 3; P.L. 1985, ch. 415, § 1; P.L. 1988, ch. 455, § 1; P.L. 1990, ch. 398, § 1; P.L. 1995, ch. 32, § 2; P.L. 1997, ch. 150, § 8; P.L. 2001, ch. 340, § 2; P.L. 2002, ch. 118, § 2; P.L. 2002, ch. 224, § 2; P.L. 2012, ch. 316, § 2; P.L. 2012, ch. 356, § 2; P.L. 2015, ch. 161, § 1; P.L. 2015, ch. 180, § 1; P.L. 2021, ch. 3, § 1, effective April 15, 2021; P.L. 2021, ch. 4, § 1, effective April 15, 2021.

Compiler’s Notes.

P.L. 2012, ch. 316, § 2, and P.L. 2012, ch. 356, § 2 enacted identical amendments to this section.

P.L. 2015, ch. 161, § 1, and P.L. 2015, ch. 180, § 1 enacted identical amendments to this section.

P.L. 2021, ch. 3, § 1, and P.L. 2021, ch. 4, § 1 enacted identical amendments to this section.

Law Reviews.

2002 Survey of Rhode Island Law, see 8 Roger Williams U.L. Rev. 421 (2003).

Sarah Friedman, Comment: A Source of Hope: Looking to Massachusetts’s Fair Housing Law as a Guide for Rhode Island’s Proposed Legislation to Protect Public Assistance Recipients from Housing Discrimination. 25 Roger Williams U. L. Rev. 412 (2020).

Collateral References.

Actions under Fair Housing Act (42 USCS § 3601 et seq.), based on sexual harassment or creation of hostile environment. 144 A.L.R. Fed. 595.

Anticipatory relief in federal courts against state criminal prosecutions growing out of civil rights activities. 8 A.L.R.3d 301.

Award of attorney’s fees to prevailing parties in actions under Fair Housing Act, 42 USCS § 3613(c)(2). 159 A.L.R. Fed. 279.

De facto segregation of races in public schools. 11 A.L.R.3d 780.

Fair Housing Act (42 U.S.C.A. §§ 3601 et seq.) — Supreme Court Cases. 30 A.L.R. Fed. 3d Art. 3 (2018).

State civil rights legislation prohibiting sex discrimination in housing. 81 A.L.R.4th 205.

What constitutes reverse or majority race or national origin discrimination violative of federal constitution or statutes — Nonemployment cases. 152 A.L.R. Fed. 1.

34-37-2. Right to equal housing opportunities — Civil rights.

The right of all individuals in the state to equal housing opportunities regardless of race, color, religion, sex, sexual orientation, gender identity or expression, marital status, lawful source of income, military status as a veteran with an honorable discharge or an honorable or general administrative discharge, servicemember in the armed forces, country of ancestral origin, disability, age, familial status, or regardless of the fact that a tenant or applicant or a member of the household is, or has been, or is threatened with being the victim of domestic abuse, or that the tenant or applicant has obtained, or sought, or is seeking, relief from any court in the form of a restraining order for protection from domestic abuse, is hereby recognized as, and declared to be, a civil right. Nothing in this section shall prevent a landlord from proceeding with eviction action against a tenant who fails to comply with § 34-18-24(7) .

History of Section. P.L. 1965, ch. 27, § 1; P.L. 1977, ch. 214, § 1; P.L. 1979, ch. 144, § 3; P.L. 1988, ch. 455, § 1; P.L. 1990, ch. 398, § 1; P.L. 1995, ch. 32, § 2; P.L. 1997, ch. 150, § 8; P.L. 2001, ch. 340, § 2; P.L. 2002, ch. 118, § 2; P.L. 2002, ch. 224, § 2; P.L. 2015, ch. 161, § 1; P.L. 2015, ch. 180, § 1; P.L. 2021, ch. 3, § 1, effective April 15, 2021; P.L. 2021, ch. 4, § 1, effective April 15, 2021.

Compiler’s Notes.

P.L. 2015, ch. 161, § 1, and P.L. 2015, ch. 180, § 1 enacted identical amendments to this section.

P.L. 2021, ch. 3, § 1, and P.L. 2021, ch. 4, § 1 enacted identical amendments to this section.

Law Reviews.

Sarah Friedman, Comment: A Source of Hope: Looking to Massachusetts’s Fair Housing Law as a Guide for Rhode Island’s Proposed Legislation to Protect Public Assistance Recipients from Housing Discrimination. 25 Roger Williams U. L. Rev. 412 (2020).

Collateral References.

Actions Under Fair Housing Act ( 42 U.S.C. §§ 3604, 3617), Based on Harassment or Creation of Hostile Environment With Respect to Race or National Origin. 47 A.L.R. Fed. 3d Art. 3 (2020).

Construction and application of § 804(f) of Fair Housing Act (42 USCS § 3604(f)), prohibiting discrimination in housing because of individual’s disability. 148 A.L.R. Fed. 1.

Enforceability of bylaw or other rule of condominium or co-operative association restricting occupancy by children. 100 A.L.R.3d 241.

Prohibition, under state civil rights laws, of racial discrimination in rental of privately owned residential property. 96 A.L.R.3d 497.

Refusal to rent residential premises to persons with children as unlawful discrimination. 30 A.L.R.4th 1187.

What constitutes reverse or majority race or national origin discrimination violative of federal constitution or statutes — Nonemployment cases. 152 A.L.R. Fed. 1.

34-37-2.1. Right to equal housing opportunities — Age.

Whenever in this chapter there shall appear the word “sex” there shall be inserted immediately thereafter the word “age.”

History of Section. P.L. 1979, ch. 144, § 3.

34-37-2.2. Right to equal housing opportunities — Sexual orientation.

Whenever in this chapter there shall appear the word “sex” there shall be inserted immediately thereafter the words “sexual orientation”.

History of Section. P.L. 1995, ch. 32, § 1.

34-37-2.3. Right to equal housing opportunities — Gender identity or expression.

Whenever in this chapter there shall appear the words “sexual orientation” there shall be inserted immediately thereafter the words “gender identity or expression.”

History of Section. P.L. 2001, ch. 340, § 1.

34-37-2.4. Right to equal housing opportunities — Victims of domestic violence status.

It shall be unlawful and against public policy to discriminate against a tenant or applicant for housing solely on the basis that said tenant or applicant is a victim of domestic violence.

History of Section. P.L. 2002, ch. 118, § 1; P.L. 2002, ch. 224, § 1.

34-37-3. Definitions.

When used in this chapter:

  1. “Age” means anyone over the age of eighteen (18).
  2. “Armed forces” means the Army, Navy, Marine Corps, Coast Guard, Merchant Marines, or Air Force of the United States and the Rhode Island National Guard.
  3. “Commission” means the Rhode Island commission for human rights created by § 28-5-8 .
  4. “Disability” means a disability as defined in § 42-87-1 . Provided, further, that the term “disability” does not include current, illegal use of, or addiction to, a controlled substance, as defined in 21 U.S.C. § 802.
  5. “Discriminate” includes segregate, separate, or otherwise differentiate between or among individuals because of race, color, religion, sex, sexual orientation, gender identity or expression, marital status, lawful source of income, military status as a veteran with an honorable discharge or an honorable or general administrative discharge, servicemember in the armed forces, country of ancestral origin, disability, age, housing status, or familial status or because of the race, color, religion, sex, sexual orientation, gender identity or expression, marital status, lawful source of income, military status as a veteran with an honorable discharge or an honorable or general administrative discharge, servicemember in the armed forces, country of ancestral origin, disability, age, housing status, or familial status of any person with whom they are, or may wish to be, associated.
  6. The term “domestic abuse” for the purposes of this chapter shall have the same meaning as that set forth in § 15-15-1 and include all forms of domestic violence as set forth in § 12-29-2 , except that the domestic abuse need not involve a minor or parties with minor children.
    1. “Familial status” means one or more individuals who have not attained the age of eighteen (18) years being domiciled with:
      1. A parent or another person having legal custody of the individual or individuals; or
      2. The designee of the parent or other person having the custody, with the written permission of the parent or other person, provided that, if the individual is not a relative or legal dependent of the designee, that the individual shall have been domiciled with the designee for at least six (6) months.
    2. The protections afforded against discrimination on the basis of familial status shall apply to any person who is pregnant or is in the process of securing legal custody of any individual who has not attained the age of eighteen (18) years.
  8. The terms, as used regarding persons with disabilities, “auxiliary aids and services,” “reasonable accommodation,” and “reasonable modifications” have the same meaning as those terms are defined in § 42-87-1.1 .
  9. The term “gender identity or expression” includes a person’s actual or perceived gender, as well as a person’s gender identity, gender-related self image, gender-related appearance, or gender-related expression; whether or not that gender identity, gender-related self image, gender-related appearance, or gender-related expression is different from that traditionally associated with the person’s sex at birth.
  10. “Housing accommodation” includes any building or structure, or portion of any building or structure, or any parcel of land, developed or undeveloped, that is occupied or is intended, designed, or arranged to be occupied, or to be developed for occupancy, as the home or residence of one or more persons.
  11. “Otherwise qualified” includes any person with a disability who, with respect to the rental of property, personally or with assistance arranged by the person with a disability, is capable of performing all the responsibilities of a tenant as contained in § 34-18-24 .
  12. “Owner” includes any person having the right to sell, rent, lease, or manage a housing accommodation.
  13. “Person” includes one or more individuals, partnerships, associations, organizations, corporations, labor organizations, mutual companies, joint stock companies, trusts, receivers, legal representatives, trustees, other fiduciaries, or real estate brokers or real estate salespersons as defined in chapter 20.5 of title 5.
  14. “Senior citizen” means a person sixty-two (62) years of age or older.
  15. The term “sexual orientation” means having, or being perceived as having, an orientation for heterosexuality, bisexuality, or homosexuality.
  16. The term “victim” means a family or household member and all other persons contained within the definition of those terms as defined in § 12-29-2 .
  17. The term “housing status” means the status of having or not having a fixed or regular residence, including the status of living on the streets or in a homeless shelter or similar temporary residence.
  18. The term “lawful source of income” means and includes any income, benefit, or subsidy derived from child support; alimony; Social Security; Supplemental Security Income; any other federal, state, or local public assistance program, including, but not limited to, medical or veterans assistance; any federal, state, or local rental assistance or housing subsidy program, including Section 8 Housing Choice Vouchers as authorized by 42 U.S.C. § 1437; and any requirement associated with such public assistance, rental assistance, or housing subsidy program.

History of Section. P.L. 1965, ch. 27, § 1; P.L. 1968, ch. 58, § 1; P.L. 1968, ch. 160, § 2; P.L. 1970, ch. 25, § 1; P.L. 1977, ch. 214, § 1; P.L. 1979, ch. 144, §§ 3, 4; P.L. 1985, ch. 415, § 1; P.L. 1988, ch. 455, § 1; P.L. 1990, ch. 398, § 1; P.L. 1995, ch. 32, § 2; P.L. 1997, ch. 150, § 8; P.L. 2000, ch. 499, § 3; P.L. 2000, ch. 507, § 3; P.L. 2001, ch. 340, § 2; P.L. 2002, ch. 118, § 2; P.L. 2002, ch. 224, § 2; P.L. 2009, ch. 96, § 4; P.L. 2009, ch. 97, § 4; P.L. 2011, ch. 363, § 18; P.L. 2012, ch. 316, § 2; P.L. 2012, ch. 356, § 2; P.L. 2015, ch. 161, § 1; P.L. 2015, ch. 180, § 1; P.L. 2021, ch. 3, § 1, effective April 15, 2021; P.L. 2021, ch. 4, § 1, effective April 15, 2021; P.L. 2021, ch. 124, § 1, effective July 2, 2021; P.L. 2021, ch. 125, § 1, effective July 2, 2021.

Compiler’s Notes.

P.L. 2012, ch. 316, § 2, and P.L. 2012, ch. 356, § 2 enacted identical amendments to this section.

P.L. 2015, ch. 161, § 1, and P.L. 2015, ch. 180, § 1 enacted identical amendments to this section.

P.L. 2021, ch. 3, § 1, and P.L. 2021, ch. 4, § 1 enacted identical amendments to this section.

P.L. 2021, ch. 124, § 1, and P.L. 2021, ch. 125, § 1 enacted identical amendments to this section.

This section was amended by four acts (P.L. 2021, ch. 3, § 1; P.L. 2021, ch. 4, § 1; P.L. 2021, ch. 124, § 1; P.L. 2021, ch. 125, § 1 ) as passed by the 2021 General Assembly. Since the acts are not in conflict with each other, the section is set out as amended by all four acts.

Collateral References.

What constitutes reverse or majority race or national origin discrimination violative of federal constitution or statutes — Nonemployment cases. 152 A.L.R. Fed. 1.

34-37-4. Unlawful housing practices.

  1. No owner having the right to sell, rent, lease, or manage a housing accommodation as defined in § 34-37-3 , or an agent of any of these, shall, directly or indirectly, make, or cause to be made, any written or oral inquiry concerning the race, color, religion, sex, sexual orientation, gender identity or expression, marital status, lawful source of income, military status as a veteran with an honorable discharge or an honorable or general administrative discharge, servicemember in the armed forces, country of ancestral origin, or disability, age, familial status nor make any written or oral inquiry concerning whether a tenant or applicant or a member of the household is, or has been, or is threatened with being the victim of domestic abuse, or whether a tenant or applicant has obtained, or sought, or is seeking relief from any court in the form of a restraining order for protection from domestic abuse, of any prospective purchaser, occupant, or tenant of the housing accommodation; directly or indirectly, refuse to sell, rent, lease, let, or otherwise deny to or withhold from any individual the housing accommodation because of the race, color, religion, sex, sexual orientation, gender identity or expression, marital status, lawful source of income, military status as a veteran with an honorable discharge or an honorable or general administrative discharge, servicemember in the armed forces, country of ancestral origin, disability, age, or familial status of the individual or the race, color, religion, sex, sexual orientation, gender identity or expression, marital status, lawful source of income, military status as a veteran with an honorable discharge or an honorable or general administrative discharge, servicemember in the armed forces, country of ancestral origin or disability, age, or familial status of any person with whom the individual is or may wish to be associated; or shall, or on the basis that a tenant or applicant, or a member of the household, is or has been, or is threatened with being, the victim of domestic abuse, or that the tenant or applicant has obtained, or sought, or is seeking, relief from any court in the form of a restraining order for protection from domestic abuse. Nor shall an owner having the right to sell, rent, lease, or manage a housing accommodation as defined in § 34-37-3 , or an agent of any of these, directly or indirectly, issue any advertisement relating to the sale, rental, or lease of the housing accommodation that indicates any preference, limitation, specification, or discrimination based upon race, color, religion, sex, sexual orientation, gender identity or expression, marital status, lawful source of income, military status as a veteran with an honorable discharge or an honorable or general administrative discharge, servicemember in the armed forces, country of ancestral origin, disability, age, familial status, or on the basis that a tenant or applicant or a member of the household is, or has been, or is threatened with being the victim of domestic abuse, or that the tenant or applicant has obtained, or sought, or is seeking relief from any court in the form of a restraining order for protection from domestic abuse, or shall, directly or indirectly, discriminate against any individual because of his or her race, color, religion, sex, sexual orientation, gender identity or expression, marital status, lawful source of income, military status as a veteran with an honorable discharge or an honorable or general administrative discharge, servicemember in the armed forces, country of ancestral origin, disability, age, familial status, or on the basis that a tenant or applicant or a member of the household is, or has been, or is threatened with being the victim of domestic abuse, or that the tenant or applicant has obtained, or sought, or is seeking relief from any court in the form of a restraining order for protection from domestic abuse, in the terms, conditions, or privileges of the sale, rental, or lease of any housing accommodation or in the furnishing of facilities or services in connection with it. Nor shall an owner having the right to sell, rent, lease, or manage a housing accommodation as defined in § 34-37-3, or an agent of any of these, directly or indirectly, misrepresent the availability of a housing accommodation or delay the processing of applications relating to the sale, rental, or lease of the housing accommodation based upon an individual’s race, color, religion, sex, sexual orientation, gender identity or expression, marital status, lawful source of income, military status as a veteran with an honorable discharge or an honorable or general administrative discharge, servicemember in the armed forces, country of ancestral origin, disability, age, familial status, or on the basis that a tenant or applicant or a member of the household is, or has been, or is threatened with being the victim of domestic abuse, or that the tenant or applicant has obtained, or sought, or is seeking relief from any court in the form of a restraining order for protection from domestic abuse. Nothing in this section shall be construed to prohibit any oral or written inquiry as to whether the prospective purchaser or tenant is eighteen (18) years of age or older, or to confirm the source, amount, and expected duration of the lawful source of income of the prospective purchaser or tenant to determine whether the prospective purchaser or tenant meets the nondiscriminatory standards and preferences or terms, conditions, limitations, or specifications permitted under subsection (c) of this section.
  2. No person to whom application is made for a loan or other form of financial assistance for the acquisition, construction, rehabilitation, repair, or maintenance of any housing accommodation, whether secured or unsecured, shall directly or indirectly make or cause to be made any written or oral inquiry concerning the race, color, religion, sex, sexual orientation, gender identity or expression, marital status, military status as a veteran with an honorable discharge or an honorable or general administrative discharge, servicemember in the armed forces, country of ancestral origin, disability, age, familial status, or any express written or oral inquiry into whether a tenant or applicant or a member of the household is, or has been, or is threatened with being the victim of domestic abuse, or whether a tenant or applicant has obtained, or sought, or is seeking relief from any court in the form of a restraining order for protection from domestic abuse, of any individual seeking the financial assistance, or of existing or prospective occupants or tenants of the housing accommodation; nor shall any person to whom the application is made in the manner provided, directly or indirectly, discriminate in the terms, conditions, or privileges relating to the obtaining or use of any financial assistance against any applicant because of the race, color, religion, sex, sexual orientation, gender identity or expression, marital status, military status as a veteran with an honorable discharge or an honorable or general administrative discharge, servicemember in the armed forces, country of ancestral origin, disability, age, familial status, or on the basis that a tenant or applicant or a member of the household is, or has been, or is threatened with being the victim of domestic abuse, or that the tenant or applicant has obtained, or sought, or is seeking relief from any court in the form of a restraining order for protection from domestic abuse, of the applicant or of the existing or prospective occupants or tenants. Nothing in this subsection shall be construed to prohibit any written or oral inquiry as to whether the applicant is over the age of eighteen (18).
  3. Nothing contained in this section shall be construed in any manner to prohibit or limit the exercise of the privilege of every person and the agent of any person having the right to sell, rent, lease, or manage a housing accommodation to establish standards and preferences and set terms, conditions, limitations, or specifications in the selling, renting, leasing, or letting thereof or in the furnishing of facilities or services in connection therewith that do not discriminate on the basis of the race, color, religion, sex, sexual orientation, gender identity or expression, marital status, lawful source of income, military status as a veteran with an honorable discharge or an honorable or general administrative discharge, servicemember in the armed forces, country of ancestral origin, disability, age, familial status, or on the basis that a tenant or applicant or a member of the household is, or has been, or is threatened with being the victim of domestic abuse, or that the tenant or applicant has obtained, or sought, or is seeking relief from any court in the form of a restraining order for protection from domestic abuse, of any prospective purchaser, lessee, tenant, or occupant thereof or on the race, color, religion, sex, sexual orientation, gender identity or expression, marital status, lawful source of income, military status as a veteran with an honorable discharge or an honorable or general administrative discharge, servicemember in the armed forces, country of ancestral origin, disability, age, or familial status of any person with whom the prospective purchaser, lessee, tenant, or occupant is or may wish to be associated. Nothing contained in this section shall be construed in any manner to prohibit or limit the exercise of the privilege of every person and the agent of any person making loans for, or offering financial assistance in, the acquisition, construction, rehabilitation, repair, or maintenance of housing accommodations to set standards and preferences, terms, conditions, limitations, or specifications for the granting of loans or financial assistance that do not discriminate on the basis of the race, color, religion, sex, sexual orientation, gender identity or expression, marital status, military status as a veteran with an honorable discharge or an honorable or general administrative discharge, servicemember in the armed forces, country of ancestral origin, disability, age, familial status, or on the basis that a tenant or applicant or a member of the household is, or has been, or is threatened with being the victim of domestic abuse, or that the tenant or applicant has obtained, or sought, or is seeking relief from any court in the form of a restraining order for protection from domestic abuse, of the applicant for the loan or financial assistance or of any existing or prospective owner, lessee, tenant, or occupant of the housing accommodation. If a landlord requires that a prospective or current tenant have a certain minimum level of income, the standard for assessing eligibility shall be based only on the portion of the rent to be paid by the tenant, taking into account the value of any federal, state, or local rental assistance or housing subsidy.
  4. An owner may not refuse to allow a person with a disability to make, at his or her expense, reasonable modifications of existing premises occupied or to be occupied by the person if the modifications may be necessary to afford the person full enjoyment of the premises, except that, in the case of a rental, the owner may, where it is reasonable to do so, condition permission for a modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted. Where it is necessary in order to ensure with reasonable certainty that funds will be available to pay for the restorations at the end of the tenancy, the landlord may negotiate as part of the restoration agreement a provision requiring that the tenant pay into an interest bearing escrow account, over a reasonable period, a reasonable amount of money not to exceed the cost of the restorations. The interest in the account shall accrue to the benefit of the tenant. The restoration deposition shall be exempt from § 34-18-19(a) but will be subject to § 34-18-19(b) through (f) inclusive.
    1. An owner may not refuse to make reasonable accommodations in rules, policies, practices, or services when those accommodations may be necessary to afford an occupant with a disability equal opportunity to use and enjoy a dwelling.
    2. Every person with a disability who has a guide dog or other personal assistive animal, or who obtains a guide dog or other personal assistive animal, shall be entitled to full and equal access to all housing accommodations provided for in this section and shall not be required to pay extra compensation for the guide dog or other personal assistive animal but shall be liable for any damage done to the premises by a guide dog or other personal assistive animal. For the purposes of this subsection, a “personal assistive animal” is an animal specifically trained by a certified animal training program to assist a person with a disability to perform independent living tasks.
  6. Any housing accommodation of four (4) units or more constructed for first occupancy after March 13, 1991, shall be designed and constructed in such a manner that:
    1. The public use and common use portions of the dwellings are readily accessible to and usable by persons with disabilities;
    2. All the doors designed to allow passage into and within all premises within the dwellings are sufficiently wide to allow passage by persons with disabilities in wheelchairs;
    3. All premises within the dwellings contain the following features of adaptive design:
      1. Accessible route into and through the dwelling;
      2. Light switches, electrical outlets, thermostats, and other environmental controls in accessible locations;
      3. Reinforcements in bathroom walls to allow later installation of grab bars; and
      4. Usable kitchens and bathrooms such that an individual in a wheelchair can maneuver about the space. To the extent that any state or local building codes, statutes, or ordinances are inconsistent with this section, they are hereby repealed. The state building code standards committee is hereby directed to adopt rules and regulations consistent with this section as soon as possible, but no later than September 30, 1990.
  7. Compliance with the appropriate requirements of the state building code 14 “accessibility for individuals with disabilities for residential use groups” suffices to satisfy the requirements of subsection (f).
  8. As used in subsection (f), the term “housing accommodation of four (4) units or more” means:
    1. Buildings consisting of four (4) or more units if those buildings have one or more elevators; and
    2. Ground floor units in other buildings consisting of four (4) or more units.
  9. Nothing in subsection (f) shall be construed to limit any law, statute, or regulation that requires a greater degree of accessibility to persons with disabilities.
  10. Nothing in this section requires that a dwelling be made available to an individual whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others.
  11. Nothing contained in this chapter shall be construed to prohibit an owner, lessee, sublessee, or assignee from advertising or selecting a person of the same or opposite gender to rent, lease, or share the housing unit that the owner, lessee, sublessee, or assignee will occupy with the person selected.
  12. No person shall aid, abet, incite, compel, or coerce the doing of any act declared by this section to be an unlawful housing practice; or obstruct or prevent any person from complying with the provisions of this chapter or any order issued thereunder; or attempt directly or indirectly to commit any act declared by this section to be an unlawful housing practice.
  13. No owner; person defined in § 34-37-3(13) ; person to whom application is made for a loan or other form of financial assistance for the acquisition, construction, rehabilitation, repair, or maintenance of any housing accommodation, whether secured or unsecured; no financial organization governed by the provisions of title 19 or any other credit-granting commercial institution; or respondent under this chapter; or any agent of these shall discriminate in any manner against any individual because he or she has opposed any practice forbidden by this chapter, or because he or she has made a charge, testified, or assisted in any manner in any investigation, proceeding, or hearing under this chapter.
  14. Nothing in this section shall prevent a landlord from proceeding with eviction action against a tenant who fails to comply with § 34-18-24(7) .

History of Section. P.L. 1965, ch. 27, § 1; P.L. 1970, ch. 25, § 2; P.L. 1974, ch. 141, § 1; P.L. 1977, ch. 214, § 1; P.L. 1979, ch. 144, § 3; P.L. 1985, ch. 415, § 1; P.L. 1987, ch. 452, § 1; P.L. 1988, ch. 455, § 1; P.L. 1988, ch. 664, § 1; P.L. 1990, ch. 398, § 1; P.L. 1995, ch. 32, § 2; P.L. 1997, ch. 150, § 8; P.L. 1999, ch. 83, § 81; P.L. 1999, ch. 130, § 81; P.L. 2001, ch. 340, § 2; P.L. 2002, ch. 118, § 2; P.L. 2002, ch. 224, § 2; P.L. 2015, ch. 161, § 1; P.L. 2015, ch. 180, § 1; P.L. 2021, ch. 3, § 1, effective April 15, 2021; P.L. 2021, ch. 4, § 1, effective April 15, 2021; P.L. 2021, ch. 211, § 2, effective January 1, 2022; P.L. 2021, ch. 322, § 2, effective January 1, 2022.

Compiler’s Notes.

P.L. 2015, ch. 161, § 1, and P.L. 2015, ch. 180, § 1 enacted identical amendments to this section.

Subsection (d) of this section contains a reference to “ § 34-18-19(b) — (f).” P.L. 2018, ch. 229, § 1, and P.L. 2018, ch. 260, § 1, redesignated former subsections (e) and (f) of § 34-18-19 as (g) and (h) and inserted new subsections (e) and (f).

P.L. 2021, ch. 3, § 1, and P.L. 2021, ch. 4, § 1 enacted identical amendments to this section.

P.L. 2021, ch. 211, § 2, and P.L. 2021, ch. 322, § 2 enacted identical amendments to this section.

This section was amended by four acts ( P.L. 2021, ch. 3, § 1; P.L. 2021, ch. 4, § 1; P.L. 2021, ch. 211, § 2; P.L. 2021, ch. 322, § 2 ) as passed by the 2021 General Assembly. Since the acts are not in conflict with each other, the section is set out as amended by all four acts.

Delayed Effective Dates.

P.L. 2021, ch. 211, § 3, provides that the amendment to this section by that act takes effect on January 1, 2022.

P.L. 2021, ch. 322, § 3, provides that the amendment to this section by that act takes effect on January 1, 2022.

NOTES TO DECISIONS

Construction.

The literal meaning of this section is precise, plain, and clear; therefore, literal reading presumptively gives its correct sense, and that sense cannot be ignored or disregarded merely because the legislature directed in § 34-37-9 that the provisions of the Fair Housing Practices Act shall be liberally construed in order to accomplish its purposes. Buffi v. Ferri, 106 R.I. 349 , 259 A.2d 847, 1969 R.I. LEXIS 634 (1969).

Nothing elsewhere in this act is repugnant to election of this section to prohibit only direct discrimination, nor do the words used to accomplish that effect, when read literally, suggest a meaning which is not sensible, or a result which is absurd, or a purpose which runs counter to the expressed legislative policy of providing equal housing opportunities for all. Buffi v. Ferri, 106 R.I. 349 , 259 A.2d 847, 1969 R.I. LEXIS 634 (1969).

Discrimination.

Prior to the 1970 amendment, this section did not prohibit indirect discrimination so as to make it unlawful for a landlord to evict a tenant for associating with a Negro; it made race, color, religion, or ancestry of tenant or purchaser the only test for violation. Buffi v. Ferri, 106 R.I. 349 , 259 A.2d 847, 1969 R.I. LEXIS 634 (1969).

Collateral References.

Actions under Fair Housing Act (42 USCS § 3601 et seq.), based on sexual harassment or creation of hostile environment. 144 A.L.R. Fed. 595.

Actions Under Fair Housing Act ( 42 U.S.C. §§ 3604, 3617), Based on Harassment or Creation of Hostile Environment With Respect to Race or National Origin. 47 A.L.R. Fed. 3d Art. 3 (2020).

Adverse Action Under Retaliation Provision of Fair Housing Act ( 42 U.S.C. § 3617). 49 A.L.R. Fed. 3d Art. 1 (2020).

Causation under Retaliation Provision of Fair Housing Act ( 42 U.S.C. § 3617). 46 A.L.R. Fed. 3d Art. 7 (2019).

Construction and application of § 804(f) of Fair Housing Act (42 USCS § 3604(f)), prohibiting discrimination in housing because of individual’s disability. 148 A.L.R. Fed. 1.

Discrimination on Basis of Sexual Orientation as Form of Sex Discrimination Proscribed by Title VII of Civil Rights Act of 1964. 28 A.L.R. Fed. 3d Art. 4 (2018).

Housing Subsidy as Reasonable Accommodation Under Fair Housing Act, 42 U.S.C. § 3604(f). 38 A.L.R. Fed. 3d Art. 12 (2019).

Protected Activity Under Retaliation Provision of Fair Housing Act ( 42 U.S.C. § 3617). 47 A.L.R. Fed. 3d Art. 4 (2020).

Relief from Zoning or Other Land Use Restrictions as Reasonable Accommodation Under Fair Housing Act, 42 U.S.C. § 3604(f). 43 A.L.R. Fed. 3d Art. 5 (2019).

Validity, construction, and application of § 804(c) of Civil Rights Act of 1968 (Fair Housing Act) (42 USCS § 3604(c)) prohibiting discriminatory notice, statement, or advertisement with respect to sale or rental of dwelling. 142 A.L.R. Fed. 1.

Validity, construction, and application of state enactment, order, or regulation expressly prohibiting sexual orientation discrimination. 82 A.L.R.5th 1.

34-37-4.1. Discrimination in familial status — Exemptions.

  1. Nothing in this chapter requires an owner of a housing accommodation to rent to a family with children if:
    1. The housing accommodation is two (2) units, one of which is occupied by the owner;
    2. The housing accommodation is of four (4) units or less, the owner actually maintains and occupies one of those living quarters as his or her residence and one of those units is already occupied by a senior citizen or infirm person for whom the presence of children would constitute a demonstrated hardship;
    3. The housing accommodation was provided under any state or federal program which is designed and operated to assist elderly persons;
    4. The housing accommodation is intended for and solely occupied by persons sixty-two (62) years of age or older; or
    5. The housing accommodation is intended and operated for occupancy by at least one person fifty-five (55) years of age or older per unit. Provided that:
      1. At least eighty percent (80%) of the units are occupied by at least one person fifty-five (55) years of age or older per unit; and
      2. The housing accommodation has significant facilities and services designed to meet the physical or social needs of older persons, or if the provisions of those facilities and services is not practicable, that the housing is necessary to provide important opportunities for older persons;
      3. The owner or manager has published and adhered to policies and procedures which demonstrate an intent to provide housing for persons fifty-five (55) years of age or older.
    1. An exemption under subsections (a)(4) and (a)(5) can be claimed if the housing did not meet the requirements of subsections (a)(4) and (a)(5) as of September 13, 1988 only if:
      1. New occupants of the housing met the age requirements of subsections (a)(4) and (a)(5) after September 13, 1988; or
      2. Unoccupied units were reserved for occupancy by persons who met the age requirements of subsections (a)(4) and (a)(5) after September 13, 1988;
    2. An owner will not violate the prohibitions against age discrimination in housing contained in § 34-37-4 if the owner asks the age of prospective or actual tenants or buyers, or if the owner grants a preference to older prospective tenants or buyers so long as the housing meets the requirements of subsection (a)(4) or (a)(5) or if the owner is seeking to determine whether the housing meets the requirements of subsection (a)(4) or (a)(5).

History of Section. P.L. 1973, ch. 150, § 1; P.L. 1979, ch. 144, §§ 3, 4; P.L. 1988, ch. 455, § 1; P.L. 1990, ch. 398, § 1; P.L. 2009, ch. 310, § 13.

34-37-4.2. Exemptions — Religious organizations and private clubs.

  1. Nothing in this chapter shall prohibit a religious organization, association, or society or any nonprofit institution or organization operated, supervised, or controlled by or in conjunction with a religious organization, association, or society from limiting the sale, rental, or occupancy of a dwelling which it owns or operates for other than commercial purposes to persons of the same religion or from giving preference to those persons unless membership in the religion is restricted on account of sex, sexual orientation, gender identity or expression, race, color, or national origin or disability. Nor shall anything in this chapter prohibit a private club not in fact open to the public which as an incident to its primary purpose or purposes provides lodgings which it owns or operates for other than a commercial purpose from limiting the rental or occupancy of the lodgings to its members or from giving preference to its members.
  2. Nothing in this chapter limits the applicability of any reasonable local, state, or federal restrictions regarding the maximum number of occupants permitted to occupy a dwelling.

History of Section. P.L. 1979, ch. 144, § 3; P.L. 1988, ch. 455, § 1; P.L. 1990, ch. 398, § 1; P.L. 1995, ch. 32, § 2; P.L. 1997, ch. 150, § 8; P.L. 2001, ch. 340, § 2.

34-37-4.3. Discrimination in granting credit or loans prohibited.

No financial organization governed by the provisions of title 19 or any other credit granting commercial institution may discriminate in the granting or extension of any form of loan or credit, or the privilege or capacity to obtain any form of loan or credit, on the basis of the applicant’s sex, marital status, military status as a veteran with an honorable discharge or an honorable or general administrative discharge, servicemember in the armed forces, race or color, religion or country of ancestral origin, disability or age or familial status, sexual orientation, or gender identity or expression and the form of loan and credit shall not be limited to those concerned with housing accommodations and the commission shall prevent any violation hereof in the same manner as it is to prevent unlawful housing practices under the provisions of this chapter.

History of Section. P.L. 1990, ch. 398, § 2; P.L. 1995, ch. 32, § 2; P.L. 1997, ch. 150, § 8; P.L. 2001, ch. 340, § 2; P.L. 2015, ch. 161, § 1; P.L. 2015, ch. 180, § 1.

Compiler’s Notes.

P.L. 2015, ch. 161, § 1, and P.L. 2015, ch. 180, § 1 enacted identical amendments to this section.

Collateral References.

Actions Under Fair Housing Act ( 42 U.S.C. §§ 3604, 3617), Based on Harassment or Creation of Hostile Environment With Respect to Race or National Origin. 47 A.L.R. Fed. 3d Art. 3 (2020).

Discrimination Against Credit Applicant on Basis of Marital Status Under Equal Credit Opportunity Act (15 U.S.C. §§ 1691 et seq.). 18 A.L.R. Fed. 3d Art. 5 (2017).

Discrimination against credit application on basis of race or national origin under Equal Credit Opportunity Act (15 U.S.C. § 1691 et seq.). 13 A.L.R. Fed. 3d Art. 9 (2016).

Discrimination based on marital status under Equal Credit Opportunity Act (15 U.S.C. §§ 1691 et seq.) as defense to liability for financial obligations. 16 A.L.R. Fed. 3d Art. 9 (2016).

34-37-4.4. [Repealed.]

History of Section. P.L. 1995, ch. 32, § 1; repealed by P.L. 2021, ch. 124, § 4, effective July 2, 2021; repealed by P.L. 2021, ch. 125, § 4, effective July 2, 2021.

Compiler’s Notes.

Former § 34-37-4.4 concerned discrimination based on sexual orientation, exemption.

34-37-4.5. [Repealed.]

History of Section. P.L. 2001, ch. 340, § 1; repealed by P.L. 2021, ch. 124, § 4, effective July 2, 2021; repealed by P.L. 2021, ch. 125, § 4, effective July 2, 2021.

Compiler’s Notes.

Former § 34-37-4.5 concerned discrimination based on gender identity or expression, exemption.

34-37-4.6. Discrimination based on lawful source of income — Exemption.

Nothing in this chapter shall prohibit an owner of a housing accommodation from refusing to rent to a person based on their lawful source of income if the housing accommodation is three (3) units or less, one of which is occupied by the owner.

History of Section. P.L. 2021, ch. 3, § 2, effective April 15, 2021; P.L. 2021, ch. 4, § 2, effective April 15, 2021.

Compiler's Notes.

P.L. 2021, ch. 3, § 2, and P.L. 2021, ch. 4, § 2 enacted identical versions of this section.

34-37-5. Prevention of unlawful housing practices.

  1. The commission is empowered and directed to prevent any person from violating any of the provisions of this chapter, provided that before instituting a formal proceeding, it shall attempt by informal methods of conference, persuasion, and conciliation to induce compliance with this chapter.
  2. Upon the commission’s own initiative or whenever an aggrieved individual or an organization chartered for the purpose of or engaged in combating discrimination or racism or of safeguarding civil liberties, that organization acting on behalf of one or more individuals being hereinafter referred to as the complainant, makes a charge, in writing, under oath, to the commission that any person, agency, bureau, corporation, or association, hereinafter referred to as the respondent, has violated or is violating, to the best of complainant’s knowledge and belief, any of the provisions of this chapter, and that the alleged discriminatory housing practice has occurred or terminated within one year of the date of filing, the commission may initiate a preliminary investigation and if it shall determine after the investigation that it is probable that unlawful housing practices have been or are being engaged in, it shall endeavor to eliminate the unlawful housing practices by informal methods of conference, conciliation, and persuasion. Nothing said or done during these endeavors may be used as evidence in any subsequent proceeding. If after the investigation and conference, the commission is satisfied that any unlawful housing practice of the respondent will be eliminated, it may, with the consent of the complainant, treat the charge as conciliated, and entry of that disposition shall be made on the records of the commission. If the commission fails to effect the elimination of the unlawful housing practices and to obtain voluntary compliance with this chapter, or, if the circumstances warrant, in advance of any preliminary investigation or endeavors, the commission shall have the power to issue and cause to be served upon any person or respondent a complaint stating the charges in that respect and containing a notice of hearing before the commission, a member thereof, or a hearing examiner at a place therein fixed to be held not less than ten (10) days after the service of the complaint.
  3. The commission, member thereof, or hearing examiner conducting the hearing shall have the power reasonably and fairly to amend any written complaint at any time prior to the issuance of an order based thereon. The respondent shall have like power to amend its answer to the original or amended complaint at any time prior to the issuance of the order. The commissioner assigned to the preliminary hearing of any charge shall take no part in the final hearing except as a witness upon competent matters and will have no part in the determination or decision of the case after hearing.
  4. The respondent shall have the right to file an answer to the complaint and shall appear at the hearing in person or otherwise with or without counsel to present evidence and to examine and cross-examine witnesses.
  5. In any proceeding, the commission, its member, or its agent shall not be bound by the rules of evidence prevailing in the courts.
  6. The commission shall in ascertaining the practices followed by the respondent take into account all evidence, statistical or otherwise, that may tend to prove the existence of a predetermined pattern of discrimination in housing.
  7. The testimony taken at the hearing shall be under oath and shall be reduced to writing and filed with the commission. Thereafter, in its discretion, the commission upon notice may take further testimony or hear argument.
    1. If upon all the testimony taken the commission shall determine that the respondent has engaged in or is engaging in unlawful housing practices, the commission shall state its findings of fact and shall issue and cause to be served on the respondent an order requiring the respondent to cease and desist from the unlawful housing practices, and to take further affirmative or other action as will effectuate the purposes of this chapter.
    2. The commission may also order the respondent to pay the complainant damages sustained thereby; costs, including reasonable attorney’s fees incurred at any time in connection with the commission of the unlawful act, and civil penalties, any amounts awarded to be deposited in the state treasury. The civil penalty shall be (i) An amount not exceeding ten thousand dollars ($10,000) if the respondent has not been adjudged to have committed any prior discriminatory housing practice; (ii) In an amount not exceeding twenty-five thousand dollars ($25,000) if the respondent has been adjudged to have committed one other discriminatory housing practice during the five-year (5)  period ending on the date of filing this charge; and (iii) In an amount not exceeding fifty thousand dollars ($50,000) if the respondent has been adjudged to have committed two (2) or more discriminatory housing practices during the seven-year (7) period ending on the date of the filing of this charge; except that if the acts constituting the discriminatory housing practice that is the object of the charge are committed by the same natural person who has been previously adjudged to have committed acts constituting a discriminatory housing practice, then the civil penalties set forth in (ii) and (iii) may be imposed without regard to the period of time within which any subsequent discriminatory housing practice occurred. When determining the amount of civil penalties, the commission shall consider as a mitigating factor whether the respondent has acted in good faith and whether the respondent has actively engaged in regular antidiscrimination educational programs. Provided that no order shall affect any contract, sale, encumbrance, or lease consummated before the issuance of the order and involving a bona fide purchaser, encumbrancer, or tenant without actual notice of the charge filed under this title.
  9. If the commission shall find that no probable cause exists for crediting the charges, or, if upon all the evidence, it shall find that a respondent has not engaged in unfair housing practices, the commission shall state its findings of fact and shall issue and cause to be served on the complainant an order dismissing the complaint as to the respondent. A copy of the order shall be delivered in all cases to the attorney general and such other public officers as the commission deems proper.
  10. Until a transcript of the record in a case shall be filed in a court as provided in subsection (m), the commission may at any time, upon reasonable notice, and in such manner as it shall deem proper, modify or set aside, in whole or in part, any of its findings or orders.
  11. Until such time as a hearing is convened pursuant to this section, no publicity shall be given to any proceedings before the commission, either by the commission or any employee thereof, the complainant, or the respondent, except that in the event of a conciliation agreement the agreement shall be made public unless the complainant and respondent otherwise agree and the commission determines that disclosure is not required to further the purposes of this chapter. After the complaint issues and before an order issues, the commission shall not initiate any public notice of any charge or complaint before the commission, however, the commission may respond to inquiries about the status of a complaint.
  12. A complainant may seek a right to sue in state court if not less than one hundred and twenty (120) days and not more than two (2) years have elapsed from the date of filing of a charge, if the commission has been unable to secure a settlement agreement or conciliation agreement and if the commission has not commenced hearing on a complaint. The commission shall grant the right to sue within thirty (30) days after receipt of the request. This shall terminate all proceedings before the commission and shall give to the complainant the right to commence suit in the superior court within any county as provided in § 28-5-28 within ninety (90) days after the granting of the request. Any party may claim a trial by jury. The superior court may make orders consistent with subsection (h) and may also award punitive damages and such other damages as the court deems just and proper.
    1. The commission is further empowered to file a complaint in the superior court in any county in which the unlawful housing practice allegedly occurs, or has occurred, or in which a defendant resides or maintains a business office, or in Providence County, seeking injunctive relief, including a temporary restraining order, against the defendant.
    2. No preliminary injunction shall be effective for more than thirty (30) days; provided that, if the defendant has sought judicial review of an order of the commission issued pursuant to this section, or if the commission has sought a decree of the court for the enforcement of the order, the preliminary injunction shall remain in full force and effect until such time as the judicial review or the commission’s petition for the decree of enforcement is finally heard and determined.
    3. In any proceeding under this subsection, the commission may, if the prayer of the original or amended complaint so requests, proceed at the proper time to obtain the relief provided in § 34-37-6 .
    4. The application by the commission for injunctive relief shall not prevent the commission from continuing to prosecute the proceeding before it out of which the application arises.
    5. Whenever a complaint shall be filed under the provisions of this subsection, the state shall be liable, in an action brought against it, for the payment of such costs and damages as may have been incurred or suffered by the defendant should final judgment be entered upon the complaint in favor of the defendant, or should the commission, having been denied temporary relief after the entry of a restraining order, fail to prosecute the matter further, or should the commission, having been granted temporary relief, fail to prosecute the matter further, unless, in the latter two (2) instances, failure to prosecute is caused by the making of an agreed settlement of any kind with the defendant, including a conciliation agreement.
    6. All proceedings taken pursuant to the provisions of this section shall take precedence over all other civil matters then pending before the court.
  14. The complainant or the respondent may elect, within twenty (20) days after receipt of a finding of probable cause, to terminate by written notice to the commission all proceedings before the commission and have the case heard in the superior court. In the event of an election to terminate the proceedings, the commission shall issue a right to sue notice to the complainant with a copy of the notice sent to all parties.
    1. The complainant shall have the right to commence suit in the superior court within any county as provided in § 28-5-28 within ninety (90) days of the date of the right to sue notice. Either party may claim a trial by jury in the superior court.
    2. Notwithstanding the termination of proceedings before the commission upon the granting of the right to sue notice, the parties may agree to have the commission seek to conciliate or mediate settlement of the case within the ninety-day (90) period in which the complainant has the right to commence suit in superior court.
  15. If an election is made under subsection (n):
    1. The complainant, the commission, or the attorney general may commence a civil action on behalf of the aggrieved person in the superior court within any county as provided in § 28-5-28 within ninety (90) days of the date of the right to sue notice under subsection (n);
    2. Any party may claim a trial by jury. Any aggrieved person with respect to the issues to be determined in a civil action under this subsection may intervene as of right in that civil action;
    3. The superior court may make orders consistent with subsection (h) and may also award punitive damages and such damages as the court deems just and proper; provided, that the court shall not enter a consent order, dismissal stipulation, or judgment settling claims of discrimination in an action or proceeding under this chapter, unless the parties and their counsel attest that a waiver of all or substantially all attorneys’ fees was not compelled as a condition of the settlement.

History of Section. P.L. 1965, ch. 27, § 1; P.L. 1968, ch. 49, § 1; P.L. 1968, ch. 58, § 2; P.L. 1988, ch. 664, § 1; P.L. 1990, ch. 398, § 1; P.L. 2021, ch. 124, § 1, effective July 2, 2021; P.L. 2021, ch. 125, § 1, effective July 2, 2021.

Compiler's Notes.

P.L. 2021, ch. 124, § 1, and P.L. 2021, ch. 125, § 1 enacted identical amendments to this section.

Collateral References.

Actions under Fair Housing Act (42 USCS § 3601 et seq.), based on sexual harassment or creation of hostile environment. 144 A.L.R. Fed. 595.

Evidence of discriminatory effect alone as sufficient to prove, or to establish prima facie case of, violation of Fair Housing Act (42 USCS §§ 3601 et seq.). 100 A.L.R. Fed. 97.

Relief from Zoning or Other Land Use Restrictions as Reasonable Accommodation Under Fair Housing Act, 42 U.S.C. § 3604(f). 43 A.L.R. Fed. 3d Art. 5 (2019).

Validity, construction, and application of statutes requiring that percentage of punitive damages awards be paid directly to state or court-administered fund. 16 A.L.R.5th 129.

34-37-5.1. Interference, coercion, or intimidation.

It shall be unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this chapter. No owner under this chapter or any agent of these shall discriminate in any manner against any individual because he or she has opposed any practice forbidden by this chapter, or because he or she has made a charge, testified, or assisted in any manner in any investigation, proceeding, or hearing under this chapter.

History of Section. P.L. 1974, ch. 157, § 1; P.L. 1988, ch. 455, § 1; P.L. 1990, ch. 398, § 1.

34-37-5.2. Discrimination in brokerage services.

It shall be unlawful to deny any person who meets licensing and other non-discriminatory requirements that are also applied to other applicants and members access to, or membership or participation in, any real estate listing service, real estate brokers’ organization, or other service, organization, or facility relating to the business of selling, leasing, or renting a housing accommodation or to discriminate against him or her in the terms or conditions of the access, membership, or participation on account of race, color, religion, sex, sexual orientation, gender identity or expression, marital status, military status as a veteran with an honorable discharge or an honorable or general administrative discharge, servicemember in the armed forces, country of ancestral origin, disability, age, or familial status.

History of Section. P.L. 1990, ch. 398, § 2; P.L. 1995, ch. 32, § 2; P.L. 1997, ch. 150, § 8; P.L. 2001, ch. 340, § 2; P.L. 2015, ch. 161, § 1; P.L. 2015, ch. 180, § 1.

Compiler’s Notes.

P.L. 2015, ch. 161, § 1, and P.L. 2015, ch. 180, § 1 enacted identical amendments to this section.

Collateral References.

Actions Under Fair Housing Act ( 42 U.S.C. §§ 3604, 3617), Based on Harassment or Creation of Hostile Environment With Respect to Race or National Origin. 47 A.L.R. Fed. 3d Art. 3 (2020).

34-37-5.3. Fostering of segregated housing prohibited.

It shall be an unlawful discriminatory housing practice to for profit induce, or attempt to induce, any person to sell or rent any dwelling by representations regarding the entry or prospective entry into the neighborhood of a person or persons of a particular race, color, religion, marital status, lawful source of income, military status as a veteran with an honorable discharge or an honorable or general administrative discharge, servicemember in the armed forces, country of ancestral origin, sex, sexual orientation, gender identity or expression, age, disability, or familial status.

History of Section. P.L. 1990, ch. 398, § 2; P.L. 1995, ch. 32, § 2; P.L. 1997, ch. 150, § 8; P.L. 2001, ch. 340, § 2; P.L. 2015, ch. 161, § 1; P.L. 2015, ch. 180, § 1; P.L. 2021, ch. 3, § 1, effective April 15, 2021; P.L. 2021, ch. 4, § 1, effective April 15, 2021.

Compiler’s Notes.

P.L. 2015, ch. 161, § 1, and P.L. 2015, ch. 180, § 1 enacted identical amendments to this section.

P.L. 2021, ch. 3, § 1, and P.L. 2021, ch. 4, § 1 enacted identical amendments to this section.

34-37-5.4. Discrimination in residential real estate related transactions.

  1. It shall be unlawful for any person or other entity whose business includes engaging in residential real estate-related transactions to discriminate against any person in making available a transaction, or in the terms and conditions of the transaction, because of race, color, religion, marital status, military status as a veteran with an honorable discharge or an honorable or general administrative discharge, servicemember in the armed forces, country of ancestral origin, sex, sexual orientation, gender identity or expression, age, disability, or familial status.
  2. As used in this section, the term “residential real estate-related transaction” means any of the following:
    1. The making or purchasing of loans or providing other financial assistance:
      1. For purchasing, constructing, improving, repairing, or maintaining a dwelling; or
      2. Secured by residential real estate.
    2. The selling, brokering, or appraising of residential real property.
  3. Nothing in this chapter prohibits a person engaged in the business of furnishing appraisals of real property to take into consideration factors other than race, color, religion, marital status, military status as a veteran with an honorable discharge or an honorable or general administrative discharge, servicemember in the armed forces, country of ancestral origin, sex, sexual orientation, gender identity or expression, age, disability, or familial status.

History of Section. P.L. 1990, ch. 398, § 2; P.L. 1995, ch. 32, § 2; P.L. 1997, ch. 150, § 8; P.L. 2001, ch. 340, § 2; P.L. 2015, ch. 161, § 1; P.L. 2015, ch. 180, § 1.

Compiler’s Notes.

P.L. 2015, ch. 161, § 1, and P.L. 2015, ch. 180, § 1 enacted identical amendments to this section.

Collateral References.

Actions Under Fair Housing Act ( 42 U.S.C. §§ 3604, 3617), Based on Harassment or Creation of Hostile Environment With Respect to Race or National Origin. 47 A.L.R. Fed. 3d Art. 3 (2020).

Validity, construction, and application of § 804(c) of Civil Rights Act of 1968 (Fair Housing Act) (42 USCS § 3604(c)) prohibiting discriminatory notice, statement, or advertisement with respect to sale or rental of dwelling. 142 A.L.R. Fed. 1.

34-37-5.5. Freedom of condominium owners and apartment renters to display certain religious items.

  1. Except as otherwise provided by this section, a landlord or owner, as defined in § 34-18-11 ; a management committee, as defined in § 34-36-3 ; or an association of unit owners, as defined in § 34-36.1-1.03 (hereinafter “property owners”); may not enforce or adopt a restrictive covenant or otherwise prohibit a unit owner or tenant from displaying or affixing on the entry to the unit owner’s or tenant’s dwelling one or more religious items, the display of which is motivated by the unit owner’s or tenant’s sincere religious belief.
  2. This section does not prohibit the enforcement or adoption of a covenant that, to the extent allowed by the constitutions of this state and the United States, prohibits the display or affixing of a religious item on the entry to the unit owner’s or tenant’s dwelling that:
    1. Threatens the public health or safety;
    2. Violates the provisions of chapter 37 of title 34 or any other state or federal law barring discrimination in housing, or any other law;
    3. Is in a location other than the entry door or door frame or extends past the outer edge of the door frame of the unit owner’s or resident’s dwelling; or
    4. Individually, or in combination with each other religious item displayed or affixed on the entry door or door frame, has a total size of greater than twenty-five (25) square inches.
  3. Except as otherwise provided, this section does not authorize a unit owner or tenant to use a material or color for an entry door or door frame of the owner’s or resident’s dwelling or make an alteration to the entry door or door frame that is not authorized by the restrictive covenant governing the dwelling.
  4. A property owner’s association may remove an item displayed in violation of a restrictive covenant permitted by this section.

History of Section. P.L. 2015, ch. 174, § 1; P.L. 2015, ch. 184, § 1.

Compiler’s Notes.

P.L. 2015, ch. 174, § 1, and P.L. 2015, ch. 184, § 1 enacted identical versions of this section.

34-37-6. Judicial review and enforcement.

  1. Any complainant, intervener, or respondent claiming to be aggrieved by a final order of the commission may obtain judicial review thereof, and the commission may obtain an order of court for its enforcement, in a proceeding as provided in this section. The proceeding shall be brought in the superior court of the state within any county wherein the unlawful housing practices which are the subject of the commission’s order were committed or wherein any respondent, required in the order to cease and desist from unfair housing practices or to take other affirmative action, resides or transacts business.
  2. The proceeding shall be initiated by the filing of a petition in the court, and the service of a copy of the petition upon the commission and upon all parties who appeared before the commission. Thereupon the court shall have jurisdiction of the proceeding and of the questions determined therein, and shall have power to grant such temporary relief or restraining order as it deems just and proper, and to make and enter upon the pleadings, testimony, and proceedings set forth in the transcript an order enforcing, modifying, and enforcing as so modified, or setting aside in whole or in part the order of the commission.
  3. An objection that has not been urged before the commission, its member, or agent shall not be considered by the court, unless the failure or neglect to urge the objection shall be excused because of extraordinary circumstances.
  4. If either party shall apply to the court for leave to adduce additional evidence and shall show to the satisfaction of the court that the additional evidence is material and that there were reasonable grounds for the failure to adduce the evidence in the hearing before the commission, its member, or agent, the court may order the additional evidence to be taken before the commission, its member, or agent and to be made a part of the transcript.
  5. The commission may modify its findings as to the facts, or make new findings, by reason of additional evidence so taken and filed. The commission shall file the modified or new findings and its recommendations, if any, for the modification or setting aside of its original order.
  6. The jurisdiction of the court shall be exclusive and its judgment and order shall be, when necessary, subject to review by the supreme court as provided by law, to which court appeal from the judgment and order may be made as provided by law.
  7. The commission’s copy of the testimony shall be available at all reasonable times to all parties without cost of examination and for the purposes of judicial review of the order of the commission. The petition shall be heard on the transcript of the record without requirement of printing.
  8. The commission may appear in court by its own attorneys.
  9. If no proceeding to obtain judicial review is instituted by a complainant, intervener, or respondent within thirty (30) days from the service of an order of the commission pursuant to subsection (h) of § 34-37-5 , the commission or the complainant may obtain a decree of the court for the enforcement of the order upon showing that respondent is subject to the commission’s jurisdiction, and resides or transacts business within the county in which the petition for enforcement is brought.
  10. The commission may proceed in the same manner as provided in § 28-5-13 as to the powers, duties, and rights of the commission, its members, hearing examiners, the complainant, intervener, and respondent.

History of Section. P.L. 1965, ch. 27, § 1; P.L. 1990, ch. 398, § 1.

Collateral References.

Evidence of discriminatory effect alone as sufficient to prove, or to establish prima facie case of, violation of Fair Housing Act (42 USCS §§ 3601 et seq.). 100 A.L.R. Fed. 97.

34-37-7. Repealed.

History of Section. P.L. 1965, ch. 27, § 1; P.L. 1988, ch. 455, § 1; P.L. 1990, ch. 398, § 1; Repealed by P.L. 1995, ch. 32, § 3, effective May 22, 1995.

Compiler’s Notes.

Former § 34-37-7 concerned an educational program.

34-37-8. Appropriation.

The general assembly shall annually appropriate such sums as is deemed necessary to carry out the purposes of this chapter; and the state controller is hereby authorized and directed to draw his or her orders upon the general treasurer for the payment of such sum or so much thereof as may be required from time to time upon the receipt by him or her of properly authenticated vouchers.

History of Section. P.L. 1965, ch. 27, § 1.

34-37-9. Construction.

The provisions of this chapter shall be construed liberally for the accomplishment of the purposes intended and any provisions of any law inconsistent with any provisions hereof shall not apply. Nothing contained in this chapter shall be construed to repeal any of the provisions of any law of the state prohibiting discrimination based on race or color, religion, sex, marital status, military status as a veteran with an honorable discharge or an honorable or general administrative discharge, servicemember in the armed forces, country of ancestral origin, disability, age, or familial status. Nothing contained in this chapter shall restrict the original jurisdiction of the courts to proceed with evictions as provided in chapter 18 of this title.

History of Section. P.L. 1965, ch. 27, § 1; P.L. 1988, ch. 455, § 1; P.L. 1990, ch. 398, § 1; P.L. 1997, ch. 150, § 8; P.L. 2015, ch. 161, § 1; P.L. 2015, ch. 180, § 1.

Compiler’s Notes.

P.L. 2015, ch. 161, § 1, and P.L. 2015, ch. 180, § 1 enacted identical amendments to this section.

NOTES TO DECISIONS

In General.

The literal meaning of § 34-37-4 is precise, plain, and clear; therefore, literal reading presumptively gives its correct sense, and that sense cannot be ignored or disregarded merely because the legislature directed in this section that the provisions of the Fair Housing Practice Act shall be liberally construed in order to accomplish its purposes. Buffi v. Ferri, 106 R.I. 349 , 259 A.2d 847, 1969 R.I. LEXIS 634 (1969).

34-37-10. Severability.

If any clause, sentence, paragraph, or part of this chapter or the application thereof to any person or circumstance shall, for any reason, be adjudged by a court of competent jurisdiction to be invalid, that judgment shall not affect, impair, or invalidate the remainder of this chapter or its application to other persons or circumstances.

History of Section. P.L. 1965, ch. 27, § 1.

34-37-11. Short title.

This chapter may be cited as “The Rhode Island Fair Housing Practices Act”.

History of Section. P.L. 1965, ch. 27, § 1.

Chapter 37.1 Homeless Bill of Rights

34-37.1-1. Short title.

This chapter shall be known and may be cited as the “Homeless Bill of Rights.”

History of Section. P.L. 2012, ch. 316, § 1; P.L. 2012, ch. 356, § 1.

Compiler’s Notes.

P.L. 2012, ch. 316, § 1, and P.L. 2012, ch. 356, § 1 enacted identical versions of this chapter.

Law Reviews.

Michael F. Drywa, Jr., Rhode Island’s Homeless Bill of Rights: How Can the New Law Provide Shelter from Employment Discrimination?, 19 Roger Williams U. L. Rev. 716 (2014).

34-37.1-2. Legislative intent.

  1. At the present time, many persons have been rendered homeless as a result of economic hardship, a severe shortage of safe, affordable housing, and a shrinking social safety net.
  2. Article 1, Section 2 of the Rhode Island State Constitution states in part, that “All free governments are instituted for the protection, safety, and happiness of the people. All laws, therefore, should be made for the good of the whole; and the burdens of the state ought to be fairly distributed among its citizens. No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied equal protection of the laws.”
  3. Concordant with this fundamental belief, no person should suffer unnecessarily or be subject to unfair discrimination based on his or her homeless status. It is the intent of this chapter to ameliorate the adverse effects visited upon individuals and our communities when the state’s residents lack a home.

History of Section. P.L. 2012, ch. 316, § 1; P.L. 2012, ch. 356, § 1.

Law Reviews.

Michael F. Drywa, Jr., Rhode Island’s Homeless Bill of Rights: How Can the New Law Provide Shelter from Employment Discrimination?, 19 Roger Williams U. L. Rev. 716 (2014).

34-37.1-3. Bill of Rights.

No person’s rights, privileges, or access to public services may be denied or abridged solely because he or she is homeless. Such a person shall be granted the same rights and privileges as any other resident of this state. A person experiencing homelessness:

  1. Has the right to use and move freely in public spaces, including, but not limited to, public sidewalks, public parks, public transportation and public buildings, in the same manner as any other person, and without discrimination on the basis of his or her housing status;
  2. Has the right to equal treatment by all state and municipal agencies, without discrimination on the basis of housing status;
  3. Has the right not to face discrimination while seeking or maintaining employment due to his or her lack of permanent mailing address, or his or her mailing address being that of a shelter or social service provider;
  4. Has the right to emergency medical care free from discrimination based on his or her housing status;
  5. Has the right to vote, register to vote, and receive documentation necessary to prove identity for voting without discrimination due to his or her housing status;
  6. Has the right to protection from disclosure of his or her records and information provided to homeless shelters and service providers to state, municipal and private entities without appropriate legal authority; and the right to confidentiality of personal records and information in accordance with all limitations on disclosure established by the Federal Homeless Management Information Systems, the Federal Health Insurance Portability and Accountability Act, and the Federal Violence Against Women Act; and
  7. Has the right to a reasonable expectation of privacy in his or her personal property to the same extent as personal property in a permanent residence.

History of Section. P.L. 2012, ch. 316, § 1; P.L. 2012, ch. 356, § 1.

Law Reviews.

Michael F. Drywa, Jr., Rhode Island’s Homeless Bill of Rights: How Can the New Law Provide Shelter from Employment Discrimination?, 19 Roger Williams U. L. Rev. 716 (2014).

34-37.1-4. Damages and attorney’s fees.

In any civil action alleging a violation of this chapter, the court may award appropriate injunctive and declaratory relief, actual damages, and reasonable attorney’s fees and costs to a prevailing plaintiff.

History of Section. P.L. 2012, ch. 316, § 1; P.L. 2012, ch. 356, § 1.

Law Reviews.

Michael F. Drywa, Jr., Rhode Island’s Homeless Bill of Rights: How Can the New Law Provide Shelter from Employment Discrimination?, 19 Roger Williams U. L. Rev. 716 (2014).

34-37.1-5. Definitions.

For purposes of this chapter, “housing status” shall have the same meaning as that contained in § 34-37-3 .

History of Section. P.L. 2012, ch. 316, § 1; P.L. 2012, ch. 356, § 1.

34-37.1-6. Homeless persons with service animals — Homeless shelters.

Nothing in this chapter shall be construed to prohibit persons from entering a homeless shelter while in possession of a service animal as defined in the “Americans with Disabilities Act” (28 C.F.R. § 35.136) and the state and federal “fair housing acts.”

History of Section. P.L. 2018, ch. 214, § 1; P.L. 2018, ch. 297, § 1.

Compiler’s Notes.

P.L. 2018, ch. 214, § 1, and P.L. 2018, ch. 297, § 1 enacted identical versions of this section.

Chapter 38 Regulation of Out of State Real Estate Sales and Dispositions

34-38-1. Definitions.

Unless the context otherwise requires, the following terms shall be construed in this chapter to have the following meanings:

  1. “Broker” means a real estate broker duly licensed in this state;
  2. “Disposition” or “dispose of” means any advertisement, sale, exchange, lease, assignment, award by lottery, or other transaction designed to convey an interest in land, subdivision of land, parcel of real estate, lot, or unit thereof when undertaken for gain or profit;
  3. “Offer” means every advertisement, inducement, solicitation, or attempt to bring about a disposition;
  4. “Persons” means an individual, firm, company, association, corporation, government, or governmental subdivision or agency, business trust, estate, trust, partnership, unincorporated association, or organization, two (2) or more of any of the foregoing having a joint or common interest, or any other legal or commercial entity;
  5. “Purchaser” means a person who acquired an interest in any lot, parcel, or unit in a subdivision;
  6. “Salesperson” means any person duly licensed in this state as a real estate salesperson;
  7. “Seller” or “developer” means a person who is engaged in the business of disposition of an interest in any lot, parcel, or unit in a subdivision;
  8. “Subdivision” means any improved or unimproved land or tract of land located outside this state which is divided or proposed to be divided into five (5) or more lots, parcels, units or interests for the purpose of disposition at any time as part of a common promotional plan. Any land which is under common ownership or which is controlled by a single developer or a group of developers acting in concert, is contiguous in area, and is designated or advertised as a common unit or known by a common name, shall be presumed, without regard to the number of lots, parcels, units, or interests covered by each individual offering, to be part of a common promotional plan;
  9. “The department” means the Rhode Island department of business regulation and the director thereof or his or her deputy.

History of Section. P.L. 1972, ch. 56, § 1.

Comparative Legislation.

Out of state real estate sales regulations:

Conn. Gen. Stat. § 20-329a et seq.

Collateral References.

Broker’s liability for fraud or misrepresentation concerning development or nondevelopment of nearby property. 71 A.L.R.4th 511.

34-38-2. Exemptions.

  1. Unless the method of advertisement, offering or disposition is adopted or taken for the purpose of the evasion of the provisions of this chapter or the provisions of the federal Interstate Land Sales Full Disclosure Act, 15 U.S.C., § 1701 et seq., this chapter shall not apply to the making of any advertisement offer or disposition of any subdivision of lot, parcel, or unit or interest therein:
    1. By a purchaser of any subdivision, lot, parcel, or unit thereof for his or her own account in a single or isolated transaction;
    2. To any person who is engaged in the business of the construction of residential, commercial, or industrial buildings, other than any lot, parcel, unit, or interest in any subdivision as defined by § 34-38-1(8) for disposition;
    3. Pursuant to the order of any court in this state;
    4. By any government or government agency;
    5. To any offer or disposition of any evidence of indebtedness secured by way of any mortgage or deed of trust of real estate;
    6. To securities or units of interest issued by an investment trust regulated under the laws of this state;
    7. To cemetery lots;
    8. To the leasing of apartments, offices, stores, or the leasing of similar space within any apartment building, commercial building, or industrial building.
  2. The department may from time to time, pursuant to rules and regulations issued by it, exempt from any of the provisions of this chapter any subdivision if it finds that the enforcement of the sections with respect to the subdivision or lots, parcels, units, or interests is not necessary in the public interest and for the protection of purchasers by reason of the small amount involved or the limited character of the offering, or because the property has been registered and approved pursuant to the laws of any other state.
  3. Any subdivision which has been registered under the federal Interstate Land Sales Full Disclosure Act, 15 U.S.C., § 1701 et seq., shall be exempt from the provisions of § 34-38-3 upon filing with the department a certified copy of an effective statement of record filed with the secretary of housing and urban development together with a filing fee of one hundred dollars ($100) in respect of each subdivision covered by the effective statement of record.

History of Section. P.L. 1972, ch. 56, § 1.

Collateral References.

Construction of provision of 15 USCS § 1702(a)(2) exempting from Interstate Land Sales Full Disclosure Act (15 USCS §§ 1701-1720, as amended) sale or lease of land under contract obligating seller or lessor to erect building thereon within period of two years. 118 A.L.R. Fed. 647.

34-38-3. Filing requirements.

Any person or broker proposing to advertise, offer, or dispose of any subdivision or lot, parcel, unit, or interest therein in this state shall first submit to the department:

  1. Such particulars and details of the subdivision or lots, parcels, units or other interest in any subdivision to be advertised, offered, or to be disposed of as the department may by regulation require, including, but not limited to, a prospectus, property report, or offering statement embodying all the terms relative to the offering and disposition;
  2. A detailed statement of intended and proposed advertising and sale methods and techniques;
  3. A completed license application in such form as the department may require; and
  4. A filing fee of one hundred fifty dollars ($150) in respect of each subdivision to be offered or to be disposed of.

History of Section. P.L. 1972, ch. 56, § 1; P.L. 2004, ch. 595, art. 30, § 12.

34-38-4. Department investigation.

The department may, prior to issuing any license under this chapter to any person or broker, fully investigate all information placed before it under § 34-38-3 and in addition it may carry out a physical examination, investigation, or inspection of any subdivision which is the subject of the application. In addition, the department shall secure a written appraisal of the value of the properties to be offered both in their existing condition and after promised improvements, if any, from not less than one nor more than five (5) real estate appraisers who are not employees of the seller or any of its competitors, and who shall be selected by the department. All reasonable expenses incurred by the department in carrying out the examination, investigation, or inspection or securing the appraisals shall be paid by the applicant and no license shall be issued until the expenses have been fully paid.

History of Section. P.L. 1972, ch. 56, § 1.

34-38-5. Approval or disapproval of filing and issuance of license.

The department shall, upon completion of its investigation and inspection but, in the absence of any agreement to the contrary between the applicant and the department, in any case not later than three (3) months from the receipt of the completed license application, or receipt of the effective statement of record filed with the secretary of housing and urban development and filed with the department pursuant to § 34-38-2(c) , approve or disapprove the prospectus, property report, or offering statement submitted under § 34-38-2(c) or § 34-38-3 , as the case may be, and shall, if satisfied that the sale of the properties would not be fraudulent nor result in fraud nor be against the public interest, issue to the applicant a license to advertise, offer, and dispose of in this state the subdivision or parcels, units, or other interests in any subdivision the subject of the application or the effective statement of record; the license shall be valid for one year from the date of issuance and thereafter within thirty (30) days of expiration may be renewed annually upon payment to the department of a fee of one hundred dollars ($100) in respect of each subdivision covered by the license, unless there is a material change affecting the subdivision or lot, parcels, units, or other interest in any subdivision or the offer or disposition thereof, in which case all new facts shall be reported to the department immediately. Upon receipt of the report or in the event that any material change is discovered by or comes to the attention of the department through other sources, the department may, after hearing pursuant to the Administrative Procedures Act, chapter 35 of title 42, take such action as it considers necessary, including the suspension or revocation of the license if justified.

History of Section. P.L. 1972, ch. 56, § 1.

34-38-6. Requirements for offer or disposition.

  1. No subdivision or lot, parcel, unit, or interest in any subdivision shall be disposed of except through a broker, provided nothing herein shall be deemed to prohibit any broker from employing any salesperson for the specific purpose of offering or disposing of, on behalf of the broker and under contract to him or her any lot, parcel, unit or interest in any subdivision. Prior to any advertising offering or disposition, pursuant to any license granted under this chapter, the name of the broker shall be placed on file with the department.
  2. A clearly identified copy of the prospectus, property report, or offering statement shall be given to each purchaser by the broker or salesperson prior to the execution of any contract for the disposition of any property. The broker or salesperson shall obtain from the purchaser a signed receipt for a copy of the prospectus, property report, or offering statement and, if a contract for disposition shall be entered into, the receipt shall be kept in the broker’s files for a period of seven (7) years and shall be subject to inspection by the department.
  3. Any contract or agreement for the disposition of any subdivision or any lot, parcel, unit, or interest in any subdivision not exempt under the provision of § 34-38-2 , where the prospectus, property report, or offering statement has not been given to the purchaser more than seventy-two (72) hours in advance of his or her signing the contract or agreement, may be revoked by the purchaser within seventy-two (72) hours after he or she signed the same or after receipt by him or her of the prospectus, property report, or offering statement, whichever is the later, and the contract or agreement shall so provide. Any revocation shall be in writing in a form prescribed by the department and shall be communicated to the broker or the seller within the time limited by this section and all money paid by the purchasers under the revoked contract or agreement shall be returned to him or her immediately by the broker, without any deductions.

History of Section. P.L. 1972, ch. 56, § 1.

34-38-7. Advertisement and sale.

The department may from time to time pursuant to rules and regulations issued by it regulate and approve the methods and techniques permissible and allowable by any person or broker advertising, offering, or disposing of any subdivision or lot, parcel, unit, or interest therein in this state in order to insure that all prospective purchasers may be fully and fairly apprised of the offer or disposition in a manner that permits the purchasers a full opportunity for considered deliberation and evaluation of the offer or disposition.

History of Section. P.L. 1972, ch. 56, § 1.

34-38-8. Escrow account.

All money paid or advanced by a purchaser or lessee or prospective purchaser or prospective lessee in respect of any lot, parcel, unit, or interest in any subdivision, the advertisement, offering, or disposition of which is controlled by this chapter, or such portion thereof as the department may determine is sufficient for the protection of the interests of the purchaser or lessee, shall be deposited by the seller or lessor in an escrow account, approved by the department, in a bank doing business in this state. The money shall remain in such escrow account until:

  1. A proper and valid release is obtained therefor from the purchasers;
  2. The owner or subdivider or the purchaser or lessee has defaulted under their contract for sale or lease and the department or the court has made a determination as to the disposition of the money; or
  3. The owner or subdivider or the seller or lessor orders the return of the money to the purchaser or lessee.

History of Section. P.L. 1972, ch. 56, § 1.

34-38-9. Appointment of agent and service of process.

No seller or developer of out of state land included under the definition in § 34-38-1 shall directly or indirectly transact any business in this state until it shall have appointed in writing the director of business regulation of this state to be its true and lawful attorney for the service of process upon it in any action arising out of its activities under this chapter or proceeding against it may be served with the same legal force and validity as if served on it, which authority shall continue in force as long as any liability remains outstanding against it in this state. Whenever lawful process against a seller or developer included under the provisions of this chapter shall be served upon the director of business regulation, he or she shall forward a copy of the process served upon him or her, by mail, postpaid, and directed to the home office of the seller or developer; for each copy of the process the director of business regulation shall collect the sum of five dollars ($5.00), which shall be paid by the plaintiff at the time of the service, which sum is to be recovered by the plaintiff as part of the taxable costs if he or she prevails in the suit.

History of Section. P.L. 1972, ch. 56, § 1.

34-38-10. Violations.

Any broker or real estate salesperson, seller, or developer violating any provision of this chapter shall be guilty of a misdemeanor, and upon conviction thereof be fined not more than one hundred dollars ($100) or imprisoned for not more than six (6) months, or both, and shall in addition to any other penalty imposed by law, have his or her real estate broker’s or real estate salesperson’s license suspended or revoked by the department for such time as in the circumstances it considers justified.

History of Section. P.L. 1972, ch. 56, § 1.

34-38-11. Applicability.

This chapter shall not apply to time-share interests in real estate or any phase of time-share which shall solely be governed by chapter 41 of this title.

History of Section. P.L. 1984, ch. 141, § 1.

Chapter 39 Conservation and Preservation Restrictions on Real Property

34-39-1. Purpose.

The purpose of this chapter is to grant a special legal status to conservation restrictions and preservation restrictions so that landowners wishing to protect and preserve real property may do so without uncertainty as to the legal effect and enforceability of those restrictions. This chapter is further intended to provide the people of Rhode Island with the continued diversity of history and landscape that is unique to this state without great expenditures of public funds.

History of Section. P.L. 1976, ch. 231, § 1.

34-39-2. Definitions.

  1. A “conservation restriction” shall mean a right to prohibit or require a limitation upon or an obligation to perform acts on or with respect to or uses of a land or water area, whether stated in the form of a restriction, easement, covenant, or condition, in any deed, will, or other instrument executed by or on behalf of the owner of the area or in any order of taking, which right, limitation, or obligation is appropriate to retain or maintain the land or water area, or is appropriate to provide the public the benefit of the unique features of the land or water area, including improvements thereon predominantly in its natural, scenic, or open condition, or in agricultural, farming, open space, wildlife, or forest use, or in other use or condition consistent with the protection of environmental quality.
  2. A “preservation restriction” shall mean a right to prohibit or require a limitation upon or an obligation to perform acts on or with respect to or uses of a structure or site historically significant for its architecture, archaeology, or associations, whether stated in the form of a restriction, easement, covenant, or condition, in any deed, will, or other instrument executed by or on behalf of the owner of the structure or site or in any order of taking, which right, limitation or obligation is appropriate to the preservation or restoration of the structure or site.

History of Section. P.L. 1976, ch. 231, § 1.

34-39-3. Restrictions enforceable.

  1. No conservation restriction held by any governmental body or by a charitable corporation, association, trust, or other entity whose purposes include conservation of land or water areas or of a particular area, and no preservation restriction held by any governmental body or by a charitable corporation, association, trust, or other entity whose purposes include preservation of structures or sites of historical significance or of a particular structure or site, shall be unenforceable against any owner of the restricted land or structure on account of lack of privity of estate or contract, or lack of benefit to particular land, or on account of the benefit being assignable or being assigned to any other governmental body or to any entity with like purposes, or on account of any other doctrine of property law which might cause the termination of the restriction such as, but not limited to, the doctrine of merger and tax delinquency.
  2. This section shall not be construed to imply that any restriction easement, covenant, or condition which is not covered hereunder shall, on account of any provisions hereof, be unenforceable.
  3. The restrictions shall not be subject to the thirty year limitation on restrictive covenants provided in § 34-4-21 .
  4. The attorney general, pursuant to his or her inherent authority, may bring an action in the superior court to enforce the public interest in such restrictions.
  5. The court in any judicial proceeding, or the decision maker in any arbitration or other alternative dispute resolution proceeding, in addition to any other relief ordered, may award the prevailing party, reasonable attorney’s fees and costs incurred in the action or proceeding.
  6. A court action affecting a conservation restriction held by a private land trust, as defined in § 42-17.1-2(28)(ii) , may only be brought or intervened in by:
    1. An owner of property interest in the real property burdened by the conservation restriction;
    2. A holder of the conservation restriction;
    3. A person having a third-party right of enforcement stated in the recorded conservation restriction; or
    4. The attorney general as provided in subsection (d) of this section.

History of Section. P.L. 1976, ch. 231, § 1; P.L. 1988, ch. 198, § 1; P.L. 1988, ch. 292, § 1; P.L. 2010, ch. 307, § 1; P.L. 2010, ch. 312, § 1; P.L. 2011, ch. 116, § 1; P.L. 2011, ch. 120, § 1; P.L. 2012, ch. 317, § 1; P.L. 2012, ch. 352, § 1.

Compiler’s Notes.

P.L. 2011, ch. 116, § 1, and P.L. 2011, ch. 120, § 1 enacted identical amendments to this section.

P.L. 2012, ch. 317, § 1, and P.L. 2012, ch. 352, § 1 enacted identical amendments to this section.

34-39-4. Interests in real estate.

Conservation and preservation restrictions are interests in real estate and a document creating a restriction shall be deemed a conveyance of real estate for purposes of chapters 11 and 13 of this title. A restriction may be enforced by an action at law or by injunction or other proceeding in equity.

History of Section. P.L. 1976, ch. 231, § 1.

34-39-5. Release of restriction.

  1. Subject to the express terms of a conservation or preservation restriction: a restriction held by the state may be released in the same manner as land held by the state may be sold under chapter 7 of title 37; a restriction held by cities and towns may be released in the same manner as land held by cities and towns may be sold under § 45-2-5 ; and a restriction held by any other governmental body may be released in accordance with applicable statutes, regulations, and procedures.
  2. A charitable corporation, association, or other entity holding a restriction may release that restriction in accordance with the express terms of a restriction, applicable bylaws, or charter provisions of the holding entity, and applicable statutes and regulations.
  3. A conservation or preservation restriction may not be terminated or amended in such a manner as to materially detract from the conservation or preservation values intended for protection without the prior approval of the court in an action in which the attorney general has been made a party. Termination may be approved only when it is found by the court that the conservation or preservation restriction does not serve the public interest or publicly beneficial conservation or preservation purpose, taking into account, among other things, the purposes expressed by the parties in the restriction. An amendment that materially detracts from a specific conservation or preservation value intended for protection may be approved only when it is found by the court that the proposed amendment: is between a separate distinct conservation or preservation restriction holder and the fee landowner; creates a net gain in the overall conservation or preservation purpose for which it was intended; and is consistent with the conservation or preservation purposes expressed by the parties in the restriction and the public conservation or preservation interest. No such approval may be sought except with the consent of the holder. If the value of the landowner’s estate is increased by reason of the amendment or termination of a conservation or preservation restriction, that increase shall be paid over to the holder, or to such nonprofit or governmental entity as the court may designate, to be used for the protection of conservation lands or historic resources consistent, as nearly possible, with the stated publicly beneficial conservation or preservation purposes of the restriction.

History of Section. P.L. 1976, ch. 231, § 1; P.L. 2011, ch. 116, § 1; P.L. 2011, ch. 120, § 1; P.L. 2016, ch. 78, § 1; P.L. 2016, ch. 80, § 1.

Compiler’s Notes.

P.L. 2011, ch. 116, § 1, and P.L. 2011, ch. 120, § 1 enacted identical amendments to this section.

P.L. 2016, ch. 78, § 1, and P.L. 2016, ch. 80, § 1 enacted identical amendments to this section.

34-39-6. Use of eminent domain against conservation restrictions.

Any state or local agency that is exercising a right of eminent domain over any land which is protected with a conservation restriction or preservation restriction, shall notify the agency or organization that holds the conservation or preservation restriction and the Rhode Island department of environmental management at the same time they are notifying fee property owners of their intentions to condemn the properties. Such notification shall include an explanation of the public purpose for which the land protected by the conservation or preservation restriction is being condemned.

History of Section. P.L. 2013, ch. 427, § 1; P.L. 2013, ch. 533, § 1.

Compiler’s Notes.

P.L. 2013, ch. 427, § 1, and P.L. 2013, ch. 533, § 1 enacted nearly identical versions of this section.

Chapter 39.1 The Holders of Low and Moderate Income Housing Restrictions Act

34-39.1-1. Short title.

This act shall be known and may be cited as “The Holders of Low and Moderate Income Housing Restrictions Act”.

History of Section. P.L. 1991, ch. 237, § 1.

34-39.1-2. Legislative purpose.

The general assembly recognizes and declares that there exists in the state of Rhode Island a serious shortage of decent, safe and sanitary housing units available and affordable to persons and families of low and moderate income. The inadequacy in the supply of decent, safe, and sanitary affordable housing endangers the public health and jeopardizes the public safety, general welfare, and good of the entire state. To obtain the benefits of restrictions which seek to preserve and maintain affordable housing, the general assembly does hereby grant special status to the restrictions so a restriction holder may enforce the restrictions without uncertainty as to the legal effect and enforceability of the restrictions.

History of Section. P.L. 1991, ch. 237, § 1.

34-39.1-3. Definitions.

For purposes of this chapter:

  1. “Housing restriction” means any obligation or requirement to maintain real estate affordable for rental to or purchase by low and moderate income citizens of the state or any limitation on the future use or transfer of the real estate, whether stated in the form of a charge, encumbrance, financing instrument, easement, covenant, or condition in any deed, agreement, or other instrument executed by or on behalf of the owner of the real estate.
  2. “Restriction holder” means any nonprofit corporation, partnership, association, cooperative, or trust established for the primary purpose of owning, operating, leasing, preserving, or maintaining housing affordable to persons and families of low and moderate income, and entities that provide financing, land, or other benefits related to the development and preservation of affordable housing including, but not limited to, state agencies, municipalities, foundations, Rhode Island housing and mortgage finance corporation, and public housing authorities.

History of Section. P.L. 1991, ch. 237, § 1; P.L. 2006, ch. 368, § 4; P.L. 2006, ch. 464, § 4.

34-39.1-4. Housing restrictions enforceable.

  1. No housing restriction, whether presently existing or hereafter created, that is held by a restriction holder shall be unenforceable against an owner or assignee of any real estate subject to the housing restriction because of lack of privity of estate or contract, or lack of benefit to particular land, or on account of any other common law doctrine of property law which might cause the termination of the housing restriction.
  2. This section shall not be construed to imply that restriction, charge, encumbrance, easement, covenant, or condition which is not covered hereunder shall, on account of any provisions hereof, be unenforceable.
  3. A housing restriction as defined in § 34-39.1-3(a) shall not be subject to the thirty (30) year limitation on restricted covenants provided for in § 34-4-21 .
  4. A housing restriction as defined in subsection 34-39.1-3(a) shall not be subject to any of the limitations on possibilities of reverter and rights of entry or expirations or invalidity of restrictive covenants provided for in § 34-4-19 , 34-4-20 , 34-4-22 , 34-4-23 or 34-4-26 .

History of Section. P.L. 1991, ch. 237, § 1; P.L. 2006, ch. 368, § 4; P.L. 2006, ch. 464, § 4.

34-39.1-5. Interests in real estate.

Housing restrictions are interests in real estate and may be assigned by the party that holds the housing restriction to any other restriction holder. A document creating a restriction shall be deemed a conveyance of real estate for purposes of chapters 11 and 13 of this title. A restriction may be enforced by an action at law or by injunction or other proceedings in equity.

History of Section. P.L. 1991, ch. 237, § 1.

34-39.1-6. Invalidity of certain restrictive covenants.

Since decent, safe and sanitary housing units available and affordable to persons and families of low and moderate income must by their nature be situated in residential areas, including exclusively residential areas and also mixed use areas, any restrictive covenant or other private legal impediment which directly or indirectly prevents or restricts the establishment of housing subject to a housing restriction as defined in this chapter, excluding conservation restrictions and preservation restrictions as defined in § 34-39-2 , shall be void and unenforceable.

History of Section. P.L. 2006, ch. 368, § 5; P.L. 2006, ch. 464, § 5.

Chapter 40 Solar Easements

34-40-1. Definitions.

For the purposes of this chapter:

  1. “Solar easement” means a right, whether or not stated in the form of restriction, easement, covenant, or conditions in any deed, will, or other instrument executed by or on behalf of any owner of land or solar skyspace for the purpose of ensuring adequate exposure of a solar energy system as defined in § 44-39-1(b)(1).
  2. “Solar skyspace” means the space between a solar energy system and the sun which must remain unobstructed such that on any given clear day of the year, not more than ten percent (10%) of the collectible insolation shall be blocked.

History of Section. P.L. 1981, ch. 292, § 1.

34-40-2. Creation of solar easements.

  1. Any property owner may grant a solar easement in the same manner and with the same effect as a conveyance of an interest in real property. The solar easements shall be created in writing and shall be subject to the same conveyancing and instrument recording requirements as any other instrument affecting the title of real property. The solar easements shall run with the land or lands benefited and burdened and shall constitute a perpetual easement, absent any terms and/or conditions under which the solar easement is granted or may be terminated.
  2. Any instrument creating a solar easement shall include but not be limited to:
    1. A description of the real property subject to the solar easement and a description of the real property benefiting from the solar easement;
    2. A description of the vertical and horizontal angles, expressed in degrees and measured from the site of the solar energy system, at which the solar easement extends over the real property subject to the solar easement, or any other description which defines the three-dimensional space, or the place in which and times of day during which an obstruction to direct sunlight is prohibited or limited;
    3. Any terms and/or conditions under which the solar easement is granted or may be terminated;
    4. Any provisions for compensation of the owner of the property benefiting from the solar easement in the event of interference with the enjoyment of the provisions of the solar easement, or any provisions for compensation of the owner of the property subject to the solar easement for maintaining the easement.

History of Section. P.L. 1981, ch. 292, § 1.

Chapter 41 Rhode Island Real Estate Time-Share Act

Article I General Provisions

34-41-1.01. Short title.

This chapter may be cited as the “Rhode Island Real Estate Time-Share Act”.

History of Section. P.L. 1984, ch. 141, § 2.

34-41-1.02. Definitions.

In any time-share instrument, unless specifically provided otherwise or the context otherwise requires, and in this chapter:

  1. “Affiliate of a developer” means any person who controls, is controlled by, or is under common control with a developer. A person “controls” a developer if the person (i) is a general partner, officer, director, or employer of the developer, (ii) directly or indirectly or acting in concert with one or more other persons, or through one or more subsidiaries, owns, controls, holds with power to vote, or holds proxies representing, more than twenty percent (20%) of the voting interest in the developer, (iii) controls in any manner the election of a majority of the directors of the developer, or (iv) has contributed more than twenty percent (20%) of the capital of the developer. A person “is controlled by” a developer if the developer (i) is a general partner, officer, director, or employer of the person, (ii) directly or indirectly or acting in concert with one or more other persons, or through one or more subsidiaries, owns, controls, holds with power to vote, or holds proxies representing, more than twenty percent (20%) of the voting interest in the person, (iii) controls in any manner the election of a majority of the directors of the person, or (iv) has contributed more than twenty percent (20%) of the capital of the person. Control does not exist if the powers described in this subdivision are held solely as security for an obligation and are not exercised.
  2. “Association” means the association organized under § 34-41-3.01(a) .
  3. “Conversion building” means a building that at any time before the disposition of any time share was occupied wholly or partially by persons other than purchasers and persons who occupied with the consent of purchasers.
  4. “Developer” means any person who (i) offers to dispose of or disposes of his or her interest in a time share not previously disposed of, or (ii) succeeds under § 34-41-3.04 to any special developer right, or (iii) applies for registration of the time share under Article V of this chapter.
  5. “Dispose” or “disposition” means a voluntary transfer of any legal or equitable interest in a time share, but does not include the transfer or release of a security interest.
  6. “Manager” means any person, other than all time-share owners or the association, designated in or employed pursuant to the time-share instrument or project instrument to manage the time-share units.
  7. “Managing entity” means the manager or, if there is no manager, the association.
  8. “Offering” means any advertisement, inducement, solicitation, or attempt to encourage any person to acquire a time share, other than as security for an obligation. An advertisement in a newspaper or other periodical of general circulation, or in any broadcast medium to the general public, of a time share in a unit not located in this state, is not an offering if the advertisement states that an offering may be made only in compliance with the law of the jurisdiction in which the unit or units are located; such offering shall contain the following language in bold-faced print “THIS IS NOT AN OFFERING PROTECTED BY THE RHODE ISLAND REAL ESTATE TIME-SHARE ACT;” provided, however, if the subject time-share property is registered pursuant to Article V of this chapter, such language need not be printed on the offering.
  9. “Person” means a natural person, corporation, government, governmental subdivision or agency, business trust, estate, trust, partnership, association, joint venture, or other legal or commercial entity. (In the case of a land trust, however, “person” means the beneficiary of the trust rather than the trust or the trustee.)
  10. “Project” means real property, subject to a project instrument, containing more than one unit. A project may include units that are not time-share units.
  11. “Project instrument” means one or more recordable documents, by whatever name denominated, applying to the whole of a project and containing restrictions or covenants regulating the use, occupancy, or disposition of units in a project, including any amendments to the document but excluding any law, ordinance, or governmental regulation.
  12. “Purchaser” means any person, other than a developer, who by means of a voluntary transfer acquires a legal or equitable interest in a time share other than as security for an obligation.
  13. “Time share” means a time-share estate or a time-share license.
  14. “Time share estate” means a right to occupy a unit or any of several units during five (5) or more separated time periods over a period of at least five (5) years, including renewal options, coupled with a freehold estate or an estate for years in a time-share property or a specified portion thereof.
  15. “Time-share expenses” means expenditures, fees, charges, or liabilities (i) incurred with respect to the time shares by or on behalf of all time-share owners in one time-share property, and (ii) imposed on the time-share units by the entity governing a project of which the time-share property is a part, together with any allocations to reserves, but excluding purchase money payable for time shares.
  16. “Time-share instrument” means one or more documents, by whatever name denominated, creating or regulating time shares.
  17. “Time-share liability” means the liability for time-share expenses allocated to each time share pursuant to § 34-41-2.02(a)(4) .
  18. “Time-share license” means a right to occupy a unit or any of several units during five (5) or more separated time periods over a period of at least five (5) years, including renewal options, not coupled with a freehold estate or an estate for years.
  19. “Time-share owner” means a person who is an owner or co-owner of a time share other than as security for an obligation.
  20. “Time-share property” means one or more time-share units subject to the same time-share instrument, together with any other real estate or rights therein appurtenant to those units.
  21. “Time-share unit” means a unit in which time shares exist.
  22. “Unit” means real property, or a portion thereof, designated for separate use.
  23. “Venue and jurisdiction” means that jurisdiction is conferred on the superior court and the general rules of venue are unaffected by this chapter.

History of Section. P.L. 1984, ch. 141, § 2.

34-41-1.03. Status and taxation of time-share estates.

  1. Except as expressly modified by this chapter and notwithstanding any contrary rule of common law, a grant of an estate in a unit conferring the right of possession during a potentially infinite number of separated time periods creates an estate in fee simple having the character and incidents of such an estate at common law, and a grant of an estate in a unit conferring the right of possession during five (5) or more separated time periods over a finite number of years equal to five (5) or more, including renewal options, creates an estate for years having the character and incidents of such an estate at common law.
  2. Each time-share estate constitutes for all purposes a separate estate in real property. Assessments shall be made on the real property value of the interval time-share estates, or on the real property value of the development.
    1. Notwithstanding anything herein, and/or notwithstanding any of the provisions of chapter 34-36 (“Condominium Ownership Act”), 34-36.1 (“Rhode Island Condominium Act”), or 34-41 (“Rhode Island Real Estate Time-Share Act”) to the contrary the tax assessor may use any identifiable and commonly accepted method of appraisal as a basis for arriving at value conclusions for the interval time-share estate or the development, including, but not limited to, elements of replacement cost, income analysis, and comparable sales of time-share interval estates, similarly configured hotels, and/or real estate developments, with appropriate deductions for personal property, intangible assets, and excess marketing costs, allowing for application of discounted cash flow methodology where appropriate.
    2. In making an assessment of the real property value of the interval time-share estates or the development, tax assessor notices of assessment and bills for taxes must be furnished to the managing entity, if any, or otherwise to each time-share owner, but the managing entity is not liable for the taxes as a result thereof. In accordance herein, each municipality is hereby authorized and empowered to exercise all rights and powers for the collection of taxes as are conferred by virtue of title 44.
    3. This section shall apply to fee and non-fee time-share real property.
  3. A document transferring or encumbering a time-share estate may not be rejected for recordation because of the nature or duration of that estate.

History of Section. P.L. 1984, ch. 141, § 2; P.L. 2007, ch. 524, § 1.

NOTES TO DECISIONS

Taxation of Time-Share Units.

The General Assembly elected to tax time-share estates not as individual units but as one collective development. Inn Group Assoc. v. Booth, 593 A.2d 49, 1991 R.I. LEXIS 122 (1991).

The division of a condominium into time shares has no effect on the condominium for tax purposes under the Condominium Act. Inn Group Assoc. v. Booth, 593 A.2d 49, 1991 R.I. LEXIS 122 (1991).

— Assessment.

Assessments can be made only on the entire time-share development as a whole unit. Nos Ltd. Partnership v. Booth, 654 A.2d 308, 1995 R.I. LEXIS 29 (1995).

— Fair Market Value.

Although the tax assessor is not bound by any particular formula, rule, or method in seeking to ascertain the fair market value of real estate, it is imperative that the tax assessor indeed ascertain the fair market value of the subject real property, not the nature of the estate by which the property is held by the taxpayer. Nos Ltd. Partnership v. Booth, 654 A.2d 308, 1995 R.I. LEXIS 29 (1995).

Collateral References.

Property taxation of residential time-share or interval-ownership units. 80 A.L.R.4th 950.

34-41-1.04. Variation by agreement.

Except as expressly provided in this chapter, provisions of this chapter may not be varied by agreement, and rights conferred by this chapter may not be waived. A developer may not act under a power of attorney, or use any other device, to evade the limitations or prohibitions of this chapter or of the time-share instrument.

History of Section. P.L. 1984, ch. 141, § 2.

34-41-1.05. Unconscionable agreement or term of contract.

  1. The court, upon finding as a matter of law that a contract or contract clause was unconscionable at the time the contract was made, may refuse to enforce the contract, enforce the remainder of the contract without the unconscionable clause, or limit the application of any unconscionable clause in order to avoid an unconscionable result.
  2. Whenever it is claimed, or appears to the court, that a contract or any contract clause is or may be unconscionable, the court, in order to aid the court in making the determination, shall afford the parties a reasonable opportunity to present evidence as to:
    1. The commercial setting of the negotiations;
    2. Whether a party has knowingly taken advantage of the inability of the other party reasonably to protect his or her interests by reason of physical or mental infirmity, illiteracy, or inability to understand the language of the agreement or similar factors;
    3. The effect and purpose of the contract or clause; and
    4. If a sale, any gross disparity, at the time of contracting, between the amount charged for the time share and the value of the time share measured by the price at which similar time shares were readily obtainable, but a disparity between the contract price and the value of the time share measured by the price at which a similar time share was readily obtainable in similar transactions does not, of itself, render the contract unconscionable.

History of Section. P.L. 1984, ch. 141, § 2.

34-41-1.06. Obligation of good faith.

Every contract or duty governed by this chapter imposes an obligation of good faith in its performance or enforcement.

History of Section. P.L. 1984, ch. 141, § 2.

34-41-1.07. Remedies to be liberally administered.

  1. The remedies provided by this chapter shall be liberally administered to the end that the aggrieved party is put in as good a position as if the other party had fully performed. However, consequential, special, or punitive damages may not be awarded except as specifically provided in this chapter or by other rule of law.
  2. Any right or obligation declared by this chapter is enforceable by judicial proceeding.

History of Section. P.L. 1984, ch. 141, § 2.

34-41-1.08. Supplemental general principles of law applicable.

The principles of law and equity, including the law of corporations (and unincorporated associations), the law of real property and the law relative to capacity to contract, principal and agent, eminent domain, estoppel, fraud, misrepresentation, duress, coercion, mistake, receivership, substantial performance, or other validating or invalidating cause supplement the provisions of this chapter, except to the extent inconsistent with this chapter.

History of Section. P.L. 1984, ch. 141, § 2.

34-41-1.09. Conflicts with other statutes.

This chapter shall be the sole law of this state governing the creation and disposition of time shares. In the event of any conflict between this chapter and chapters 36, 36.1 or 38 of this title, the provisions of this chapter prevail, but this chapter does not invalidate or otherwise affect rights or obligations vested under those statutes before May 7, 1984, or the manner of their exercise or enforcement.

History of Section. P.L. 1984, ch. 141, § 2.

34-41-1.10. [Reserved.]

34-41-1.11. Applicability.

  1. This chapter applies to all time shares created in units within this state after May 7, 1984. Sections 34-41-1.03 (Status and Taxation of Time-Share Estates), 34-41-1.08 (Supplemental General Principles of Law Applicable), 34-41-1.05 (Unconscionable Agreement or Term of Contract), 34-41-1.06 (Obligation of Good Faith), 34-41-1.07 (Remedies to be Liberally Administered), 34-41-2.04 (Partition), 34-41-3.02(a)(1) through (9) and (14) through (16) and (b) (Powers of Managing Entity), 34-41-3.07 (Tort and Contract Liability), 34-41-3.11 (Lien for Assessments), 34-41-3.13 (Authority of Trustee), 34-41-4.09 (Liens), 34-41-4.14 (Statute of Limitation for Warranties), and § 34-41-1.02 (Definitions) to the extent necessary in construing any of those sections, apply to all time shares created in units in this state before May 7, 1984, but only with respect to events and circumstances occurring after May 7, 1984. They do not affect the validity of, or rights or obligations created by, pre-existing provisions of any time-share instrument, document transferring an estate or interest in real property, or contract.
  2. The time-share instrument of any time-share property created before May 7, 1984 may be amended to accomplish any result permitted by this chapter if the amendment is adopted in conformity with applicable law and with the procedures and requirements specified by the instrument. If the amendment grants to any person any rights, powers, or privileges permitted by this chapter, all correlative obligations, liabilities, and restrictions in this chapter also apply to that person.
  3. This chapter does not apply to time shares in units located outside this state, but the public offering statement provisions (§§ 34-41-4.03 — 34-41-4.06 and 34-41-4.08 ) apply to all dispositions thereof signed in this state by any party unless exempt under § 34-41-4.01(b) and the agency regulation provisions under Article V of this chapter apply to any offering thereof in this state and the purchaser of units located outside of this state shall have the option of requiring the escrow of deposits pursuant to § 34-41-4.08 or may rescind such sales contract pursuant to § 34-41-4.06 .

History of Section. P.L. 1984, ch. 141, § 2.

34-41-1.12. Severability.

If any provision of this chapter or the application thereof to any person or circumstances is held invalid, the invalidity does not affect other provisions or applications of this chapter which can be given effect without the invalid provisions or application, and to this end the provisions of this chapter are severable.

History of Section. P.L. 1984, ch. 141, § 2.

Article II Creation, Termination and Incidents of Time Shares

34-41-2.01. Time shares in projects.

  1. If all of the documents constituting the project instrument are recorded after May 7, 1984, time shares may not be created in any unit in a project unless expressly permitted by the project instrument. No amendment to a project instrument which is recorded after May 7, 1984 may permit the creation of time shares unless the owners of at least eighty percent (80%) of the units, or any larger majority required by the project instrument or by law, consent to the amendment.
  2. A municipality by and through adoption of its zoning ordinance shall be empowered to designate zones in which time-share ownership of property is permitted by right or by special exception, provided however that time share ownership of property shall be permitted in zones where hotels-motels are permitted by right or by special exception. In the event the municipality does not adopt an ordinance designating zones in which time share ownership of property is permitted by right or by special exception, this section shall not be construed to require a designation of a time share zone prior to development, nor impose any requirement upon a time share property which the zoning code of the respective community would not impose upon a physically identical development under a different form of ownership.

History of Section. P.L. 1984, ch. 141, § 2.

34-41-2.02. Time-share instrument.

  1. Except as provided in subsection (b), more than twelve (12) time shares may be created in a single time-share property only by a time-share instrument containing or providing for the following matters:
    1. A legally sufficient description of the time-share property and the name or other identification of the project, if any, within which it is situated;
    2. The name of the municipalities in which the time-share property is situated;
    3. Identification of time periods by letter, name, number or combination thereof;
    4. The time-share expense liability and any voting rights assigned to each time share;
    5. If additional units may become part of the time-share property, the method of doing so and the formula for allocation and reallocation of the time-share expense liabilities and any votes;
    6. The method of designating the insurance trustee required under § 34-41-3.08 ;
    7. Allocation of time for maintenance of the time-share units;
    8. Provisions for management by a managing entity or by the time-share owners;
    9. If all of the time shares are time-share licenses, the rights a licensee shall have, if his or her license is terminated, with respect to any of the property his or her license affects, or a statement that he or she shall not have any rights; and
    10. Any requirements for amendments of the time-share instrument.
  2. If a time-share license applies to units in more than one time-share property, the time-share instrument creating the license need not contain or provide for the matters specified in subdivisions (1) — (7) of subsection (a).

History of Section. P.L. 1984, ch. 141, § 2.

34-41-2.03. Allocation of time-share expense liability and voting rights.

  1. The time-share instrument must state the amount of or formula used to determine any time-share expense liability allocated to each time share.
  2. If the time-share instrument provides for voting, it must allocate votes to each time-share unit and to each time-share estate and may allocate votes to any time-share license. It may not allocate any votes to any other property or to any person who is not a time-share owner. The number of votes allocated to each time share must be equal for all time shares or proportionate to each time share’s value as estimated by the developer, time-share expense liability, or unit size. The time-share instrument may specify some matters as to which the votes must be equal and others as to which they must be proportionate.
  3. Except as otherwise provided pursuant to § 34-41-2.02(a)(5) , the votes and time-share expense liability allocated to a time share may not be altered without the unanimous consent of all time-share owners entitled to vote and voting at a meeting in which at least eighty percent (80%), or in an initiative or referendum in which at least eighty percent (80%), of the votes allocated to time shares are cast.
  4. Except for minor variations due to rounding, the sum of the time-share expense liabilities assigned to all time shares must equal one if stated as fractions or one hundred percent (100%) if stated as percentages. In the event of discrepancy between the time-share liability or votes allocated to a time share and the result derived from the application of the formulas, the allocated time-share expense liability of vote prevails.

History of Section. P.L. 1984, ch. 141, § 2.

34-41-2.04. Partition.

No action for partition of a time-share unit may be maintained except as permitted by the time-share instrument or by § 34-41-2.05(c)(2) .

History of Section. P.L. 1984, ch. 141, § 2.

34-41-2.05. Termination of time-shares.

  1. This section applies to all time-share estates, except it shall apply to time-share licenses only to the extent expressly provided by the time-share instrument.
  2. All time-shares in a time-share property may be terminated only as follows:
    1. By agreement of the time-share owners having at least sixty percent (60%) of the time-shares, or such larger majority as the time-share instrument may specify; or
    2. Any provision in the time-share instrument notwithstanding, by a plan of termination approved by the lesser of the lowest percentage of voting interests necessary to amend the instrument, or as otherwise provided in the instrument for approval of termination if:
      1. The estimated cost of construction for repairs that are necessary to restore the time-share property to its former condition or bring the time-share property into compliance with applicable laws or regulations exceeds the combined fair-market value of the units in the time-share property after completion of the construction or repairs;
      2. It becomes impossible to operate or reconstruct a time-share property to its prior physical configuration because of land-use laws or regulations;
      3. The association is not paying its debts as they become due;
      4. The association’s debts exceed its assets;
      5. More than twenty-five percent (25%) of the association members are delinquent in payment of the annual maintenance fee or any special assessments.
  3. An agreement to terminate all time-shares pursuant to subsection (b)(1) shall comply with the following:
    1. An agreement to terminate all time-shares in a time-share property must be evidenced by the execution of a termination agreement, or ratifications thereof, in the same manner as a deed, by the requisite number of time-share owners. The termination agreement must specify a date after which the agreement will be void unless it is recorded before that date. A termination agreement and a certification by the managing entity of the ratification thereof must be recorded in every municipal office of land-evidence records in which a portion of the time-share property is situated, and is effective only upon recordation.
    2. Unless the termination agreement sets forth the material terms of a contract, or proposed contract, under which an estate or interest in each time-share unit equal to the sum of the time-shares therein is to be sold and designates a trustee to effect the sale, title to an estate or interest in each time-share unit equal to the sum of the time-shares therein vests upon termination in the time-share owners thereof, in proportion to their respective interests as provided in subsection (e), and liens on the time-shares shift accordingly to encumber those interests. Any co-owner of that estate or interest in a unit may thereafter maintain an action for partition or for allotment or sale in lieu of partition pursuant to the laws of this state.
    3. If the termination agreement sets forth the material terms of a contract or proposed contract under which an estate or interest in each time-share unit equal to the sum of the time-shares therein is to be sold and designates a trustee to effect the sale, title to that estate or interest vests upon termination in the trustee, for the benefit of the time-share owners, in fee simple and free and clear of all liens and encumbrances, to be transferred pursuant to the contract. Proceeds of the sale must be distributed to time-share owners with the fractional interests in the time-shares and lienholders as their interests may appear, in proportion to the respective interests of the time-share owners as provided in subsection (e). After the title so vests in the trustee, the time-share owners shall have no further real property ownership interest or other right in and to their former unit, and their interest and rights shall be limited to only the proceeds remaining with the trustee or the registry of the court except as may be provided in subsection (c)(4) of this section.
    4. Except as otherwise specified in the termination agreement, so long as the former time-share owners or their trustee hold title to the estate or interest equal to the sum of the time-shares, each former time-share owner and his or her successors in interest have the same rights with respect to occupancy in the former time-share unit that he or she would have had if termination had not occurred, together with the same liabilities and other obligations imposed by this chapter or the time-share instrument.
  4. After termination of all time-shares in a time-share property and adequate provision for the payment of any liens or encumbrances on the property of the association and the claims of the creditors for time-share expenses, distribution must be made, in proportion to their respective interests as provided in subsection (e), to the former time-share owners and the mortgagees and lien holders having an interest in their respective time-share units as their interests may appear and their successors in interest of (i) The proceeds of any sale pursuant to this section; (ii) The proceeds of any personalty held for the use and benefit of the former time-share owners; and (iii) Any other funds held for the use and benefit of the former time-share owners. Following termination, creditors of the association holding liens perfected against the time-share property before the termination may enforce those liens against only the proceeds from the sale of the property in the same manner as any other lienholder. All other creditors of the association are to be treated as if they had perfected liens on the time-share property immediately before termination.
  5. The termination instrument may specify the respective fractional or percentage interest in the proceeds from the sale of each unit equal to the sum of the time-shares therein that will be owned by each former time-share owner. If specified in the termination instrument, the percentage interests shall be based upon an appraisal of the fair-market value of each time-share by one or more impartial qualified appraisers. Otherwise, not more than one hundred eighty (180) days prior to the termination, an appraisal must be made of the fair-market value of each time-share by one or more qualified appraisers selected either by the trustee designated in the termination agreement, or by the managing entity if no trustee was so designated. The appraisal must also state the corresponding fractional or percentage interests calculated in proportion to those values and in accordance with this subsection. A notice stating all of those values and corresponding interests and the return address of the sender must be sent by certified or registered mail, return receipt requested, by the managing entity or by the trustee designated in the termination agreements, to all of the time-share owners at their last known address as shown on the records of the association. The appraisal governs the magnitude of each interest and shall be presented to the superior court sitting in the county in which the time-share property is located for review and approval and distribution of the proceeds of the sale pursuant to the termination plan unless (i) At least twenty-five percent (25%) of the time-share owners deliver, within sixty (60) days after the date the notices were mailed, written disapprovals to the return address of the sender of the notice, or (ii) The final judgment of a court of competent jurisdiction, entered during or after that period, holds that the appraisal should be set aside. The appraisal and the calculation of interests must be made in accordance with the following:
    1. If the termination agreement sets forth the material terms of a contract, or proposed contract, for the sale of the estate or interest equal to the sum of the time-shares, each time-share conferring a right of occupancy during a limited number of time periods must be appraised as if the time until the date specified for the conveyance of the property had already elapsed. Otherwise, each time-share of that kind must be appraised as if the time until the date specified pursuant to subsection (c) had already elapsed.
    2. The interest of each time-share owner is the value of the time-share he or she owned divided by the sum of the values of all time-shares in the unit or units to which his or her time-share applies.
  6. Foreclosure or enforcement of a lien or encumbrance against all of the time-shares in a time-share property does not of itself terminate those time-shares. Provided, however, a foreclosure sale of a time-share association lien conducted in accordance with the Rhode Island general laws shall be deemed to vest title in the grantee/transferee at that sale upon the recording of the foreclosure deed, without further action if no adverse litigation contesting that foreclosure has been commenced within one year after recording of that foreclosure deed or the effective date of this statute, whichever is later, and if there is no cause of action commenced based solely on the consideration for that purchase pending within one year of the recording of that foreclosure deed or the effective date of this statute, whichever is later.

History of Section. P.L. 1984, ch. 141, § 2; P.L. 2016, ch. 167, § 1; P.L. 2016, ch. 169, § 1; P.L. 2018, ch. 343, § 1.

Compiler’s Notes.

P.L. 2016, ch. 167, § 1, and P.L. 2016, ch. 169, § 1 enacted identical amendments to this section.

34-41-2.06. Use for sales purposes.

A developer may maintain sales offices, management offices, and models in the time-share property only if the time-share instrument so provides and specifies the rights of a developer with regard to the number, size, location, and relocation thereof, and he or she may maintain signs on the property advertising the property. The provisions of this section are subject to the provisions of other state law, local ordinances, and the project instruments.

History of Section. P.L. 1984, ch. 141, § 2.

34-41-2.07. Rights of secured lenders.

The time-share instrument may require that all or a specified number or percentage of the mortgagees or beneficiaries of deeds of trust encumbering units or time shares approve specified actions of the unit owners, time-share owners, developer, or managing entity as a condition to the effectiveness of those actions, but no requirement for approval may operate to (i) deny or delegate control over the general administrative affairs of any association by the unit owners, time-share owners, or both, or their elected representatives or (ii) prevent any association from commencing, intervening in, or settling any litigation or proceeding, or receiving and distributing any insurance proceeds pursuant to § 34-41-3.08 .

History of Section. P.L. 1984, ch. 141, § 2.

34-41-2.08. Transfer of time-share licenses.

The managing entity shall maintain records of the names and addresses of the owners of time-share licenses. If the number of licenses in the time-share property is more than twelve (12), no transfer of a time-share license is effective against persons without knowledge thereof unless and until entered in those records.

History of Section. P.L. 1984, ch. 141, § 2.

Article III Management of the Time-Share Property

34-41-3.01. Managing entity.

  1. If the number of time shares in a time-share property is more than twelve (12), the developer, before the first transfer of a time-share, must create or provide a managing entity to manage the time-share property. The managing entity may be (i) a manager, who may be the developer, or, (ii) an association, which must be a profit or non-profit corporation or an unincorporated association, the membership of which must at all times consist exclusively of all the time-share owners. If the time-share property is part of a project containing time-share units and other units, the manager may be the entity that governs the project. If the number of time shares in the time-share property is twelve (12) or fewer and there is no managing entity, the time-share owners may form an association meeting the requirements specified above.
  2. In the absence of a managing entity required by this section, a court upon application of a party in interest, including a time-share owner or a lienholder, may appoint and prescribe the powers of a managing entity.

History of Section. P.L. 1984, ch. 141, § 2.

34-41-3.02. Powers of managing entity.

  1. Subject to the provisions of subsection (b) and the time-share instrument, the association, even if unincorporated, may:
    1. Adopt and amend bylaws, rules, and regulations;
    2. Adopt and amend budgets for revenues, expenditures, and reserves and collect assessments for time-share expenses from time-share owners;
    3. Hire and discharge managing agents and other agents, employees, and independent contractors;
    4. Institute, defend, or intervene in litigation or administrative proceedings in its own name on behalf of itself or two (2) or more time-share owners on matters affecting the time-share property or time shares;
    5. Make contracts and incur liabilities;
    6. Regulate the use, maintenance, repair, replacement, and modification of the time-share property;
    7. Cause additional improvements to be made to the time-share property;
    8. Impose charges for late payment of assessments and, after notice and an opportunity to be heard, levy reasonable fines for violations of the time-share instrument, bylaws, and rules or regulations of the association;
    9. Impose reasonable charges for the preparation of resale certificates required by § 34-41-4.07 or statements of unpaid assessments;
    10. Exercise any other powers conferred by the time-share instrument or bylaws;
    11. Impose and receive any payment, fees, or charges for the use, rental, or operation of the time-share property, and for services provided to time-share owners;
    12. Acquire, hold, encumber, and convey in its own name any right, title, or interest to real or personal property;
    13. Assign its right to future income, including the right to receive time-share expense assessments, but only to the extent the time-share instrument expressly so provides;
    14. Provide for the indemnification of its directors and officers and maintain directors’ and officers’ liability insurance;
    15. Exercise all other powers that may be exercised in this state by legal entities of the same type as the association;
    16. Exercise any other powers necessary and proper for the governance and operation of the association; and
    17. Convey easements and generally deal with common areas of the property and execute any and all documents related thereto upon authorization by unit owners in accordance with §§ 34-41-3.14 , 34-41-3.15 or 34-41-3.16 .
  2. The time-share instrument may not impose limitations on the power of the association to deal with the developer which are more restrictive than the limitations imposed on the power of the association to deal with other persons.
  3. Except as otherwise provided in the time-share instrument, the manager, to the extent permitted by the management contract, may exercise the powers specified in subdivisions (1) — (11) of subsection (a).
  4. If the time-share property is a part of a project, neither this section nor § 34-41-3.03 confers any powers on the managing entity, the developer, or the time-share owners with respect to any portion of the project other than the units within the time-share property.

History of Section. P.L. 1984, ch. 141, § 2.

34-41-3.03. Powers and duties in absence of managing entity.

The developer has the duties imposed on the managing entity by this chapter and the powers listed in § 34-41-3.02(a)(1) — (11) until a managing entity is provided or the developer and his or her affiliates own no estate or interest in the time-share property. Thereafter, if there is no managing entity and the number of time shares in the time-share property is twelve (12) or fewer, the time-share owners have those powers subject to any provisions of the time-share instrument relating to the manner of the exercise thereof and have the responsibilities and liabilities of an association for the purposes of §§ 34-41-3.06 and 34-41-3.07 . To the extent that the time-share instrument is silent with respect to the manner of exercise of any of those powers, the time-share owners may exercise them only by unanimous action.

History of Section. P.L. 1984, ch. 141, § 2.

34-41-3.04. Transfer of special developer rights.

  1. For the purposes of this section, “special developer right” means a right reserved for the benefit of a developer to add more units to a time-share property (§ 34-41-2.02(a)(5) ); to maintain sales offices, management offices, models, and signs (§ 34-41-2.06 ); or to appoint, control, or serve as the managing entity. No special developer right created or reserved under this chapter may be transferred except by an instrument evidencing the transfer recorded in every office of municipal land evidence records in which any portion of the time-share property is located. The instrument is not effective unless it is also executed by the transferee.
  2. Upon transfer of a special developer right, the liability of a transferor developer is as follows:
    1. A transferor is not relieved of any obligation or liability arising before the transfer and remains liable for warranty obligations imposed upon him or her by this chapter. Lack of privity does not deprive any time-share owner of standing to maintain an action to enforce any obligation of the transferor.
    2. If a successor to any special developer right is an affiliate of a developer (§ 34-41-1.02(1) ), the transferor is jointly and severally liable with the successor for any obligations or liabilities of the successor relating to the time-share property.
    3. If a transferor retains any special developer right, but transfers other special developer rights to a successor who is not an affiliate of the developer, the transferor is liable for any obligations or liabilities imposed on a developer either by this chapter or by the time-share instrument relating to the retained special developer rights and arising after the transfer.
    4. A transferor has no liability for any act or omission or any breach of a contractual or warranty obligation arising from the exercise of a special developer right by a successor developer who is not an affiliate of the transferor.
  3. Unless otherwise provided in a mortgage instrument or deed of trust, in case of foreclosure of a mortgage, tax sale, judicial sale, sale by a trustee under a deed of trust, or sale under Bankruptcy Code, 11 U.S.C. § 101 et seq., or receivership proceedings, of any time shares owned by a developer in the time-share property, a person acquiring title to all the time shares being foreclosed or sold, but only upon his or her request, succeeds to all special developer rights, or only to any rights reserved in the time-share instrument to § 34-41-2.06 and held by that developer to maintain sales offices, management offices, models, and signs. The judgment or instrument conveying title must provide for transfer of only the special developer rights requested.
  4. Upon foreclosure, tax sale, judicial sale, sale by a trustee under a deed of trust, or sale under Bankruptcy Code, 11 U.S.C. § 101 et seq., or receivership proceedings, of all time shares in a property owned by a developer:
    1. The right to appoint, control, or serve as the managing entity terminates unless the judgment or instrument conveying title provides for transfer of all special developer rights to a successor developer; and
    2. The developer ceases to have any other special developer rights.
  5. The liabilities and obligations of a person who succeeds to a special developer right are as follows:
    1. A successor to any special developer right who is an affiliate of a developer is subject to all obligations and liabilities imposed on the transferor by this chapter or by the time-share instrument.
    2. A successor to any special developer right, other than a successor described in subdivisions (3) or (4) of this subsection, who is not an affiliate of a developer, is subject to all obligations and liabilities imposed by this chapter or the time-share instrument:
      1. On a developer, which relate to his or her exercise or non-exercise of special developer rights; or
      2. On his or her transferor, other than:
        1. Misrepresentations by any previous developer;
        2. Warranty obligations on improvements made by any previous developer or made before the property became a time-share property;
        3. Breach of any fiduciary obligation by any previous developer of his or her appointees; or
        4. Any liability or obligation imposed on the transferor as a result of the transferor’s acts or omissions after the transfer.
    3. A successor to only a right to maintain sales offices, management offices, models, and signs (§ 34-41-2.06 ), if he or she is not an affiliate of a developer, may not exercise any other special developer right and is not subject to any liability or obligation as a developer, except the obligation to provide a public offering statement, and any liability arising as a result thereof, and obligations under Article V of this chapter.
    4. A successor to all special developer rights held by his or her transferor who is not an affiliate of that developer and who has succeeded to those rights pursuant to a deed in lieu of foreclosure or a judgment or instrument conveying title to the time shares under subsection (c) may declare his or her intention in a recorded instrument to hold those rights solely for transfer to another person. Thereafter, until transferring all special developer rights to any person acquiring title to any time share owned by the successor, or until recording an instrument permitting exercise of all those rights, that successor may not exercise any of those rights other than any right held by his or her transferor to appoint, control, or serve as the managing entity, and any attempted exercise of those rights is void. So long as a successor may not exercise special developer rights under this subsection, he or she is not subject to any liability or obligation as a developer other than liability for his or her acts and omissions in appointing, controlling, or serving as the managing entity.
  6. Nothing in this section subjects any successor to a special developer right to any claims against or other obligations of a transferor developer, other than claims and obligations arising under this chapter or the time-share instrument.

History of Section. P.L. 1984, ch. 141, § 2.

34-41-3.05. Termination of contracts and leases of developer.

  1. If, before the developer ceases to appoint, control, or serve as the managing entity, there is entered into (i) any management contract, employment contract, or lease of recreational or parking areas or facilities, (ii) any other contract or lease between the managing entity and a developer or an affiliate of a developer, or (iii) any contract or lease that is not bona fide or was unconscionable to the time-share owners at the time entered into under the circumstances then prevailing, the contract may be terminated without penalty by the association or the time-share owners at any time after the developer ceases to appoint, control, or serve as the managing entity, upon not less than ninety (90) days’ notice to the other party. This subsection does not apply to any lease the termination of which would terminate the time-share property or reduce its size, unless the real estate subject to that lease was included in the property for the purpose of avoiding the right to terminate a lease under this section.
  2. If there is no association, any time-share owner individually or on behalf of the class of time-share owners may maintain an action for appropriate relief.

History of Section. P.L. 1984, ch. 141, § 2.

34-41-3.06. Upkeep of units.

Except to the extent otherwise provided by the time-share instrument, the managing entity is responsible for maintenance, repair, and replacement of the time-share units and any personal property available for use by time-share owners in conjunction therewith, other than personal property separately owned by a time-share owner. Each time-share owner shall afford access through his or her time-share unit reasonably necessary for those purposes, but if damage is inflicted on a time-share unit through which access is taken, the managing entity is responsible for its prompt repair. Subject to the provisions of law, a time-share instrument and other provisions of the time-share owner may not alter or change the appearance of a time-share unit without the consent of the managing entity.

History of Section. P.L. 1984, ch. 141, § 2.

34-41-3.07. Tort and contract liability.

  1. A time-share owner is personally liable for his or her own acts and omissions and those of his or her employees and agents other than the managing entity.
  2. An action may not be maintained against a time-share owner, nor is a time-share owner precluded from maintaining an action, merely because he or she owns a time share or is an officer, director, or member of the association.
  3. An action in tort alleging a wrong done by a developer, a managing entity selected by the developer or his or her appointees, or an agent or employee of either, in connection with any portion of the property which the developer or the managing entity has the responsibility to maintain, may not be maintained against the association or any time-share owner other than a developer. Other actions in tort alleging a wrong done by an association or by an agent or employee of the association or an action arising from a contract made by or on behalf of the association may be maintained only against the association. If the tort or breach of contract occurred during any period of developer control, the developer is subject to liability for all unreimbursed losses suffered by the association or time-share owners as a result, including costs and reasonable attorney’s fees. The operation of any statute of limitations affecting the right of action of the association or time-share owners under this section is tolled until the period of developer control terminates. A time-share owner is not precluded from maintaining an action contemplated by this subsection because he or she is a time-share owner or a member or officer of the association.
  4. A judgment for money against an association if recorded in the office of land evidence records in the municipality where the land is located, is a lien against all of the time shares, but no other property of a time-share owner is subject to the claims of creditors of the association.
  5. A judgment against the association must be indexed in the name of the association.

History of Section. P.L. 1984, ch. 141, § 2.

34-41-3.08. Insurance.

  1. Commencing not later than the time a developer offers a time share for sale in a time-share property in which the number of time shares is more than twelve (12), the managing entity shall maintain, to the extent reasonably available and applicable and not otherwise unanimously agreed by the time-share owners or provided by the developer or by a person managing a project of which the time-share property is a part:
    1. Property insurance on the time-share property and any personal property available for use by time-share owners in conjunction therewith, other than personal property separately owned by a time-share owner, insuring against all risks of direct physical loss commonly insured against, in a total amount, after application of any deductibles, of not less than eighty percent (80%) of the actual cash value of the insured property, exclusive of land excavations, foundations, and other items normally excluded from property policies; and provided, however
      1. Prospective purchasers shall also be notified of the option of purchasing insurance for the replacement value of the time share property and its cost; and
      2. Prospective purchasers shall also be notified of the option of purchasing insurance for the loss of use of the time-share property and its cost; and
    2. Liability insurance, including medical payments insurance, in an amount determined by the managing entity but not less than any amount specified in the time-share instrument, covering all occurrences commonly insured against for death, bodily injury, and property damage arising out of or in connection with the use, ownership, or maintenance of the time-share property and time-share units.
  2. If the insurance described in subdivisions (a)(1) and (a)(2) is not reasonably available, the managing entity promptly shall cause notice of that fact to be hand-delivered or sent prepaid by United States mail to all time-share owners. The managing entity shall make copies of all insurance policies available for inspection by the time-share owners during normal business hours. The time-share instrument may require the managing entity to carry any other insurance, and the managing entity in any event may carry any other insurance deemed appropriate.
  3. Each insurance policy carried pursuant to subsection (a) must provide that:
    1. Each time-share owner is an insured person under the policy whether designated as an insured by name individually or as part of a named group or otherwise, as his or her interest may appear;
    2. The insurer waives its right to subrogation under the policy against any time-share owner or members of his or her household;
    3. No act or omission by any time-share owner, unless acting within the scope of his or her authority on behalf of an association, will void the policy or be a condition to recovery by any other person under the policy; and
    4. If, at the time of a loss under the policy, there is other insurance in the name of a time-share owner covering the same risk covered by the policy, the policy maintained pursuant to subsection (a) is primary insurance not contributing with the other insurance, and other insurance in the name of a time-share owner applies only to loss in excess of the primary coverage.
  4. Unless the insurance required by subdivision (a)(1) is provided by a person managing a project of which the time-share property is a part, any loss covered by that insurance must be adjusted with, and the insurance proceeds from that loss are payable to, the insurance trustee (who may be a party in interest) designated in accordance with the time-share instrument. If none has been designated or if the designated trustee fails to serve, the managing entity is the insurance trustee. The insurance trustee shall hold any insurance proceeds in trust for time-share owners and lien holders as their interests may appear and be determined in accordance with § 34-41-2.05 . Subject to the provisions of subsection (g), the proceeds must be disbursed for the repair or restoration of the property, and time-share owners and lien holders are not entitled to receive payment of any portion of the proceeds unless there is (1) a surplus of proceeds after the property has been completely repaired or restored, or (2) a termination pursuant to § 34-41-2.05 .
  5. An insurance policy issued pursuant to subsection (a) does not prevent a time-share owner from obtaining insurance for his or her own benefit.
  6. An insurer that has issued an insurance policy under this section shall issue certificates or memoranda of insurance to any association and, upon written request, to any time-share owner, mortgagee, or beneficiary under a deed of trust. The insurance may not be cancelled until thirty (30) days after notice of the proposed cancellation has been mailed to any managing entity and each person to whom a certificate or memorandum of insurance has been issued, at their respective last known addresses.
    1. Any portion of the time share property damaged or destroyed must be repaired or replaced promptly by the managing entity unless (i) another person repairs or replaces it, (ii) there is a termination (§ 34-41-2.05 ), (iii) repair or replacement would be illegal under any state or local health or safety statute or ordinance, (iv) eighty percent (80%) of the time-share owners, including every owner of a time share in a time-share unit that will not be rebuilt, vote not to rebuild, or (v) a decision not to rebuild the damaged property is made by another person empowered to make that decision. The cost of repair or replacement in excess of insurance proceeds and reserves is a time-share expense.
    2. If the entire property need not be repaired or replaced, unless the time-share instrument provides otherwise, (i) the insurance proceeds attributable to the damaged area must be used to restore the damaged area to a condition compatible with the remainder of the property, and (ii) the insurance proceeds attributable to time-share units that are not rebuilt must be distributed as if those units constituted a time-share property in which all time shares had been terminated under § 34-41-2.05 .
  8. The provisions of this section may be varied or waived in the case of a time-share property in which none of the time-share units may be used as dwellings or for recreational purposes.

History of Section. P.L. 1984, ch. 141, § 2.

34-41-3.09. Surplus funds.

Unless otherwise provided in the time-share instrument, any surplus funds derived from the time-share owners or from property belonging to them or their association and held by a managing entity remaining after payment of or provision for time-share expenses and any pre-payment of reserves must be paid to the time-share owners in proportion to their time-share expense liabilities or credited to them to reduce their future time-share expense assessments.

History of Section. P.L. 1984, ch. 141, § 2.

34-41-3.10. Assessments for time-share expenses.

  1. Until time-share expense assessments are made against the time-share owners, the developer shall pay all time-share expenses. After any time-share expense assessment has been made against the time-share owners, time-share expense assessments must be made at least annually, based on a budget adopted at least annually by the managing entity.
  2. Except for assessments under subsections (c), (d) and (e), all time-share expenses must be assessed against all the time shares in accordance with the allocations set forth in the time-share instrument pursuant to § 34-41-2.03(a) . Any past due assessment or installment thereof bears interest at the rate established by the managing entity or time-share instrument not exceeding the highest legal percent per year.
  3. To the extent required by the time-share instrument any time-share expense benefiting fewer than all of the time-share owners must be assessed exclusively against the time-share owners benefited.
  4. Assessments to pay a judgment against the association (§ 34-41-3.07 ) may be made only against the time shares in the time-share property at the time the judgment was entered, in proportion to their time-share expense liabilities.
  5. If any time-share expense is caused by the misconduct of any time-share owner, the association may assess that expense exclusively against his or her time share.
  6. If time-share expense liabilities are reallocated, time-share expense assessments and any installment thereof not yet due must be recalculated in accordance with the reallocated time-share expense liabilities.

History of Section. P.L. 1984, ch. 141, § 2.

34-41-3.11. Lien for assessments.

  1. A person who has a duty to make assessments for time-share expenses has a lien on a time share for any assessment levied against that time share or fines imposed against its owner from the time the assessment or fine becomes due. The lien may be foreclosed in like manner as a mortgage on real estate (or a power of sale under chapter 27 of this title), or, in the case of a time-share license, under the Uniform Commercial Code, title 6A. Unless the time-share instrument otherwise provides, fees, charges, late charges, fines, and interest charged pursuant to § 34-41-3.02(8) and (9) are enforceable as assessments under this section. If an assessment is payable in installments the full amount of the assessment is a lien from the time the first installment thereof becomes due.
    1. A lien under this section is prior to all other liens and encumbrances on a time share except:
      1. Liens and encumbrances recorded before the recordation of the time-share instrument;
      2. Mortgages and deeds of trust on the time share securing first mortgage holders and recorded before the due date of the assessment or the due date of the first installment payable on the assessment;
      3. Liens for real estate taxes and other governmental assessments or charges against the time share; and
      4. Liens securing assessments or charges made by a person managing a project of which the time-share property is a part.
    2. To the extent of the time-share expense assessments made under § 34-41-3.10(b) become due during the six (6) months immediately preceding institution of an action to enforce the lien, the lien is also prior to the mortgages and deeds of trust described in subdivision (1)(ii) of this subsection. This subsection does not affect the priority of mechanics’ or materialmen’s liens.
  3. The lien is perfected upon recordation of a claim of lien in the municipality in which the time-share unit is situated.
  4. A lien for unpaid assessments is extinguished unless proceedings to enforce the lien are instituted within three (3) years after the assessments become payable.
  5. This section does not prohibit actions or suits to recover sums for which subsection (a) creates a lien or preclude resort to any contractual or other remedy permitted by law.
  6. A judgment or decree in any action or suit brought under this section must include costs and reasonable attorney’s fees for the prevailing party.
  7. A person who has a duty to make assessments for time-share expenses shall furnish to a time-share owner upon written request a recordable statement setting forth the amount of unpaid assessments currently levied against his or her time share. The statement must be furnished within ten (10) business days after receipt of the request and is binding in favor of persons reasonably relying thereon.

History of Section. P.L. 1984, ch. 141, § 2.

34-41-3.12. Financial records.

A person who has a duty to make time-share expense assessments shall keep financial records sufficiently detailed to enable him or her to comply with § 34-41-4.07 . All financial and other records must be made reasonably available for examination by any time-share owner or his or her authorized agent.

History of Section. P.L. 1984, ch. 141, § 2.

34-41-3.13. Authority of trustee.

With respect to a third person dealing with a trustee, under § 34-41-2.05 or § 34-41-3.08 , the existence of trust powers and their proper exercise by the trustee may be assumed without inquiry. A third person is not bound to inquire whether the trustee has power to act as trustee or is properly exercising trust powers, and a third person without actual knowledge that the trustee is exceeding or improperly exercising his or her powers is fully protected in dealing with the trustee as if he or she possessed and were properly exercising the power he or she purports to exercise. A third person is not bound to assure the proper application of trust assets paid or delivered to the trustee in his or her capacity as trustee.

History of Section. P.L. 1984, ch. 141, § 2.

34-41-3.14. Initiative, referendum, and recall — General provisions.

  1. For the purpose of this section and §§ 34-41-3.15 , 34-41-3.16 , and 34-41-3.17 :
    1. “Owner” means a person who is an owner or co-owner of a time-share estate or, in the case of a unit that is not a time-share unit, a person who is an owner or co-owner of the unit, other than as security for an obligation.
    2. A project is limited to one in which at least fifty percent (50%) of the votes are allocated to time shares other than time-share licenses.
  2. The managing entity shall keep reasonably available for inspection and copying by any owner all addresses, known to it or to the developer, of all the owners, with the principal permanent residence address of each indicated if known. The managing entity shall revise continually the list of addresses in the light of any information it obtains, and the developer shall keep the managing entity advised of any information he or she has or obtains.
  3. Each ballot prepared pursuant to §§ 34-41-3.15 , 34-41-3.16 , and 34-41-3.17 must contain:
    1. A statement that the ballot will not be counted unless signed by an owner;
    2. The specification of a date, not less than thirty (30) or more than one hundred eighty (180) days after the date the ballot is mailed, by which the ballot must be received by the person to whom it is to be returned, and a statement that the ballot will not be counted unless received by that date;
    3. The name and address of the person to whom the ballot is to be returned; and
    4. No material other than what is required by this Article.
  4. Each ballot mailed pursuant to §§ 34-41-3.15 , 34-41-3.16 , and 34-41-3.17 must be mailed to the principal permanent residence of the owner to whom it is addressed, if known to the person responsible for mailing it, and that person shall procure and keep reasonably available for inspection for at least one year after the vote is calculated a certificate of mailing for each and the original or a photocopy of each ballot returned by the date specified pursuant to subsection (c)(2).
  5. If the managing entity, the developer, or anyone on behalf of either of them communicates with any owner, other than as expressly authorized by §§ 34-41-3.15 , 34-41-3.16 , and 34-41-3.17 on the subject matter of any petition or ballot prepared pursuant to any of those sections, the expense of that communication may not be assessed directly or indirectly in whole or in part to any owner other than developer.
  6. The vote allocated to any time share and to any unit other than a time-share unit must be counted as having been cast in accordance with the ballot of any owner of that time share. If the ballots of different owners of the same time share, or of the same unit other than a time-share unit, are not in accord with one another, the vote allocated to that time share or unit must be divided in proportion to the number of owners thereof voting each way and must be counted accordingly. Any ballot that is not signed by an owner or is not received by the date specified pursuant to subsection (c)(2) is void.
  7. The managing entity shall take action reasonably calculated to notify all owners of the resolution of any matters resolved by methods authorized by §§ 34-41-3.15 , 34-41-3.16 and 34-41-3.17 .
  8. An amendment to a project instrument adopted pursuant to §§ 34-41-3.15 and 34-41-3.16 must be recorded by the managing entity with a statement of the vote and becomes effective upon recordation.
  9. No right or power of an owner under this section or §§ 34-41-3.15 , 34-41-3.16 , or 34-41-3.17 may be waived, limited, or delegated by contract, power of attorney, proxy, or otherwise, in favor of the developer, an affiliate of a developer, a managing entity, or any person designated by any of them.

History of Section. P.L. 1984, ch. 141, § 2.

34-41-3.15. Direct initiative by owners.

  1. The owners may amend the project instrument or any unrecorded document governing the project, or approve or disapprove any proposed expenditure, in the manner provided by this section in addition to any manner permitted by other law or by the instrument or document.
  2. Any owner may deliver to the managing entity a petition containing the language of any proposed amendment and signed by owners of at least one time share or other state or interest in each of a number of units to which at least thirty-three and one-third percent (331/3%) of the votes are allocated, or any smaller percentage specified by the document to be amended. The owner delivering the petition may attach to it a letter of not more than two (2) pages to be mailed with the ballots. Within ten (10) days after receiving the petition, the managing entity shall mail to each owner a ballot setting forth the language of the petition and affording an opportunity to indicate a preference between approval and disapproval of the proposal, together with a copy of any letter of not more than two (2) pages attached by the owner who delivered the petition. The ballot may also be accompanied by a letter of not more than two (2) pages from the managing entity recommending approval or disapproval of the proposal.
  3. On the date specified pursuant to § 34-41-3.14(c)(2) , the managing entity shall examine the ballots that have been returned and calculate the vote accordingly. A signature on the petition must be treated for the purpose of § 34-41-3.14(f) as a ballot from the signer indicating approval of the proposed amendment. A simple majority of the votes counted suffices for the adoption of the proposal unless other law or the document to be amended specifies a larger majority or, in the case of a proposed expenditure, the project instruments specify a larger majority not exceeding sixty-six and two-thirds percent (662/3%). No document may specify more than a simple majority for any proposal the managing entity could have effected unilaterally. No proposal may be adopted by an initiative in which the ballots favoring the proposal represent less than ten percent (10%) of the votes allocated to all owners.
  4. A proposal adopted pursuant to this section may not be repealed or modified within three (3) years except by another initiative pursuant to this section. Thereafter, the managing entity may not repeal or modify the result without the approval of the owners in a referendum. If the project instrument permits the managing entity to initiate a referendum for that purpose, no referendum may be initiated for that purpose more often than once every three (3) years.

History of Section. P.L. 1984, ch. 141, § 2.

34-41-3.16. Referendum of owners.

  1. No amendment to the project instrument may be adopted except pursuant to this section or § 34-41-3.15 . The project instrument may specify other matters to be determined by referendum of the owners and may permit the managing entity to select matters to be determined in that manner.
  2. Whenever an amendment to a project instrument proposed by the managing entity, or other matter, is to be determined by referendum, the managing entity shall prepare and, not less than thirty (30) days or more than one hundred eighty (180) days before the votes are to be counted, shall mail to each owner a ballot stating each matter to be determined and affording the opportunity to vote “yes” or “no” on each matter. The ballot may be accompanied by a letter from the managing entity recommending a particular decision.
  3. On the date specified pursuant to § 34-41-3.14(c)(2) , the managing entity shall examine the ballots and calculate the vote accordingly. A simple majority of the votes counted determines each matter in question unless the project instrument specifies a larger majority, but no matter may be determined by referendum unless the ballots favoring the majority decision represent at least ten percent (10%) of the votes allocated to all owners.

History of Section. P.L. 1984, ch. 141, § 2.

34-41-3.17. Recall of manager by owners.

  1. The owners may discharge the manager with or without cause in the manner provided by this section in addition to any manner permitted by other law or by the project instrument.
  2. Any owner may prepare a ballot affording the opportunity to indicate a preference between retaining the present manager and discharging him or her in favor of a new manager. A copy of the ballot and of any letter that is to be mailed with the ballots must be delivered to the manager. Not less than ten (10) or more than thirty (30) days thereafter, a ballot and a copy of any letter to be mailed, together with a copy of any written reply received from the manager containing no more pages than the letter, must be mailed to each owner by the owner who prepared the ballot.
  3. On the date specified pursuant to § 34-41-3.14(c)(2) , the person who receives the ballots shall examine those that have been returned, tabulate the vote accordingly, and notify the manager of the result. If at least sixty-six and two-thirds percent (662/3%) of the vote, representing at least thirty-three and one-third percent (331/3%) of the votes allocated to all owners, favors discharging the manager, the developer also must be notified of the result, the ballots or photocopies thereof must be given to the manager, and the developer shall diligently attempt to procure offers for management contracts from prospective managers. Any owner also may attempt to procure such offers. If the developer or any owner obtains such an offer within sixty (60) days after the date the vote was tabulated, he or she shall notify the developer and the owner who was responsible for tabulating the vote. If no offer is obtained from a prospective manager other than the current manager within those sixty (60) days, that period must be extended for successive intervals of thirty (30) days each until such an offer is obtained. At the end of the period, the owner who prepared the ballot, or the developer if that owner so directs in a writing delivered to the developer, shall prepare and mail to each owner a second ballot stating at least the term and compensation provided by each offer that has been received and affording an opportunity to indicate a preference for any one of the offers or for retaining the current manager. A letter recommending that a particular offer be accepted or that the current manager be retained may accompany the ballot, and if the developer prepared the ballot he or she shall enclose a copy of any such letter submitted to him or her by the owner who was responsible for tabulating the vote. The developer has no obligation under this subsection, and nothing need be delivered to him or her, if he or she owned no estate or interest in any unit on the date the first ballot was delivered to the manager and neither the developer nor his or her affiliates or appointees caused the manager to be hired.
  4. On the date specified pursuant to § 34-41-3.14(c)(2) , the person who receives the ballots prepared pursuant to subsection (c) shall examine those that have been returned, tabulate the vote accordingly, notify the manager of the result, and hold the ballots available for inspection by the manager and any proposed manager for at least thirty (30) days. If more votes favor accepting a particular offer than retaining the manager, the manager is discharged ninety (90) days after he or she is notified of the result, but, if the ballot prepared pursuant to subsection (b) was delivered to the manager before the current term of the manager began, the manager is discharged immediately upon being notified of the result. The person who received the ballots prepared pursuant to subsection (c) shall accept on behalf of the owners the offer that received the largest number of votes. The expenses thereunder are thereafter part of the common expenses.
  5. A manager discharged pursuant to this section is not entitled by reason of his or her discharge to any penalty or other charge payable directly or indirectly in whole or in part by any owner other than the developer.
  6. The reasonable expenses incurred by any owner in obtaining offers and preparing and mailing ballots pursuant to this section, including reasonable attorney’s fees, must be promptly collected by the managing entity from all owners as a common expense and paid to that owner if a simple majority of the vote tabulated pursuant to subsection (c) favors the discharge of the manager. Similar expenses incurred by the developer also must be so collected and promptly paid to the developer.

History of Section. P.L. 1984, ch. 141, § 2.

Article IV Protection of Purchasers

34-41-4.01. Applicability — Exemptions.

  1. This Article applies to all time shares subject to this chapter except as provided in subsection (b).
  2. Neither a public offering statement nor the materials required by § 34-41-4.07 (Resale of Time Shares) need be prepared or delivered in the case of:
    1. A gratuitous disposition of a time share;
    2. A disposition pursuant to court order;
    3. A disposition by a government or governmental agency;
    4. A disposition by foreclosure or deed in lieu of foreclosure;
    5. A disposition that may be canceled at any time and for any reason by the purchaser without penalty;
    6. A disposition of a time share in a unit situated wholly outside this state pursuant to a contract executed wholly outside this state, if there has been no offering within this state;
    7. An offering by a developer of time shares in no more than one time-share unit at any one time; or
    8. A disposition of a time-share property or all time shares therein to one purchaser.

History of Section. P.L. 1984, ch. 141, § 2.

34-41-4.02. Liability for public offering statement requirements.

  1. Except as provided in subsection (b), a developer, prior to the offering of any interest in a unit to the public, shall prepare a public offering statement conforming to the requirements of §§ 34-41-4.03 , 34-41-4.04 and 34-41-4.05 .
  2. A developer may transfer responsibility for preparation of all or a part of the public offering statement to a successor developer (§ 34-41-3.04 ) or to a person in the business of selling real estate who intends to offer time shares in the time-share property for his or her own account. In the event of any such transfer, the transferor shall provide the transferee with any information necessary to enable the transferee to fulfill the requirements of subsection (a).
  3. Any developer or other person in the business of selling real estate who offers a time share for his or her own account to a purchaser shall deliver a public offering statement in the manner prescribed in § 34-41-4.06 (a). The person who prepared all or a part of the public offering statement is liable under §§ 34-41-4.06 , 34-41-4.15 , 34-41-5.05 and 34-41-5.06 for any false or misleading statement set forth therein or for any omission of material fact therefrom with respect to that portion of the public offering statement which he or she prepared. If a developer did not prepare any part of a public offering statement that he or she delivers, he or she is not liable for any false or misleading statement set forth therein or for any omission of material fact therefrom unless he or she had actual knowledge of the statement or omission or, in the exercise of reasonable care, should have known of the statement or omission.
  4. If a time-share property is part of any other real estate regime in connection with the sale of which the delivery of a public offering statement is required under the laws of this state, a single public offering statement conforming to the requirements of §§ 34-41-4.03 , 34-41-4.04 and 34-41-4.05 as those requirements relate to all real estate regimes in which the time-share property is located, and to any other requirements imposed under the laws of this state, may be prepared and delivered in lieu of providing two (2) or more public offering statements.

History of Section. P.L. 1984, ch. 141, § 2.

Collateral References.

Broker’s liability for fraud or misrepresentation concerning development or nondevelopment of nearby property. 71 A.L.R.4th 511.

34-41-4.03. Public offering statement — General provisions.

  1. A public offering statement must contain or fully and accurately disclose:
    1. The name and principal address of the developer and the location of the time-share property;
    2. A general description of the time-share property and the time-share units, including without limitation the number of units in the time-share property and in any project of which it is a part, and the schedule of commencement and completion of all improvements;
    3. As to all units owned or offered by the developer in the same project:
      1. The types and number of units;
      2. Identification of units that are time-share units;
      3. The types and durations of the time shares;
      4. The maximum number of units that may become part of the time-share property; and
      5. A statement of the maximum number of time shares that may be created or that there is no maximum;
    4. Copies and a brief narrative description of the significant features of the time-share instrument and any documents referred to therein (other than any plats and plans), copies of any contracts or leases to be signed by purchasers at closing, and a brief narrative description of any contracts or leases that will or may be subject to cancellation by the owners of time-share estates under § 34-41-3.05 ;
    5. The identity of the managing entity and the manner, if any, whereby the developer may change the managing entity or its control;
    6. A current balance sheet and a projected budget for the association, if there is an association, either within or as an exhibit to the public offering statement, for one year after the date of the first transfer to a purchaser, and thereafter the current budget, a statement of who prepared the budget, and a statement of the budgetary assumptions concerning occupancy and inflation factors. The budget must include, without limitation:
      1. A statement of the amount, or a statement that there is no amount, included in the budget as a reserve for repairs and replacement;
      2. A statement of any other reserves;
      3. The projected time-share expense liability by category of expenditures for the time-share units; and
      4. The projected time-share expense liability for each time share;
    7. A description of (i) the nature and purposes of all charges, dues, maintenance fees, and other expenses that may be assessed, (ii) the current amounts assessed, and (iii) the method and formula for altering charges in the future;
    8. Any services which the developer provides or expenses he or she pays and which he or she expects may become at any subsequent time a time-share expense of the time shares, and the projected time-share expense liability attributable to each of those services or expenses for each time share;
    9. Any initial or special fee due from the purchaser at closing, together with a description of the purpose of the fee and the method of its calculation;
    10. A statement of the effect on the time-share owners of liens, defects, or encumbrances on or affecting the title to the time-share units;
    11. A description of any financing offered by the developer;
    12. The terms and significant limitations of any warranties provided by the developer, including statutory warranties and limitations on the enforcement thereof or on damages;
    13. A statement that:
      1. Within three (3) days excluding Sundays and holidays after receipt of a public offering statement a purchaser, before transfer of title, may cancel any contract for purchase of a time share from a developer, by hand delivering notice thereof to the seller or by mailing notice thereof by certified or registered mail, return receipt requested, to the developer or to his or her agent for service of process,
      2. If a developer fails to provide a public offering statement to a purchaser before the transferring of title to a time share, the purchaser is entitled to recover from the developer ten percent (10%) of the sales price of the time share, and
      3. If a purchaser receives the public offering statement more than three (3) days excluding Sundays and holidays before signing a contract, he or she cannot cancel the contract for failure timely to receive the public offering statement;
    14. A statement of any unsatisfied judgments against the developer or the managing entity, the status of any pending suits involving the sale or management of real estate to which the developer or an affiliate of the developer or the managing entity is a defending party, and the status of any pending suits of which the developer has actual knowledge, of significance to the time-share units;
    15. A statement that any deposit made in connection with the purchase of a time share will be held in an escrow (or trust) account until expiration of the time for rescission or any later time specified in the contract to purchase the time share and will be returned to the purchaser if the purchaser cancels the contract pursuant to § 34-41-4.06 ;
    16. Any restraints on transfer of time shares or portions thereof;
    17. A description of the insurance coverage provided for the benefit of time-share owners;
    18. Any current or expected fees or charges to be paid by time-share owners for the use of any facilities related to the project;
    19. The extent to which financial arrangements have been provided for completion of all promised improvements pursuant to § 34-41-4.17 (Developer’s Obligation to Complete);
    20. The extent to which a time-share unit may become subject to a tax or other lien arising out of claims against other time-share owners of the same time-share unit;
    21. A description of the rights and remedies provided in the time-share instrument of a time-share owner who is prevented from enjoying exclusive occupancy of a time-share unit, or a statement that there are none provided in the instrument; and
    22. All unusual and material circumstances, features, and characteristics of the project.
  2. As used in this subsection, “exchange company” means a person operating a program of the kind described in this subsection. If the time-share owners are to be permitted or required to become members of or to participate in a program for the exchange of occupancy rights among themselves or with the time-share owners of other time-share units or both, the public offering statement or a supplement delivered therewith must contain or fully and accurately disclose:
    1. Whether membership or participation in the program by a time-share owner is voluntary or mandatory;
    2. The name and address of the exchange company and whether the exchange company is an affiliate of the developer; or whether the exchange company or any of its officers or directors has any legal or beneficial interest in any developer or manager for any time-share property participating in the exchange program;
    3. The names of all officers, directors, and shareholders owning five percent (5%) or more of the outstanding stock of the exchange company;
    4. The terms and conditions of the contractual relationship between the time-share owner and the exchange company;
    5. The procedures whereby that contractual relationship can be changed or terminated, and whether it can be terminated or otherwise affected by action or inaction of the developer or the managing entity or by other factors beyond the control of the time-share owner;
    6. A complete and accurate description of all limitations, restrictions, or priorities employed in the operation of the exchange program, including, but not limited to, limitations on exchanges based on seasonality, unit size, or levels of occupancy, expressed in boldfaced type, and, in the event that such limitations, restrictions, or priorities are not uniformly applied by the program, a clear description of the manner in which they are applied;
    7. The procedures to qualify for and effectuate exchanges, and the manner in which exchanges are arranged by the exchange company;
    8. Whether exchanges are arranged on a space-available basis and whether any guarantees of fulfillment of specific requests for exchanges are made by the program;
    9. Whether and under what circumstances a time-share owner, in dealing with the exchange company, may lose the use and occupancy of his or her time share in any properly applied for exchange without his or her being provided with substitute accommodations by the exchange company;
    10. The fees or range of fees for participation by time-share owners in the program, a statement whether the fees may be altered by the exchange company, and the circumstances under which alterations may be made;
    11. The name and address of the site of each time-share property, accommodation or facility that is participating in the program;
    12. The number of units in each time-share property participating in the program that are available for occupancy and that qualify for participation in the program, expressed within the following numerical groupings: 1-5; 6-10; 11-20; 21-50; and 51 and over; and a statement of the criteria used to determine those units that are available for occupancy;
    13. The number of owners with respect to each time-share property who are eligible to participate in the program expressed within the following numerical groupings: 1-100; 101-249; 250-499; 500-999; and 1,000 and over; and a statement of the criteria used to determine those time-share owners who are currently eligible to participate in the program;
    14. The disposition made by the exchange company of time shares deposited with the program by time-share owners eligible to participate in the program and not used by the exchange company in effecting exchanges;
    15. The following information which shall be independently audited by a certified public accountant or accounting firm in accordance with the standards of the accounting standards board of the American institute of certified public accountants;
      1. The number of time-share owners eligible to participate in the program. The numbers shall disclose the relationship between the exchange company and time-share owners as being either fee paying or gratuitous in nature;
      2. The number of time-share properties, accommodations or facilities eligible to participate in the exchange program categorized by those having a contractual relationship between the developer or the managing entity and the exchange company and those having solely a contractual relationship between the exchange company and owners directly;
      3. The percentage of confirmed exchanges, which shall be the number of exchanges confirmed by the exchange company divided by the number of exchanges properly applied for, together with a complete and accurate statement of the criteria used to determine whether an exchange request was properly applied for;
      4. The number of time shares for which the exchange company has an outstanding obligation to provide an exchange to a time-share owner who relinquished a time share during the year in exchange for a time share in any future year; and
      5. The number of exchanges confirmed by the exchange company during the year.
    16. A statement in boldfaced type to the effect that the percentage described in subsection (b)(15)(iii) is a summary of the exchange requests entered with the exchange company in the period reported and that the percentage does not indicate a purchaser’s probabilities of being confirmed to any specific choice or range of choices, since availability at individual locations may vary.
  3. In the event an exchange company offers a program directly to the purchaser or time-share owner without any contract between a time-share developer and the exchange company, the exchange company shall deliver to each purchaser or time-share owner the information set forth in subsection (b) above. The requirements of this paragraph shall not apply to any renewal of the contract between a time-share owner and an exchange company, unless there are significant changes in the information required by subsection (b) adversely affecting the interests of the time share owner that have not been delivered in any appropriate form before renewal. An exchange company subject to this subsection for the purposes of delivering the information set forth in subsection (b) is subject to § 34-41-4.02 for the purposes of determining liability.
  4. Each exchange company offering a program to purchasers in this state must include the statement set forth in subsection (b)(16) on all promotional brochures, pamphlets, advertisements, or other materials disseminated by the exchange company which also contain the percentage of confirmed exchanges described in subsection (b)(15)(iii).
  5. As used in this subsection, “multi-location developer” means a developer creating or selling its own time shares in more than one time-share property under a program permitting time-share owners, by reservation or other similar procedure, to occupy time-share units in more than one time-share property. If time-share owners are to be permitted or required to participate in a multi-location program, the public offering statement or a supplement delivered therewith must contain or fully and accurately disclose:
    1. A complete and accurate description of the procedure to qualify for and effectuate use rights in time-share units in the multi-location program;
    2. A complete and accurate description of all limitations, restrictions, or priorities employed in the operation of the multi-location program, including, but not limited to, limitations on reservations, use or entitlement rights based on seasonality, unit size, levels of occupancy or class of owner, expressed boldfaced type, and, in the event that such limitations, restrictions, or priorities are not uniformly applied by the multi-location program, a clear description of the manner in which they are applied;
    3. Whether use is arranged on a space-available basis and whether any guarantees of fulfillment of specific requests for use are made by the multi-location developer;
    4. The name and address of the site of each time-share property included in the multi-location program;
    5. The number of time-share units in each time-share property which are available for occupancy; with respect to each time-share unit, the interest which the multi-location developer has therein (e.g. fee ownership, leasehold, option to purchase), and if less than fee ownership a statement of all relevant terms of the multi-location developer’s interest therein; and with respect to each such time-share unit, whether it may be withdrawn from the multi-location program;
    6. The following information which shall be independently audited by a certified public accountant or accounting firm in accordance with the standards of the accounting standards board of the American institute of certified public accountants:
      1. The number of time-share owners in the multi-location program;
      2. For each time-share property in the multi-location program, the number of properly made requests for use of time-share units in the time-share property; and
      3. For each time-share property, the number of owners who received the right to use a unit in the time-share property as a percentage of the time-share owners who properly requested use in the time-share property.
    7. A statement in boldfaced type to the effect that the percentages described in subsection (e)(6) do not indicate a purchaser’s probabilities of being able to use any time-share unit since availability at individual locations may vary.
  6. A developer shall promptly amend:
    1. The public offering statement to report any material change in the information required by subsection (a) of this section and § 34-41-4.04 , and
    2. The public offering statement or any supplement thereto to report any material change known to him or her in the information required by subsection (b), except that:
      1. Any significant change in information required by subsections (b)(2), (3) and (11) that adversely affect purchasers’ interests shall be reported to purchasers within 30 days after the change occurs. No liability shall be attributed to any person if the change is reported within the 30-day period; and
      2. The information required by subsections (b)(13), (14) and (15) shall be calculated, at the minimum, from the records of the exchange company for each calendar year, and need be available no later than July 1 of the succeeding year.
    3. The public offering statement or any supplement thereto to report any material change in the information required by subsection (e), except that the information required by subsections (e)(4), (5), and (6) shall be calculated, at the minimum, from the records of the multi-location developer for the preceding calendar year, and need be available no later than July 1, of the succeeding year.
    4. Insofar as the developer relies in good faith on information provided by others in making disclosures required by subsection (b), he or she is responsible for a misrepresentation only if he or she has knowledge of its falsity.

History of Section. P.L. 1984, ch. 141, § 2.

34-41-4.04. Public offering statement — Conversion building.

  1. If a conversion building that includes or is to include one or more time-share units is more than ten (10) years old and the developer or any affiliates of the developer own or control more than fifty percent (50%) of all units in the project, the public offering statement must contain, in addition to the information required by § 34-41-4.03 :
    1. A statement by the developer, based on a report prepared by an independent registered architect or engineer, describing the present condition of all structural components and mechanical and electrical installations material to the use and enjoyment of the time-share units;
    2. A statement by the developer of the expected useful life of each item reported on in subdivision (a)(1) or a statement that no representations are made in that regard; and
    3. A list of any outstanding notices of uncured violations of building code or other municipal regulations, together with the estimated cost of curing those violations.
  2. This section applies only to units in which use as a dwelling or for recreational purposes, or both, is permissible.

History of Section. P.L. 1984, ch. 141, § 2.

34-41-4.05. Public offering statement — Time-share securities.

If a time-share is currently registered with the securities and exchange commission of the United States, a developer satisfies all requirements relating to the preparation of a public offering statement of this chapter if he or she delivers to the purchaser (and files with the agency) a copy of the public offering statement filed with the securities and exchange commission. (A time share is not a security under the provisions of chapter 11 of title 7 entitled “Sale of Securities.”)

History of Section. P.L. 1984, ch. 141, § 2.

34-41-4.06. Purchaser’s right to cancel.

  1. A purchaser has the right to cancel the contract until midnight of the fifth (5th) business day (specifically excluding therefrom Saturdays, Sundays and legal holidays) following whichever of the following days occurs later:
    1. The execution date; or
    2. The day on which the purchaser received the last of all documents required to be provided to him or her.

      This right of cancellation may not be waived by any purchaser or by any other person on behalf of the purchaser. Furthermore, no closing may occur until the cancellation period of the time-share purchaser has expired. Any attempt to obtain a waiver of the cancellation right of the time-share purchaser, or to hold a closing prior to the expiration of the cancellation period, is unlawful and such closing is voidable at the option of the purchaser for a period of one (1) year after the expiration of the cancellation period.

  2. Any notice of cancellation shall be considered given on the date postmarked if mailed, or when transmitted from the place or origin if telegraphed, so long as the notice is actually received by the developer or escrow agent. If given by means of a writing transmitted other than by mail or telegraph, the notice of cancellation shall be considered given at the time of delivery at the place of business of the developer.
  3. In the event of a timely preclosing cancellation, the developer shall honor the right of any purchaser to cancel the contract which granted the time-share purchaser rights in and to the plan. Upon such cancellation, the developer shall refund to the purchaser the total amount of all payments made by the purchaser under the contract, reduced by the proportion of any contract benefits the purchaser has actually received under the contract prior to the effective date of the cancellation. Such refund shall be made within twenty (20) days of demand therefore by the purchaser or within five (5) days after receipt of funds from the purchaser’s cleared check, whichever is later.

History of Section. P.L. 1984, ch. 141, § 2; P.L. 2005, ch. 141, § 1; P.L. 2005, ch. 221, § 1.

34-41-4.07. Resales of time shares.

  1. Except in the case of a sale where delivery of a public offering statement is required, or unless exempt under § 34-41-4.01(b) , a seller of a time share shall furnish to the purchaser before execution of any contract for the sale, or otherwise before the transfer of title, a copy of the time-share instrument (other than any plats or plans) and a certificate containing:
    1. A statement disclosing the effect on the proposed transfer of any right of first refusal or other restraint on transfer of the time share or any portion thereof;
    2. A statement setting forth the amount of the periodic time-share expense liability and any unpaid time-share expense or special assessment or other sums currently due and payable from the seller;
    3. A statement of any other fees payable by time-share owners; and
    4. A statement of any judgments or other matters that are or may become liens against the time share or the time-share unit and the status of any pending suits that may result in those liens.
  2. A managing entity, within ten (10) days after a request by a time-share owner, shall furnish a certificate containing the information necessary to enable the time-share owner to comply with this section. A time-share owner providing a certificate pursuant to subsection (a) is not liable to the purchaser for any erroneous information provided by the managing entity and included in the certificate, other than for judgment liens against the time share or the time-share unit.
  3. A purchaser is not liable for any unpaid time-share expense liability or fee greater than the amount set forth in a certificate prepared by a managing entity. A time-share owner is not liable to a purchaser for the failure or delay of a managing entity to provide the certificate in a timely manner, but the purchase contract is voidable by the purchaser until the certificate has been provided and for five (5) days thereafter or until transfer, whichever first occurs.

History of Section. P.L. 1984, ch. 141, § 2.

34-41-4.08. Deposits.

Any deposit made in connection with the purchase or reservation in this state of a time share from a person required to deliver a public offering statement pursuant to § 34-41-4.02(c) must be placed in escrow, either in this state or in the state where the time-share project is located, in an account designated solely for that purpose, by a licensed title insurance company, an attorney, a licensed real estate broker, an independent bonded escrow company, or any institution whose accounts are insured until:

  1. Delivered to the developer at the time of any final transfer or conveyance of a time-share interest,
  2. Delivered to the developer because of the purchaser’s default under a contract to purchase the time share,
  3. Refunded to the purchaser,
  4. Delivered to the developer in accordance with § 34-41-5.03(c)(5) , or
  5. Delivered to the developer of substantially completed units as defined in § 34-41-5.03(a) , after the expiration of the time for rescission or any later date specified in the contract to purchase the time share.

History of Section. P.L. 1984, ch. 141, § 2; P.L. 1989, ch. 542, § 86.

34-41-4.09. Liens.

  1. In the case of a sale of a time share where delivery of a public offering statement is required pursuant to § 34-41-4.02(c) , a seller shall, before transferring a time share, record or furnish to the purchaser releases of all liens affecting that time share which the purchaser does not expressly agree to take subject to or assume, or shall provide a surety bond or substantiate collateral for or insurance against the lien as provided for liens on real estate in this title.
  2. If a lien other than a deed of trust or mortgage becomes effective against more than one time-share estate, any time-share owner is entitled to a release of his or her time-share estate from the lien upon payment of his or her proportionate liability for the lien in accordance with time-share expense liability unless he or she or his or her predecessor in interest agreed otherwise with the lienor. After payment, the managing entity may not assess or have a lien against that time-share estate for any portion of the time-share expenses incurred in connection with that lien.
  3. If a lien is to be foreclosed or enforced against all time shares in a time-share property, service of notice pursuant to § 34-27-4 upon the managing entity, if any, constitutes service thereof upon all the time-share owners for the purposes of foreclosure or enforcement. The lienholder shall also forward promptly, by certified or registered mail, a copy thereof to each time-share owner at his or her last known address. The notice does not suffice for the entry of a deficiency or other personal judgment against any time-share owner.

History of Section. P.L. 1984, ch. 141, § 2.

34-41-4.10. Conversion building.

  1. A developer of a time-share property which includes all or any part of a conversion building, and any person in the business of selling real estate for his or her own account who intends to offer time shares in such a property, shall give each of the residential tenants and any residential subtenant in possession of the proposed time-share units notice of the conversion no later than one hundred twenty (120) days before the developer will require the tenants and any subtenant in possession to vacate. Rents shall not be increased during the notice period. The notice must set forth generally the rights of tenants and subtenants under this section and be hand-delivered to the unit or mailed to the tenant and subtenant at the address of the unit or any other mailing address provided by a tenant. No tenant or subtenant may be required by the developer to vacate upon less than one hundred twenty (120) days’ notice, except by reason of nonpayment of rent, waste, or conduct that disturbs other tenants’ peaceful enjoyment of the premises, and the terms of the tenancy may not be altered during that period. Failure to give notice as required by this section is a defense to an action for possession.
  2. For sixty (60) days after delivery or mailing of the notice described in subsection (a), the person required to give the notice shall offer to convey each time-share unit or time-share proposed unit occupied for residential use to the tenant who leases that unit. Tenants shall have the right to cancel their lease and receive no penalties for the cancellation as long as all obligations of the lease have been met. If a tenant fails to purchase the unit during the sixty (60) day period, the offeror may not offer to dispose of an interest in that unit during the following one hundred eighty (180) days at a price or on terms more favorable to the offeree than the price or terms offered to the tenant. This subsection does not apply to any unit in a conversion building if that unit will be restricted exclusively to nonresidential use of the boundaries of the converted unit do not substantially conform to the dimension of the residential unit for conversion.
  3. If a seller, in violation of subsection (b), conveys a time-share unit to a purchaser for value who has no knowledge of the violation, recordation of the deed conveying the unit extinguishes any right a tenant may have under subsection (b) to purchase that unit if the deed states that the seller has complied with subsection (b), but does not affect the right of a tenant to recover damages from the seller for a violation of subsection (b).
  4. If a notice of conversion specifies a date by which a unit must be vacated and otherwise complies with the provisions of chapter 18 of this title, the notice also constitutes a notice to vacate specified by that statute.
    1. Notwithstanding the notice provisions of subsection (a) any tenant who has continuously resided in the unit for ten (10) years or more or any tenant who has attained the age of sixty-two (62) shall be given one year notice. Rents shall not be increased during the notice period. A tenant as described in this subsection shall have one hundred eighty (180) days within which to purchase the unit as provided for in subsection (b) and the remaining provisions of that subsection shall apply.
    2. The owner or developer shall pay reasonable moving expenses and costs, to any tenant who has attained the age of sixty-two (62), within a fifty (50) mile radius.
  6. Nothing in this section permits termination of a lease by a developer in violation of its terms.

History of Section. P.L. 1984, ch. 141, § 2.

34-41-4.11. Express warranties of quality.

  1. Express warranties made by any seller to a purchaser of a time share, if relied upon by the purchaser, are created as follows:
    1. Any affirmation of fact or promise which relates to the time share, the time-share unit, rights appurtenant to either, area improvements that would directly benefit the time share, or the right to use or have the benefit of facilities not located on the time-share unit, creates an express warranty that the time share, the time-share unit, and related rights and uses will conform to the affirmation or promise;
    2. Any model or description of the physical characteristics of the time-share property, including plans and specifications of or for improvements, creates an express warranty that the property will substantially conform to the model or description;
    3. Any description of the quantity or extent of the real estate constituting the time-share property, including plats or surveys, creates an express warranty that the property will conform to the description, subject to customary tolerances; and
    4. A provision that a purchaser may put a time-share unit only to a specified use is an express warranty that the specified use is lawful.
  2. Neither formal words, such as “warranty” or “guarantee,” nor a specific intention to make a warranty, is necessary to create an express warranty of quality, but a statement purporting to be merely an opinion or commendation of the time share, the time-share unit, or the value of either does not create a warranty.
  3. Any transfer of a time share transfers to the purchaser all express warranties of quality made by previous sellers.

History of Section. P.L. 1984, ch. 141, § 2.

34-41-4.12. Implied warranties of quality.

  1. A developer and any person in the business of selling real estate for his or her own account warrants that a time-share unit will be in at least as good condition at the earlier of the time of the transfer or of the delivery of possession as it was at the time of contracting, reasonable wear and tear excepted.
  2. A developer and any person in the business of selling real estate for his or her own account impliedly warrants that a time-share unit and any other real property the time-share owners have a right to use in conjunction therewith are suitable for the ordinary uses of real estate of its type and that any improvements made or contracted for by him or her, or made by any person before transfer, will be:
    1. Free from defective materials; and
    2. Constructed in accordance with applicable law, according to sound engineering and construction standards, and in a workerlike manner.
  3. In addition, a developer warrants to a purchaser of a time share that an existing use of the time-share unit, continuation of which is contemplated by the parties, does not violate applicable law at the earlier of the time of transfer or of the delivery of possession.
  4. Warranties imposed by this section may be excluded or modified as provided in § 34-41-4.13 .
  5. For purposes of this section, improvements made or contracted for by an affiliate of a developer are made or contracted for by the developer.
  6. Any transfer of a time share transfers to the purchaser all of any developer’s implied warranties of quality.

History of Section. P.L. 1984, ch. 141, § 2.

34-41-4.13. Exclusion or modification of implied warranties of quality.

  1. Except as limited by subsection (b) with respect to a purchaser of a time share in a time-share unit that may be used as a dwelling or for recreational purposes, implied warranties of quality:
    1. May be excluded or modified by agreement of the parties; and
    2. Are excluded by expression of disclaimer, such as “as is”, “with all faults”, or other language that in common understanding calls the purchaser’s attention to the exclusion of warranties.
  2. With respect to a purchaser of a time share in a time-share unit that may be used as a dwelling or for recreational purposes, no general disclaimer of implied warranties of quality is effective, but a developer may disclaim liability in an instrument signed by the purchaser for a specified defect or specified failure to comply with applicable law if the existence of the defect or failure entered into and became a part of the basis of the bargain.

History of Section. P.L. 1984, ch. 141, § 2.

34-41-4.14. Statute of limitation for warranties.

  1. A judicial proceeding for breach of any obligation arising under § 34-41-4.11 or 34-41-4.12 must be commenced within ten (10) years after the cause of action accrues, but the parties may agree to reduce the period of limitation to not less than five (5) years. With respect to a time-share unit that may be used as a dwelling or for recreational purposes, an agreement to reduce the period of limitation must be evidenced by a separate instrument executed by the purchaser.
  2. Subject to subsection (c), a cause of action for breach of warranty of quality, regardless of the purchaser’s lack of knowledge of the breach accrues, unless extended by agreement:
    1. As to a unit, at the time of the first transfer of a time share therein by the seller to a bona fide purchaser; and
    2. As to other improvements, at the time each is completed.
  3. If a warranty of quality explicitly extends to future performance or duration of any improvement or component of the property, the cause of action accrues at the time the breach is discovered or at the end of the period for which the warranty explicitly extends, whichever is earlier.

History of Section. P.L. 1984, ch. 141, § 2.

34-41-4.15. Effect of violations on rights of action.

If a developer or any other person subject to this chapter fails to comply with any provision of this chapter or of the time-share instrument, any person or class of persons adversely affected by the failure to comply has a claim for appropriate relief.

History of Section. P.L. 1984, ch. 141, § 2.

34-41-4.16. Labeling of promotional material.

If any improvement in the time-share property is not required to be built, no promotional material may be displayed or delivered to prospective purchasers which describes or portrays that improvement unless the description or portrayal of the improvement is conspicuously labeled or identified as “NEED NOT BE BUILT.”

History of Section. P.L. 1984, ch. 141, § 2.

34-41-4.17. Developer’s obligation to complete.

The developer shall complete all promised improvements described in the time-share instrument and promotional materials.

History of Section. P.L. 1984, ch. 141, § 2.

34-41-4.18. Substantial completion of units.

In the case of a sale of a time share interest unit where delivery of a public offering statement is required, a contract of sale may be executed, but no interest in that unit may be conveyed or finally transferred until the unit is substantially completed, as evidenced by a recorded certificate of substantial completion executed by an independent registered architect or engineer, or by issuance of a certificate of occupancy authorized by law.

History of Section. P.L. 1984, ch. 141, § 2.

Article V Administration and Registration

34-41-5.01. Administrative agency.

As used in this chapter, “agency” means the Rhode Island department of business regulation.

History of Section. P.L. 1984, ch. 141, § 2.

34-41-5.02. Registration required.

A developer may not offer or transfer a time share unless the time share is registered with the agency, but an offering by a developer of time shares in no more than one time-share unit at any one time is exempted from the requirement of this section and § 34-41-5.03(b) .

History of Section. P.L. 1984, ch. 141, § 2.

34-41-5.03. Application for registration — Approval of uncompleted units.

  1. For the purposes of this section, “substantially completed” means that all structural components and mechanical systems of all buildings constituting or containing any time-share units or portions thereof are finished in accordance with the plans, as evidenced by a recorded certificate of completion executed by an independent registered engineer, surveyor, or architect.
  2. An application for registration must contain the information and be accompanied by any reasonable fees required by the agency. A developer shall promptly file amendments to report any actual or expected material change in any document or information contained in his or her application.
  3. If a developer files with the agency the time-share instrument or proposed time-share instrument, or an amendment or proposed amendment to the time-share instrument, describing time-share units consisting in whole or in part of buildings or portions of buildings that have not been substantially completed, the developer shall also file with the agency:
    1. A verified statement showing all costs involved in completing the time-share property;
    2. A verified estimate of the time of completion of construction of the time-share property;
    3. Satisfactory evidence that he or she has sufficient funds to cover all costs to complete the time-share property;
    4. A copy of the executed construction contract and any other contracts for the completion of the time-share property;
    5. If purchasers’ funds are to be utilized for the construction of the time-share property, the developer shall also file with the agency:
      1. Proof of a hundred percent (100%) payment and performance bond running to the developer covering the cost of construction of the time-share property; and
      2. An executed copy of the escrow agreement with an escrow company or financial institution authorized to do business within the state which provides:
        1. That disbursements of purchasers’ funds may be made from time to time to pay for construction of the time-share property, architectural, engineering, finance, marketing and legal fees, and other costs for the completion of the time-share property in proportion to the value of the work completed by the contractor as certified by an independent registered architect or engineer, on bills submitted and approved by the lender of construction funds or the escrow agent;
        2. That disbursement of the balance of purchasers’ funds remaining after completion of the time-share property may be made only after the escrow agent or lender receives satisfactory evidence that the period for filing mechanics’ and materialmen’s liens has expired, the right to claim those liens has been waived, or adequate provision has been made for satisfaction of any claimed mechanic’s or materialman’s lien.

History of Section. P.L. 1984, ch. 141, § 2; P.L. 1985, ch. 11, § 1.

34-41-5.04. Receipt of application — Order of registration.

The agency shall acknowledge receipt of an application for registration within five (5) business days after receiving it. The registration shall be made available to the general public for inspection thereafter.

History of Section. P.L. 1984, ch. 141, § 2.

34-41-5.05. Annual report and amendments.

  1. A developer within thirty (30) days after the anniversary date of the order of registration, annually shall file a report to bring up to date the material contained in the application for registration and the public offering statement. This provision does not relieve the developer of the obligation to file amendments pursuant to subsection (b).
  2. A developer promptly shall file amendments to the public offering statement with the agency.
  3. If an annual report reveals that a developer owns or controls time shares representing less than twenty-five percent (25%) of the time shares in the time-share units and that a developer has no power to increase the number of time shares in the units, the agency shall issue an order relieving the developer of any further obligation to file annual reports.

History of Section. P.L. 1984, ch. 141, § 2.

34-41-5.06. Agency regulation of public offering statement.

  1. The agency at any time may require a developer to alter or supplement the form or substance of a public offering statement to assure adequate and accurate disclosure to prospective purchasers.
  2. The public offering statement may not be used for any promotional purpose before registration and afterwards only if it is used in its entirety. No person may advertise or represent that the agency has approved or recommended the time shares, the disclosure statement, or any of the documents contained in the application for registration.
  3. In the case of any time-share property situated wholly outside of this state, no application for registration or proposed public offering statement filed with the agency which has been approved by an agency of the state in which the time-share property is located and substantially complies with the requirements of this chapter may be rejected by the agency on the grounds of non-compliance with any different or additional requirements imposed by this chapter or by the agency. However, the agency may require additional documents or information in particular cases to assure adequate and accurate disclosure to prospective purchasers.

History of Section. P.L. 1984, ch. 141, § 2.

34-41-5.07. Civil sanctions.

Any person, partnership, or corporation who violates any of the provisions of this chapter, or who fails to comply with any of the provisions of this chapter, shall be subject to civil liability by any person or class of persons who have been adversely affected by the failure of the person, partnership or corporation to comply with the provisions of this chapter and further, any person or class of persons adversely affected by failure to comply may claim a right of action for appropriate relief in a court of competent jurisdiction.

History of Section. P.L. 1984, ch. 141, § 2.

Chapter 42 Self-Service Storage Facilities

34-42-1. Short title.

This chapter shall be known as the “Rhode Island Self-Service Storage Facility Act”.

History of Section. P.L. 1985, ch. 401, § 1.

34-42-2. Definitions.

As used in this chapter, the following words shall have the following meanings unless the context clearly indicates otherwise:

  1. “Abandoned lease space” means a leased space that the owner finds unlocked and empty, or a leased space in which possession and all rights to any personal property within it, have been surrendered to the owner by the occupant.
  2. “Default” means the failure to perform on time any obligation set forth in the rental agreement or this chapter.
  3. “Electronic mail” means an electronic message or executable program or computer file that contains an image of a message transmitted between two (2) or more computers or electronic terminals and includes electronic messages that are transmitted within or between computer networks from which a confirmation or receipt is received.
  4. “Electronic mail address” means a destination commonly expressed as a string of characters, consisting of a unique user name or mailbox and a reference to an Internet domain, whether or not displayed, to which an electronic mail message can be sent or delivered.
  5. “Last known address” means that address or electronic mail address provided by the occupant in the latest rental agreement or the address or electronic mail address provided by the occupant in a subsequent written notice of a change of address.
  6. “Occupant” means a person, or his or her sublessee, successor, or assign, who is entitled to the use of the storage space at a self-service storage facility under a rental agreement, to the exclusion of others.
  7. “Owner” means the proprietor, operator, lessor, or sublessor of a self-service storage facility, his or her agent, or any other person authorized by him or her to manage the facility or to receive rent from an occupant under a rental agreement. An owner is not a warehouseman, as defined in § 6A-7-102(1)(h) except that if an owner issues a warehouse receipt, bill of lading, or other document of title for the personal property sold, the owner is subject to the provisions of chapter 7 of title 6A, and the provisions of this chapter shall not apply.
  8. “Personal property” means movable property not affixed to land and includes, but is not limited to, goods, wares, merchandise, motor vehicles, watercraft, motorcycles, trailers, recreational vehicles (RVs), furniture, and household items.
  9. “Rental agreement” means any written agreement or lease that establishes or modifies the terms, conditions, rules, or any other provisions concerning the use and occupancy of a self-service storage facility.
  10. “Self-service storage facility” means any real property designed and used for the purpose of renting or leasing individual storage space to occupants who are to have access to the space for the purpose of storing and removing personal property. No occupant shall use a self-service storage facility for habitation or any other residential purposes.
  11. “Verified mail” means any method of mailing that is offered by the United States Postal service, or through electronic mail, that provides evidence of mailing.

History of Section. P.L. 1985, ch. 401, § 1; P.L. 2011, ch. 363, § 19; P.L. 2012, ch. 102, § 1; P.L. 2012, ch. 107, § 1.

Compiler’s Notes.

P.L. 2012, ch. 102, § 1, and P.L. 2012, ch. 107, § 1 enacted identical amendments to this section.

34-42-3. Owner’s lien.

  1. The owner of a self-service storage facility and his or her heirs, executors, administrators, successors, and assigns shall have a lien on all personal property located at a self-service storage facility for rent, labor, insurance, or other valid charges, present or future, in relation to the personal property stored, and for expenses necessary for the preservation of the personal property or reasonably incurred in its sale pursuant to law. The lien attaches as of the date the personal property is stored in the self-service storage facility, and the rental agreement shall contain a conspicuous statement notifying the occupant of the existence of the lien.
  2. The owner loses its lien on any personal property that it voluntarily delivers or that it unjustifiably refuses to deliver.

History of Section. P.L. 1985, ch. 401, § 1; P.L. 2012, ch. 102, § 1; P.L. 2012, ch. 107, § 1.

Compiler’s Notes.

P.L. 2012, ch. 102, § 1, and P.L. 2012, ch. 107, § 1 enacted identical amendments to this section.

34-42-4. Enforcement of owner’s lien.

  1. After default, an owner may deny an occupant access to the storage space, terminate the right of the occupant to use the storage space, enter the storage space and remove any personal property found therein to a place of safekeeping, and enforce its lien by selling the stored property at a public or private sale, in accordance with the following procedure:
    1. No sooner than five (5) days after default, but before the owner takes any action to enforce its lien, the occupant and all other persons known to claim an interest in the personal property stored shall be notified. The notice shall be delivered in person or by regular mail to the last known address of the person or persons to be notified, or by verified electronic mail, to the person or persons to be notified. This notice shall include the current balance due with a reminder to bring the past due balance current or risk the action of the owner to enforce the owner’s lien.
    2. No sooner than fourteen (14) days after default, the occupant shall again be notified. The notice shall be delivered in person or sent by regular or verified electronic mail, to the person or persons to be notified. The notice shall include:
      1. A statement of the claim showing the sums due at the time of the notice;
      2. A statement that, based on the default, the owner has the right to deny the occupant access to the leased space;
      3. A general description of the personal property subject to the lien if known;
      4. A demand for payment of the claim by a specified date not less than fourteen (14) days after mailing of the notice pursuant to subdivision (2);
      5. A conspicuous statement that unless the claim is paid by the specified date, the occupant’s right to use the storage space will terminate, and the personal property will be advertised for sale or will be otherwise disposed of at a specified time and place; and
      6. The name, street address, and telephone number of the owner who the occupant may contact to respond to the notice.
    3. If the owner is not able to obtain personal service on those persons entitled to notice or if the certified mail return receipt is not signed by the person to whom notice must be sent then the owner shall be required to give notice by publication once a week for three (3) successive weeks in a newspaper of general circulation in the city or town where the person to receive the notice was last known to reside.
    4. When notice is by publication, the notice does not have to include an itemized statement of the claim but only a statement as to the amount of money due or the time of the final notice, nor is a general description of the personal property subject to the lien required. The demand for payment of the claim by a specified date shall set forth a date no less than thirty (30) days after the date of the published notice.
  2. No sooner than one day after default, the owner may deny the occupant access to the leased space in a reasonable and peaceful manner.
  3. After expiration of the time given in the second (2nd) notice, if the claim has not been paid in full as demanded, the occupant’s right to use the storage space terminates, and the owner may enter the storage space and remove any personal property found therein to a place of safekeeping.
  4. After expiration of the time given in the second (2nd) notice, if the claim has not been paid in full as demanded and the owner wishes to sell the personal property to satisfy its lien, an advertisement of the sale must be published once a week for two (2) consecutive weeks on a publicly accessible website identified in the rental agreement. The advertisement must include the name of the person on whose account it is being stored and the time and place of sale. The sale must take place no sooner than ten (10) days after the first publication.
  5. The sale shall be held at the self-service storage facility or the nearest suitable place and it shall conform to the terms of the notification.
  6. Before a sale of personal property, any person claiming a right to the personal property may pay the amount necessary to satisfy the lien and the reasonable expenses incurred by the owner to redeem the personal property. Upon receipt of this payment, the owner shall release the personal property to the payor and have no further liability to any person with respect to the personal property.
  7. The owner may buy at any sale of personal property pursuant to this section to enforce the owner’s lien.
  8. A purchaser in good faith of the personal property sold to enforce the owner’s lien takes the personal property free of any rights of persons against whom the lien was valid, despite noncompliance by the owner with the requirements of this section.
  9. The owner may satisfy its lien from the proceeds of any sale pursuant to this section but must hold the balance, if any, for delivery on demand to any person to whom it would have been bound to deliver the personal property. If the other party does not claim the balance of the proceeds within two (2) years of the date of the sale, it shall eschew to the state.
  10. The owner shall be liable for damages caused by failure to comply with the requirements for sale under this section and in case of willful violation is liable for conversion.
  11. The owner shall not be liable for identity theft or other harm resulting from the misuse of information contained within the contents of the occupant’s storage space, which are sold or otherwise disposed of to satisfy the owner’s lien.
  12. If the personal property in the leased space is a motor vehicle, watercraft, trailer, motorcycle, RV or any other titled vehicle, the owner may have it towed with no liability on its part.

History of Section. P.L. 1985, ch. 401, § 1; P.L. 2011, ch. 363, § 19; P.L. 2012, ch. 102, § 1; P.L. 2012, ch. 107, § 1.

Compiler’s Notes.

P.L. 2012, ch. 102, § 1, and P.L. 2012, ch. 107, § 1 enacted identical amendments to this section.

34-42-5. Construction of chapter.

Nothing in this chapter shall be construed to impair or affect the right of the parties to create additional rights, duties, and obligations in and by virtue of the rental agreement. The rights provided by this chapter shall be in addition to all other rights allowed by law to a creditor against a debtor.

History of Section. P.L. 1985, ch. 401, § 1.

34-42-6. Savings clause.

All rental agreements entered into before June 28, 1985, and not extended or renewed after that date, and the rights, duties, and interests flowing from them shall remain valid and may be enforced or terminated in accordance with their terms or as permitted by any other provisions of the general or public laws.

History of Section. P.L. 1985, ch. 401, § 1.

34-42-7. Severability.

If any provision of this chapter or the application thereof to any person or circumstances is held invalid, the invalidity shall not affect other provisions or applications of the chapter, which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are declared to be severable.

History of Section. P.L. 1985, ch. 401, § 1.

34-42-8. Notification of local fire departments.

  1. The owner of a self-service storage facility shall require each occupant to specifically identify, in writing, the amount, nature and composition of any flammable or hazardous material to be stored on the premises. The occupant shall notify the owner, in writing, within twenty-four (24) hours of the time when the flammable or hazardous materials are stored in the premises.
  2. Every occupant of any self-service storage facility shall notify the local fire department in writing of any flammable or hazardous material stored on the premises.
  3. Any person who violates the provisions of this section shall be fined up to one thousand dollars ($1,000) per day, or imprisoned up to six (6) months, or both.
  4. This section shall be enforced by the city or town through its director of public safety and/or fire department and/or fire district in which the self-service storage facility is located. Nothing in this section shall be construed to preempt the duties and responsibilities under the Hazardous Waste Management Act, chapter 19.1 of title 23 as well as any municipal flammable storage ordinances.
  5. The provisions of §§ 45-13-7 — 45-13-10 shall not apply to this section.

History of Section. P.L. 1989, ch. 279, § 1; P.L. 2012, ch. 102, § 1; P.L. 2012, ch. 107, § 1.

Compiler’s Notes.

P.L. 2012, ch. 102, § 1, and P.L. 2012, ch. 107, § 1 enacted identical amendments to this section.

34-42-9. Contents of rental agreement.

  1. The rental agreement shall contain a conspicuous statement in bold type notifying the occupant of the following:
    1. That the property stored in the leased space is not insured by the owner against loss, theft or damage.
    2. The existence of the lien under this chapter.
    3. That property stored in the leased space may be sold to satisfy the lien if the occupant is in default.
  2. If the rental agreement contains a limit on the value of the property that can be stored in the leased space, the limit shall be deemed to be the maximum value of the property stored in said leased space.

History of Section. P.L. 2012, ch. 102, § 2; P.L. 2012, ch. 107, § 2.

Compiler’s Notes.

P.L. 2012, ch. 102, § 2, and P.L. 2012, ch. 107, § 2 enacted identical versions of this section.

Chapter 43 Insurance on Multi-Unit Dwellings in Providence

34-43-1. Insurance on multi-unit residential and commercial property.

  1. Every landlord or lessor of residential or commercial property in the city of Providence shall file a written declaration in the office of the tax assessor of the city of Providence setting forth information regarding the insurance company insuring the property against loss or damage by fire. The declaration shall indicate the property location, the name of the insurance company or companies issuing the policy, the named insured and the policy number of the policy; the amount of insurance coverage provided in the policy; and the named insured and/or loss payee. The declaration shall be filed within ten (10) days of the landlord or lessor taking title to the property and within ten (10) days of the issuance of a new policy or amendment of the policy which amends any of the information contained in the declaration. The declaration shall also apply to all existing property as of June 27, 1986 and shall require filing of the information upon receipt of the first tax bill after June 27, 1986.
  2. Any person who violates the provisions of this section shall be guilty of a misdemeanor and may be punished by a fine of up to an amount not exceeding five hundred dollars ($500.00), or by imprisonment not exceeding one year, or both a fine and imprisonment. The city of Providence is hereby empowered to enforce the provisions of this section.
  3. The provisions of this section shall not apply to any residential property occupied by the owner or owners thereof nor shall it apply to any residential property occupied by less than three (3) households.

History of Section. P.L. 1986, ch. 417, § 2.

Chapter 44 Abandoned Property

34-44-1. Short title.

This chapter shall be known and may be cited as the “Abandoned Property Act”.

History of Section. P.L. 1986, ch. 447, § 1.

34-44-2. Definitions.

As used in this chapter:

  1. “Abandon” or “abandonment” means a situation where the owner of a building has intended to abandon the building and has manifested the intent with some act or failure to act. In determining whether an owner has abandoned his or her building, a court shall infer the intent of the owner from the existence of serious code violations that pose a health and/or safety hazard to the community and that have gone unrepaired for an unreasonable amount of time and from any of the surrounding facts and circumstances including, but not limited to the following:
    1. Whether or not the building is vacant;
    2. Whether or not the grounds are maintained;
    3. Whether or not the building’s interior is sound;
    4. Whether or not any vandalism on the building has gone unrepaired;
    5. Whether or not rents have been collected from the building’s tenants by the owner;
    6. The length of time any of the above conditions have existed.
  2. “Abate” or “abatement” in connection with any property means the removal or correction of any hazardous conditions deemed to constitute a public nuisance and the making of such other improvements as are needed to affect a rehabilitation of the property that is consistent with maintaining safe and habitable conditions over the remaining useful life of the property. However, the closing or boarding up of any building that is found to be a public nuisance is not an abatement of the nuisance.
  3. “Building” means any building or structure used for residential purposes or used for retail stores, shops, salesrooms, markets, or similar commercial uses, or for offices, banks, civic administration activities, professional services, or similar business or civic uses.
  4. “Interested party” means any owner, mortgagee, lienholder, or other entity or person who or that possesses an interest of record in any property that becomes subject to the jurisdiction of the court pursuant to this chapter and any applicant for the appointment of a receiver pursuant to this chapter.
  5. “Neighboring landowner” means any owner of property, including any entity or person who or that is purchasing property by land installment contract or under a duly executed purchase contract, that is located within two hundred feet (200´) of any property that becomes subject to the jurisdiction of the court pursuant to this chapter.
  6. “Public nuisance” means a building that is a menace to the public health, welfare, or safety; or that is structurally unsafe, unsanitary; or not provided with adequate safe egress; or that constitutes a fire hazard; or is otherwise dangerous to human life; or is otherwise no longer fit and habitable; or that, in relation to existing use, constitutes a hazard to the public health, welfare, or safety by reason of inadequate maintenance, dilapidation, obsolescence, or abandonment.

History of Section. P.L. 1986, ch. 447, § 1; P.L. 1992, ch. 254, § 1; P.L. 2015, ch. 81, § 1; P.L. 2015, ch. 89, § 1; P.L. 2016, ch. 511, art. 1, § 16.

Compiler’s Notes.

P.L. 2015, ch. 81, § 1, and P.L. 2015, ch. 89, § 1 enacted identical amendments to this section.

34-44-3. Injunctive relief and other relief.

In any proceeding, brought under chapter 27.3 of title 23 entitled the Rhode Island state building code, and any violation of the provisions of those regulations promulgated by the state building code standards committee entitled SBC-1 Rhode Island state building code, SBC-2 Rhode Island state one and two family dwelling code, SBC-3 Rhode Island state plumbing code, SBC-4 Rhode Island state mechanical code, SBC-5 Rhode Island state electrical code, SBC-6 state property maintenance code, SBC-19 state fuel gas code or any municipal ordinance or regulation concerning minimum housing standards, that is before a state court, municipal court, housing division of a state or municipal court, or in any proceeding upon a verified petition for abatement filed in the state court by the municipal corporation in which the property involved is located, by any neighboring landowner, or by a nonprofit corporation that is duly organized and has as one of its goals the improvement of housing conditions for low and moderate income persons in the municipality in which the property in question is located, if a building is alleged to be abandoned and either to be in a dangerous or unsafe condition or to be otherwise in violation of chapter 27.3 of title 23 entitled the Rhode Island state building code, and any violation of the provisions of those regulations promulgated by the state building code standards committee entitled SBC-1 Rhode Island state building code, SBC-2 Rhode Island state one and two family dwelling code, SBC-3 Rhode Island state plumbing code, SBC-4 Rhode Island state mechanical code, SBC-5 Rhode Island state electrical code, SBC-6 state property maintenance code, SBC-19 state fuel gas code or any municipal ordinance or regulation concerning building or housing, the municipal corporation, neighboring landowner, or nonprofit corporation may apply for an injunction requiring the owner of the building to correct the condition or to eliminate the violation. There shall be a hearing at least twenty (20) days after a summons for an injunction, indicating the date and time of the hearing is served upon the owner of the building. The summons shall be served by personal service, residence service, or service by certified mail pursuant to Rule 4 of the Superior Court Rules of Civil Procedure. If service cannot be made in one of these ways, the notice shall be served by posting it in a conspicuous place on the building and by publication in a newspaper of general circulation in the municipality in which the building is located. If the court finds at the hearing that the building is abandoned and either is in a dangerous or unsafe condition or is otherwise in violation of any ordinance or regulation concerning minimum housing standards, it shall issue an injunction requiring the owner to correct the condition or to eliminate the violation, or any other order that it considers necessary or appropriate to correct the condition or to eliminate the violation.

History of Section. P.L. 1986, ch. 447, § 1; P.L. 2013, ch. 447, § 1; P.L. 2013, ch. 485, § 1.

Compiler’s Notes.

P.L. 2013, ch. 447, § 1, and P.L. 2013, ch. 485, § 1 enacted identical amendments to this section.

34-44-4. Public nuisance determination — Show cause hearing — Appointment of receiver.

  1. In any proceeding described in § 34-44-3 of this chapter, if the court makes the finding described in that section and additionally finds that the building in question constitutes a public nuisance and that the owner of the building has been afforded reasonable opportunity to begin correcting the dangerous or unsafe condition found or to begin eliminating the violation found and has refused or failed to do so, the court shall cause notice of its findings to be served upon the owner, each mortgagee or other lienholder of record, and any other interested party, and shall order the parties to show cause why a receiver should not be appointed to perform any work and to furnish any material that reasonably may be required to abate the public nuisance. The notice shall be served in the same manner as described in § 34-44-3 of this chapter.
  2. Before appointing a receiver to perform any work to abate a public nuisance under this chapter, the court shall conduct a hearing at which any mortgagee of record or lienholder of record, or other interested party in the order of his or her priority of interest in title shall be offered the opportunity to undertake the work and to furnish the materials as are necessary to abate the public nuisance. The court shall require the party selected to demonstrate the ability promptly to undertake the work required, to provide the judge with a viable financial and construction plan for the rehabilitation of the building, and to post security for the performance of the work. All amounts expended by the party toward abating the public nuisance shall be a lien on the property if the expenditures were approved in advance by the court and if the party desires such a lien. The lien shall bear the interest, and shall be payable upon the terms approved by the court. The lien shall have the same priority as the mortgage of a receiver, as set forth in § 34-44-6 , if a certified copy of the court order that approved the expenses, the interest, and the terms of payment of the lien, and a description of the property in question are filed for record, within thirty (30) days of the date of issuance of the order, in the office of the recorder of deeds of the municipality in which the property is located. If the court determines at the hearing that no party can undertake the work and furnish the materials required to abate the public nuisance, or if the court determines at any time after the hearing that any party who is undertaking corrective work pursuant to this chapter cannot or will not proceed, or has not proceeded with due diligence, the judge may appoint a receiver to take possession and control of the property. The receiver shall be appointed in the manner provided in subsection (c).
  3. No person shall be appointed a receiver unless he or she first has provided the court with a viable financial and construction plan for the rehabilitation of the property in question and has demonstrated the capacity and expertise to perform the required work in a satisfactory manner. Prior to the appointment of a receiver the court may grant access to the property in question to any person who applies to be appointed the receiver of the property, for the limited purpose of developing a viable financial and construction plan for the rehabilitation of the property which shall include the items set forth in § 34-44-4.1 . The appointed receiver may be a financial institution that possesses an interest of record in the property, a nonprofit corporation that is duly organized and has as one of its goals the improvement of housing conditions for low and moderate income persons in the municipality in which the property in question is located, or any other qualified property manager who certifies that any rehabilitation of the property in question will not result in the long term displacement of low and moderate income persons.

History of Section. P.L. 1986, ch. 447, § 1; P.L. 1992, ch. 254, § 1.

34-44-4.1. Court determinations required.

Prior to ordering any work or the furnishing of any materials to abate a public nuisance under this chapter, the court shall review the submitted financial and construction plan and shall make all of the following findings:

  1. The estimated cost of the labor, materials, and any other development costs required to abate the public nuisance;
  2. The estimated income and expenses of the property after the furnishing of the materials and the completion of the repairs and improvements;
  3. The need for conditions and availability of any financing that is necessary for the performance of the work and the furnishing of the materials;
  4. If repair and rehabilitation of the building are not found to be feasible, the cost of demolition of the building, or the portions of the building that constitute the public nuisance.

History of Section. P.L. 1986, ch. 447, § 1; P.L. 1992, ch. 254, § 1.

34-44-5. Demolition.

Upon the written request of all of the interested parties to have the building, or portions of the building, demolished, because repair and rehabilitation of the building are found not to be feasible, the court may order the demolition. However, no demolition shall be ordered unless the requesting parties have paid the costs of demolition and of the receivership, and all notes, certificates, and mortgages of the receivership.

History of Section. P.L. 1986, ch. 447, § 1; P.L. 1992, ch. 254, § 1.

34-44-6. Receiver’s bond — Power and duties.

Before proceeding with his or her duties, any receiver appointed by the court shall post a bond in an amount designated by the court, but not exceeding the value of the building involved at the time of the appointment of the receiver as determined by the judge. The court may empower the receiver to do any or all of the following:

  1. Take possession and control of the property, operate and manage the property, establish and collect rents and income, lease and rent the property, and evict tenants;
  2. Pay all expenses of operating and conserving the property, including, but not limited to, the cost of electricity, gas, water, sewerage, heating fuel, repairs and supplies, custodian services, taxes and assessments, and insurance premiums, and hire and pay reasonable compensation to a managing agent;
  3. Pay pre-receivership mortgages or installments of them and other liens;
  4. Perform or enter into contracts for the performance of all work and the furnishing of materials necessary to abate, and obtain financing for the abatement of, the public nuisance;
  5. Pursuant to court order, remove and dispose of any personal property abandoned, stored, or otherwise located on the property that creates a dangerous or unsafe condition or that constitutes a violation of housing regulations or ordinances;
  6. Obtain mortgage insurance for the receiver’s mortgage from any agency of the federal government or private mortgage insurance company;
  7. Enter into any agreement and do those things necessary to maintain and preserve the property and comply with all housing and building regulations and ordinances;
  8. Give the custody of the property and the opportunity to abate the nuisance and operate the property to the owner, or any mortgagee or any lienholder of record;
  9. Issue notes and secure them by a mortgage bearing interest upon terms and conditions as the court may approve. When sold or transferred by the receiver in return for valuable consideration in money, material, labor, or services, the notes or certificates shall be freely transferable. If within sixty (60) days of the issuance of a secured note, the mortgage is filed for record in the office of the municipal recorder of the municipality in which the property is located, it shall be a first lien upon the property and shall be superior to any claims of the receiver and to all prior or subsequent liens and encumbrances except taxes and assessments. Priority among the receiver’s mortgages shall be determined by the order in which they are recorded.

History of Section. P.L. 1986, ch. 447, § 1; P.L. 1992, ch. 254, § 1.

34-44-7. Nonapplicability of monetary jurisdiction limits — Personal liability of receiver.

The amounts expended by the receiver, the amount of any notes issued by the receiver, any amounts expended by any other person authorized by the court under this chapter, any mortgage authorized by the court under this chapter and the amounts expended in connection with the foreclosure of any mortgage authorized by the court under this chapter shall not be limited by any monetary jurisdictional limit otherwise imposed upon the court that appoints the receiver. The receiver shall not be personally liable except for misfeasance, malfeasance, or nonfeasance in the performance of the function of his or her office.

History of Section. P.L. 1986, ch. 447, § 1.

34-44-8. Expenses of receivership — Fees.

The court may assess as court costs, the costs and expenses set out in § 34-44-6 (2) of this chapter, and may approve receiver’s fees to the extent that they are not covered by the income from the property. Any expenses incurred by a receiver pursuant to the exercise of a receiver’s powers as set forth in § 34-44-6 shall be a lien on the proceeds of any fire insurance claim made by the owner of a building under the control of a receiver for damage or loss to the building caused by or arising out of any fire or explosion, where the event giving rise to the claim occurs on or after the date of appointment of a receiver; provided that the event giving rise to the claim was not caused by a receiver or a person or persons under the control of a receiver.

History of Section. P.L. 1986, ch. 447, § 1.

34-44-9. Discharge of a receiver.

The receiver may be discharged by the judge as provided in § 34-44-12 or at any time in the discretion of the court. The receiver shall be discharged when all of the following have occurred:

  1. The public nuisance has been abated;
  2. All costs, expenses, and approved fees of the receivership have been paid;
  3. Either all receiver’s notes and mortgages issued pursuant to this section have been paid, or all the holder’s of the notes and mortgages request that the receiver be discharged.

History of Section. P.L. 1986, ch. 447, § 1; P.L. 1992, ch. 254, § 1.

34-44-10. Legality of prior and inferior mortgage liens.

The creation of any mortgage lien under this chapter prior to or superior to any mortgage of record at the time the mortgage lien was created shall not disqualify a prior recorded mortgage as a legal investment under chapter 9 of title 19.

History of Section. P.L. 1986, ch. 447, § 1.

34-44-11. Receiver’s entitlement to fees and commissions.

A receiver appointed under this section is entitled to receive fees and commissions in the same manner and to the same extent as receivers appointed in other court proceedings.

History of Section. P.L. 1986, ch. 447, § 1.

34-44-12. Sale of building and property by receiver.

  1. If a receiver appointed pursuant to § 34-44-4 files with the judge in the civil action described in § 34-44-4 a report indicating that the public nuisance has been abated, and if the judge confirms that the receiver has abated the public nuisance, and if the receiver or any interested party requests the judge to enter an order directing the receiver to sell the building and the property on which it is located, then the judge may enter that order after holding a hearing as described in subsection (b).
  2. The receiver or interested party requesting an order as described in subsection (a) shall cause a notice of the date and time of a hearing on the request to be served on the owner of the building involved and all other interested parties in accordance with § 34-44-3 . The judge in the civil action described in § 34-44-3 shall conduct the scheduled hearing. At the hearing, if the owner or any interested party objects to the sale of the building and the property, the burden of proof shall be upon the objecting person to establish, by a preponderance of the evidence, that the benefits of not selling the building and the property outweigh the benefits of selling them. If the judge determines that there is no objecting person, or if he or she determines that there is one or more objecting persons but no objecting person has sustained the burden of proof specified herein, the judge may enter an order directing the receiver to offer the building and the property for sale upon terms and conditions that the judge shall specify, and may further order the removal of any clouds on the title to the building and property by reason of any liens or encumbrances that are inferior to any claims of the receiver, as provided by § 34-44-6(9) , or if the receivership action is pending in a court other than the superior court, the judge may order the receiver to petition the superior court to order the removal of any clouds on the title to the building or property. An order by the superior court to remove any cloud on the title to the building and property shall be binding upon all those claiming by, through, under, or by virtue of, any inferior liens or encumbrances.
  3. If a sale of a building and the property on which it is located is ordered pursuant to subsections (a) and (b) and if the sale occurs in accordance with the terms and conditions specified by the judge in his or her order of sale, then the receiver shall distribute the proceeds of the sale and the balance of any funds that the receiver may possess, after the payment of the costs of the sale, in the following order of priority and in the described manner:
    1. First, the amount due for delinquent taxes and assessments owed to this state or a political subdivision of this state;
    2. Second, in satisfaction of any mortgage liability incurred by the receiver pursuant to § 34-44-6 of this chapter, in their order of priority;
    3. Third, any unreimbursed expenses and other amounts paid in accordance with § 34-44-6 of this chapter by the receiver, and the fees of the receiver assessed pursuant to § 34-44-8 of this chapter; and
    4. Fourth, the amount of any pre-receivership mortgages, liens, or other encumbrances, in their order of priority.
  4. Following a distribution in accordance with subsection (c), the receiver shall request the judge in the civil action described in § 34-44-3 to enter an order terminating the receivership. If the judge determines that the sale of the building and the property on which it is located occurred in accordance with the terms and conditions specified by the judge in his or her order of sale under subsection (b) and that the receiver distributed the proceeds of the sale and the balance of any funds that the receiver possessed, after the payment of the costs of the sale, in accordance with subsection (c), and if the judge approves any final accounting required of the receiver, the judge may terminate the receivership.
  5. If a judge in a civil action described in § 34-44-3 enters a declaration that a public nuisance has been abated by a receiver, and if, within three (3) days after the entry of the declaration, all costs, expenses, and approved fees of the receivership have not been paid in full, the judge may enter an order directing the receiver to sell the building involved and the property on which it is located. The order shall be entered, and the sale shall occur, only in compliance with subsections (b) — (d).

History of Section. P.L. 1992, ch. 254, § 2.

Chapter 44.1 The Rhode Island Museum Property Act

34-44.1-1. Definitions.

As used in this chapter, the following words and terms shall have the following meanings, unless the context indicates another or different meaning or intent:

  1. “Museum” means an organized and permanent nonprofit or public institution in Rhode Island operated by, or a division of, a nonprofit corporation, trust, association, educational institution, or public agency, that is primarily educational, scientific, historic, or aesthetic in purpose, and that owns, borrows, cares for, studies, archives, or exhibits property. Museums may include, but not be limited to, historical societies, parks, historic sites and monuments, archives, and libraries;
  2. “Property” means any tangible object in the possession of and under a museum’s care that has intrinsic educational, scientific, historical, artistic, aesthetic, or cultural value, excluding the property of any agency or public body as defined in § 38-1-1.1 ;
  3. “Loan” or “loaned” means a deposit with a museum that: (i) Title to the property is not transferred to the museum, (ii) The loan agreement for such deposit does not include a provision that the museum acquire title at some time after such deposit is made; or (iii) The loan agreement for such deposit includes an option for the museum to acquire title at some time after such deposit is made;
  4. “Lender” means a person (an individual, association, partnership, corporation, trust, estate, or other entity, excluding the property of any agency or public body as defined in § 38-1-1.1 ) whose name appears on the records of a museum as the person legally entitled to, or claiming to be legally entitled to, property held by the museum or, if such person is deceased, the legal heirs of such person.
  5. “Undocumented property” means property under a museum’s care, excluding the property of any agency or public body as defined in § 38-1-1.1 , whose ownership cannot be determined by reference to the museum’s records and for which the museum does not have a reasonable means of determining the owner.
  6. “Publication” means inclusion in the online publication of lists of abandoned property established pursuant to § 33-21.1-18 .

History of Section. P.L. 2013, ch. 160, § 1; P.L. 2013, ch. 219, § 1; P.L. 2014, ch. 69, § 1; P.L. 2014, ch. 74, § 1.

Compiler’s Notes.

P.L. 2013, ch. 160, § 1, and P.L. 2013, ch. 219, § 1 enacted identical versions of this chapter.

P.L. 2014, ch. 69, § 1, and P.L. 2014, ch. 74, § 1 enacted identical amendments to this section.

34-44.1-2. Property held subject to a loan agreement.

  1. Any property on loan to a museum that is subject to a loan agreement shall be deemed to be donated to the museum if:
    1. No claim of ownership is made or action filed to recover such property by the owner or lender after termination or expiration of the loan; and
    2. The museum has given notice, in accordance with the provisions of § 34-44.1-5 of this chapter, and no claim of ownership is made or action to recover such property is filed on or before sixty (60) days after the publication of the notice.
  2. A museum may terminate a loan of property for any property that was loaned to the museum for an indefinite term if the property has been in the possession of the museum for at least five (5) years. Any property on loan to a museum and whose loan agreement indicates that such property is on permanent loan to the museum shall be considered loaned for an indefinite term for purposes of this subsection. The property for any loan of property that has been terminated pursuant to this subsection shall be deemed donated to the museum.
  3. A museum may terminate a loan of property for any property that was loaned to the museum for a specified term after the expiration of such specified term, provided the museum provides notice of such termination in accordance with the provisions of § 34-44.1-5 of this chapter. The property for any loan of property that has been terminated pursuant to this subsection shall be deemed donated to the museum.
  4. It shall be the responsibility of the lender of property loaned to a museum to provide the museum with written notice of any change of the lender’s address, of the lender’s designated agent, of the designated agent’s address, and of the name of the new owner or lender if there is a change in the ownership of the property loaned to the museum.
  5. A museum accepting a loan of property shall inform the lender of such property in writing of the provisions of this chapter.

History of Section. P.L. 2013, ch. 160, § 1; P.L. 2013, ch. 219, § 1.

34-44.1-3. Property held without a loan agreement.

  1. Any property in the possession of a museum that is not subject to a loan agreement shall be deemed to be abandoned if:
    1. The property is unclaimed and has been in the possession of the museum as unclaimed property for at least five (5) years;
    2. The museum has given notice, in accordance with the provisions of § 34-44.1-5 ; and
    3. No claim of ownership is made or action to recover such property is filed on or before sixty (60) days after the publication of the notice.
  2. Any abandoned property in the possession of a museum shall become the property of such museum.

History of Section. P.L. 2013, ch. 160, § 1; P.L. 2013, ch. 219, § 1.

34-44.1-4. Maintenance of records.

On or after the effective date of this chapter, each museum shall maintain a record of all property on loan to the museum which shall include, if known, the name and address of the lender and the dates that the property is to be on loan to the museum and a copy of the loan agreement for the property. The museum shall provide a copy of the record and the loan agreement to the lender of property at the time that the lender makes the loan of property to the museum. If a museum is notified of a change in ownership of any property on loan to the museum, the museum shall create a new record for the property and update the existing loan agreement and shall provide a written copy of the new record and the updated loan agreement to the new owner of the property. A museum shall retain all written records regarding property acquired under this chapter for at least ten (10) years from the date that the museum acquired title to the property or until dissolution of the museum, whichever occurs first.

History of Section. P.L. 2013, ch. 160, § 1; P.L. 2013, ch. 219, § 1.

34-44.1-5. Notice requirements.

  1. Prior to a museum accepting donated property pursuant to § 34-44.1-2 , or taking ownership of abandoned property pursuant to § 34-44.1-3 , the museum shall make a reasonable good faith effort to find the address of the lender and provide notice that the museum may become the owner of the property. The notice shall be sent by certified mail, return receipt requested, to the address of the lender on record with the museum.
  2. If the museum does not have an address on record for the lender of the property, or the museum does not receive written proof of receipt of the mailed notice within thirty (30) days after the date the notice was mailed, notice shall be published for a duration of six (6) months in the lists of abandoned property advertised by the general treasurer as prescribed in § 33-21.1-18 . The museum shall provide to the general treasurer the following information to be included in the notice:
    1. The name and address of the museum and a brief and general description of the unclaimed property, including date of the property or the approximate date the property came into the custody of the museum;
    2. If known, the name and address of the lender on record with the museum, if any;
    3. A request that all persons who may have any knowledge of the whereabouts of the lender provide written notice to the museum;
    4. The name and contact information of the person at the museum to be contacted regarding the property; and
    5. A statement that if no claim of ownership is made or action to recover the property is filed with the museum on or before sixty (60) days from the last day that the notice is included in the unclaimed property publication, the property shall be deemed donated or abandoned and shall become the property of the museum.

History of Section. P.L. 2013, ch. 160, § 1; P.L. 2013, ch. 219, § 1.

34-44.1-6. Property vested in museum.

  1. If a museum receives a timely written claim of ownership for any property for which notice of donation or abandonment was made, pursuant to § 34-44.1-5 , from the lender on record with the museum, or the designated agent of such lender, the museum shall return the property to the lender or carry out the disposition of such property as the lender requests not later than sixty (60) days after receipt of such written claim of ownership, provided the lender shall advise the museum in writing as to the disposition of such property or how such property is to be returned to the lender. Any costs incurred as a result of returning such property or the disposition of such property shall be the responsibility of the lender unless the lender and the museum have mutually agreed to alternate arrangements.
  2. If a museum receives a written claim of ownership for any property for which notice of donation or abandonment was made, pursuant to § 34-44.1-5 , from a person other than the lender on record with the museum, the museum shall, not later than sixty (60) days after receipt of such written claim of ownership, determine if such ownership claim is valid. A claimant shall submit proof of ownership to the museum with such written claim of ownership. If more than one person submits a written claim of ownership, the museum may delay its determination of ownership until the competing claims are resolved by agreement or legal action. A museum shall not be obligated to initiate legal action to resolve competing claims. If the museum determines that the written claim of ownership is valid or if the competing claims are resolved by agreement or judicial action, the museum shall return the property to the claimant submitting the valid claim of ownership or dispose of the property as the valid claimant requests. Any costs incurred as a result of returning the property or the disposition of the property shall be the responsibility of the valid claimant unless the valid claimant and the museum have mutually agreed to alternate arrangements.
  3. If no written claim of ownership is presented to the museum on or before sixty (60) days after the publication of the notice, the property shall be deemed donated or abandoned and title to the property shall vest in the museum.
  4. Any person who purchases or otherwise acquires property from a museum that obtained the property by donation or abandonment pursuant to this section and §§ 34-44.1-2 and 34-44.1-3 , shall acquire good title to such property.

History of Section. P.L. 2013, ch. 160, § 1; P.L. 2013, ch. 219, § 1.

34-44.1-7. Application of conservation measures to property on loan to a museum.

  1. Unless a written loan agreement provides otherwise, a museum may apply conservation or protective measures to, or dispose of, undocumented property or property on loan to the museum without the lender’s or claimant’s permission or formal notice if immediate action is required to protect the property on loan or other property in the custody of the museum, or because the property on loan has become a hazard to the health and safety of the public or to the museum’s staff, and if one of the following applies:
    1. The property poses an immediate risk of harm to the museum’s staff or collection or to the general public, in which case the museum may dispose of the property without delay and shall notify the lender or claimant of the action taken within thirty (30) days; or
    2. The museum is unable to contact the lender at the address on record for the lender within three (3) days before the time the museum determines action is necessary; or
    3. The lender does not: (i) Respond or agree to the conservation or protective measures recommended by the museum; and (ii) Does not or is unable to terminate the loan and take possession of such property within the time the museum determines that action is necessary.
  2. If a museum applies conservation or protective measures to any property on loan to the museum under this section, unless the written loan agreement for the property provides otherwise, the museum shall acquire a lien on the property in an amount equal to the costs incurred by the museum for any conservation or protective measures taken.
  3. The museum shall not be liable for injury to or loss of any property that was on loan to the museum and for which conservation or protective measures were taken under this section, if the museum: (1) Had a reasonable belief at the time the conservation or protective measures were taken that such measures were necessary to protect the property or other property in the possession of the museum, or that the property was a hazard to the health and safety of the public or museum staff, and (2) Exercised reasonable care in the choice and application of the conservation and protective measures.

History of Section. P.L. 2013, ch. 160, § 1; P.L. 2013, ch. 219, § 1.

34-44.1-8. Scope.

  1. The provisions of this chapter shall:
    1. Not be construed to abrogate the rights and obligations of a lender, claimant or museum identified in a written loan agreement, unless the requirements of § 34-44.1-2 have been fulfilled;
    2. Not preclude a museum from availing itself of any other means of establishing or perfecting title to property in the possession of the museum.
  2. This chapter applies to all property held by or in the custody of a museum on or after the effective date of the chapter.

History of Section. P.L. 2013, ch. 160, § 1; P.L. 2013, ch. 219, § 1.

Chapter 45 Preservation of Federally Insured or Assisted Housing

34-45-1. Short title.

This chapter shall be known and may be cited as “The Affordable Housing Preservation Act of 1988”.

History of Section. P.L. 1988, ch. 508, § 1.

34-45-2. Legislative findings.

  1. The general assembly recognizes, finds and declares that:
    1. There exists a serious shortage of decent, safe, and sanitary rental units that are available at rents affordable to low and moderate income families in Rhode Island. Many families are denied access to decent housing because they are unable to meet the higher cost of rent. Rising housing costs in Rhode Island force low and moderate income families to live in unsafe, substandard units; commit such an unreasonably high percentage of their income for rent that they deprive themselves of the other necessities of life; or, worse, find themselves without housing. The inadequacy in the supply of decent, safe and sanitary affordable rental housing endangers the public health and jeopardizes the public safety, general welfare, and good of the entire state.
    2. Approximately sixty-seven hundred (6,700) units of housing in sixty-five (65) developments in Rhode Island which are presently affordable to low and moderate income families are in danger of becoming unaffordable due to expiring use restrictions on the property. Low income housing units insured or assisted under §§ 221(d)(3) and 236 of the National Housing Act, 12 U.S.C. § 1701 et seq., could be lost as a result of the termination of low income affordability restrictions; low income housing units produced with assistance under § 8 of the United States Housing Act of 1937, 42 U.S.C. § 1437f(c), could be lost as a result of the expiration of the rental assistance contracts; and rural low income housing financed under § 515 of the Housing Act of 1949, 12 U.S.C. § 1701 et seq., are threatened with loss as a result of the prepayment of mortgages by owners. The loss of this privately owned and federally assisted housing, which would occur in a period of sharply rising rents on unassisted housing and extremely low production of additional low rent housing, would inflict unacceptable harm on current tenants and would precipitate a grave crisis in the supply of low income housing that was neither anticipated nor intended when contracts for these units were entered into.
  2. There is, therefore, a compelling need to preserve the affordability of these rental housing units to low and moderate income persons and families in Rhode Island in order to prevent the displacement of these persons and families and to assure an adequate supply of affordable housing for these persons and families in Rhode Island.

History of Section. P.L. 1988, ch. 508, § 1.

34-45-3. Legislative purpose.

It is the purpose of this chapter to provide a mechanism which will, to the fullest extent possible: (1) preserve the availability and affordability to low and moderate income persons and families of currently available federally insured and assisted housing in the state, and (2) avoid the involuntary displacement of tenants currently residing in federally insured and assisted housing.

History of Section. P.L. 1988, ch. 508, § 1.

34-45-4. Definitions.

Terms used in this chapter shall be defined as follows, unless another meaning is expressed or clearly apparent from the language or context:

  1. “Appurtenant land” means only the land and related facilities which are currently dedicated to the federally insured or assisted rental units, and does not include land which may be dedicated to nonfederally insured or assisted units under common ownership, whether or not the land is currently dedicated to federally insured or assisted rental units.
  2. “Corporation” means the Rhode Island housing and mortgage finance corporation, a corporation, instrumentality and agency of the state established pursuant to the Rhode Island housing and mortgage finance corporation act, chapter 55 of title 42.
  3. “Department” means the department of administration.
  4. “Development” means any structure or group of structures situated in the state which is federally insured or assisted; provided, however that the term “development” does not include any structure or group of structures which are not federally insured or assisted, although such structures may be commonly owned with units that receive such federal assistance or sent to such units; and provided further than this chapter shall not apply to a development whose owner gave notice to the United States department of housing and urban development pursuant to § 262 of the Housing and Community Development Act of 1987, 42 U.S.C. § 1437f(c), of termination of the housing assistance payment contracts for the development prior to June 10, 1988.
  5. “Federally insured or assisted” means any:
    1. Low income housing units insured or assisted under §§ 221(d)(3) and 236 of the National Housing Act, 12 U.S.C., § 1701 et seq.,
    2. Low income housing units produced with assistance under 42 U.S.C. § 1437f, and
    3. Rural low income housing financed under § 515 of the Housing Act of 1949, 12 U.S.C. § 1701 et seq.
  6. “Owner” means an individual, corporation, association, partnership, joint venture, or business entity which holds title to a development.
  7. “Rental unit” or “unit” means that part of a development which is rented or offered for rent for residential occupancy and includes an apartment, efficiency apartment, room, suite of rooms, and any appurtenant land to the rental unit.
  8. “Tenant” means a tenant, subtenant, lessee, sublessee, or other person entitled to possession, occupancy, or receiving the benefits of, a federally insured or assisted rental unit within a development.
  9. “Tenant association” means an association or other organization that represents at least a majority of the tenants in federally insured or assisted rental units in a development, excluding those tenants which have not resided in the development for at least ninety (90) days and those tenants who have been an employee of the owner during the preceding one hundred twenty (120) days.
  10. “Use restrictions” means any federal, state, or local statute, regulation, ordinance, or contract which as a condition of receipt of any housing assistance, including a rental subsidy, mortgage subsidy or mortgage insurance, to a development:
    1. Establishes maximum limitations on tenant income as a condition of eligibility for occupancy of the units within a development; or
    2. Imposes any restrictions on the maximum rents that could be charged for any of the units within a development; or
    3. Requires that rents for any of the units within a development be reviewed by any governmental body or agency before the rents be implemented.

History of Section. P.L. 1988, ch. 508, § 1; P.L. 1989, ch. 493, § 1.

34-45-5. Notice of termination of section 8 contract.

  1. Not less than two (2) years prior to terminating any contract under which rental assistance payments are received under § 8 of the United States Housing Act of 1937, 42 U.S.C. § 1437f, an owner shall provide written notice to the corporation, specifying the reasons for the termination with sufficient detail to enable the corporation to evaluate whether the termination is lawful and whether there are additional actions that can be taken by the corporation to avoid the termination. The corporation shall review the owner’s notice, and shall consider whether there are additional actions that can be taken by the corporation to avoid the termination.
  2. Within thirty (30) days of the owner’s notice the corporation shall issue a written finding of the legality of the termination and the reasons for the termination, including the actions considered or taken to avoid the termination.
  3. For purposes of this section, “termination” means the expiration of the § 8 assistance contract or an owner’s refusal to renew the § 8 assistance contract.
  4. Within twenty-four (24) hours of providing the corporation with the notice required by this section, the owner shall:
    1. Send a copy of the notice, by registered or certified mail, return receipt requested, to the tenant association of the development, and
    2. Post a copy of the notice in a conspicuous place in common areas of the development.

History of Section. P.L. 1988, ch. 508, § 1; P.L. 1989, ch. 493, § 1.

34-45-6. Notice of discontinuance.

  1. Not less than two (2) years prior to:
    1. Selling, leasing, or disposing of prepaying obligations secured by a federally insured or assisted development in a manner which would result in either:
      1. A discontinuance of the use of the development as a federally insured or assisted housing development, or
      2. Cause the termination or expiration of any use restrictions which apply to the development; or
    2. Recording a declaration of condominium, pursuant to chapter 36.1 of this title,

      With respect to all or any portion of a federally insured or assisted development, the owner shall provide written notice of such sale, lease, disposition, or prepayments to:

      1. Each tenant of the development,
      2. The tenant association of the development,
      3. The corporation,
      4. The department,
      5. The housing authority of the city or town in which the development is located, and
      6. The city or town council of the city or town in which the development is located.
  2. A copy of any notice required by this section shall be filed in the land evidence records of the city or town in which the development is located.
  3. No sale, lease, or disposition of or prepayment of any obligations secured by a federally insured or assisted development in a manner which would result in either:
    1. A discontinuance of the use of the development as a federally insured or assisted housing development; or
    2. Cause the termination or expiration of any use restrictions which apply to the development,

      Shall be valid unless the notices required by this section shall have first been provided and filed as required hereunder.

  4. The declaration of a condominium of a federally insured or assisted development which is otherwise valid will not be invalid under this section if consummated within two (2) years of notice if the owner records an agreement to maintain existing use restrictions with regard to those units which are federally insured or assisted for the duration of the two (2) year notice period in the appropriate office of land records and provide the corporation with a copy of that agreement.

History of Section. P.L. 1988, ch. 508, § 1; P.L. 1989, ch. 493, §§ 1, 3.

34-45-7. Opportunity to purchase.

No owner shall:

  1. Sell, lease, or otherwise dispose of, or prepay any obligation secured by, a federally insured or assisted development in a manner which would result in either:
    1. A discontinuance of the use of the development as a federally insured or assisted housing development or a development that was federally insured or assisted within the preceding two year period, or
    2. Cause the termination of any use restrictions which apply to the development, or
  2. Record a declaration of condominium, pursuant to chapter 36.1 of this title, with respect to all or any portion of a federally insured or assisted development, or
  3. Terminate any contract subject to the provisions of § 34-45-5 of this chapter unless he or she shall have first provided each of the persons and entities listed below an opportunity to purchase the development at a price and upon terms which represent a bona fide offer to sell, in compliance with the provisions of § 34-45-8 . The persons and entities to whom such an opportunity to purchase shall be provided are:
    1. The tenant association of the development,
    2. The corporation,
    3. The housing authority of the city or town in which the development is located, and
    4. The municipal government of the city or town in which the development is located.

History of Section. P.L. 1988, ch. 508, § 1; P.L. 1989, ch. 493, §§ 1, 4; P.L. 2006, ch. 267, § 1; P.L. 2006, ch. 295, § 1.

34-45-8. Offer to sell — Rights of first refusal.

  1. At or before the time an owner of an existing federally insured or assisted development or an owner of a development that was federally insured or assisted within the preceding two (2) years (1) offers to sell, lease, or otherwise dispose of a development to any person or entity other than those persons or entities listed in § 34-45-7 , or prepays any obligation secured by a development, in a manner which would result in either (i) a discontinuance of the use of the development as a federally insured or assisted housing development, or (ii) cause the termination of any use restrictions which apply to the development, or (2) records a declaration of condominium, pursuant to chapter 36.1 of this title, with respect to all or any portion of a federally insured or assisted development, he or she shall first provide to each person and entity listed in § 34-45-7 a written copy of a bona fide offer to sell, by registered or certified mail, return receipt requested, and post a copy of the offer of sale in a conspicuous place in common areas of the development.
  2. Not less than one year prior to terminating any contract subject to § 34-45-5 of this chapter an owner shall first provide to each person and entity listed in § 34-45-7 a written copy of a bona fide offer to sell, by registered or certified mail, return receipt requested, and post a copy of the offer of sale in a conspicuous place in common areas of the development.
  3. An offer of sale made pursuant to subsections (a) and (b) must contain, at a minimum:
    1. The essential terms of the sale, which shall include, but which need not be limited to:
      1. The sale price, which shall be no higher than the development’s fair market value, said value to be based on its higher and best use, without affordability restrictions, as determined by the average of two (2) independent appraisals performed by two (2) appraisers qualified to perform multi-family appraisals, with one of said appraisers to be selected from a list of appraisers developed by the corporation;
      2. The terms of seller financing, if any, including the amount, the interest rate, and the amortization rate thereof;
      3. The terms of assumable financing, if any, including the amount, the interest rate, and the amortization rate thereof; and
      4. Proposed improvements to the property to be made by the owner in connection with the sale, or other economic concessions by the owner in connection with the sale, if any.
    2. A statement that each of the persons listed in § 34-45-7 has the right to purchase the development under this chapter, in the order and according to the priorities established by subsection (c);
    3. A summary of tenants’ rights and sources of technical assistance as contained in a form prescribed by the department. If no such form has been prescribed by the department, the owner will be deemed in compliance with this paragraph if the statement refers to this chapter;
    4. A statement that the owner will make available to each of the persons listed in § 34-45-7 a floor plan of the development and an itemized list of monthly operating expenses, utility consumption rates, and capital expenditures within each of the two (2) preceding calendar years, within seven (7) days after receiving a request therefor; and
    5. A statement that the owner will make available to each of the persons listed in § 34-45-7 the most recent rent roll, a list of tenants, a list of vacant units, and a statement of the vacancy rate at the development for each of the two (2) preceding calendar years, within seven (7) days after receiving a request therefor.
  4. If a person or entity other than the persons and entities listed in § 34-45-7 offers to purchase, lease, or otherwise acquire a federally insured or assisted development in a manner which would result in either (1) a discontinuance of the use of the development as a federally insured or assisted housing development, or (2) cause the termination of any use restrictions which apply to the development, the owner of the development shall, before accepting the third-party offer, provide to each person and entity listed in § 34-45-7 , by registered mail, return receipt requested, (i) written notice of the pendency and essential terms of the offer, and (ii) a bona fide offer to sell the development to those persons and entities listed in § 34-45-7 upon the same terms and conditions of the third-party offer. An offer of sale made pursuant to this subsection must contain, at a minimum, all of the information required of an offer of sale made under subsections (a) and (b). The right of first refusal created under this subsection shall not be deemed to allow any of the persons or entities listed in § 34-45-7 to vary the terms of any third-party offer made to an owner or to make a counter offer to the owner.
  5. The rights of first refusal created under this section are created and conferred in the following order and in accordance with the following priorities: (1) the tenant association of the development, first priority; (2) the corporation, second priority; (3) the housing authority of the city or town in which the development is located, third priority; and (4) the municipal government of the city or town in which the development is located, fourth priority.
  6. No right of first refusal shall apply to a government taking by eminent domain or negotiated purchase; a forced sale pursuant to a foreclosure; a transfer by gift, devise, or operation of law; or a sale to a person who would be included within the table of descent and distribution if there were to be a death intestate of an owner.

History of Section. P.L. 1988, ch. 508, § 1; P.L. 1989, ch. 493, § 1; P.L. 2006, ch. 267, § 1; P.L. 2006, ch. 295, § 1.

34-45-9. Waiver of rights.

  1. Any party to whom notice is required to be given may waive their rights at any time pursuant to a written waiver signed by a duly authorized representative, which waiver shall terminate all of their rights under this chapter.
  2. For the purposes of the chapter, termination or expiration of a use restriction or a Section 8 (42 U.S.C. § 1437f) assistance contract does not include a termination or expiration which is immediately succeeded, without lapse, by an agreement or contract which embodies terms no less favorable to the tenants residing in the federally insured or assisted rental units than the prior agreement or contract.

History of Section. P.L. 1989, ch. 493, § 2.

34-45-10. Rule making.

  1. The department shall issue such rules and regulations as may be necessary or appropriate to effectuate the purposes of this chapter. The rules and regulations shall include but need not be limited to:
    1. Specific procedural safeguards to assure that every person and entity upon whom a right of first refusal is conferred by this chapter, in accordance with the order and priorities established by § 34-45-8(c) , is afforded a fair and reasonable opportunity to exercise their right; and
    2. Provisions as may be necessary or appropriate to assure that a person upon whom a right of first refusal is conferred by this chapter shall be permitted:
      1. Not less than sixty (60) days from receipt of any bona fide offer made pursuant to § 34-45-8 within which to accept the offer, and
      2. Not less than one hundred twenty (120) days from his or her acceptance of the offer within which to secure financing as may be necessary therefor.
  2. Within sixty (60) days after June 10, 1988, the department shall publish a form containing a summary of rights and obligations pursuant to this chapter, and sources of technical assistance, which shall include, but not be limited to, information regarding counseling, subsidy programs, relocation services, housing purchase and rehabilitation financing, formation of tenant organizations, purchase of developments and conversion of developments to cooperative ownership.

History of Section. P.L. 1988, ch. 508, § 1; P.L. 1989, ch. 493, § 1.

34-45-11. Rights of tenants.

  1. As used in this section the following words shall have the following meanings:
    1. “Assistance required action” means any prepayment of a mortgage obligation secured by a development or an owner’s failure to renew a § 8 assistance contract to the full extent of owner’s renewal rights thereunder.
    2. “Assisted household” means an individual or individuals who occupy a rental unit in a development and whose gross annual income does not exceed upper income limits imposed by any federal, state, or local government program providing financial assistance to a development.
    3. “Assisted units” means all the dwelling units in a federally insured or assisted development subject to regulatory requirements with respect to:
      1. The rents chargeable by the owner; or
      2. The maximum annual income of the tenant occupying the unit, which may depend upon the income of the tenant where a given percentage of the total number of units are required to be occupied by income qualifying tenants.
    4. “Designated household” means any of the following households:
      1. An assisted household which includes a senior citizen or a person with a disability, provided that the senior citizen or the person with a disability has been a member of the household for a period of at least twelve (12) months preceding the giving of the notice of intent required by this section; or
      2. An assisted household which includes any child under the age of ten (10) years.
    5. “Person with a disability” means a person within the definition of handicapped person in 42 U.S.C. § 1437a(b)(3).
    6. “Owner” or “property owner” means the person or combination of persons who hold legal title to a development.
    7. “Relocation expenses” means costs incurred to:
      1. Hire contractors, labor, vehicles, or equipment to transport personal property;
      2. Pack and unpack personal property;
      3. Disconnect and reconnect utilities such as water, telephone, gas, electricity, and related services; and
      4. Disconnect and install personal property.
    8. “Senior citizen” means a person who is at least sixty-two (62) years old on the date that the notice of intent is given.
    9. “Tenant protection assistance” means the payments to, and extension of leases for, the occupant or former occupant of any assisted unit in connection with an assistance required action as required under this section.
  2. This section does not apply if, prior to any assistance required action, the owner or purchaser records a covenant running with the land on which the development is located, in a form satisfactory to the corporation, which continues for the development the existing low and moderate income rental restrictions of the federal housing program:
    1. For the duration of the term remaining as of the date of prepayment of any mortgage secured by a development; and
    2. For the duration of the remaining term as of the date of termination, including all stated and unexercised renewal terms of any rental assistance agreement described in § 34-45-5 .
    1. Not less than ninety (90) days before the effective date of any assistance required action, the owner of a development shall give a written notice of intent in accordance with the provisions of this section.
    2. The notice of intent to be sent to each assisted household shall contain a brief summary of the assistance required action, and shall include:
      1. A summary statement of the assisted household’s rights and obligations under this section;
      2. Notice that the corporation may have additional information regarding the anticipated assistance required action; and
      3. The name, address, and phone number of the owner’s agent to whom the assisted household may apply for tenant protection assistance under this section.
  4. The owner shall provide the tenant protection assistance by:
    1. Paying to each assisted household, an amount equal to the sum of:
      1. The lesser of five hundred dollars ($500) or an amount equal to any security deposit tenant is required to make and first month’s rent and any part of the last month’s rent tenant is required to pay in advance for the tenant’s new residence no later than the date on which the assisted household vacates the unit; and
      2. Reimbursement to the assisted household for relocation expenses up to four hundred fifty dollars ($450) which are actually and reasonably incurred; and
    2. Offering to each assisted household which is current in its rent payment and has not violated any other material term of its lease, a lease extension for a period of at least one year from the date of the assistance required action.
    1. The portion of rent for the extended lease under subdivision (d)(2) that the tenant is obligated to pay from tenant’s own income may not exceed thirty percent (30%) of the tenant’s income, and may only be increased on the anniversary of the commencement date of the assisted householder’s then current lease.
    2. Any such increase may not exceed the lesser of:
      1. the amount of increase permitted by applicable federal, state, or local law; and
      2. an amount determined by multiplying the amount required to be contributed by the assisted household for rent for the preceding year by the percentage increase for the applicable U.S. consumer price index, as selected by the corporation, for the most recent twelve (12) month period.
    3. Except as permitted or required by the corporation, all other terms, conditions, and procedures governing the extended lease shall be the same as the lease in effect on the day preceding the giving of the notice of intent.
  6. An owner may not take an assistance required action affecting any unit in an assisted project occupied by a designated household without offering to the assisted household which is the tenant of the unit a lease extension for a period of at least two (2) years from the date of the assistance required action, if the designated household:
    1. Is current in its rent payment and has not violated any other material term of its lease;
    2. Has provided the owner, within thirty (30) days after the giving of the notice of intent, with a written notice:
      1. Stating that the designated household is applying for an extended lease under this section; and
      2. Setting forth facts, as applicable, showing that:
        1. A member of the household is either a person with a disability or a senior citizen who has been a member of the household for at least twelve (12) months preceding the giving of the notice of intent; or
        2. A member of the household is a child under the age of ten (10) years; and
    3. Has executed an extended lease and returned it to the owner within thirty (30) days after the giving of the notice of intent.
  7. The owner shall deliver to each assisted household entitled to receive the notice of intent, simultaneously with the notice of intent:
    1. An application on which may be included all of the information required by subdivision (f)(2);
    2. A lease containing the terms required by this section and clearly indicating that the lease will be effective only if the assisted household executes and returns the lease not later than thirty (30) days after the giving of the notice of intent; and
    3. A notice setting forth the rights and obligations of the assisted household under this section.
  8. Within forty-five (45) days after the giving of the notice of intent, the owner shall notify each assisted household whether it meets the applicable criteria for an extended lease under subdivision (d)(2) and such notice shall include the approximate ending date of the extended lease and each designated household which submits to the owner the documentation required by subdivisions (f)(2) and (3) shall be entitled to notification by the owner as to the following:
    1. Whether the household meets the applicable criteria of subsection (f), and, if not, an explanation of which criteria have not been met; and
    2. Whether the extended lease has been effective under subsection (f).
    1. The extended lease of a designated household shall provide for a term commencing on the date of the assistance required action and terminating not less than two (2) years from that date.
    2. The initial rate of rent for the extended lease may not exceed an amount which requires the tenant to contribute more than thirty percent (30%) of the tenant’s income.
      1. Annually, on the anniversary of the commencement date of the extended lease of a designated household, the rental fee for the unit may be increased.
      2. The increase may not exceed an amount determined by multiplying the amount required to be contributed by the household for annual report for the preceding year by the percentage increase for the applicable U.S. consumer price index, as selected by the secretary, for the most recent twelve (12) month period.
    4. Except as this section otherwise permits or requires, the extended lease of a designated household shall contain the same terms and conditions as the lease in effect on the day preceding the giving of the notice of intent.
  10. The extended tenancy provided for in this section shall cease upon the occurrence of any of the following:
    1. Ninety (90) days after the death of the last surviving member of the assisted household who was residing in the unit at the date of the notice of intent, or ninety (90) days after the last member of the assisted household at the date of the notice of intent has moved from the unit;
    2. Eviction for failure to pay rent due in a timely fashion or violation of a material term of the lease; or
    3. Voluntary termination of the lease by the designated household.
  11. No later than the date on which the designated household vacates the unit, the owner shall pay relocation expenses in accordance with this section.
  12. In connection with any assistance required action:
    1. An owner may not terminate or alter the terms and conditions of any leases entered into before the effective date of the assistance required action, or otherwise take any action to interfere with any existing rights of tenants to occupy their units of the assisted project under existing leases or under any applicable federal, state, or local law;
    2. All tenants shall cooperate with the owner in providing information necessary to certify eligibility for housing subsidy payments, including execution of all necessary documents.
  13. Notwithstanding any provision of subsections (e) or (f) to the contrary, in the event that an owner is unable to obtain from the U.S. department of housing and urban development an extension of existing rental subsidies to cover the lease extension, the owner shall only be required to provide for each assisted household, whether or not occupied by a designated household, a lease extension of a period of one year from the date of the assistance required action; provided, however, that an owner may withdraw funds from existing reserve and residual accounts of the development to pay any deficit in the debt service or operating expenses of the development resulting from the tenant’s obligation to pay as rent only, a sum not more than thirty percent (30%) of the tenant’s income as provided in subsection (e), but only to the extent that the withdrawal is approved by the corporation, approval to be given if adequate funds remain in reserve and residual accounts, for the maintenance and repair of the development in accordance with the standards of the corporation.
  14. The owner shall inform those assisted households which the owner has deemed not to meet the applicable criteria for an extended lease of the reasons the households failed to meet the criteria, and of their right to appeal the decision to the corporation. Any assisted household may appeal the decision of an owner to deny the household an extended lease under subdivision (d)(2) or subsection (f) to the corporation by requesting in writing an informal hearing before the corporation within ten (10) days of the owner’s decision. The corporation shall hear and resolve the appeal within ten (10) days of receiving the hearing request, by either affirming the owner’s decision or ordering the owner to execute the appropriate extended lease with the assisted household.

History of Section. P.L. 1989, ch. 484, § 1; P.L. 1990, ch. 431, § 1; P.L. 1991, ch. 239, § 1; P.L. 1999, ch. 83, § 82; P.L. 1999, ch. 130, § 82.

34-45-12. Severability.

If any clause, sentence, paragraph, section or part of this chapter shall be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder of this chapter, but shall be confined in its operation to the clause, sentence, paragraph, section or part directly involved in the controversy in which the judgment shall have been entered.

History of Section. P.L. 1988, ch. 508, § 1; P.L. 1989, ch. 493, § 1.

Chapter 46 Dry Dock Facilities

34-46-1. Short title.

This chapter shall be known as the “Rhode Island Dry Dock Facilities Act”.

History of Section. P.L. 1989, ch. 369, § 1.

34-46-2. Definitions.

As used in this chapter, the following words shall have the following meanings unless the context clearly indicates otherwise:

  1. “Default” means the failure to pay obligations incurred by the storage of a vessel and associated charges.
  2. “Dry dock” means any space and/or real property designed and/or used for the purpose of renting or leasing storage space for vessels.
  3. “Facility” means a marina, boatyard, or marine repair facility that provides, as part of its commercial operation, the storage of vessels.
  4. “Last known address” means that address provided by the owner in the latest storage agreement or the address provided by the owner in a subsequent notice of a change of address.
  5. “Lien holder” means a person holding a security interest.
  6. “Operator” means the proprietor, operator, lessor, or sublessor of a dry dock facility, his or her agent, or any other person authorized by him or her to manage the facility or to receive rent from the owner under a rental agreement.
  7. “Owner” means a person, other than a lienholder, having a property interest in or title to a vessel. The term includes a person entitled to use or have possession of a vessel subject to an interest in another person, reserved, or created by agreement and securing payment or performance of an obligation, but it does not include a lessee under a lease not intended as security.
  8. “Personal property” means movable property not affixed to land and includes, but is not limited to equipment, goods, furniture, and household items whether affixed to the vessel or not.
  9. “Storage agreement” means any written agreement or lease that establishes or modifies the terms, conditions, rules, or any other provisions concerning the storage of a vessel in a dry dock facility.
  10. “Vessel” means every description of watercraft used or capable of being used as a means of transportation on water and any personal property located thereon and shall include its appurtenances.

History of Section. P.L. 1989, ch 369, § 1; P.L. 1994, ch. 162, § 1; P.L. 2021, ch. 102, § 1, effective July 1, 2021; P.L. 2021, ch. 103, § 1, effective July 1, 2021.

Compiler's Notes.

P.L. 2021, ch. 102, § 1, and P.L. 2021, ch. 103, § 1 enacted identical amendments to this section.

34-46-3. Lien.

  1. Lien created.  A facility operator has a lien on a vessel stored at that facility for storage charges, labor, or other charges and for expenses reasonably incurred in the sale of that vessel under the provisions of this chapter.
  2. Exclusion.  This chapter does not create a lien on a documented vessel subject to a preferred ship mortgage or other preferred maritime lien pursuant to 46 U.S.C. § 31301 et seq.

History of Section. P.L. 1994, ch. 162, § 3.

Repealed Sections.

Former §§ 34-46-3 and 34-46-4 (P.L. 1989, ch. 369, § 1), concerning operators’ liens, were repealed by P.L. 1994, ch. 162, § 2, effective July 8, 1994.

NOTES TO DECISIONS

Avoidance of Lien.

Debtor could not, under §§ 522(d)(5) and 522(f) of the federal Bankruptcy Code (11 U.S.C.), avoid a lien on a sailboat being held by a boat yard on its premises for nonpayment of docking and storage fees since the interest was possessory and the sailboat was not within the classification of “household furnishing” or “household goods.” Franchi v. Stanley's Boat Yard, Inc., 148 B.R. 155, 1992 Bankr. LEXIS 1984 (Bankr. D.R.I. 1992) (decided under former law).

34-46-4. Notice of lien.

  1. A vessel owner must be notified of the lien created by this chapter before enforcement of the lien by a facility operator. Notification of the lien created by this chapter is satisfied by:
    1. Written storage agreement.  A written storage agreement signed by the vessel owner that includes the following language in bold, capitalized font: “BEWARE — THE VESSEL AND ITS CONTENTS MAY BE SOLD AT PUBLIC AUCTION FOR FAILURE TO PAY STORAGE CHARGES PURSUANT TO THE DRY DOCK FACILITIES ACT, CHAPTER 46 OF TITLE 34.”; or
    2. Written notice of lien.  Written notification of the lien sent by the facility operator to the last known address of the vessel owner and, where applicable, to the last known address of the person or entity the facility operator has on record as being responsible for the vessel, if different from the vessel’s registered owner.
  2. A facility operator who does not have a written storage agreement that includes a notice of the lien created by this chapter may not initiate an enforcement action under § 34-46-5 until thirty (30) days after the delivery of written notice of the lien pursuant to this chapter.

History of Section. P.L. 1994, ch. 162, § 3; P.L. 2021, ch. 102, § 1, effective July 1, 2021; P.L. 2021, ch. 103, § 1, effective July 1, 2021.

Compiler’s Notes.

P.L. 2021, ch. 102, § 1, and P.L. 2021, ch. 103, § 1 enacted identical amendments to this section.

Repealed Sections.

Former §§ 34-46-3 and 34-46-4 ( P.L. 1989, ch. 369, § 1), concerning operators’ liens, were repealed by P.L. 1994, ch. 162, § 2, effective July 8, 1994.

NOTES TO DECISIONS

Avoidance of Lien.

Debtor could not, under §§ 522(d)(5) and 522(f) of the federal Bankruptcy Code (11 U.S.C.), avoid a lien on a sailboat being held by a boat yard on its premises for nonpayment of docking and storage fees since the interest was possessory and the sailboat was not within the classification of “household furnishing” or “household goods.” Franchi v. Stanley's Boat Yard, Inc., 148 B.R. 155, 1992 Bankr. LEXIS 1984 (Bankr. D.R.I. 1992) (decided under prior law).

34-46-5. Enforcement of lien.

A facility operator may enforce a lien created by this chapter only if the notice requirement set forth in § 34-46-4 is satisfied.

  1. Sale — Use of proceeds.
    1. If a vessel owner is in default for a period of more than ninety (90) days, a facility operator may enforce a lien by selling the vessel at a commercially reasonable public sale for cash. As used in this section, “commercially reasonable” shall have the same meaning as in the Uniform Commercial Code. The proceeds of the sale shall be applied in the following order:
      1. To the reasonable expenses of the sale incurred by the facility operator including, but not limited to, reasonable attorneys’ fees, legal expenses, and expenses of advertisement;
      2. To the satisfaction of the lien created by this chapter;
      3. To the satisfaction of all other liens on the vessel held by all lienholders of record to be paid in the order of priority; and
      4. To the extent that the proceeds of sale exceed the sum of the foregoing, the surplus must be paid by the facility operator to the vessel owner. Where the surplus is not collected within thirty (30) days of the sale, the facility operator shall provide the funds to the general treasurer as unclaimed property.
    2. If proceeds of the sale are not sufficient to satisfy the vessel owner’s outstanding obligations to the facility operator or any lienholder of record, the vessel owner remains liable to the facility operator and/or lienholder for the deficiency.
  2. Advertisement — Notice of default.  Before conducting a sale under this section, the facility operator shall:
    1. Personally serve a notice of default on the vessel owner if the vessel owner is a Rhode Island resident, and where applicable, personally serve a notice of default on the person or entity the facility operator has on record as being responsible for the vessel if different from the vessel’s registered owner, if the person or entity is a Rhode Island resident.
      1. After a licensed process server makes three (3) attempts at personal service on different days and at different times of the day at the last known address of the vessel owner and the person or entity the facility operator has on record as being responsible for the vessel if different than that of the vessel’s registered owner, service will be deemed effectuated by leaving a copy of the notice of default in the door of the residence and mailing a copy of the notice of default in accordance with subsection (7) of this section.
      2. The licensed process server will provide an affidavit detailing the attempts at personal service including the date, time, and location of each attempt, efforts to find an alternate address for service, where and when the notice was left, and the mailing of the notice. The notice will be deemed delivered on the date the notice is left at the residence.
    2. In the event that either the vessel owner or the person or entity the facility operator has on record as being responsible for the vessel if different from the vessel’s registered owner are not Rhode Island resident(s), notice shall be in accordance with subsection (7) of this section. The facility operator shall provide a copy of the notice to each lienholder of record. In addition, the facility operator shall affix a copy of the notice of default on the outside of the vessel in a manner where it can be reasonably seen.
    3. The notice of default must include:
      1. A statement that the vessel is subject to a lien held by the facility operator;
      2. A statement of the facility operator’s claim indicating the charges due on the date of the notice, the amount of any additional charges that will or may become due before the date of sale, and the date those additional charges will become due;
      3. A demand for payment of the charges due within a specified time not less than thirty (30) days after the date the last notice of default required hereunder is delivered to the vessel owner or the person or entity the facility operator has on record as being responsible for the vessel;
      4. A statement that unless the claim is paid within the time stated the vessel will be sold, specifying the time and place of the sale; and
      5. The name, street address, and telephone number of the facility operator, or the facility operator’s designated agent, whom the vessel owner or the person or entity the facility operator has on record as being responsible for the vessel may contact to respond to the notice.
    4. After the expiration of the thirty-day (30) period set forth in subsection (2)(iii)(C) of this section, the facility operator shall publish an advertisement of the sale once a week for two (2) consecutive weeks in a newspaper of general circulation in the area where the sale is to be held and of general circulation in the state. The advertisement must include a general description of the vessel, the name of the vessel owner, and, if applicable, the person or entity the facility operator has on record as being responsible for the vessel and the date, time, and place of the sale. The date of the sale must be more than fifteen (15) days after the date the first advertisement of the sale is published. In addition, the facility operator shall affix a copy of the advertisement on the outside of the vessel in a manner where it can be reasonably seen.
  3. Location of sale.  A sale under this chapter shall be held at the facility or at the nearest suitable location.
  4. Purchasers.  A purchaser of a vessel sold at a sale pursuant to this chapter takes the vessel free and clear of any rights of persons against whom the lien was valid and all other lienholders of record.
  5. Facility operator liability.  If the facility operator complies with the provisions of this chapter, the facility operator’s liability is as follows:
    1. To a lienholder of record, the facility operator’s liability is limited to payment from the net proceeds received from the sale of the vessel pursuant to this section; and
    2. To the vessel owner, the facility operator’s liability is limited to the net proceeds received from the sale of the vessel after payment in full of all lienholders of record pursuant to this section.
  6. Denying access to storage facility.  A facility operator may deny a vessel owner who has been notified under § 34-46-4 access to the storage facility, except that the vessel owner or responsible party is entitled to access to the facility during normal business hours for the purpose of satisfying the lien or viewing and verifying the condition of the vessel.
  7. Notices.  Except as otherwise provided in subsection (2), all notices required by this chapter must be served by registered or certified mail, return receipt requested or by a recognized commercial courier with proof of signed-for delivery. Notices sent to a facility operator must be sent to the facility operator’s business address or to the address of the facility operator’s designated representative. Notices to a vessel owner or the person or entity the facility operator has on record as being responsible for the vessel must be sent to the person’s or entity’s last known address. Notices to a lienholder of record must be sent to the address of the lienholder as provided in the public filings that serve to perfect the lienholder’s interest in the vessel. The lienholder’s identity and address that the department of environmental management has in its records shall be provided to the facility operator upon written request and certification that the request is made solely for the purposes of complying with the provisions of this chapter. Except as otherwise provided by this chapter, notices are considered delivered on the date the return receipt or proof of delivery is signed or, if the notice is undeliverable, the date the post office or commercial courier last attempts to deliver the notice.

History of Section. P.L. 1994, ch. 162, § 3; P.L. 2021, ch. 102, § 1, effective July 1, 2021; P.L. 2021, ch. 103, § 1, effective July 1, 2021.

Compiler’s Notes.

Former § 34-46-5 was renumbered as § 34-46-7 by P.L. 1994, ch. 162, § 1.

P.L. 2021, ch. 102, § 1, and P.L. 2021, ch. 103, § 1 enacted identical amendments to this section.

34-46-6. Cessation of enforcement actions.

A facility operator shall cease enforcement actions immediately upon any of the following:

  1. Payment by owner.  The vessel owner pays the facility operator the full amount necessary to satisfy the lien on the date payment is tendered. At any time before the conclusion of a sale conducted under this chapter, the vessel owner may redeem the vessel by paying the full amount of the lien on the date payment is tendered;
  2. Payment by other lienholders.  A person other than the facility operator who has a lien on the vessel pays the facility operator the full amount necessary to satisfy the lien held by the facility operator. Upon payment by a lienholder of record, the facility operator shall hold the vessel for the benefit of and at the direction of that lienholder and may not deliver possession of the vessel to the vessel owner. Unless the facility operator and the lienholder enter into a new storage agreement, the lienholder shall arrange removal of the vessel from the facility forthwith; or
  3. Initiation of civil action.  An owner of a vessel or one claiming ownership rights in the vessel files in a court of competent jurisdiction and serves on the facility operator, not less than ten (10) days before the scheduled date of sale, a complaint against the facility operator relating to the obligations incurred by the storage of the vessel or any claims related to the vessel and in such complaint objects to the enforcement of the lien and sets forth the legal reasons why the lien should not be enforced. The enforcement action shall not resume until either the civil action is resolved or the court enters an order permitting the enforcement action to proceed.

History of Section. P.L. 1994, ch. 162, § 3; P.L. 2011, ch. 363, § 20; P.L. 2021, ch. 102, § 1, effective July 1, 2021; P.L. 2021, ch. 103, § 1, effective July 1, 2021.

Compiler's Notes.

P.L. 2021, ch. 102, § 1, and P.L. 2021, ch. 103, § 1 enacted identical amendments to this section.

34-46-7. [Repealed.]

History of Section. P.L. 1989, ch. 369, § 1; G.L. 1956, § 34-46-5 ; P.L. 1994, ch. 162, § 1; repealed by P.L. 2021, ch. 102, § 2, effective July 1, 2021; repealed by P.L. 2021, ch. 103, § 2, effective July 1, 2021.

Compiler's Notes

Former § 34-46-7 concerned rental agreements and notice of this chapter.

Chapter 47 Aircraft Repair Liens

34-47-1. Storage and liens.

Persons, including, but not limited to, the state government and any of its departments, commissions, divisions, agencies or branches thereof, maintaining public landing, parking, storage, and tie-down facilities for the landing, parking, storage, and tie-down of aircraft brought to their premises on an airport or placed in their care by or with the consent of the owners thereof, shall have a lien upon such aircraft for proper charges due them for the landing, parking, storage, and tie-down and care of the same.

History of Section. P.L. 2000, ch. 356, § 1.

34-47-2. Repair liens.

Any person who lawfully repairs an aircraft within this state has a lien upon the aircraft for proper charges due to him, made with the consent of the owners of the aircraft.

History of Section. P.L. 2000, ch. 356, § 1.

34-47-3. Procedure.

Any person entitled to a lien under this section shall, within sixty (60) days after last furnishing of labor, money, material, or supplies for the production of, altering, or repairing of the personal property, file in the office of the federal aviation administration aircraft registry a statement in writing verified by oath showing the amount of labor, money, material, or supplies furnished for the producing, storage, parking, servicing, altering, or repairing of the personal property, the name of the person for, and by whom labor, money, material, or supplies, was furnished, and specifying the registration number of the aircraft. Unless the person entitled to the lien files the statement within the time provided in this section, he or she is deemed to have waived his or her rights to the lien; provided, however, that the lien provided for in this section does not attach to any personal property after it has been purchased by an innocent purchaser for value, and has passed into his or her possession, unless the lien has been filed with the federal aviation administration aircraft registry before the property was purchased by the purchaser, or he or she has received written notice, from the party entitled to the lien, of his or her intention to file the lien.

History of Section. P.L. 2000, ch. 356, § 1.

34-47-4. Remedies reserved.

Notwithstanding the provisions of § 34-47-3 , whoever has a lien for money due him or her pursuant to the provisions of this chapter is entitled to enforce the lien pursuant to the provisions of chapter 35 of this title. The lien created by this chapter is in addition to any lien created by contract. Any contractual lien may be enforced by the same procedure as is provided in this chapter for the statutory lien, insofar as the contract does not provide otherwise. Any lien created by this chapter does not take priority over any and all prior liens which have been duly recorded and perfected.

History of Section. P.L. 2000, ch. 356, § 1.

Chapter 48 Animal Liens

34-48-1. Lien on animals for their keep — Transfer of abandoned animals.

  1. When an agreement has been made between the owner of any animals, including, but not limited to, horses, birds and fish, and any person who keeps and feeds the animals, regarding the price of keeping, the animals shall be subject to a lien for the price of the keeping, in favor of the person keeping the animals; and the person keeping the animals may detain them until the debt is paid; and, if it is not paid within thirty (30) days after it is due, he or she may sell the animals, or so many as necessary at public auction, upon giving written notice to the owner of the time and place of the sale at least six (6) days before the sale, and apply the proceeds to the payment of any debts, returning the surplus, if any, to the owner.
  2. A kennel, as defined in § 4-19-2 , or a veterinary hospital which boards or grooms animals for nonmedical purposes, may transfer any abandoned animal in its custody to a Rhode Island licensed nonprofit animal rescue, animal shelter, society for the prevention of cruelty to animals, or adoption organization which annually places ten (10) or more animals in private homes as pets. An animal shall be considered abandoned if the owner or keeper of the animal fails to retrieve the animal within thirty (30) days of the date the owner or keeper was scheduled to retrieve the animal. Prior to transferring the animal, the kennel or veterinary hospital shall give notice of its intention to do so to the owner or keeper at his or her last known address by registered or certified mail, return receipt requested, and shall allow a period of ten (10) days to elapse after the receipt is returned before transferring the animal. Each kennel and veterinary hospital shall post in a visible location the procedures provided for in this subsection and shall give a written notice of these procedures to any person who boards an animal at a kennel or with a veterinary hospital. Any nonprofit organization which receives an animal in accordance with the provisions of this subsection shall not be liable in any civil action brought by the previous owner or keeper of the animal for any subsequent transfer or disposal of the animal by the organization.

History of Section. P.L. 2003, ch. 207, § 1; P.L. 2003, ch. 333, § 1.

Chapter 49 Commercial Real Estate Broker Lien Act

34-49-1. Short title.

This chapter shall be known and may be cited as the “Commercial Real Estate Broker Lien Act.”

History of Section. P.L. 2013, ch. 69, § 1; P.L. 2013, ch. 76, § 1.

Compiler’s Notes.

P.L. 2013, ch. 69, § 1, and P.L. 2013, ch. 76, § 1 enacted identical versions of this chapter.

Applicability.

P.L. 2013, ch. 69, § 2, provides that this chapter takes effect upon passage [June 7, 2013] and shall apply to claims for compensation based on written instruments executed on or subsequent to the effective date.

P.L. 2013, ch. 76, § 2, provides that this chapter takes effect upon passage [June 7, 2013] and shall apply to claims for compensation based on written instruments executed on or subsequent to the effective date.

34-49-2. Definitions.

As used in this chapter, the following words shall have the following meanings:

  1. “Commercial real estate” means any real estate other than: (i) Real estate containing one to four (4) residential units; (ii) Real estate on which: (A) No buildings or structures are located; and (B) Which is zoned for single-family residential use; or (iii) Single-family residential units such as condominiums, townhouses, or homes singly or in a subdivision when sold, leased, or otherwise conveyed on a unit by unit basis, even though these units may be a part of a larger building or parcel of real estate containing more than four (4) residential units.
  2. “Compensation” means fees, commissions, and any and all other compensation which may be due a real estate broker for performance of licensed services as defined in § 5-20-1 et seq.
  3. “Real estate” and “real estate broker” are as defined in § 5-20.5-1 et seq.

History of Section. P.L. 2013, ch. 69, § 1; P.L. 2013, ch. 76, § 1.

34-49-3. Broker’s lien.

  1. Any real estate broker shall have a lien upon commercial real estate or any interest in that commercial real estate which is the subject of a purchase, lease or other conveyance to a buyer or tenant (which transferee includes without limitation subtenant and assignee) of an interest in the commercial real estate, in the amount of compensation that the real estate broker is due for licensed services, which compensation shall include without limitation, brokerage fees, consulting fees, and management fees:
    1. Under a written instrument which is executed either by the owner of an interest in the commercial real estate or by the owner’s authorized agent; or
    2. Under a written instrument executed by a prospective buyer or prospective tenant or its respective authorized agent.

      The lien shall be available to the real estate broker named or referred to in the agreement or instrument signed by the owner, buyer, or tenant (or their respective agents) and not to an employee or independent contractor employed by or affiliated with the real estate broker.

  2. A lien under this chapter shall attach to the commercial real estate or any interest in the commercial real estate upon:
    1. The real estate broker being entitled to compensation under a written instrument signed by the owner, buyer, tenant, or their authorized agent, as applicable; and
    2. Except as provided in subsections (c), (d), (e), or (f) below, the real estate broker recording a notice of lien in the land evidence records for the municipality in which the commercial real estate or any interest in the commercial real estate is located, prior to the recording of an actual instrument of conveyance or transfer of legal title to the commercial real estate against which the real estate broker claims a lien by the party from whom compensation is claimed. The lien shall attach as of the date of the recording of the notice of lien and does not and shall not relate back to the date of the written agreement. If a notice of lien is recorded after the date of recording of an instrument conveying or transferring legal title to the commercial real estate from the party from whom compensation is claimed, then such notice of lien shall not constitute a lien on the interest in commercial real estate held by the transferee.
  3. Except as provided in subsections (d), (e), or (f) when payment to a real estate broker is due in installments, a portion of which is due only after the conveyance or transfer of the commercial real estate or interest therein, any notice of lien for those payments due after the transfer or conveyance may be recorded at any time which is subsequent to the transfer or conveyance of the commercial real estate or interest therein or which time is within ninety (90) days of the date on which the payment is due. Such notice of lien shall only be effective as a lien against the transferor’s interest in the commercial real estate to the extent funds are owed to the transferor by the transferee, but the lien shall be effective as a lien against the transferee’s interest in the commercial real estate without limitations described above in this section. A single claim for lien recorded prior to transfer or conveyance of the commercial real estate or interest therein claiming all compensation due in installments shall also be valid and enforceable as it pertains to payments due after the transfer or conveyance; provided however, that as payments or partial payments of compensation are received, the real estate broker shall provide partial releases therefor, thereby reducing the amount due the real estate broker under its lien.
  4. In the case of a lease (which shall also include a sublease or assignment of lease), the notice of lien must be recorded not later than ninety (90) days after the tenant occupies the leased premises. Provided, however, that if the landlord serves written notice of the intended execution of the lease by personal service on the real estate broker entitled to claim a lien, at least ten (10) days prior to the date of the intended execution of the lease, the notice of lien must be recorded before the date indicated in such notice for the execution of the lease. The lien shall attach as of the recording of the notice of lien and does not and shall not relate back to the date of the written agreement.
  5. If a real estate broker may be due any compensation excluding compensation due upon execution of the initial lease, such as compensation arising from and including, but not limited to, the exercise of an option: (1) To expand leased premises; (2) To renew or extend a lease; or (3) To purchase commercial real estate; which compensation is due, pursuant to a written agreement or instrument signed by the then owner or tenant (collectively “future commissions”), then the real estate broker may record its notice of lien at any time after execution of the lease or other written agreement which contains such rights, but not later than ninety (90) days after the occurrence of the act or event on which the future commission is claimed. An action to enforce a lien to collect future commissions must be commenced within two (2) years of the act or event for which the future commission is claimed.
  6. In the event that the commercial real estate is sold or otherwise conveyed prior to the date on which a future commission is due, if the real estate broker has recorded a valid notice of lien prior to the sale or other conveyance of the commercial real estate, then the purchaser or transferee shall be deemed to have notice of and shall take title to the commercial real estate subject to the notice of lien. Provided, however, that if a real estate broker claiming a future commission fails to record its notice of lien for future commission prior to the recording of a deed conveying legal title to the commercial real estate to the purchaser or transferee for consideration, then such real estate broker may not claim a lien on the commercial real estate, and any notice of lien recorded subsequent to the recording of such deed shall not constitute a lien on the commercial real estate and shall be null and void and of no effect.
  7. If a real estate broker claims compensation based on a written instrument executed by a prospective buyer or tenant or agent as described in subdivision (a)(2) of this section, then the notice of lien shall attach upon the prospective buyer or tenant purchasing or otherwise accepting a conveyance or transfer of the commercial real estate or interest therein and the recording of a notice of lien by the real estate broker in the land evidence records in which the commercial real estate, or any interest in the commercial real estate is located, within ninety (90) days after the recording of the deed or other instrument for the purchase or other conveyance or transfer to the buyer or within ninety (90) days of such tenant occupying the leased premises in the case of a lease or sublease transaction. The lien shall attach as of the date of the recording of the notice of lien and does not and shall not relate back to the date of the written agreement.
  8. The real estate broker shall, within ten (10) days of recording its notice of lien, either personally serve, deliver to, or mail a copy of the notice of lien by registered or certified mail, return receipt requested, to the owner of record or to the agent of the owner of record at: (1) The address of the owner stated in the written instrument on which the claim for lien is based; or (2) If no such address is given, then to the address where the real estate tax bill(s) are sent for the commercial real estate on which the claim of the lien is based; or (3) To the address of the property. Mailing of the copy of the notice of lien is effective when deposited in a United States mailbox with postage prepaid.
  9. A real estate broker may bring suit to enforce a lien in the superior court for the county where the commercial real estate is located by filing a complaint and sworn affidavit that the notice of lien has been recorded.
  10. A real estate broker claiming a lien shall, within two (2) years after recording the notice of lien, commence proceedings by filing a complaint and recording a notice of lis pendens in the land evidence records in the municipality in which the commercial real estate is located. Failure to commence proceedings as required herein within two (2) years after recording the notice of lien shall extinguish the lien.
  11. A real estate broker claiming a lien based upon an option or other right to purchase or lease shall, within two (2) years after the transfer or conveyance of the commercial real estate under the exercise of the option to purchase or lease, commence proceedings by filing a complaint and recording a notice of lis pendens in the land evidence records in the municipality in which the commercial real estate is located.
  12. Failure to commence proceedings within the time limits set forth herein shall extinguish the lien.
  13. A complaint under this section shall contain a brief statement or description of the agreement, contract, or instrument on which the notice of lien was filed, the date when the agreement, contract or instrument was made, a description of the services performed, the amount of compensation due and unpaid, a description of the commercial real estate which is subject to the notice of lien, and other facts reasonably necessary to describe the rights of the parties. The plaintiff shall make all interested parties of whose interest the plaintiff real estate broker is notified or has knowledge defendants to the action, and shall issue summons and provide service as in other civil action. When any defendant resides outside or has left the state, or on inquiry cannot be found, or is concealed within the state so that process cannot be served on that defendant, the plaintiff shall cause a notice to be given to that defendant, or cause a copy of the complaint to be served upon that defendant in the manner and upon the same condition as in other civil actions. Failure of the plaintiff to provide proper summons or notice shall be grounds for judgment against the plaintiff and in favor of the defendant which is not properly served with summons or notice. All liens claimed under this chapter shall be foreclosed as provided in chapter 27 of this title.
  14. The notice of lien shall state the name of the claimant, the name of the legal title owner of the commercial real estate, a legal description of the commercial real estate upon which the lien is claimed, the amount for which the lien is claimed, and the number of the real estate broker’s license. The notice of lien shall recite that the information contained in notice is true and accurate to the knowledge of the signator. The notice of lien shall be executed by the real estate broker or by a person authorized to execute on behalf of the real estate broker and shall be verified. A notice of lien substantially in the following form shall be deemed to comply with the foregoing requirements:

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  15. Whenever a notice of lien has been filed with the office of the applicable land evidence records and a condition occurs which would preclude the real estate broker’s right to compensation under the terms of the written instrument on which the lien is based, the real estate broker shall provide to the owner of record of the commercial real estate, within ten (10) days following written demand by such owner of record, a recordable written release or satisfaction of the notice of lien.
  16. Upon written demand of the owner, hence, or other authorized agent of the owner or lienee, which demand shall be served on the real estate broker claiming the lien requiring suit to be commenced to enforce the lien or answer to be filed in pending suit, a suit shall be commenced or answer filed within thirty (30) days after actual receipt thereof or the lien shall be extinguished. Service of such written demand may be made by registered or certified mail, return receipt requested, or by personal service.
  17. Whenever a notice of lien has been recorded with the land evidence records and such claimed commission has been paid to the real estate broker claiming the lien, or where there is failure to institute a suit to enforce the lien within the time provided by this chapter, the real estate broker shall acknowledge satisfaction or release of the notice of lien in writing, on written demand of the owner within five (5) days after payment or within five (5) days of expiration of the time in which the complaint was to be filed.
  18. If the real estate broker and the party or parties from whom the commission is claimed agree to alternative dispute resolution (“ADR”), the claim shall be heard and resolved in the forum on which these parties have agreed. The court before which the lien enforcement proceeding is brought shall retain jurisdiction to enter judgment on the award or other result made or reached in ADR on all parties to the foreclosure. The real estate broker’s notice of lien shall remain on record and the enforcement proceeding shall be stayed during the pendency of the ADR process.
  19. The cost of proceedings brought under this chapter including in trial, appellate courts, and ADR proceedings including reasonable attorney’s fees, costs, and prejudgment interest, costs, and fees shall be equitably apportioned by the court or ADR tribunal among the responsible parties.
  20. Except for a waiver or release of lien provided in consideration of payment of the fee claimed by the real estate broker, or pursuant to subsections (o) and (q) above, and waiver of a real estate broker’s right to lien commercial real estate under this chapter, or any other waiver or release of lien shall be void.
  21. The foregoing provisions of this subsection shall not limit or otherwise affect claims or defenses or other remedies a real estate broker, owner, or any other party may have in law or in equity.

NOTICE OF COMMERCIAL REAL ESTATE BROKER LIEN LAND EVIDENCE RECORDS XXX Broker-Claimant, vs. XXX, Owner Notice is hereby given that the undersigned Broker-Claimant, whose real estate license number is , and whose business address is , makes the following statement and claims a Commercial Real Estate Broker Lien under the law entitled “Commercial Real Estate Broker Lien Act,” chapter 34-49 states: (1) , , Rhode Island , Plat and Lot Number, and which is legally described on Exhibit A attached hereto is improved with a commercial building. The record owner of the Property (“Owner”) is and as Tenant/Sublessor. (2) There is a written agreement to which the Tenant/Sublessor of the Property, is a party by which Tenant/Sublessor is obligated to pay Broker-Claimant a commission. (3) That the Broker-Claimant by its sponsored licensee(s) provided services for said Tenant/Sublessor and is in compliance with Broker-Claimant's obligations under a written agreement to which Tenant/Sublessor is a party; (4) That the amount of the commission or fee to which Broker-Claimant is entitled is $; and (5) Broker-Claimant now claims a lien on the Property and all improvements thereon and against all persons interested therein in the sum of and 00/100 ($). By: Its Authorized Agent STATE OF RHODE ISLAND COUNTY OF as agent for , being first duly sworn on his/her oath, deposes and states that he/she has read the foregoing Lien Notice for Commercial Real Estate Broker Lien and knows the contents thereof and that all the Statements therein contained are true and accurate to the knowledge of the undersigned. Subscribed and sworn to before me this day of , . Notary Public My commission expires: Prepared by: ATTY FIRM ADDRESS PHONE Return to: ATTY FIRM ADDRESS PHONE

History of Section. P.L. 2013, ch. 69, § 1; P.L. 2013, ch. 76, § 1.

34-49-4. Priority.

Prior recorded liens, mortgages, and other encumbrances shall have priority over a real estate broker’s lien. Such prior recorded liens, mortgages, and encumbrances shall include, without limitation, a mechanic’s lien claim that is recorded prior to the real estate broker’s notice of lien.

History of Section. P.L. 2013, ch. 69, § 1; P.L. 2013, ch. 76, § 1.

34-49-5. Escrow of disputed amounts.

  1. Except as otherwise provided in this section, whenever a claim for lien has been filed with the appropriate land evidence records, and an escrow account is established either from the proceeds from the transaction, conveyance, or any other source of funds in an amount computed as one hundred fifty percent (150%) of the amount of the claim for lien, then the lien against the real estate shall be extinguished and immediately become a lien on the funds contained in the escrow account. Upon creation of such escrow, the lien claimant shall be required to provide and record a release of lien against the real estate within five (5) business days. In the event that the lien claimant fails to provide or record a release of lien, then the escrowee is hereby authorized to either: (1) Execute and record a release of lien; or (2) Pay into the registry of the superior court in the county where the land is located an amount equal to one hundred fifty percent (150%) of the amount claimed in the notice of lien; or (3) In lieu of cash, deposit in the registry of the court the bond of a surety company licensed to do business in this state in the amount of one hundred fifty percent (150%) of the amount claimed in the notice of lien. On proper proof of payment or deposit and on motion of the owner or lessee or tenant, any justice of the superior court shall enter ex parte, an order discharging and releasing the notice of lien and dismissing the cause as to the owner or lessee or tenant and as to all persons having any title, claim, lease, mortgage, attachment, or other lien or encumbrance, and upon entry of the order, the property shall be as if no notice of lien was recorded. Provided, however, that with respect to the escrowed funds and/or surety bond, proceeds the real estate broker’s lien attaches to such escrowed funds and/or surety bond proceeds whichever applies;
  2. The requirement to establish an escrow account or election to take measures described in subdivision (a)(2) or (a)(3) above, shall not be cause for any party to refuse to complete or close the transaction.

History of Section. P.L. 2013, ch. 69, § 1; P.L. 2013, ch. 76, § 1.

34-49-6. Dismissal of complaint for other cause.

  1. If any person of interest, including, but not limited to the owner, claims that:
    1. The notice of lien filed by a real estate broker in the land evidence records that the commercial real estate broker lien has not been filed or recorded in accordance with the applicable provisions of this chapter; or
    2. That, for any other reason, a claimed real estate broker lien is invalid by reason or failure to comply with the provisions of this chapter, then, in such event, the person of interest may apply forthwith to the superior court, in the county where the land lies, for an order to show cause why the lien in question is invalid or otherwise void, that the basis of the lien is without probability of a judgment rendered in favor of the lienor. A mortgage holder or servicer is not a necessary party under this section and shall not be named as a party in any such application or order of notice.
  2. An order of notice to appear and show cause why the relief demanded in the complaint should not be granted shall be served upon the necessary parties no later than one week prior to the date of the scheduled hearing. If the necessary parties cannot be found, such service may be made as the court shall direct. The application shall be made upon a verified complaint accompanied by other written proof of facts upon which the application is made. Upon granting or denying the application, the court shall enter an order or judgment as applicable on the matter involved.
  3. Nothing herein shall affect the validity of, or otherwise modify or alter, the mortgage contract, nor otherwise affect, alter, or modify the mortgage holder’s rights under § 34-28-16.1 .

History of Section. P.L. 2016, ch. 19, § 1; P.L. 2016, ch. 21, § 1.

Compiler’s Notes.

P.L. 2016, ch. 19, § 1, and P.L. 2016, ch. 21, § 1 enacted identical versions of this section.

34-49-7. Severability.

If any provision of this chapter or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of the chapter, which can be given effect without the invalid provision or applications, and to this end the provisions of this chapter are declared to be severable.

History of Section. P.L. 2016, ch. 19, § 1; P.L. 2016, ch. 21, § 1.

Compiler’s Notes.

P.L. 2016, ch. 19, § 1, and P.L. 2016, ch. 21, § 1 enacted identical versions of this section.