Alabama has two condominium statutes operating side by side — and understanding which one governs a given dispute can determine whether an owner has actionable statutory rights or must rely on the declaration alone.
Doctrinal Framing
Alabama's condominium law exists in two statutory tiers. The older Condominium Ownership Act, Ala. Code §§ 35-8-1 to 35-8-22, dates to the era when condominium ownership first became common. It is a spare framework that defines condominium property, establishes the basic mechanics of unit ownership and association governance, and creates a lien mechanism, but it says little about owner rights, board due process obligations, or the allocation of common expenses in contested situations.
The Alabama Uniform Condominium Act of 1991, Ala. Code §§ 35-8A-101 to 35-8A-417 (Acts 1990, No. 90-551), is based on the Uniform Condominium Act and is considerably more detailed. It covers the full lifecycle of a condominium — from creation and alteration of the declaration through management, assessment enforcement, purchaser protections, and resale. Whether any given condominium in Alabama is governed by Chapter 8 or Chapter 8A depends on when it was created and whether the newer Act applies by its own terms.
Both chapters are excluded from the Alabama Homeowners' Association Act, Ala. Code § 35-20-3(b)(2), meaning the three statutory frameworks operate independently.
Chapter 8 vs. Chapter 8A: When Each Governs
Chapter 8 (§§ 35-8-1 to 35-8-22) applies to condominiums created before the effective date of Chapter 8A. It governs the basic structure of condominium ownership: units constitute real property, the association manages common elements, and a lien attaches for failure to pay common expenses. It does not impose the detailed board-conduct standards or purchaser-protection provisions found in Chapter 8A.
Chapter 8A (§§ 35-8A-101 to 35-8A-417) formally took effect upon passage of Acts 1990, No. 90-551. Section 35-8A-101 designates it the "Alabama Uniform Condominium Act of 1991." Under the Act's applicability provisions, it governs all condominiums created after its effective date and, in certain respects, also governs pre-existing condominiums — meaning practitioners must consult § 35-8A-116 and related provisions to determine the precise overlap. In practice, Chapter 8A is the governing statute for virtually all condominiums formed in the past three decades.
For pre-existing condominiums subject only to Chapter 8, owner rights are defined by the declaration and bylaws, supplemented by the sparse Chapter 8 framework. A unit owner in a Chapter 8 community who has a dispute about board authority or assessment allocation has narrower statutory tools than a Chapter 8A unit owner.
Creation and the Declaration: Articles 1 and 2
Chapter 8A's Article 2 (§§ 35-8A-201 to 35-8A-217) governs the creation, alteration, and termination of condominiums. A condominium is created by recording a declaration that satisfies § 35-8A-205, which requires the declaration to contain, among other things: the name of the condominium; a legally sufficient description of the real estate; a description of the boundaries of each unit, common elements, and limited common elements; the allocated interests in each unit; the allocation of common expense liabilities; and any restrictions on use of units.
Amendments to the declaration generally require approval by a percentage of unit owners specified in the declaration, but certain fundamental changes — such as reallocation of limited common elements or termination of the condominium — require higher supermajority approval or unanimity. Practitioners challenging an amendment should examine whether the vote threshold in the declaration was met and whether the amendment was properly recorded.
Association Powers and Governance: §§ 35-8A-301 to 35-8A-319
Powers of the Association: § 35-8A-302
Section 35-8A-302 grants the association a broad list of corporate powers, including adopting and amending bylaws and rules, adopting budgets and imposing assessments, hiring and discharging agents, litigating in its own name on behalf of itself or two or more unit owners, maintaining directors' and officers' liability insurance, and — critically — imposing fines for violations of the declaration, bylaws, and rules after notice and an opportunity to be heard. Unlike the Alabama HOA Act's explicit guarantee of right to counsel at the hearing, Chapter 8A conditions fines on "notice and an opportunity to be heard," without an express counsel guarantee. The general principles of procedural fairness apply.
Board Members and Officers: § 35-8A-303
Section 35-8A-303 addresses the composition, election, and duties of the board. Directors must be elected by the unit owners and are subject to removal procedures established in the bylaws. Officers are appointed by the board unless the declaration or bylaws provide otherwise.
Assessments for Common Expenses: § 35-8A-315
Section 35-8A-315 governs the assessment framework. Several provisions deserve attention:
- Assessments must be made at least annually based on an adopted budget;
- All common expenses must be assessed against all units in proportion to allocated interests unless the declaration provides otherwise;
- Past due assessments bear interest at the rate established by the association, not to exceed 18 percent per year;
- If a common expense is caused by the misconduct of a unit owner or the owner's invitee, the association may assess that expense exclusively against the responsible unit after notice and a hearing;
- No unit owner may be exempted from assessment liability for any reason, including abandonment, nonuse, or waiver of use.
Special assessments are not separately defined in § 35-8A-315 but must satisfy the general budget-and-notice requirements. An association that levies a special assessment without adopting a proper budget or without following the notice procedures in its bylaws runs the risk of having the assessment challenged as procedurally defective.
The Six-Month Super-Priority Lien: § 35-8A-316
Section 35-8A-316 establishes the condominium assessment lien and contains a significant innovation absent from the older Chapter 8: a six-month super-priority lien for common expense assessments. The lien is prior to a recorded first security interest on the unit to the extent of six months' worth of common expense assessments under the periodic budget immediately preceding either the association's commencement of a civil action to enforce the lien or a mortgage foreclosure. This six-month priority does not include the association's costs or attorney fees.
The practical effect: a mortgagee who forecloses on a condominium unit governed by Chapter 8A must satisfy up to six months of unpaid assessments ahead of its mortgage lien. This aligns Alabama's approach with the approach adopted by the Uniform Condominium Act, and it gives associations meaningful leverage in bankruptcy and mortgage-foreclosure situations. Notably, where the mortgage is assigned to, owned by, or guaranteed by FNMA, FHLMC, or GNMA, the six-month priority is subject to those agencies' regulations, rules, and guidelines, which may limit the period.
Association Records: § 35-8A-318
Section 35-8A-318 requires the association to keep financial records sufficient to comply with § 35-8A-409 (resale certificate requirements), and to make all financial and other records reasonably available for examination by any unit owner and authorized agents. Records must be available in the county where the condominium is located, and a reasonable fee or hourly charge may be assessed for the service.
This provision is considerably less specific than Florida's inspection rights statutes. There is no prescribed number of days within which the association must respond, no per-day minimum damages provision, and no rebuttable presumption from a certified-mail demand. Owner enforcement in Alabama therefore relies on equitable remedies — injunction and mandamus — or a breach-of-statutory-duty claim.
Purchaser Protections: Article 4 (§§ 35-8A-401 to 35-8A-417)
Chapter 8A's Article 4 provides significant consumer protections for condominium purchasers:
Resale Certificate: § 35-8A-409. Before transferring a unit, the seller may request from the association a resale certificate containing key financial information: the amount of monthly assessments, any unpaid assessments against the unit, and a summary of pending litigation or unbudgeted capital expenditures. A purchaser who relies on a materially inaccurate resale certificate may rescind the purchase.
Warranty Claims. While Chapter 8A does not contain the elaborate warranty provisions found in Florida § 718.203, general implied warranty doctrines apply to condominium construction in Alabama through the common law. For purchase agreements made after the developer offers units for sale, express warranties in the sales contract and implied warranties under Alabama's general construction warranty law supplement the statutory framework.
Voting Rights and Amendments
Unit owners vote in proportion to their allocated common expense interests unless the declaration provides otherwise. Amendments to the declaration require the consent of a supermajority of unit owners as specified in the declaration; certain changes — such as adding units to the condominium (§ 35-8A-210) — require all unit owners' consent unless the right was reserved in the declaration. A board that attempts to amend the declaration by resolution rather than through the prescribed amendment process acts outside its authority.
Bylaws. Section 35-8A-306 requires bylaws to address the number and election of board members, the powers and duties of officers, the method of adopting and amending the budget, and procedures for fines and hearings. Bylaws that are inconsistent with the declaration are generally subordinate to it. Bylaws that are inconsistent with Chapter 8A are unenforceable.
Enforcement: Owner Remedies
Owners pursuing Chapter 8A claims have several avenues:
- Breach of declaration/bylaws. Standard contract claims with specific performance and damages available.
- Breach of statutory duty. For violations of Chapter 8A's assessment, voting, or records provisions, owners may seek injunctive relief and damages in circuit court.
- Ultra vires board action. Board decisions that exceed the powers granted by the declaration, bylaws, or Chapter 8A are subject to challenge. The business judgment rule in Alabama applies to board decisions within the board's lawful authority; it does not protect decisions made without authority.
Board Practice: Special Assessments and Enforcement
From the board's perspective, the most important Chapter 8A compliance requirements are:
- Budget adoption. Annual budgets must be adopted before levying assessments. A budget not formally adopted creates an argument that the resulting assessment is unauthorized.
- Notice before fines. Section 35-8A-302(a)(11) conditions fines on "notice and an opportunity to be heard." Document the notice and the hearing; a fine imposed without a hearing record is vulnerable.
- Super-priority lien mechanics. The six-month window runs to the institution of civil action or the commencement of a mortgage foreclosure. Boards that delay filing suit may lose super-priority for pre-suit assessment periods.
- Resale certificate compliance. An association that provides a materially inaccurate resale certificate may be liable to a purchaser who relied on it.
Closing
Alabama's two-statute condominium framework creates threshold complexity in every dispute. Practitioners must first determine which chapter governs, then apply that chapter's specific provisions. Chapter 8A's six-month super-priority lien, its assessment and fine procedures, and its purchaser-protection provisions give both unit owners and associations substantial statutory tools that the older Chapter 8 does not. For pre-1991 condominiums still operating under Chapter 8, the common law and the declaration remain the principal governing instruments.
Talk to Yates Anderson
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Informational only. Not legal advice. No attorney-client relationship is created by reading this post. Consult a licensed attorney in your jurisdiction.