In Fairway Villas Venture v. Fairway Villas Condominium Ass'n, 815 S.W.2d 912 (Tex. App.--Austin 1991, no writ), the condominium plan called for the development of nine buildings as part of the condominium regime. Id. at 913.
The developer built five buildings and claimed ownership of the remaining four "building sites." Id. at 913-14. The builder claimed title, pursuant to a deed that referred to specific units in the four building sites. Id. at 914.
The association assessed the developer for a pro rata share of general condominium expenses. Id. at 914.
The developer sued for a declaratory judgment that he did not owe any dues, and the association counterclaimed, arguing that the developer was an "apartment owner" under the terms of the Condominium Act. See Tex. Prop. Code Ann. § 81.204.
The trial court denied the developer's claim and granted summary judgment in favor of the association on its counterclaim. The Austin Court of Appeals affirmed. Id. at 915.
The court held that the term "apartment owner," as used in section 81.204, applied to the "building sites" claimed by the developer, because the only structures that could be owned exclusively in a condominium regime are apartments. All remaining areas are common elements. Id. at 914-15.
As such, the court concluded that the pro rata share requirement of section 81.204 applies to the owners of apartments in both existing and proposed buildings. Id. at 915.