When Can You Remove Common Elements from Your HOA?; Discussion Forum Follow-Up

November 2010
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This article is part of an ongoing series in which we'll take your questions from the HOAleader.com discussion forum and get you the answers you need from experts who specialize in association management. If you have a question you need answered, post it on the message board.

Let's put our reader's question in biblical language: The association provideth. When can the association taketh away?

Language aside, a reader asks an interesting question: "We have a small play structure for children. It is now time to do maintenance on it, make modifications, install a new one, or remove it entirely. I understand that since it is an amenity, we probably have to have a vote from all homeowners, especially if we deem the maintenance to be cost prohibitive. Our governing documents also state that if an expenditure is more than 5 percent of our operating budget for the year, all homeowners need to vote to approve it. The question: Since the play structure is 20 years old and doesn't meet the new, required safety codes, could it be taken down or modified without all homeowners voting?"

Your HOA Board Can't Take Common Elements Away Easily

Our reader is smart to start with his governing documents, because there will likely be language in them to guide the board's action. "The reader asks a good question," says Kyle Hooper, an associate at Atkinson, Diner, Stone, Mankuta & Ploucha PA in Ft. Lauderdale, Fla., who represents about 40 community associations. "This is something we deal with frequently here in Florida--maintenance and repair, replacement versus additions, and alterations and improvements. Your governing documents control what the board can and can't do, and that's the first place to look. Generally there will be different sections in the governing documents covering these issues.

"An association has a duty to maintain, repair, and replace existing common elements, which would of course include a playground or play structure because it was there and approved through the process and should have been maintained," explains Hooper. "To simply remove it, I think, would be in violation of the maintain, repair, or replace rule. You can't summarily remove a swimming pool if it's 20 years old and doesn't meet safety codes. The board's obligation would be to maintain, repair, or replace the pool with a similar kind and quality that meets code standards.

"Otherwise, you're in essence taking away an amenity that has been furnished to unit owners by saying it doesn't meet code," continues Hooper. "That's not good enough. If there's not the money, there's an obligation to pass a special assessment. If a special assessment isn't approved, you'd have to section off the use of the play structure until an operating budget could be approved to include it. Only if all unit owners approve the removal at a properly noticed meeting can it be removed."

Material Changes Must Also Be Approved

Another governing document provision that might come into play is one that explains who can make material provisions to common elements. "We have this type of issue in our communities all the time," says Robert White, managing director of KW Property Management & Consulting in Miami, which oversees about 125 associations totaling 30,000-35,000 units. "In Florida, the rules are that if there's a material change in the association, you need a unit owner vote. My guess is that if you had a tot lot and removed it, that would be considered a material change. There are people who argue that change in paint color is a material change, so I'm guessing they'd say removal of play lot would be, too. That being said, any time this is an issue, we think you need to speak with your attorney."

Material changes also come into play in Arizona. "The question is most likely heavily dependent on your governing documents, and in some associations, I'll see language discussing who has the authority to change the use of a common area," explains Kristen L. Rosenbeck, a partner at the Mulcahy Law Firm PC in Phoenix, which represents associations. "If you're changing from a playground to a green area, that's likely a change of use of a common area. See if your board can do that or if it's something the association has to have a vote on."

The fact that repairing or replacing the playground might be expensive isn't enough reason for the board to simply remove it. "If you need to fix it, the cost might be more than you have in your operating budget," says Rosenbeck. "But how much does it cost to get rid of it? Also, if the language is clear that you have to get approval of the membership, the issue might need to be campaigned, and the board may have to explain that the current playground is a huge liability to the association."

The bottom line for our reader: If his governing documents are like most others, several provisions would prohibit the board from simply removing a common element without a full ownership vote.

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