HOAleader.com - Tip of the Week - November 12, 2010
Published: Mon, 11/08/10
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Know When You Need Owners' Approval for Common Element Tear-Downs
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Is your HOA considering eliminating a common element to avoid the
cost of maintenance or repair? If so, consider this week's tip
your fair warning: You probably can't do that without your owners'
say-so.
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?"
"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."
To learn more about what your board should know before removing or
making a material change to a common element, see our new article,
http://www.hoaleader.com/members/505.cfm
Best regards,
Matt Humphrey
President
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