Condo building cannot unilaterally withdraw from group


Question: Our condominium complex consists of four separate buildings of 40 condominium units. Our building, as well as the other three, have their own entrance and exit. Is it possible for a building to secede from the rest of the complex, given that we are responsible for our own roof and parking lot and building maintenance? Signed, R.P.

Answer: It sounds as if you are in a multicondominium project, where individual condominiums are governed by a single operating association. In a multicondominium association, any amendment to the declaration of condominium that changes the share of the liability of association expenses or surplus (and removing one condominium from the project would effectively do just that) requires at least a majority vote of each condominium within the association, and a greater number if provided by the declaration. Plus, there is probably property that is commonly shared by all of the condominiums or unit owners, and that would present a significant additional complication. It’s not something that your condominium building could do unilaterally.

Q: Where I reside there is a new homeowners’ association board that is currently trying to get the vote to change the bylaws. One of the changes is to force the residents to have all the homes tented for termites whether there was evidence of termites or not. Can they legally force all residents to tent their homes at their own expense? Additionally can they legally assess the homeowners to cover the cost of amending the bylaws, which could be very costly? Signed, J.O.

A: Generally, amendments to governing documents (most likely, it is your declaration of covenants that would be amended, and not your bylaws) are afforded a broad presumption of validity, and they are only overturned if they are contrary to public policy, arbitrary in their application or abridge some fundamental constitutional right.

I have never heard of a homeowners’ association forcing its owners to tent their individual, single-family homes (although I do know of associations that have required treatment for subterranean termites), but I can’t think of an obvious reason offhand that such an amendment would not be enforceable. And, many restrictions in HOA documents require owners to perform maintenance tasks at their own expense — painting, cleaning, landscaping and the like.

I would imagine that an owner could obtain an accommodation from the tenting rule if they can get a doctor to certify that they are disabled and that the tenting could negatively affect their disability, but otherwise it would likely be enforceable. Separately, the expense of drafting amendments to the declaration would be a valid common expense to be borne by the owners, whether or not they support the amendment. That’s just part of the essential nature of the HOA.

Q: The board of directors of our HOA wants to spend approximately $1 million to renovate our clubhouse. There is a petition against spending that sum of money, but the board says they don’t have to accept the petition and can do as they wish. Is that correct, and if so, what are our options? Signed, B.C.

A: Your governing documents will outline the powers of the board of directors, including their spending power and ability to assess the members, and also their ability to borrow money if required. In most homeowners’ associations, this power is extremely broad. The association has a basic obligation to maintain the common areas (including your clubhouse), and so the cost of doing so is certainly a legitimate common expense.

Some HOA documents may limit the ability of the board to materially alter the common areas without membership approval, but there is no statutory restriction against doing so (unlike the Condominium Act, which prohibits material alterations without a membership vote, unless otherwise provided in the condominium declaration).

Your HOA documents may also limit the ability of the board to assess above a certain amount without a membership vote. But, if there are no restrictions in the declaration, bylaws or articles, the board is probably correct that they have the power to renovate the clubhouse, and to collect the funds to do so as a common expense. Your only option, if that is the case, is to organize a recall of the board (assuming that a majority of your neighbors are also against the renovation project).

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