Most boards can create rules governing units, common elements


Question: There was a brief discussion of limited common areas in a previous column. I understand that a limited common element is appurtenant to the unit to which it is attached, and that it is for the exclusive use of the owner of that unit. My question is, does the board have any control over the use of that area? Can a limited common area be turned into a junklike collection space for storage of toys, luggage and other detritus of condo living? The area in question is close to the elevator, open and visible to visitors, and not much different than a storage garage. Are there any limitations on this exclusive use? Can it be entirely closed off without the consent of all of the owners? From the column, I assume the answer is no, but it never hurts to ask. — D.K.

Answer: Nearly every set of condominium governing documents grants the board of directors broad authority to create rules and regulations that govern the use of the common elements and the units — and this would include rules governing limited common elements. Any rules promulgated by a board must be reasonable, but it is extremely common for boards to create rules regarding what can and cannot be kept out in the open on limited common elements. Take balconies, for example. Most of the time the only items allowed to be left on balconies would be furniture and plants, and this is typically because of the visual impact on the property. My only concern in the situation you describe would be finding a way to draft a rule that does not expressly single out this one owner but is targeted to all owners who are similarly situated. Your association should work with its attorney to craft a rule that is broadly stated, and that is not intended to simply single out this one owner, but will instead apply generally to all open limited common areas.

Q: I have been living in a small 55-and-over community for almost five years. The majority of the board members are in their 80s and rarely do anything but attend one two-hour meeting per month. No one on the board oversees or checks our vendors to make sure we are receiving the services that we are contracted for — which we are not. I walk around our community and see the vendors are nowhere to be found, according to their own schedule. I have reported this to the board, but they either make excuses for the vendors or outright lie, and then say that they are performing as promised. Our hard-earned maintenance money is being wasted to the tune of thousands of dollars per year, and this has been going on for years. What is our recourse to put a stop to this situation? — M.L.

A: At its essence, your question is really a disagreement about how your community should be managed. You feel that your board is doing an insufficient job managing and overseeing the community, and you are wondering if there is a legal tool that you can use to force them to, in your view, adequately oversee vendors and ensure that you and your neighbors are getting their money’s worth.

In contrast, and based upon the responses you are getting, I suspect that the directors feel that you are being obsessive, spending your free time checking up on vendors in an effort to hit the board with a smoking gun that will prove to everyone that you are right, and that the vendors and the board members are not doing their jobs. I see conflicts like this regularly, and I have no way of knowing whether your concerns are reasonable, or whether you are being unreasonably picky.

I can tell you, however, that there is no magic legal bullet to fix these issues. Your only hope of changing the way your community operates is not only to continue to be the squeaky wheel but also to go even further: Persuade your neighbors to elect you to the board so that you can have a direct say in the association’s policy on a regular monthly basis; or, even better, assemble a slate of similarly thinking owners who can take control at the next election and change the way you operate the community. Obviously, this depends on whether the majority of the community agrees with you, or the board. If you do not have the support of your neighbors then, regardless of whether you are right, you are fighting a fruitless battle.

Ryan Poliakoff is a co-author of “New Neighborhoods — The Consumer’s Guide to Condominium, Co-Op and HOA Living” and a partner at Backer Aboud Poliakoff & Foelster, LLP. Email questions to condocolumn@gmail.com. Please include your hometown.



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