(Continued from page 28)


Essenally, this means that unless certain acon requires vote or approval of the unit owners, boards are empowered to act. When considering removal of common elements, care must thus be taken to review the government documents for specic limitaon on board authority. Classic examples of acons that require unit owner vote are declaraon amendments and annual elecon of board members.


In some cases, draers of the governing documents have ancipated the removal/ deleon dilemma by including provisions similar to the following:


Obsolescence. In the event that the board of directors shall determine that any Common Element or any other real or personal property of the Associaon is obsolete, the Board of Directors may call for a vote of the Members to determine whether or not the property should be demolished or replaced. In the event eighty (80%) percent of each class of the Members and at least two-thirds (2/3) of the Eligible Mortgagees shall determine that the property should be demolished and or replaced, the costs thereof shall be assessed against all of the Owners according to their Common Expense Percentages.


Aer the board determines that a component is “obsolete”, this paragraph requires approval from 80% of owners to remove or rebuild it. [While the foregoing example directly answers the queson of board authority, it likely (and unfortunately) ends the inquiry. Obtaining the required 80% vote (the same burden imposed for terminaon of a condominium pursuant to Secon 3320 of the Act) is generally a hurdle too large to overcome. ] Limitaons on authority may also be contained in the list of express dues imposed on the board:


(5) The duty to provide for the maintenance and repair of the Common Elements. The Execuve Board shall maintain the Common Elements at a condion at least equal to that which existed at the me of the conveyance of seventy -ve (75%) of the Units to Owners other than the Declarant.


30 |


This provision would appear to require unit owner vote to remove any common element that existed at the 75% conveyance mark. (How this can be determined in a 30 year old associaon, or if the swimming pool that was installed at the 90% conveyance mark can be removed, is not clear). However, even absent express limitaon, unit owner vote may nonetheless be required. For example, the declaraon may specically refer to a swimming pool or pung green as a common element. Similarly, the recorded plan may depict the component sought to be deleted. In those cases, the declaraon or plan must be amended – ordinarily by a vote of at least 67% of the owners. Expenditure limitaons could similarly impact deleon of a common element:


There shall be no structural alteraons or capital addions to the Common Elements (other than for purposes of repairing,,replacing, and restoring porons of the Common Elements) requiring an expenditure in excess of $5,000.00 without the prior approval of the Unit Owners entled to cast 66-2/3% of the votes of all Unit Owners.


Here, while expenditures to repair or replace a common element do not require unit owner approval, “structural alteraons or capital addions” that exceed a cost of $5,000 do. Removal of an exisng tennis court would thus require unit owner approval.


As illustrated above, with limited excepon, property maintenance decisions are ordinarily made by the board. This is arguably the board's most important funcon – substanal porons of Governing Document are dedicated to assigning responsibilies and nancial resources for upkeep and preservaon of communies. Whether removal or deleon of a common element is "authorized" may also be a maer of degree. Surely, a board may properly remove a dead tree or discard a VCR without a vote of the unit owners. And, if replacement of the tree and purchase of a blue ray player is not praccable or too expensive, the board should likewise be authorized not to replace them. These types of decisions are intended to be within the powers of the board. Boards should also vested with authority to replace a paver walkway with macadam, or remove signs or


speed bumps, and the like. The same would be true for a change in roong materials for the clubhouse, or color for a fence. Aesthec variances do not constute “obsolescence” of the common element.


Of course, the line begins to blur for more substanal components. Demolishing and replacing a poron of sidewalk may constute proper maintenance and repair. Surely the draers of Governing Documents did not intend to deny boards the ability and freedom to make normal every-day maintenance and repair decisions. Somemes proper maintenance IS removal. Governing Documents assure that major associaon components are preserved, and that the character of communies is not altered without a vote of the unit owners. While there is no case law to shed light on what constutes such a major common element, it clearly applies to those components likely to inuence the purchasing decision. Examples might include the clubhouse, swimming pool, tennis court, walking trail and perhaps automac gates.


The decision of whether to deem a component obsolete, and the decision of whether to deem that obsolete component of the type that requires unit owner vote, require the board to exercise its reasonable business judgment. The standard by which board acon is measured is set forth in Secon 3303 of the Act:


In the performance of their dues, the ocers and members of the execuve board shall stand in a duciary relaon to the associaon and shall perform their dues, … in good faith in a manner they reasonably believe to be in the best interests of the associaon and with such care, including reasonable inquiry, skill and diligence, as a person of ordinary prudence would use under similar circumstances. …In performing his dues, an ocer or execuve board member shall be entled to rely in good faith on informaon, opinions, reports or statements, … in each case prepared or presented by any of the following:


(1) One or more other ocers or employees of the associaon whom the ocer or execuve board member reasonably believes


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