Removal of a Condo Amenity

Several unit owners wish to have the condo complex’s VERY old jacuzzi removed since it is never used and costs a lot to maintain/repair. Would removal of this amenity require the majority vote of unit owners or simply the decision of the Board? Our CC&R’s do not address removal of an amenity.

Is the jacuzzi listed in the CC&Rs as a common element? If so, I say the best way to get rid of the jacuzzi is to amend your CC&Rs to eliminate the jacuzzi as a common element. Use the procedure given in the CC&Rs for amending, and attempt the amendment in consultation with an attorney.

Then again this site suggests the Board could do it: https://www.davis-stirling.com/HOME/Eliminating-HOA-Amenities

If you and others want to propose this at a Board meeting, during the open forum section of the meeting, then I would speak of both possibilities and how the COA/HOA attorney should be consulted.

I suspect Max is correct, and our CC&Rs near the very end (no time to look up now) have something about Owners voting to remove common area elements or components. It might say 67% needed.

Even if yours are silent, Laura, Sheila is right to suggest you informally poll owners anyway.

Also see Augustin's citation. I don't think it's common, though, to have every amenity listed in the CC&Rs.

Here's a question: as an item listed in the reserve study, may reserve funds be used to remove this component and replace it with something else? I think so based on CA Civil Code. Check with your reserve analyst, Laura. Are you on the Board?

Just saying: I think what the davis-stirling.com site should have mentioned, but instead left out, the fact that, in the New Hampshire appeals court decision, the HOA had successfully amended the covenants (by direction of the trial court) to allow it to close amenities with approval of a council of sub-association like entities. From http://home.sandiego.edu/~jminan/landuse/Schaefer%20v%20Eastman%20CommunityAssociation.pdf:

ECA amended article VII of the declaration to include the following provision: “The Board shall have authority to ... (g) close any amenity with **755 the approval of two-thirds of the Council. In reaching this judgement the Board may take into account, among other factors, the cost of preserving, maintaining, and/or improving the amenity *190 and the extent of Owner usage it receives.” The amendments became effective on January 20, 2001. On March 23, 2001, the board, following the process established by the amendment, requested the council's approval of the board's decision to close Snow Hill ski area. On April 14, 2001, the council, also following the process established by the amendment, voted forty-five to nine to approve the closing of Snow Hill ski area.

Yes, Kerry, I am on the Board.

In review of our CC&Rs, (written in 1980j, I find the following wording which *may suggest that the decision would rest with the members of the Association. I find no other wording governing common area amenities or any such thing.

“Association shall mean an incorporated association, consisting of all owners of units in the project, which entity shall have the duty of maintaining, operating and managing the Common Area of the project in the manner and to the extent provided for herein. Each owner shall become a member of the XXX Owner's Association, Inc., a California non-profit mutual benefit corporation, contemporaneously with the
acquisition of his unit, without further documentation of any kind or nature.”

“Control of Common Area:
The Common Area shall be controlled by the owners in common through their membership in the Association. The Association shall have the responsibility to manage and maintain, or cause to be managed and maintained, all of the Common Area, in a state of high quality and in good repair, so as to keep the whole project in a first class condition.”

Let me know what you think.

You Quoted:

“Control of Common Area:
The Common Area shall be controlled by the owners in common through their membership in the Association. The Association shall have the responsibility to manage and maintain, or cause to be managed and maintained, all of the Common Area, in a state of high quality and in good repair, so as to keep the whole project in a first class condition.”

I say this says "a majority" of the owners have the responsibility to manage/maintain and to change the common area.

Do people not use it because of it's current condition? How healthy are your reserves? You can use reserve funds to totally replace the jacuzzi.