Eliminating a HOA Amenity

LmT (California)
Posts: 237

Posted:

We are 40 townhomes with three swimming pool and spa areas in our community. To heat all pools and spas during the winter months is not practical from a financial point of view even though, in years gone by, that was the practice. We have a number of snowbirds, and some of them consider a heated pool and spa a necessity as well as lush green landscaping. In fact, only a few homeowners use the pools and spas.

At this time we are roughly a 50/50 split of full time residents and second home owners. Our property is almost 50 years old and landscape irrigation and water delivery for the pools is failing fast.

Today we had our Annual Membership Meeting and for the umpteenth time the subject of filling in one or two of the pools was proposed by more than a few of the attendees. Heating these pools and spas is a 'hot' button topic (as some will know from my previous posts here) and has even brought the threat of lawsuits. If the subject of which pool and spa to heat brings out the worst in some members then the suggestion to fill in one or more swimming pools makes them apoplectic!

We have agreed to appoint a subcommittee to study the feasibility of eliminating one or more of the pools/spas and replace the areas with more usable community facilities (BBQ, Bocce Ball or such).

Years ago I was told that to eliminate a community amenity, such as a pool/spa/tennis court, would require a 100% agreement of members. I have since researched on Davis-Stirling website and find it not the case. In fact, it's my understanding that it would not even require approval from the membership but could be decided by the board of directors exercising the 'business judgment rule'.

I have one stubborn homeowner who refuses to accept this information even after providing an excerpt from D-S which cites eliminating a tennis court as an example.

I want to be sure I am on solid ground before I ignore his further arguments and wonder if you experienced people here have any other cases or clauses I can quote. I have looked at our CC&Rs and can find no information to the contrary there.

I should be clear; there's no way the board of directors would go ahead and make a decision of this magnitude without the input of members even if it is within our authority.

KerryL1 (California)
Posts: 14,550

Posted:

When reviewing your CC&Rs, did you search "common areas?" Not solely "amenities?"

Do review your Aricles of Inc., too on the off chance there might be something there.

I recall you/your Board's reluctance to consult with HOA general counsel, but imo, on this very contentious and very expensive potential project, I think you with the board should vote at an open meeting to seek HOA counsel's written opinion. Don't know about your HOA attorney but for something like this ours would charge maybe $350-500. Well worth it given the passion about the topic.

KerryL1 (California)
Posts: 14,550

Posted:

When reviewing your CC&Rs, did you search "common areas?" Not solely "amenities?"

Do review your Aricles of Inc., too on the off chance there might be something there.

I recall you/your Board's reluctance to consult with HOA general counsel, but imo, on this very contentious and very expensive potential project, I think you with the board should vote at an open meeting to seek HOA counsel's written opinion. Don't know about your HOA attorney but for something like this ours would charge maybe $350-500. Well worth it given the passion about the topic.

DeanJ
Posts: 1,786

Posted:

I lived a a condo at one time that had a sauna that was removed by the board without home owner approval before I moved in. Then they took the showers out of the restrooms at the pool without homeowner approval. There was no process in the CC&Rs for removal of amenities.

Had I been a resident when they removed the sauna, I would have taken the HOA to court over it.

Yes, this stuff is expensive, but you the board member knew this when you bought in the community and now you want to institute your frugalness on the other owners. It’s wrong.

DeanJ
Posts: 1,786

Posted:

I lived a a condo at one time that had a sauna that was removed by the board without home owner approval before I moved in. Then they took the showers out of the restrooms at the pool without homeowner approval. There was no process in the CC&Rs for removal of amenities.

Had I been a resident when they removed the sauna, I would have taken the HOA to court over it.

Yes, this stuff is expensive, but you the board member knew this when you bought in the community and now you want to institute your frugalness on the other owners. It’s wrong.

LmT (California)
Posts: 237

Posted:

Quote:

Posted By DeanJ on 02/08/2025 3:16 PM
I lived a a condo at one time that had a sauna that was removed by the board without home owner approval before I moved in. Then they took the showers out of the restrooms at the pool without homeowner approval. There was no process in the CC&Rs for removal of amenities.

Had I been a resident when they removed the sauna, I would have taken the HOA to court over it.

Yes, this stuff is expensive, but you the board member knew this when you bought in the community and now you want to institute your frugalness on the other owners. It’s wrong.

Dean, What makes you think this is a request by a board member (me)? This is something brought up BY homeowners TO the board of directors.

Read the post!

And, for the record, it wasn't expensive fifty years ago but it is now.

KellyM3 (North Carolina)
Posts: 2,239

Posted:

Quote:

Posted By DeanJ on 02/08/2025 3:16 PM
I lived a a condo at one time that had a sauna that was removed by the board without home owner approval before I moved in. Then they took the showers out of the restrooms at the pool without homeowner approval. There was no process in the CC&Rs for removal of amenities.

Had I been a resident when they removed the sauna, I would have taken the HOA to court over it.

Yes, this stuff is expensive, but you the board member knew this when you bought in the community and now you want to institute your frugalness on the other owners. It’s wrong.

It's not always so clear. Our community was opened in the mid-80s with a dues rate established by the developer and dues increases capped to the CPI-U inflation rate, no more. It's taken about 40 years, but it's clear the installed amenities + inflation have created a systemic strain on the HOA in present day....and our HOA has tracked inflation for the past twenty years without cheating. Yes, we could launch an exhausting campaign to change the bylaws the but core financial design of our HOA guarantees it will forever struggle.

Assessing amenities' use patterns makes sense. Granted, that doesn't mean unilateral amenity removal but communities can certainly, over long time periods, struggle to replace amenities installed by developers as the developers have an inherent interest to install prime amenities as well as launch sales w/ low HOA dues.

LmT (California)
Posts: 237

Posted:

Quote:

Posted By KerryL1 on 02/08/2025 2:31 PM
When reviewing your CC&Rs, did you search "common areas?" Not solely "amenities?"

Do review your Aricles of Inc., too on the off chance there might be something there.

I recall you/your Board's reluctance to consult with HOA general counsel, but imo, on this very contentious and very expensive potential project, I think you with the board should vote at an open meeting to seek HOA counsel's written opinion. Don't know about your HOA attorney but for something like this ours would charge maybe $350-500. Well worth it given the passion about the topic.

I did search specifically for eliminating common amenities in our governing documents which are quite old and not too lengthy. The last time they were updated was 2004 and they are overdue for revision which we intend to do quite soon. I have just looked at our AOI and they don't address this issue.

If we were to seriously consider going ahead with a project such as this we would most certainly seek the advice of counsel - we would be foolish not to. Our current HOA attorney has advised us recently they will no longer be representing smaller HOAs such as ours so we are in the process of finding new representation with the purpose of revising our documents in mind.

As far as Davis Stirling goes do you agree with my interpretation?

Quote: QUESTION: Our board wants to eliminate a tennis court. It needs a lot of maintenance, and hardly anyone uses it anymore. One of our homeowners said it was illegal to eliminate the court since that was why he bought into our association. Can the board eliminate the court? Does it need membership approval?

ANSWER: I am not aware of any statute or case law in California that addresses this issue. I believe the board has the authority to eliminate the tennis court provided it follows the Business Judgment Rule (a good faith decision made in the association's best interests after due diligence). Unquote

KellyM3 (North Carolina)
Posts: 2,239

Posted:

Quote:

Posted By LmT on 02/08/2025 2:01 PM
We are 40 townhomes with three swimming pool and spa areas in our community. To heat all pools and spas during the winter months is not practical from a financial point of view even though, in years gone by, that was the practice. We have a number of snowbirds, and some of them consider a heated pool and spa a necessity as well as lush green landscaping. In fact, only a few homeowners use the pools and spas.

At this time we are roughly a 50/50 split of full time residents and second home owners. Our property is almost 50 years old and landscape irrigation and water delivery for the pools is failing fast.

Today we had our Annual Membership Meeting and for the umpteenth time the subject of filling in one or two of the pools was proposed by more than a few of the attendees. Heating these pools and spas is a 'hot' button topic (as some will know from my previous posts here) and has even brought the threat of lawsuits. If the subject of which pool and spa to heat brings out the worst in some members then the suggestion to fill in one or more swimming pools makes them apoplectic!

We have agreed to appoint a subcommittee to study the feasibility of eliminating one or more of the pools/spas and replace the areas with more usable community facilities (BBQ, Bocce Ball or such).

Years ago I was told that to eliminate a community amenity, such as a pool/spa/tennis court, would require a 100% agreement of members. I have since researched on Davis-Stirling website and find it not the case. In fact, it's my understanding that it would not even require approval from the membership but could be decided by the board of directors exercising the 'business judgment rule'.

I have one stubborn homeowner who refuses to accept this information even after providing an excerpt from D-S which cites eliminating a tennis court as an example.

I want to be sure I am on solid ground before I ignore his further arguments and wonder if you experienced people here have any other cases or clauses I can quote. I have looked at our CC&Rs and can find no information to the contrary there.

I should be clear; there's no way the board of directors would go ahead and make a decision of this magnitude without the input of members even if it is within our authority.

I think you're on the correct path for deliberation and consideration of replacing amenities. Times change and usage habits change. An unused amenity is easily measured. If the amenity is being used and someone simply wants to eliminate it as an arbitrary cost reduction, that's not what this discussion needs to be.

LmT (California)
Posts: 237

Posted:

Quote:

Posted By KellyM3 on 02/08/2025 3:52 PM

Posted By LmT on 02/08/2025 2:01 PM
We are 40 townhomes with three swimming pool and spa areas in our community. To heat all pools and spas during the winter months is not practical from a financial point of view even though, in years gone by, that was the practice. We have a number of snowbirds, and some of them consider a heated pool and spa a necessity as well as lush green landscaping. In fact, only a few homeowners use the pools and spas.

At this time we are roughly a 50/50 split of full time residents and second home owners. Our property is almost 50 years old and landscape irrigation and water delivery for the pools is failing fast.

Today we had our Annual Membership Meeting and for the umpteenth time the subject of filling in one or two of the pools was proposed by more than a few of the attendees. Heating these pools and spas is a 'hot' button topic (as some will know from my previous posts here) and has even brought the threat of lawsuits. If the subject of which pool and spa to heat brings out the worst in some members then the suggestion to fill in one or more swimming pools makes them apoplectic!

We have agreed to appoint a subcommittee to study the feasibility of eliminating one or more of the pools/spas and replace the areas with more usable community facilities (BBQ, Bocce Ball or such).

Years ago I was told that to eliminate a community amenity, such as a pool/spa/tennis court, would require a 100% agreement of members. I have since researched on Davis-Stirling website and find it not the case. In fact, it's my understanding that it would not even require approval from the membership but could be decided by the board of directors exercising the 'business judgment rule'.

I have one stubborn homeowner who refuses to accept this information even after providing an excerpt from D-S which cites eliminating a tennis court as an example.

I want to be sure I am on solid ground before I ignore his further arguments and wonder if you experienced people here have any other cases or clauses I can quote. I have looked at our CC&Rs and can find no information to the contrary there.

I should be clear; there's no way the board of directors would go ahead and make a decision of this magnitude without the input of members even if it is within our authority.

I think you're on the correct path for deliberation and consideration of replacing amenities. Times change and usage habits change. An unused amenity is easily measured. If the amenity is being used and someone simply wants to eliminate it as an arbitrary cost reduction, that's not what this discussion needs to be.

Thank you Kelly for your response.

If it were not for the fact that we have three pools among 40 homes it would not be up for consideration but many communities around us have a far higher ratio of pool to homeowner i.e. 20:1; 41:1 in our immediate neighborhood. Ours is 13:1. It should not be difficult for the working committee to make a case.

I, personally, am conflicted. I seldom use the pools in winter and never a spa. I don't use the tennis courts either but I recognize these are amenities vital to the community and just because they are under utilized today doesn't mean they are not attractive to future home owners. Along with that comes a high price tag in monthly assessments which are NOT particularly attractive to potential buyers or current residents for that matter.

We have tasked a committee with evaluating these three swimming pools taking into account their operating and maintenance expenses versus usage and potential value. One of the pools is in need of expensive updating and repairs which will be the focus of this evaluation.

It's going to be interesting.

DeanJ
Posts: 1,786

Posted:

Oh sure, it may may have been brought up. That doesn’t give the board authority to eliminate part of the comm9n element. You need to discuss this with the HOA attorney and determine if you can and the steps required. .

ElleN (Idaho)
Posts: 1,334

Posted:

Quote:

Posted By LmT on 02/08/2025 2:01 PM

Years ago I was told that to eliminate a community amenity, such as a pool/spa/tennis court, would require a 100% agreement of members. I have since researched on Davis-Stirling website and find it not the case. In fact, it's my understanding that it would not even require approval from the membership but could be decided by the board of directors exercising the 'business judgment rule'.

The D-S site that speaks of a tennis court being eliminated appears to be this: https://www.davis-stirling.com/HOME/E/Eliminating-HOA-Amenities

I disagree with your interpretation.

The latter D-S site cites a NH Case where the Board sought to eliminate a HOA-owned ski lift. One can read the NH case here: https://casetext.com/case/schaefer-v-eastman-community-assoc

By my reading the Schaefer case says that a Board can eliminate an amenity, as long as the board's action "does not contravene either an express provision of the declaration or a right reasonably inferable therefrom... ". The latter quotation is a direct quotation from the Schaefer case.

The court's ruling that the lawfulness of such board decisions depends on what the Declaration says is completely unsurprising.

Before giving my opinion of what is required to eliminate one or more of the swimming pools here, I would have to see exactly what your HOA's Declaration says about the swimming pools, amenities in general and more.

The D-S site does not do justice to the New Hampshire case.

CathyA3 (Ohio)
Posts: 6,299

Posted:

The HOA attorney has to be involved to draft any legal documents needed to make this happen. That would be the person to ask about the percentage of affirmative votes to approve the change.

LmT (California)
Posts: 237

Posted:

Quote:

Posted By ElleN on 02/08/2025 7:21 PM

Posted By LmT on 02/08/2025 2:01 PM

Years ago I was told that to eliminate a community amenity, such as a pool/spa/tennis court, would require a 100% agreement of members. I have since researched on Davis-Stirling website and find it not the case. In fact, it's my understanding that it would not even require approval from the membership but could be decided by the board of directors exercising the 'business judgment rule'.

The D-S site that speaks of a tennis court being eliminated appears to be this: https://www.davis-stirling.com/HOME/E/Eliminating-HOA-Amenities

I disagree with your interpretation.

The latter D-S site cites a NH Case where the Board sought to eliminate a HOA-owned ski lift. One can read the NH case here: https://casetext.com/case/schaefer-v-eastman-community-assoc

By my reading the Schaefer case says that a Board can eliminate an amenity, as long as the board's action "does not contravene either an express provision of the declaration or a right reasonably inferable therefrom... ". The latter quotation is a direct quotation from the Schaefer case.

The court's ruling that the lawfulness of such board decisions depends on what the Declaration says is completely unsurprising.

Before giving my opinion of what is required to eliminate one or more of the swimming pools here, I would have to see exactly what your HOA's Declaration says about the swimming pools, amenities in general and more.

The D-S site does not do justice to the New Hampshire case.

This is what I found in our CC&Rs

1. Common Area and Common Facilities.
The Association shall be solely responsible for all maintenance, repair, upkeep and
replacement within the Common Area and Common Facilities. No person other than
the Association or its duly authorized agents shall construct, reconstruct, refinish,
alter or maintain any Improvement upon, or shall create any excavation or fill or
change the natural or existing drainage of any portion of the Common Area. In
addition, no person shall remove any tree, shrub or other vegetation from, or plant
any tree, shrub, or other vegetation upon the Common Area without express
approval of the Assoclation. Without limiting the foregoing, the Association shall be
41
responsible for all maintenance described in any Maintenance Matrix, including but
n o t limited to t h e following:
(a) The reconstruction, replacement, or refinishing of any Common Facility or other
Improvements located within or constructed upon Common Area as necessary in
accordance with the original design, finish or standard of construction of such
I m p r o v e m e n t .
(b) The construction, reconstruction, replacement, refinishing of any road, driveway,
trail or surface upon any portion of Common Area designated on a Subdivision Map
as a private road or parking area.
(c) The replacement of trees or other vegetation and the planting of trees, shrubs
a n d g r o u n d cover u p o n a n y portion of C o m m o n Area.
(d) The placement and maintenance of such signs as the Association may deem
necessary for the identification of the development and of roads, the regulation of
traffic, including parking, the regulation and use of Common Area and Common
Facilities and for the health, welfare and safety of Owners, tenants and guests.
(e) Maintenance, repair, upkeep and replacement of the Exclusive Use Common
Areas appurtenant to each Lot within the Properties, as identified in any Maintenance Matrix or herein.

Obviously, the board would not move to carry out a project like this without seeking legal advice. I am merely trying to have as much information as possible on the subject when the group tasked with the feasibility study brings it to us.

Because a number of homeowners have brought this idea up several times I believe we should let them run with it and see where it goes. I honestly think it will die a quick death when the magnitude and implications of implementing such a controversial plan become apparent. But, I could be wrong.

LmT (California)
Posts: 237

Posted:

Quote:

Posted By CathyA3 on 02/09/2025 5:19 AM
The HOA attorney has to be involved to draft any legal documents needed to make this happen. That would be the person to ask about the percentage of affirmative votes to approve the change.

Thank you. If it gets that far then we will.

KellyM3 (North Carolina)
Posts: 2,239

Posted:

13 homes per pool is luxurious and I can understand the financial stress this places on the community now that those pools are much older.
Under-utilized amenities are not attractive to current or future homeowners. That's why they are "under-utilized." It was a perk of a few decades ago and should've been highly attractive then (as was). I'll trust your HOA board to assess modern communities that are attractive.

It seems like modern sensibilities would have your HOA attempt to build a single, larger pool sized to accommodate 40 homes, which should be about 90-100 people. Then, look at actual usage in the winter. If, of those 40 homes, 3 to 4 people are the ones using the pool in winter and demanding the HOA (the other 40 homes) subsidize the pool, scale back to seasonal usage.

Many developers over-built their communities and under-established initial, monthly dues rates. Even with incremental percentage dues increases, the expense curve rises higher than the revenue curve. When the infrastructure bill comes due, they are long gone and you face the situation you're in.

A couple of people, threatening legal action, should not stop you from attempting what's in the best, long-term, financial interest of the community, unless the community wants to maintain status quo and adopt a much larger increase in monthly dues that will allow for truly, first-class amenities.

KerryL1 (California)
Posts: 14,550

Posted:

Generally such a Committee is an "Ad Hoc Committee," whose charge I one thing. If not in your bylaws see Calif. Corp. .Codes or maybe D-S.com.

AS I recall your 3 pools are spread out over some distance, i.e. the elimination of one would require some residents to walk quite a ways to a pool? BUT some of them only reside at your HOA part-time, i.e., are "snowbirds."

Anyhoo, the Committee needs to look into the cost of heating these pools and the cost of your master insurance policy (along with daily maintenance, pool service, etc.)

One 20 x 60 pool handled our 200+ condos very easily.

In my 85-unit condo HOA in NC, one nearly-backyard size pool handled all just fine. Some units were quite a stroll away.

LmT (California)
Posts: 237

Posted:

Quote:

Posted By KellyM3 on 02/09/2025 11:05 AM
13 homes per pool is luxurious and I can understand the financial stress this places on the community now that those pools are much older.
Under-utilized amenities are not attractive to current or future homeowners. That's why they are "under-utilized." It was a perk of a few decades ago and should've been highly attractive then (as was). I'll trust your HOA board to assess modern communities that are attractive.

It seems like modern sensibilities would have your HOA attempt to build a single, larger pool sized to accommodate 40 homes, which should be about 90-100 people. Then, look at actual usage in the winter. If, of those 40 homes, 3 to 4 people are the ones using the pool in winter and demanding the HOA (the other 40 homes) subsidize the pool, scale back to seasonal usage.

Many developers over-built their communities and under-established initial, monthly dues rates. Even with incremental percentage dues increases, the expense curve rises higher than the revenue curve. When the infrastructure bill comes due, they are long gone and you face the situation you're in.

A couple of people, threatening legal action, should not stop you from attempting what's in the best, long-term, financial interest of the community, unless the community wants to maintain status quo and adopt a much larger increase in monthly dues that will allow for truly, first-class amenities.

As I mentioned earlier this is a suggestion that has been proposed several times, driven by the same small group of owners. They are the most vocal and I don't know how many others may agree if it was actually presented to them for a vote. At this point perhaps it's best to let them reach their own conclusions from their feasibility study and if there is support for removing one or more community amenity, we can go from there.

I don't intend to get too involved until it actually looks as though it might receive support from the rest of the community, but I want to be prepared.

LmT (California)
Posts: 237

Posted:

Quote:

Posted By KerryL1 on 02/09/2025 11:58 AM
Generally such a Committee is an "Ad Hoc Committee," whose charge I one thing. If not in your bylaws see Calif. Corp. .Codes or maybe D-S.com.

AS I recall your 3 pools are spread out over some distance, i.e. the elimination of one would require some residents to walk quite a ways to a pool? BUT some of them only reside at your HOA part-time, i.e., are "snowbirds."

Anyhoo, the Committee needs to look into the cost of heating these pools and the cost of your master insurance policy (along with daily maintenance, pool service, etc.)

One 20 x 60 pool handled our 200+ condos very easily.

In my 85-unit condo HOA in NC, one nearly-backyard size pool handled all just fine. Some units were quite a stroll away.

Kerry, you obviously recall the pool heating debacle we had a year ago and one argument was the distance between a homeowners house and the pool being heated. This year we heated the pool immediately behind his house as well as the pool heated last year as guess what. He and his family have been using the pool that was heated last year which he considered too far away! Why? Because there were people using the pool by his home and no-one was at the other pool so they could have it to themselves. Ironic huh?

Not relevant to this situation of course but I thought it odd.

ElleN (Idaho)
Posts: 1,334

Posted:

Quote:

Posted By LmT on 02/09/2025 8:09 AM

This is what I found in our CC&Rs

1. Common Area and Common Facilities.
The Association shall be solely responsible for all maintenance, repair, upkeep and
replacement within the Common Area and Common Facilities. No person other than
the Association or its duly authorized agents shall construct, reconstruct, refinish,
alter or maintain any Improvement upon, or shall create any excavation or fill or
change the natural or existing drainage of any portion of the Common Area. ... Without limiting the foregoing, the Association shall be
responsible for all maintenance described in any Maintenance Matrix, including but
n o t limited to t h e following:
(a) The reconstruction, replacement, or refinishing of any Common Facility or other
Improvements located within or constructed upon Common Area as necessary in
accordance with the original design, finish or standard of construction of such
I m p r o v e m e n t .

In my opinion, these paragraphs mean the Board cannot, by itself, remove any of the swimming pools or spas.

Furthermore the courts say that amendments that are approved by less than 100% of owners have to be reasonable. IMO an amendment that would remove one or more swimming pools/spas would not necessarily be reasonable. Why? Because people relied on the presence of the pools/spas when they decided to buy into this association. The contractual implications seem clear.

LetA (Nevada)
Posts: 2,679

Posted:

Quote:

Posted By DeanJ on 02/08/2025 3:16 PM
I lived a a condo at one time that had a sauna that was removed by the board without home owner approval before I moved in. Then they took the showers out of the restrooms at the pool without homeowner approval. There was no process in the CC&Rs for removal of amenities.

Had I been a resident when they removed the sauna, I would have taken the HOA to court over it.

Yes, this stuff is expensive, but you the board member knew this when you bought in the community and now you want to institute your frugalness on the other owners. It’s wrong.

Removing showers at the pool, isn't that a health department violation?

LetA (Nevada)
Posts: 2,679

Posted:

Typically to amend the covenants the percentage is 2/3rds or 75%.
The fact that you got 99.9% is a slam dunk. Have you run the figures of the maintenance and upkeep to have all thee operational for only 40
homes?

I Would list the total cost of having only one pool and jacuzzi vs three. I would list the gas and electric, replastering, any parts and labor
like skimmers, baskets. the maitenence of chemicals and the labor to clean the pools. janitorial services. INSURANCE.

I am willing to bet only having one pool and jaccuzzi you could lower your insurance premiums, lower your reserves obligations and lower assessments.

SheliaH (Indiana)
Posts: 6,964

Posted:

I don’t know if you’ve seen my comments in other conversations on how and why we got rid of our pool – in case you didn’t:

This began something breaking down (may have been the kiddie pool)that required a lot of money to repair or replace. At that time we were also having a lot of trouble with delinquencies and had to make tough decisions on what the association could afford. We also noticed that the percentage of people using the pool was very small – usually the same residents, all of whom invited friends to come over.

Some of these people didn’t play with others, which resulted in us threatening to shut down the pool for the remainder of the summer. It worked, partly because we had a nasty heat wave at the time. The next year, we hired an off-duty cop as pool monitor. He had the authority to shut the pool down and send everyone home if things go too rowdy (which he did a time or two). Of course, that added to the costs of the water, chemicals, cleaning, etc.

The following year, we decided we didn’t want to deal with the drama, so we canceled the pool season and told everyone why. We also said the board would be considering the pool’s future to determine if it was still an amenity people wanted and if we could afford it.

Later that year, we had a reserve study done and our specialist warned the pool components were so old, it would make more sense to either rip it out and put in a new one or fill it in and call it a day. The next year our finances hadn’t improved very much, so the pool remained closed. At the end of the year, we sent a letter to the homeowners calling for a vote and also included information on the pool’s impact on the budget and estimates on replacing vs. repairing it, the use percentage and then recommended closure.

The letter also addressed a question about property values. Previous boards hadn’t pulled the trigger on this issue because it was thought eliminating the pool would cause a drop. You already know there are various disagreements about what constitutes property values anyway. In our case, we spoke to several realtors who were familiar with our community and everyone said it didn’t make a difference one way or another. Our CCRs require 75% of homeowners to approve amendments, and it took a year and a half to get enough ballots, but homeowners did approve the shutdown.

In your case, you’re correct that three pools and a spa cost money, and maintenance/operating costs are increasing. Considering what’s been going on in LA and other places lately with wildfires and drought, I’m amazed some of your neighbors still insist on this, especially since your water also takes care of the landscaping. If people object to closing the pool, limiting hours or whatever, has the board shown them financials?

I’d present the last five years of data to demonstrate the increases because basic math and the idea of inflation is weird to some people. They may want what they want, but have to be willing to pay for it. Challenge them to do some research to see if there’s a more cost-effective way to support three pools. As Kelly noted, one pool makes more sense than three, so they should note the use percentage among the three pools. If they can't figure that out, pick the one that's most centrally located.

Finally, the decisions your board makes should be based on YOUR community’s needs and resources, so never mind with this “many communities around us have a far higher ration of pool to homeowners.” You don’t live there, so unless those communities are helping yours pay bills, let them do them and you do you.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

KerryL1 (California)
Posts: 14,550

Posted:

Say, Elle, I'm not interpreting the CC&Rs that are cited above as saying the membership must approve removal of any pools. I see: "No person other than
the Association or its duly authorized agents..."

I take the Association's "authorized agents" to mean the Board. What am I misunderstanding?

After all this years, I liked hearing the story about your pool, Shelia.

LmT (California)
Posts: 237

Posted:

Quote:

Posted By SheliaH on 02/10/2025 9:16 AM
I don’t know if you’ve seen my comments in other conversations on how and why we got rid of our pool – in case you didn’t:

This began something breaking down (may have been the kiddie pool)that required a lot of money to repair or replace. At that time we were also having a lot of trouble with delinquencies and had to make tough decisions on what the association could afford. We also noticed that the percentage of people using the pool was very small – usually the same residents, all of whom invited friends to come over.

Some of these people didn’t play with others, which resulted in us threatening to shut down the pool for the remainder of the summer. It worked, partly because we had a nasty heat wave at the time. The next year, we hired an off-duty cop as pool monitor. He had the authority to shut the pool down and send everyone home if things go too rowdy (which he did a time or two). Of course, that added to the costs of the water, chemicals, cleaning, etc.

The following year, we decided we didn’t want to deal with the drama, so we canceled the pool season and told everyone why. We also said the board would be considering the pool’s future to determine if it was still an amenity people wanted and if we could afford it.

Later that year, we had a reserve study done and our specialist warned the pool components were so old, it would make more sense to either rip it out and put in a new one or fill it in and call it a day. The next year our finances hadn’t improved very much, so the pool remained closed. At the end of the year, we sent a letter to the homeowners calling for a vote and also included information on the pool’s impact on the budget and estimates on replacing vs. repairing it, the use percentage and then recommended closure.

The letter also addressed a question about property values. Previous boards hadn’t pulled the trigger on this issue because it was thought eliminating the pool would cause a drop. You already know there are various disagreements about what constitutes property values anyway. In our case, we spoke to several realtors who were familiar with our community and everyone said it didn’t make a difference one way or another. Our CCRs require 75% of homeowners to approve amendments, and it took a year and a half to get enough ballots, but homeowners did approve the shutdown.

In your case, you’re correct that three pools and a spa cost money, and maintenance/operating costs are increasing. Considering what’s been going on in LA and other places lately with wildfires and drought, I’m amazed some of your neighbors still insist on this, especially since your water also takes care of the landscaping. If people object to closing the pool, limiting hours or whatever, has the board shown them financials?

I’d present the last five years of data to demonstrate the increases because basic math and the idea of inflation is weird to some people. They may want what they want, but have to be willing to pay for it. Challenge them to do some research to see if there’s a more cost-effective way to support three pools. As Kelly noted, one pool makes more sense than three, so they should note the use percentage among the three pools. If they can't figure that out, pick the one that's most centrally located.

Finally, the decisions your board makes should be based on YOUR community’s needs and resources, so never mind with this “many communities around us have a far higher ration of pool to homeowners.” You don’t live there, so unless those communities are helping yours pay bills, let them do them and you do you.

We are in a similar, but not quite the same, situation. One pool needs quite a lot of work and we need to decide soon if it's worth the expense and that's where this feasibility study is going. Also, like you our three pools are used by a small number of the residents; however, I wouldn't use that as the main argument for removing one of them. Pools are expensive - no doubt about that and when you start to heat outdoor pools it gets eye watering.

We have just finalized our budget and had another large monthly assessment increase of 9.8%. We publish this and it has gone out to the community more than once - you can lead a horse to water but can't make it drink! I even made a nice color pie chart but....

I just spoke to our old manager who knows our community very well (far better than our current management) and he actually supports the idea of getting rid of one pool and replacing it with a nice outdoor recreation area. I can do the math in my head and figure that it would take about five years to break even on the cost involved.

The sticking point is whether 100% approval by members is required. We all know that would never happen. A super-majority is more likely 70% or 80% but even that could be difficult to obtain.

I have suggested the ad-hoc committee come up with some a financial analysis and informal member approval percentage before we invest in legal fees and sending out a ballot. Before we move forward at all we will need legal advice.

By the way, did anybody threaten or take legal action against your HOA for removing the pool?

LmT (California)
Posts: 237

Posted:

Quote:

Posted By ElleN on 02/09/2025 1:57 PM

Posted By LmT on 02/09/2025 8:09 AM

This is what I found in our CC&Rs

1. Common Area and Common Facilities.
The Association shall be solely responsible for all maintenance, repair, upkeep and
replacement within the Common Area and Common Facilities. No person other than
the Association or its duly authorized agents shall construct, reconstruct, refinish,
alter or maintain any Improvement upon, or shall create any excavation or fill or
change the natural or existing drainage of any portion of the Common Area. ... Without limiting the foregoing, the Association shall be
responsible for all maintenance described in any Maintenance Matrix, including but
n o t limited to t h e following:
(a) The reconstruction, replacement, or refinishing of any Common Facility or other
Improvements located within or constructed upon Common Area as necessary in
accordance with the original design, finish or standard of construction of such
I m p r o v e m e n t .

In my opinion, these paragraphs mean the Board cannot, by itself, remove any of the swimming pools or spas.

Furthermore the courts say that amendments that are approved by less than 100% of owners have to be reasonable. IMO an amendment that would remove one or more swimming pools/spas would not necessarily be reasonable. Why? Because people relied on the presence of the pools/spas when they decided to buy into this association. The contractual implications seem clear.

Perhaps you could explain how you come to the opinion that the above paragraphs mean the board cannot remove any of the pools and spas? I don't read it that way but I'm not a lawyer and have no legal experience. I appreciate your advice.

We would, of course, seek legal advice were we to consider this project and even if it were determined that the board could make the decision we would still send it out for a vote requiring whatever majority percentage our lawyers recommend.

LmT (California)
Posts: 237

Posted:

Quote:

Posted By KerryL1 on 02/10/2025 11:38 AM
Say, Elle, I'm not interpreting the CC&Rs that are cited above as saying the membership must approve removal of any pools. I see: "No person other than
the Association or its duly authorized agents..."

I take the Association's "authorized agents" to mean the Board. What am I misunderstanding?

After all this years, I liked hearing the story about your pool, Shelia.

I would also like clarification of Elle's interpretation. I'm not arguing that it's wrong I just would like an explanation.

I've read and re-read the clauses and can't totally decipher it.

ElleN (Idaho)
Posts: 1,334

Posted:

LmT,

The Declaration has contractual terms ("covenants") as follows:

1.
The Association shall be solely responsible for all maintenance, repair, upkeep and replacement within the Common Area and Common Facilities.

In my experience from case law, "maintenance, repair, upkeep and replacement" do not mean "removal."

2.
No person other than the Association or its duly authorized agents shall construct, reconstruct, refinish, alter or maintain any Improvement upon,... any portion of the Common Area.

In my experience from case law, this covenant means that no outsiders and no individual owner can add an "Improvement" to the Common Area.

3.
the Association shall be responsible for all maintenance described in any Maintenance Matrix, including but not limited to the following:
(a) The reconstruction, replacement, or refinishing of any Common Facility or other Improvements located within or constructed upon Common Area as necessary in accordance with the original design, finish or standard of construction of such Improvement.

In my experience, neither "reconstruction," "replacement" or "refinishing" translate to "removal."

If your Declaration's definitions section defines "Improvement," please share the definition.

Bear in mind that if any of the Declaration's wording seems ambiguous, then a Court will read the entire Declaration and see if there is clarifying language. There may very well be.

Remember that a HOA attorney would never in a million years offer a substantive opinion without reviewing all the governing documents, including the plats.

The HOA came with these amenities (the pools and spas). People bought into the HOA relying on these amenities continuing. Legally and contractually, it is not a trivial matter to remove them.

If you are getting pushback from owners about the Board unilaterally making this decision, then IMO the above are at least some of the reasons why.

If a Board director (or lawyer for that matter) is not sure one way or another, he/she may wisely take a third side. He/she might pound on the ambiguity and say the ambiguity is the real problem.

An ambiguity here argues for getting owner consent.

I think it is time for your board to consult a HOA attorney.

SheliaH (Indiana)
Posts: 6,964

Posted:

Quote:

Posted By LmT on 02/10/2025 1:59 PM

We are in a similar, but not quite the same, situation. One pool needs quite a lot of work and we need to decide soon if it's worth the expense and that's where this feasibility study is going. Also, like you our three pools are used by a small number of the residents; however, I wouldn't use that as the main argument for removing one of them. Pools are expensive - no doubt about that and when you start to heat outdoor pools it gets eye watering.

We have just finalized our budget and had another large monthly assessment increase of 9.8%. We publish this and it has gone out to the community more than once - you can lead a horse to water but can't make it drink! I even made a nice color pie chart but....

I just spoke to our old manager who knows our community very well (far better than our current management) and he actually supports the idea of getting rid of one pool and replacing it with a nice outdoor recreation area. I can do the math in my head and figure that it would take about five years to break even on the cost involved.

The sticking point is whether 100% approval by members is required. We all know that would never happen. A super-majority is more likely 70% or 80% but even that could be difficult to obtain.

I have suggested the ad-hoc committee come up with some a financial analysis and informal member approval percentage before we invest in legal fees and sending out a ballot. Before we move forward at all we will need legal advice.

By the way, did anybody threaten or take legal action against your HOA for removing the pool?

The financial analysis and a non-binding homeowner poll would be a good start for your community. People may have felt one way about this, say, 4 months ago, but current events (the wildfires) may have everyone feeling differently. I recently heard there is or was a threat of mudslides in LA because a bunch of rain dropped after the fires finally subsided - is anyone really obsessing over pools now?

When you're considering moves like this, the key is to do your due diligence and keep people informed.
It doesn't mean everyone will appreciate it, but it's one thing to sue, another to win and still another to collect. You can't run scared of lawsuits- just as you have to put in the work to make your case, so do they. If the math don't math, what else they got?

No one threatened us with a lawsuit, probably because they've always known our financial situation and were challenged to come up with an alternative. Of course that takes time and effort and you learn pretty quickly who's motivated enough to do it.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

KerryL1 (California)
Posts: 14,550

Posted:

If your Ad Hoc Committee--Pools looks carefully into the expenses of eliminating a pool vs. the cost for keeping it and provides written reports, per the Business Judgement Rule your Board is on the right path. If your Board or the Committee also has written estimates to do certain things you also are on the right path. If the Board is loyal to your HOA and makes its decisions in good faith, you're on the right path per the Business Judgement Rule.

Your CC&Rs, unless extremely unusual do not list every amenity in your common areas. "Replacement" means removal of something. Your CC&Rs, to my eye, is not "ambiguous." "Replacement," in it, can mean either replace with the same item or with a different item. Elle is suggesting it means "replicate." It does not.

#3 says the Association"is responsible for "replacement" -- again.

Sure as many above suggest, get the community's views first once your Committee has gathered its info. Present their findings at a Town Hall type starting with lotsa Q & A.

I entirely disagree with Elle that an HOA attorney would scour all the docs with fine -toothed comb (including the plats???). The authority of the Board over the common areas won't be scattered everywhere and will be in typical places in the Gov. docs.

"Improvements" will most likely be defined in the CC&Rs as it is in mine. Common area "improvements" are Association property which the Association must maintain, protect and replace.

I think the disagreement here is that Elle emphasizes the relationship between buyers & the Association, where the proper role of the Association is to ALWAYS have its best interests at the heart of the board of directors. Once again, please review the Business Judgment Rule in CA.
Ran outta time LmT.

I do wish your Board would pay your attorney a maybe @$250 to advise you how to proceed in "thinkinking" about this p pic.

(Like Elle, I'm not an attorney either)

LmT (California)
Posts: 237

Posted:

Quote:

Posted By KerryL1 on 02/10/2025 8:24 PM
If your Ad Hoc Committee--Pools looks carefully into the expenses of eliminating a pool vs. the cost for keeping it and provides written reports, per the Business Judgement Rule your Board is on the right path. If your Board or the Committee also has written estimates to do certain things you also are on the right path. If the Board is loyal to your HOA and makes its decisions in good faith, you're on the right path per the Business Judgement Rule.

Your CC&Rs, unless extremely unusual do not list every amenity in your common areas. "Replacement" means removal of something. Your CC&Rs, to my eye, is not "ambiguous." "Replacement," in it, can mean either replace with the same item or with a different item. Elle is suggesting it means "replicate." It does not.

#3 says the Association"is responsible for "replacement" -- again.

Sure as many above suggest, get the community's views first once your Committee has gathered its info. Present their findings at a Town Hall type starting with lotsa Q & A.

I entirely disagree with Elle that an HOA attorney would scour all the docs with fine -toothed comb (including the plats???). The authority of the Board over the common areas won't be scattered everywhere and will be in typical places in the Gov. docs.

"Improvements" will most likely be defined in the CC&Rs as it is in mine. Common area "improvements" are Association property which the Association must maintain, protect and replace.

I think the disagreement here is that Elle emphasizes the relationship between buyers & the Association, where the proper role of the Association is to ALWAYS have its best interests at the heart of the board of directors. Once again, please review the Business Judgment Rule in CA.
Ran outta time LmT.

I do wish your Board would pay your attorney a maybe @$250 to advise you how to proceed in "thinkinking" about this p pic.

(Like Elle, I'm not an attorney either)

All very good points and cover most of what we are already considering regarding involving our community in the process.

However, at this time it’s still very early in the process and until we get a feel for whether our members will agree to such a drastic plan we don’t intend to invest any money into it. When, or more precisely if, that time comes our first step will be to meet with legal counsel. I can’t emphasize enough how much we are aware of that. .

I have studied in the past much of the Business Judgment Rule and case histories on D-S as it seems to apply so often to board decision making in California. There’s plenty of reference material. It’s frightening how much trouble an association can get into and we have no desire to bring that kind of pain to our neighbors and friends.

I don’t expect the committee to get back to us for a few weeks but when they do I’m sure I will be back here asking for more help and advice.

I appreciate your time and help. Thank you so much.

LmT (California)
Posts: 237

Posted:

Quote:

Posted By ElleN on 02/10/2025 2:41 PM
LmT,

The Declaration has contractual terms ("covenants") as follows:

1.
The Association shall be solely responsible for all maintenance, repair, upkeep and replacement within the Common Area and Common Facilities.

In my experience from case law, "maintenance, repair, upkeep and replacement" do not mean "removal."

2.
No person other than the Association or its duly authorized agents shall construct, reconstruct, refinish, alter or maintain any Improvement upon,... any portion of the Common Area.

In my experience from case law, this covenant means that no outsiders and no individual owner can add an "Improvement" to the Common Area.

3.
the Association shall be responsible for all maintenance described in any Maintenance Matrix, including but not limited to the following:
(a) The reconstruction, replacement, or refinishing of any Common Facility or other Improvements located within or constructed upon Common Area as necessary in accordance with the original design, finish or standard of construction of such Improvement.

In my experience, neither "reconstruction," "replacement" or "refinishing" translate to "removal."

If your Declaration's definitions section defines "Improvement," please share the definition.

Bear in mind that if any of the Declaration's wording seems ambiguous, then a Court will read the entire Declaration and see if there is clarifying language. There may very well be.

Remember that a HOA attorney would never in a million years offer a substantive opinion without reviewing all the governing documents, including the plats.

The HOA came with these amenities (the pools and spas). People bought into the HOA relying on these amenities continuing. Legally and contractually, it is not a trivial matter to remove them.

If you are getting pushback from owners about the Board unilaterally making this decision, then IMO the above are at least some of the reasons why.

If a Board director (or lawyer for that matter) is not sure one way or another, he/she may wisely take a third side. He/she might pound on the ambiguity and say the ambiguity is the real problem.

An ambiguity here argues for getting owner consent.

I think it is time for your board to consult a HOA attorney.

I very much appreciate your interpretation of these paragraphs. It helps enormously.

We are not getting any pushback at this time because the community is not involved yet but I m sure we will if we decide to move on the project. We are only forty homes and mostly we know one another as friends and neighbors.

As I mentioned elsewhere, Our attorney already has all of our documents and the last time I met with him, almost a year ago, his paralegal had already studied them in preparation for our meeting.

I can’t emphasize enough that we fully intend to consult him before doing anything. We are very aware that this type of action is no trivial matter and there’s no way I would agree to move forward if I felt it would bring us to a legal mess but we are not there yet.

It will be a few weeks before we are ready to consider whether this project is feasible and I’m sure I will have many more questions.

I really appreciate your help and advice. Thank you so much.

ElleN (Idaho)
Posts: 1,334

Posted:

Quote:

Posted By KerryL1 on 02/10/2025 8:24 PM

Your CC&Rs, unless extremely unusual do not list every amenity in your common areas. "Replacement" means removal of something. Your CC&Rs, to my eye, is not "ambiguous." "Replacement," in it, can mean either replace with the same item or with a different item. Elle is suggesting it means "replicate." It does not.

If the "replacement" is not mostly a replication, but instead involves a change in form, then it becomes an "improvement" or "capital improvement." In this instance the suggestion is that the pool be removed. This runs on the order of several thousand dollars. Depending on the status of the reserves, and per California statutes, the cost all by itself may require an owners' vote.

Complicating factors:

-- The pools are in the reserve study, so owners have been contributing for a long time to the upkeep of the pools in the belief that the money would actually go towards pool upkeep.

-- The Declaration may incorporate the plats as part of the Declaration. It's possible the pools are on the plats. If so, then amending the plats = an amendment to the Declaration which means the owners must vote on this.

-- Filling in the pool may be a capital improvement.

-- Much of what is here is worthy of review: https://www.davis-stirling.com/HOME/C/HOA-Capital-Improvements.

-- See the Behm case cited at the D-S site linked right above. The Behm case observes that, for purposes of analysis in the case before the court, "improvement" involves the "change of a thing from one form or state to another..."

Quote:

Posted By KerryL1 on 02/10/2025 8:24 PM
I think the disagreement here is that Elle emphasizes the relationship between buyers & the Association,

Nope. The courts emphasize it. It's a principle from contracts ("reliance"), discussed often in HOA lawsuits. Buyers sometimes rely heavily on the presence of an amenity when deciding to buy into the HOA. If buyers do, then the Board may very well be on extraordinarily thin ice legally when it seeks to unilaterally (without an owners' vote) take away the amenity. It just depends on the wording in the Declaration and other governing documents.

LmT suggests that a possible, significant capital improvement (removal of a pool), "would not even require approval from the membership but could be decided by the board of directors exercising the 'business judgment rule'." She asked if she was on solid ground.

My opinion is that unless a court resolves this, the answer here is not black-and-white. Instead IMO many reasonable people and even HOA attorneys may have differing opinions on what the Declaration allows here. So far from what has been presented, LmT is not on what I could call solid ground.