New Neighborhoods–Public-Use Pools and Board Member Abstentions

New Neighborhoods

By Gary A. Poliakoff and Ryan Poliakoff

Public-Use Pools and Board Member Abstentions

Dear Poliakoffs,

Our condo association documents include a provision for the non-exclusive use of an outdoor pool and deck that is owned by the developer. The association pays a “fair amount” to help defray maintenance and upkeep costs (just as if it were a common element); the documents also say that the developer has the right to open the pool for public use as well. The developer has indicated he intends to sell daily and weekly pool passes to the public. Our concern is that he will sell so many public passes that there will be no room for association unit owners–we would have access to the pool, but effectively no ability to use it. The pool has a health-department restricted load of 70; the association has a total of 114 units with 558 total residents. Is there some formula that’s generally accepted as a “fair share” between the association and the owner; that is, how many of those 70 slots should be reserved for the association? The pool deck raises a similar question, as it has space for 200 users.  Signed, R.K.

Dear R.K.,

While it is not uncommon for equity clubs and golf courses (around which large planned developments are often built) to be open to the public, it is extremely rare to hear of a swimming pool and pool deck where the developer sells admission to the public. As for the definition of a “fair amount” to be paid by the association, or a “fair share” of the deck to be reserved to the unit owners, unfortunately there is no legal definition for that term, and it’s not a term that would typically be used in legal documents.  A judge would need to investigate the original intent of the developer to determine how much money should be paid for upkeep, and if a portion of the pool and deck should be reserved for the condominium.  But also, there are very serious issues involving liability and security that need to be addressed. We would strongly encourage the association as the representative of its members to have its attorney contact the developer and set up a meeting to discuss its legitimate concerns, and to draft an agreement that both establishes the exact rate of payment for the use of the pool and deck, as well as protects the rights and interests of the association members.

Dear Poliakoffs,

Our board of directors is opting to have a new, eight-person board start serving in January.  They said no one else volunteered to be on the board, which is not true.  Our bylaws indicate that the association should have a three to nine person board, the intent being to have an odd number to avoid ties.  To address this problem, our new president said she would always vote on the first round, and that if there were a tie she would “stand down” for the next vote.  Is this allowed?  If the statute indicates that all board members must vote, wouldn’t this action be illegal?  Signed, J.J.

Dear J.J.,

Your question raises a couple of separate issues.  First, a board of directors doesn’t normally choose, on its own, how many board members serve on the board.  The size of the board is normally stated in bylaws, which typically provide a mechanism for the membership to increase this number if desired.  If no number is stated, the board is made up of five members.  Many documents do also state that the board should be an odd number, to avoid tie votes.  Elections must be held every year to fill vacancies on the board.  If there are fewer candidates than vacancies on the board, elections are not held—all of the candidates are automatically seated.  If there are no candidates, then the sitting board members may be appointed to the board for a new term.  If the board is still short of the number of directors specified in the documents, then the currently serving board members would have the right (and arguably the obligation, if a qualified candidate is available) to appoint a new board member to fill the vacant seat.

As for a board member abstaining (choosing not to vote on an issue), until a few years ago the statute mandated that every director vote on every issue, with abstentions allowed only in the case of a conflict of interest.  Voting was considered a fiduciary prerequisite to board service.  However, in 2008 the Condominium Act was amended to allow board members to abstain.  An abstention is treated as if that member has taken no action.  Quite frankly, it is our opinion that a member of the board should exercise their business judgment and cast a vote on every issue being considered.  What is the point of board service if a director is, metaphorically, simply going to punt a decision to the other members?

Gary A. Poliakoff and Ryan Poliakoff are co-authors of New Neighborhoods—The Consumer’s Guide to Condominium, Co-Op and HOA Living.  Gary Poliakoff is a founding principal of Becker & Poliakoff, P.A., and Ryan Poliakoff is the Vice President of Management at AKAM On-Site.  Email questions to condocolumn@becker-poliakoff.com.  Please be sure to include your hometown.

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