Published on: March 15, 2002
At the last two Attorneys Committee meetings one of the items which were discussed was the extent to which Boards should, as regards the Common Areas, go beyond maintaining and operating the common areas. The issue discussed was not whether “the law” as enunciated by the Courts prohibited this or that, but whether, assuming a particular thing was within the Board’s authority or arguably within its authority, should a Board defer to the collective will of Unit Owners.
Again, what wasn’t being discussed was improvements versus repairs. Under the Massachusetts Condominium Act improvements require Unit Owner approval while repairs, irrespective of cost, lie within a Board’s powers. Of course arguments can be had over what constitutes an improvement and where the dividing line between an improvement and repair lies. Generally, however, it is accepted that a repair is a project the intent of which is to remediate a defect, while an improvement is the adding of something new. Of course, any repair will include using new components. It is, however, the predominant purpose which controls. For instance, replacing a defective roof with a new roof is a repair, notwithstanding that new shingles are used or a new rubber membrane put in place. Conversely, adding a pool, where none existed before, is an improvement.
But what about leasing out a portion of the basement previously unused for a laundry room, or what about leasing the roof of a highrise building to a sign company where the roof is otherwise unavailable for unit owner usage, or, for that matter, what about changing the color of a complex when its time to repaint. These are situations which likely fall with a Board’s authority. Assuming they do, should this authority be exercised without Unit Owner input, or even Unit Owner decision. Let’s look at the painting issue.
Clearly, the Board has the authority to paint the buildings as part of the regular, routine maintenance of the property. However, its unclear whether they can change colors and at least one court has said they cannot. Let us assume for this discussion that here in Massachusetts a Board does have the authority to change the colors, the question then becomes, should it, or would it be more appropriate to defer to the Unit Owners? One Board I know of took a middle position. They selected choices recommended to them as “appropriate” to the style and location. They then had samples of the colors painted. The Owners then voted on which they preferred. This procedure, as to this issue, was I suggest an appropriate way for the Board to proceed. Rather than dictate to the Owners what their environment would be, the Board facilitated the Unit Owners making a choice. Done this way no hard feelings or resentment resulted.
Other similar projects can be equally handled. For instance, if the Board wants to rearrange the landscaping of the entrance to the complex and replace the old, rotted out sign with a new one, a committee can be established to develop three of four alternatives which are then submitted for Unit Owner voting.
What this does is to foster a sense within the Community that the Board is not dictatorial. Rather, the Community is in fact a democratic subsociety in which the Owners have a reasonable measure of control.
This is not to say that Boards should cede control to the Unit Owners. Decision making in a Condominium is slow enough. Nor should the Board deal with all matters in this fashion. Boards are elected to oversee and direct the day to day operation of the Condominium. Nor should this modality be utilized just because a decision is difficult. As Harry Truman said, “the buck stops here”. Rather, this method of operation is appropriate to decisions affecting what we might call “quality of the environment issues” involving questions of preference. Boards can avoid the we/they when the Unit Owners are consulted on and/or get to decide matters which will, in fact, concern them. It often takes longer to follow this routine, but in the long run it produces a more harmonious community.