Q. I purchased my condo unit in 2005 with amenities, including 24-hour security, two pools, a parking lot, and a children's playground. This past summer, our board destroyed the children's playground and turned it into additional parking space for rent. None of the homeowners were informed about that. When I asked about it, I got an answer that the playground was in bad shape and costing the board extra for insurance, and that the kids can use any of the nearby parks for playing. Is this action by the board legal?
—How Is This Fair?
A. According to attorney Anne P. Ward of the Newark office of Ehrlich, Petriello, Gudin & Plaza, “Under the New Jersey Condominium Act, N.J.S.A. 46:8B-1 et seq (hereinafter “the Act”), a condominium property is divided into common elements, limited common elements, and privately-owned units. The Act defines those terms.
“A common element is defined as:
(i) The land described in the master deed;
(ii) As to any improvements, the foundations, structural and bearing parts, supports, main walls, roofs, basements, halls, corridors, lobbies, stair, stairways, elevators, entrances, exits and other means of access, excluding any specifically reserved or limited to a particular unit or group of units;
(iii) Yards, gardens, walkways, parking areas and driveways, excluding any specifically referenced or limited to a particular unit or group of units;
(iv) Portions of the land or any improvement or appurtenance reserved exclusively for the management, operation or maintenance of the common elements or the condominium property;
(v) Installations of all central services and utilities;
(vi) All apparatus and installations existing or intended for common use;
(vii) All other elements of any improvement necessary or convenient to the existence, management, operation, maintenance and safety of the condominium property or normally in common use; and
(viii) Such other elements and facilities as are designed in the master deed as common elements.
(The Act 46:8B-3(d))
“A limited common element is defined as ‘...common elements which are for the use of one or more specified units to the exclusion of other units.’ (The Act 46:8B-3 (k)). A unit is defined, in pertinent part, as ‘....a part of the condominium property designed or intended for any type of independent use, having a direct exit to a public street or way or to a common element...and includes the proportionate undivided interests in the common elements and in any limited common elements assigned thereto in the master deed or any amendment thereof.’
“The Act says this about is a common element:
The right of any unit owner to the use of the common elements shall be a right in common with all other unit owners (except to the extent that the master deed provides for limited common elements) to use such common elements in accordance with the reasonable purposes for which they are intended without encroaching upon lawful rights of other unit owners.
(The Act, 46:8B-6.)
“Thus, all common elements are owned in common by all unit owners in proportion to their undivided percentage interests. General common elements (as opposed to limited common elements) are those which are for the use of all owners on a nonexclusive basis.
“The association is responsible for the ‘administration and management of the condominium and condominium property, including but not limited to the conduct of all activities of common interest to the unit owners.’ (The Act, 46:8B-12). The board of directors acts on behalf of an association and its powers are set forth in the governing documents of a condominium.
“Your condominium's master deed will identify which parts of the condominium property are designated as common elements, limited common elements or a unit. It will also establish their location usually through an exhibit with surveys and with a site plan showing the location of buildings and improvements and architectural drawings. The surveys and site plan typically distinguish between units and common and limited elements.
“Depending upon the provisions with the governing documents, the board will or will not have the authority to unilaterally dispose of or turn a common element to a different use.
“However, I need to know more facts to answer your questions. Has control of the condominium association transferred to the owners? If a sponsor/developer remains in control, you may have a claim against the developer for the loss of an amenity or amenities. Once condominium control has transitioned to owner control, the association has authority over the common elements. Assuming that it follows the governing documents the board can legally change a common element's use. I don't understand your remark that the board ‘destroyed the children's playground.’ Did they simply refuse to maintain it? Turn its use to something other than a playground?
“You state the board ‘made the additional parking space for rent.’ Do you mean the property used for the playground was turned into a parking space? This leads me to believe that that parking space was not deeded to an individual unit but was an extra parking space and classified as a common element. If the parking space you reference was deeded to you with your unit, then the board has no authority to unilaterally appropriate and charge rent for that parking space. If it was a common element, the board has the authority to adopt regulations concerning the use of that parking space. It is not at all unusual for a board to charge a fee for use of a common element parking space as a way to bolster the condominium's finances.
“I suggest that you attend a board meeting and pose specific questions about your concerns to the board. Most condominium associations are represented by legal counsel. If the board's answers are unsatisfactory, or if you are not convinced that the board is or was acting within its legal authority, I suggest that you question the attorney on those subjects. If you are still unsatisfied, or if you disagree with the board's decisions, you have some options: 1) get involved and organize your neighbors and other residents to lobby the board to overturn their decisions or change priorities; 2) run for membership on the board and earn the authority to change policy; 3) sue the board and association in order to make the changes you seek. You need to be aware though that litigation against a board is an expensive and time consuming process. It should be undertaken only as a last resort and after consultation with an attorney experienced in the practice of community association law.”