As permitted by our condominium's bylaws, our board promulgated a proposed new
rule and regulation relating to the creation of a fund to be utilized to repair
our common elements. As it affected a common element, the board was required to
first obtain the approval of a majority of our unit owners in favor of adopting
this new rule and regulation for it to create the fund. The majority of unit
owners was obtained and the fund was established pursuant to the unit owner
adopted rule and regulation.
My question is, can a board thereafter unilaterally modify and/or terminate the
rule without first obtaining unit owner approval for any or all of the
“Any rights and/or obligations owners and/or the board have with regard to any
funds, votes, rules, amendments, etc. will be set forth in the Condominium Act
and this condominiums recorded master deed and bylaws,” says attorney Elysa D. Bergenfeld of the law firm Herrick, Feinstein, LLP. “It is impossible to provide any useful response without a thorough review and/or
consideration of the law and those documents. A necessary resource would also
be any resolution or other document by which the fund in question was created.
“Also, generally condominium master deeds and/or bylaws contain provisions by
which a board can act in certain ways in the face of an emergent situation.
Depending on various factors, the business judgment rule may shield any board
decision from judicial review.”