Q&A: Regulating Common Elements

Q Last year the parents of several teens purchased a portable basketball standard  and asked the board permission to put it in a location where their children can  use it and the board agreed. Given the layout of our property the only place to  put it is near an entrance to a parking garage. Predictably some residents  complained of the noise but it was soon winter and the portable hoop was stored  away. At the last meeting, the board gave a verbal direction to the management  to have the building staff put the standard back in place. Doesn't the board  have a responsibility to issue a policy or can they just tell the owners it is  okay to use the common element space as they want? Does the management company  have a responsibility to advise the board that permission to use the common  elements for the benefit of a sub-group of residents should be covered by a  policy?  

 —Playing Ball  

A “To begin with, the use of common areas in the association would be controlled by  the governing documents as administered by the board of directors,” explains attorney Michael C. Kim, a principal with the law firm of Michael C.  Kim & Associates in Chicago. “If the property is a condominium, then the common elements are owned by all of  the owners as tenants in common with exclusive use areas being strictly limited  by the condominium documents and possibly also requiring the consent of all the  unit owners; on the other hand, if it is a non-condominium property and the  common areas are owned by the association as a corporate asset, then the board  of directors would likely have more flexibility in dealing with use and  exclusive use rights in that common property. In either case, the board of directors should have a policy as to use of common  elements/common areas that would generally be available for all of the owners’ use.  

 “In deciding whether to permit certain unit owners to have “exclusive” use of a portion of the general common area, the board would need to consider  its power to grant such exclusive use (under what conditions in terms of time  of use and area of use), what other uses would be denied to other owners, any  possible creation of nuisances/disturbances to other owners, and any safety  concerns with regard to the proposed use. In the factual situation described above, it would seem that the board has not  taken into account the nuisance created by the playing of basketball as well as  the potential safety concerns (since the area is near an entrance to a parking  garage). While the board of directors does have discretion to allow individual residents  or a sub-group of residents to use the common area (exclusively) for limited  purposes and duration, it would seem that the board is not considering all  relevant factors in that decision. The management company does have a responsibility to advise the board as to the  practical and operational concerns involved in the board’s decision making; but obviously it is up to the board to make the decision on  the matter. Finally, if the bothered residents are concerned with the board’s direction to re-install the basketball standard, they should voice their  opposition/concerns to the board and if the board is not appropriately  responsive, the residents could ultimately take either legal or political  action to counter that board decision.”  

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