Alterations to Common Elements: When do you Need a Membership Vote?
Updating and altering common areas of the building is often necessary to keep your property or neighborhood up-to-date. Old paint schemes need to be refreshed, furniture needs to be replaced, and landscaping needs to be redone.
There are two questions that come into play here:
- Are the alterations covered by the maintenance exception? For example, repainting in the same color and style is routine maintenance. Small changes to landscaping, such as switching out plants that are not doing well, also generally fall under the maintenance exception. Additionally, the maintenance exception will also cover changes that are necessary for the "maintenance, repair or replacement of a common element." One example was a condo association that decided to construct a rock revetment on the beachfront. This was viewed as maintenance because its purpose was to prevent erosion. Expense does not play into whether something is covered. However, there have also been cases where changing roof materials to ones which are more durable has been ruled not to be covered because it changed the appearance of the property substantially.
- Are the alterations to association property only? This generally means furnishings. Associations generally do not need a vote to replace furniture, add or replace equipment in the fitness center, etc. If the item is not an integral part of the building, you should be able to replace or upgrade it freely. In other words, there is no need to worry about finding new chairs for the lounge that look like the old ones, which may have been discontinued years ago. However, carpet and window dressings are generally considered integral and should not be changed without a vote.
If in doubt, however, you should seek legal counsel. Your association's governing documents may also lay out a clearer idea of what falls under maintenance and what owners have already agreed to allow. Often, the situation is more complicated for condo buildings. Some homeowners' associations have it set in their documents that only the board or architectural review committee need to approve, but Florida law does not allow this for condominiums.
If the issue does have to go to a vote then, in Florida, you need approval of 75% of your owners unless your association documents say otherwise. A good rule of thumb is to have your governing documents specify a lower number and possibly an amount of money you can spend on material alterations without member approval. This amount should be fairly low, but should cover emergency repairs so that you do not end up having to redo a repair because a court ruled it constituted an alteration to common elements. It should also cover carpets and window dressings, which have to be replaced more frequently and are prone to damage. As a note, courts have ruled that even changing paint from white to beige is a material alteration that needs a vote. Because of this, it may be better to include paint color changes as a change which can be made, or to err on the side of colors that are easy to replace with the same shade when the time comes.
Because of this, you should seek legal counsel and if in doubt, err on the side of requiring a vote for any significant upgrades that are not an emergency situation. In some cases, it may be worth seeking a vote even if the change is one you can legally make, especially if the board is split on a decision. Associations need to make an effort to avoid a situation where they may be forced to change common elements back to their old appearance after an upgrade or repair if a resident complains.