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 made 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 costs extra money for insurance, and that the kids can use any of the nearby parks for playing. Is this action by the board legal?
A. “Possibly not,” says attorney Michael C. Kim of the Chicago-based firm Michael C. Kim and Associates. “Generally, the board of directors has the fiduciary duty to maintain the common elements/amenities of the condominium. Unit owners presumably purchase their units with the expectation that the existing amenities would generally be available for them and their guests. However, the board does have discretion as to the amenities, which may involve the timing and feasibility of maintenance, insurance considerations, new legal requirements or restrictions, and even possible change if so desired by the current membership. Substitution of the playground with additional rental parking space may be arguably understandable if there was a dire shortage of parking for residents, as opposed to simply seeking to generate more income. If a particular amenity is fundamental to the identity/purpose of the condominium, the elimination of that amenity may require unit owner approval. In addition, it is not unusual that declaration/bylaws may have an expenditure limitation for any capital improvements or modifications above a certain dollar amount; in that regard, the board may need to obtain the approval of the unit owners for any such capital improvements or alterations. Of course, the ultimate check on the actions taken by the board is whether the unit owners will either re-elect or even remove directors who appear to be acting inconsistent with the expectations of the membership. Finally, the elimination of the children’s playground might be viewed as discriminatory against residents with children.”