Does a Change in Use of Common Property Require Unanimous Vote?

Does a Change in Use of Common Property Require Unanimous Vote?

At some point, it may become necessary or just desirable to change how a common area is used. Changes in the demographics of the members or the fact that an amenity isn't used often may facilitate a change. But don't expect all members to get on board with a new use. In some cases, it could be difficult when it comes time to vote on the issue. Whether a majority vote versus a unanimous vote is needed to implement the change is of key importance. That's because, in the latter scenario, it would take only one disgruntled member to stop the change. Check the governing documents ahead of time to see what's necessary to go ahead with plans to makeover a common area element. A dispute between a member and association in a recent Ohio case highlights why it's important to understand that distinction.

In that case, a condominium owner who enjoyed playing tennis purchased a unit in 1986 that had a tennis court for the common use of all unit owners. Over the years, the tennis court fell into disrepair. In 2013, the condominium’s owners’ association (COA) proposed removing the tennis court and converting it to a different common use.

The COA’s declaration required that any change to the declaration be voted on by all the unit holders. Generally, a majority vote of 75 percent carried an amendment, but a unanimous vote was required if the intended proposal affected an owner’s “undivided interest in the common elements.” The unit owners approved removing the tennis court by a majority vote.

The owner sued the association, asking the court to rule without a trial that the proposed alteration required a unanimous vote. She argued that “undivided interest in the common elements” related to a fixed interest in the common property as of the date of a unit’s purchase. Removing the tennis court was a change that altered the use of the common property from when she purchased her unit and so required unanimous consent.

The COA argued that a majority vote was appropriate, disagreeing with the owner that “undivided interest” meant that the uses of common property were fixed as of the date she purchased her unit. Rather, it contended that an owner’s undivided interest was affected only if the change reduced the owner’s overall ownership share of the common property.

The trial court ruled in favor of the COA and its argument that removing the tennis court didn’t require unanimous consent. The owner appealed the decision.

The Ohio appeals court agreed with the trial court and ruled in favor of the COA. The court agreed with the COA, finding that removing the tennis court didn’t affect the owner’s “undivided interest in the common elements” because it didn’t diminish her overall ownership percentage share or interest in the common property. It added that if the declaration was intended to require a unanimous vote whenever a proposal would convert common property from one use to another, it could have done so in plain terms. The court concluded that removing the tennis court didn’t result in the “taking of property” that normally triggers the unanimous consent vote protection.

To clarify its point, the court discussed a prior decision where the court held that a unanimous vote was required because the association built a fence on common property to install air-conditioning equipment. This constituted a taking of property because the association reduced the amount of common property shared by all the unit owners. In contrast, the removal of the tennis court didn’t result in the taking of property from the owners; it merely changed the character of the common property. Because there was no change in the unit owners’ undivided interest in the common elements, a unanimous vote was not required [Hoffman v. Maisons Lafayette Condominium Block A Owners’ Association, Inc., October 2014].