By Attorney John C. Goede
Q: We have a resident that appears to be giving tennis lessons on the tennis courts on the weekends. He is an owner and has every right to use the court, but he is also posting advertisements on the bulletin boards and obviously profiting by the existence of tennis courts which we all pay for. Should our board stop this activity?
T.D., Bonita Springs
A: There are a lot of different ways to answer this question because every community has a different perspective on whether this should be permitted, and of course the legal answer also involves a review of your specific covenants and rules to determine if this is a violation. You asked whether the board should stop this activity, so let’s assume for your question that this activity (giving lessons on the tennis courts) is not a violation of the covenants.
If this is true, then many associations have no objection to this activity because they view it as a benefit to the residents and almost like having a tennis program in the community. Because of this perception, you can see why the association should take some steps to protect itself.
First, you should contact your insurance agent. The carrier itself may have objections to this activity, your policy may have exclusions for this activity, or your agent may simply tell you that it is viewed poorly by insurance carriers. If someone is hurt while playing tennis, and the association is ultimately responsible for the maintenance and condition of the common tennis court (even though it is a private lesson) then you know the association would be a defendant in a lawsuit. For this reason, you want to make sure you are not violating an insurance underwriting requirement.
Second, because the association has the duty to maintain the condition of the court, and because the association is not technically in charge or supervising these lessons, we recommend the board have the owner agree to a few conditions. First, you would want indemnification from the owner/instructor in the event another resident or guest is hurt. Second, the instructor should promise to inspect the tennis courts prior to any activity on the courts, deem the condition acceptable for tennis, and require the instructor to report any condition which may pose a potential danger to the participants before engaging in any tennis activity. Although this does not completely insulate the association, it provides the association with some defenses and cross claims in the event of personal injury on the courts.
Finally, the association should be aware that endorsing a tennis program which is open to the public (and not just residents) could result in the association being subject to the Americans with Disabilities Act (ADA). While this is not necessarily a bad thing, it would require the facilities to be ADA compliant and that could result in a significant expense and potential liability. This is another reason to ask a lot of questions and consult with your legal counsel.
Q: We know that board meetings require at least 48 hours’ posted notice, but what about an emergency where a director is leaving the country or having a medical procedure on short notice? Can the board have a meeting under these conditions with less than 48 hours’ notice?
T.E., Bonita Springs
A: Thank you for a question with a short answer: No. With respect to COVID-19 and the board’s emergency powers, yes, the board could give as much notice as practicable if the board was faced with a decision related to operations and COVID-19. Outside of the pandemic, it is not an emergency just because of availability. Typically, we discover that the person leaving town is a swing vote on a controversial item and one side desires their participation.
Q: A ground floor unit owner has been complaining for months that she can hear every footstep above her. The upper floor unit was just listed for sale and the pictures appear to show new wood floors and the owner never sought approval before installing the floors. What can the association do here?
G.G., Marco Island
A: The answer to your question is highly dependent on the language in your condominium documents. First, I should note that most condominium documents provide that the unit begins at the upper surface of the concrete floor – meaning that the wood floors would be part of the unit. You then need to review the condominium documents to determine whether: a) the declaration of condominium authorizes the board to adopt flooring requirements b) the documents require the owner to get approval before installing a new hard surface floor c) the unit owner is able to install hard surface flooring in the first place under any circumstance. Many older condominium documents require carpet in certain rooms without exception.
If the condominium documents are drafted well, then they should require the owner to obtain approval and provide the association with authority to adopt specifications for underlayment and sound-absorbing materials under the flooring. It is also helpful to have language in your documents providing a mechanism for the association to force the owner to remove unapproved floors or prove that the floors have appropriate underlayment. We often see owners sign contracts for underlayment and the contractor simply skips the underlaying or uses a cheaper alternative that does not meet the association’s minimum requirements.
If the specific underlayment requirements are not in the declaration of condominium, you need to determine whether the board has adopted a specific requirement by rule. Because the rule would regulate activity in the unit, you would need to make sure that the board adopted the underlayment specifications after providing at least 14 days’ mailed and posted notice of the board meeting where the resolution was adopted. If the board has never adopted specific underlayment requirements, or failed to give proper notice, it is possible the association never could have denied an application and this could create a defense to enforcement.
Ultimately, the strength of the board’s authority here is dependent on your specific documents and we recommend the association work with its legal counsel to provide an opinion. If you have detailed documents, the board should be able to force an application and determine whether the owner complied with minimum underlayment requirements. If this is a violation, I should also note that this could hold up a sale of the unit. The association should make sure that it accurately completes the estoppel if there is a sales application and properly document any violation.