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This is in Memphis TN. A condominium association is about to…

This is in Memphis TN. A...
This is in Memphis TN.
A condominium association is about to close the pool in the facility.
1. Pool has been closed for several years, not sure how long 5 plus or minus years. This has been done by the board for budgetary reasons.
2. Owners, thought displeased, have allowed it.
3. The present action of filling the pool in and forever losing its value is not acceptable to any owner that I am aware of. It is considered a major value to ones home value.
4. We wish to take action against the board to stop this based upon the following from the "Master Deed".
"No partition Permitted. The common elements, as hereinafter defined, shall remain undivided and shall not be the object of an action for partition or for division by judicial proceedings or otherwise. Likewise no unit nor the undivided interest in the common elements incidental thereto shall be partitioned in kind nor subdivided into small units by judicial proceedings or otherwise, except with the consent of eighty-five (85%) or more of all owners granted in a meeting of the Council of Co-owners and with the prior written consent of all holders of first mortgage liens on individual units.
5. We would like to take legal action to stop this immediately via what appropriate method is open to us, if any.
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Answered in 17 minutes by:
6/10/2017
Attorney 1
Attorney 1, Attorney
Category: Real Estate Law
Satisfied Customers: 2,684
Experience: Knowledgable and Experienced Attorney
Verified

Hello, and welcome. I am a licensed attorney and happy to assist.

This is an unfortunate situation, as permanent loss of the pool facilities does, indeed, affect property values and the possibility of future enjoyment. Unfortunately, the provision of the Master Deed you provided is not something that can help. That provision deals with partition, which would be dividing up the area at issue and allocating it to specific homeowners or each homeowner prorata. The provision specifically states that such partition is not permitted, but it is not relevant here either way. Definitely not something that can be relied on. Wish I could tell you differently, but having accurate information allows you to make informed decisions going forward, saving both time and money.

Your best bet would be to gain understanding of why the Board wants to take this action, then having a meeting and showing why it is not prudent, additionally getting enough votes against the decision.

I hope this helps. If you need additional information or clarification, just let me know and I'll continue to provide assistance. If I have addressed your issue and/or pointed you in a positive direction, please let me know that, as well. Also, please remember to leave a positive rating when prompted, as that is the only way attorneys on this site are credited for the help we provide.

Good luck!

Best,

Attorney 1

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Customer reply replied 11 months ago
Thank you. But, I am in need of a little more direction. So a board, in the general can in fact take an action that impacts the value of all the condos is a hard one to entertain. Are you stating that by default, unless the homeowner rise up to protest by vote, they can take such unilateral action under their responsibility to take care of day to day operational items.
In other words what may I look for that spells out that they would not be able to tathke common area assets and dispose of them. thanks for your patience.
Customer reply replied 11 months ago
I will wait for this response before taking any further action such as calling you. tks

Condo governing documents generally require boards to preserve common elements for the life of the property, but that general rule can be trumped if the board has enough votes to remove it. You can take a look at the charter and bylaws, in addition to the master agreement to determine what percentage of votes are needed to eliminate the pool. Review of the documents would also determine whether only board member votes are needed, or whether a certain number of homeowner votes are required. You can then approach the board for proof that the requisite votes were obtained and/or block the action on the basis that they were not. If the board improperly removes the pool, it can be liable to the homeowners for damages.

Please let me know if there is anything else I can do for you. I'm here to help.

If the answer provided sufficiently addressed your inquiry, please take a moment to rate the response, accordingly. Thank you.

Best,
Attorney 1

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Customer reply replied 11 months ago
Tks you have given something to look for in the bylaws and master deed. Just what the board has the authority to do. Is it more than operational day to day needs or have they been given the authority to get rid of common areas and if so did they have the votes necessary for that action at the board level: assuming the removal of a pool would not fall under a day to day operational thing.
If we can't find the answer to that then enough signatures to show the board too many disagree and they must stop further action until such time as this is revisted on behalf of theam owners. The threat of suing if they move forward given such notice of discontent may do it. Any final thought. tks

Sounds like you've got it, and removal definitely doesn't fall under regular operations or maintenance.

Good luck!

Best,

Attorney 1

Attorney 1
Attorney 1, Attorney
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Satisfied Customers: 2,684
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Thanks for the positive rating and bonus. Much appreciated!

Best,

Attorney 1

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