Q: Our condo complex was built with iron gates at the entrance and also a lift arm gate. The iron gates installed by the developer are in disrepair and they are expensive to fix. Due to delinquencies, our Board has not been able to budget funds to repair the gates but the lift arm is still functioning and vehicles still need to have a transponder to open the lift arm. Recently we have had some late-night incidents and some residents are demanding that the association fix the iron gates. However, our Board has no data or other reason to believe that the security breaches are directly related to the lift arm being inadequate. Do you think that our Board is obligated to spend the funds necessary to fix the gates?
A: Your Board is probably not obligated to repair the gates if it lacks the funds, but this decision requires further investigation before a final decision is made. First, your association’s legal counsel should review the condominium documents and other development agreements to confirm that the maintenance of the original iron gates is not required. If the Board decides to effectively replace the iron gates with a lift arm gate, that could be considered a “material alteration” to the common elements that requires a membership vote. However, if the Board intends to repair the gate in the future, the decision whether to pass a special assessment and spend the money now falls within the Board’s “business judgment”. The duty of the Board is to make decisions in the best interests of the association members. If the Board lacks video footage, police reports or other security records indicating that the gates are necessary and would have prevented these incidents, the Board members need to weigh any negative impacts of a special assessment against the possible risks of not maintaining the gates and make the best decision possible. The Board should certainly seek the advice of its legal counsel and professional manager before making this decision.