Q. We have two enclosed areas next to our condominium building that are designed for the storage of private golf carts. This storage facility was built a couple years ago. There are not enough storage spaces to accommodate all unit owners, so our board proposes to hold a lottery and offer the spaces to those lucky owners who win a spot. The board is not going to charge any money or rent to use the select spaces, and I’m concerned that this is a misuse of common areas. Are my concerns warranted?
A. My first concern is whether the board obtained approval from the membership to construct or convert the storage facility, which I’m assuming is a common area. Generally, the board must have approval from 75% of the membership in order to make a significant alteration to common areas. Second, unless the condo documents authorize use privileges for select unit owners, common areas are to be used and enjoyed in common by all unit owners on a non-exclusive basis. For example, if you have common boat slips, it would be improper for a resident or group of residents to use the slips exclusively and not give others the opportunity to use the slips. Consequently, the association typically adopts rules and regulations governing the manner in which residents and their guests can use the common facilities. Here, your board proposes to assign the right to exclusively use common areas to a select group of residents. Without a document amendment approved by the membership that converts these storage spaces into limited common elements that benefit only the units that are lucky enough to win the lottery, I am concerned that this is possibly a misuse of common areas. Further, the board could charge a fee for the use of the storage spaces if authorized by the condo documents, and thus your association could also be missing an opportunity to generate additional revenue to defray operating expenses.