Not Everyone Loves Pickleball
Among the many functions of condominium and homeowners associations are the “maintenance, repair and replacement” of common elements. In addition to buildings and infrastructure, these components often include recreational amenities such as tennis courts, swimming pools and play areas. While the manner, timing and extent to which these responsibilities are performed are ordinarily set forth in the declaration and bylaws (“Governing Documents”), additions to, repurposing of, or removal of, recreational facilities are rarely contemplated or addressed.
Enter pickleball, which by all reports is one of the fastest growing sports in the nation. A quick google search of “pickleball” confirms not only its rising popularity, but also a rankings of the best places and areas for play. Not surprising is that the list of locations includes a number of planned communities, particularly those which are 55-and-over. In light of this recent phenomenon, many communities are struggling to find common areas where pickleball can be played. A number of our clients have converted or repurposed tennis and basketball courts to allow for pickleball play, others have installed temporary courts in parking lots.
Despite its popularity, pickleball is not loved by everyone. The same google search also yields numerous articles about noise complaints, personal confrontations and even lawsuits. Phrases like “annoyance”, “peaceful enjoyment” and even “emotional distress” are not uncommon in the list of complaints. The decision of whether, where and how to bring pickleball into a community is thus not merely limited to compliance with the Governing Documents, boards must also strike a balance between the competing interests of players and non-players.
Most Governing Documents offer little or no guidance in circumstances when a component is no longer useful or when popularities and trends demand change. The broad discretion ordinarily vested in boards to maintain, repair and replace common elements, may or may not therefore, apply to installing new, or repurposing outdated, components. Assuring that associations do not exceed the scope of their authority in making such decisions thus requires a thorough review of the Governing Documents, and of course, the exercise of reasonable business judgment.
The extent to which boards are vested with authority to govern is typically set forth in the declaration or bylaws. An example is as follows:
Section 1. The Executive Board shall have and exercise all lawful powers, authority and duties necessary for the proper conduct and the administration, management and operation of affairs of the Association, and may do or cause to be done all such other lawful acts and things as are not by law, by this Declaration, by the Bylaws or otherwise, directed or required to be done or exercised by the Unit Owners, or by others. … including the following.
A. The maintenance, repair, replacement, cleaning, sanitation, management, operation and use of the Common Elements and the making of any additions or improvements thereon shall be the responsibility of the Executive Board and shall be carried out as provided in this Declaration and the Bylaws …
This is consistent with Sections 3302/5302 (a)(6) and (7) of the Uniform Condominium and Planned Community Act (together the “Acts”), which empower associations to regulate the use, maintenance, repair, and replacement of the common elements, as well as the making of additional improvements to common elements. In some cases, drafters of the Governing Documents have anticipated the removal/deletion dilemma by including provisions similar to the following:
Obsolescence. In the event that the Board of Directors shall determine that any Common Element or any other real or personal property of the Association is obsolete, the Board of Directors may call for a vote of the Members to determine whether or not the property should be demolished or replaced. In the event eighty (80%) percent of each class of the Members shall determine that the property should be demolished and/or replaced, the costs thereof shall be assessed against all of the Owners according to their Common Expense Percentages.
Not clear is whether the conversion of a tennis or a basketball court to a pickleball court falls within this (or similar) requirement. Perhaps the adaptation of a tennis court for multi-purpose use eliminates the predicament – in any event, the component remains as a recreational amenity of the association. Limitations on authority may also take the following form:
The duty to provide for the maintenance and repair of the Common Elements. The Executive Board shall maintain the Common Elements at a condition at least equal to that which existed at the time of the conveyance of seventy-five (75%) of the Units to Owners other than the Declarant.
Even with an accurate inventory of the condition of the common elements at the noted time of conveyance, the words “at least” equal should allow for the making of improvements and upgrades. Not to be overlooked are expenditure limitations, which could similarly impact the decision for making additions or repurposing of common elements – the following provision is not uncommon:
There shall be no structural alterations or capital additions to the Common Elements (other than for purposes of repairing, replacing and restoring portions of the Common Elements) requiring an expenditure in excess of $5,000.00 without the prior approval of the Unit Owners entitled to cast 66-2/3% of the votes of all Unit Owners.
Here, while expenditures to repair or replace a common element do not require unit owner approval, the same is not true for “structural alterations or capital additions” that exceed a cost of $5,000.00. Unit Owner vote to approve the expense of installing a pickleball court may thus be required.
As illustrated above, with limited exception, property maintenance decisions are ordinarily made by the board. This is arguably the board’s most important function – substantial portions of Governing Documents are dedicated to assigning responsibilities and financial resources for upkeep and preservation of communities. The scope and extent to which removal, improvement, or repurposing of a common element is “authorized” may also be a matter of degree. Surely, a board may properly remove a dead tree or discard a VCR without a vote of the unit owners. These types of decisions are intended to be within the powers of the board. Boards should also be vested with authority to replace a paver walkway with macadam, or to remove or install signage or speed bumps.
Of course, the line begins to blur when more significant changes or upgrades are contemplated. Unlike the addition of a tool shed or an awning at the pool, changes in use and the resulting impact on close neighbors could raise objection. Frequent pickleball play is certainly a change from a tennis court which for years may have seen little or no play. Even with clear legal authority to proceed, the decision of whether to repurpose an existing tennis court, or to install a new pickleball court, requires the board to exercise its reasonable business judgment. The standard by which board action is measured is set forth in Section 3303/5003 of the Acts:
In the performance of their duties, the officers and members of the executive board shall stand in a fiduciary relation to the association and shall perform their duties, … in good faith in a manner they reasonably believe to be in the best interests of the association and with such care, including reasonable inquiry, skill and diligence, as a person of ordinary prudence would use under similar circumstances. …In performing his duties, an officer or executive board member shall be entitled to rely in good faith on information, opinions, reports or statements, … in each case prepared or presented by any of the following:
(1) One or more other officers or employees of the association whom the officer or executive board member reasonably believes to be reliable and competent in the matters presented.
(2) Counsel, public accountants or other persons as to matters which the officer or executive board member reasonably believes to be within the professional or expert competence of such person.
(3) A committee of the executive board upon which he does not serve, duly designated in accordance with law, as to matters within its designated authority, which committee the officer or executive board member reasonably believes to merit confidence.
This standard requires that boards act within the scope of their given authority (Governing Documents and the Acts), in good faith and in a manner reasonably believed to be in the best interest of the association. Following this process, and when necessary relying on experts, will assure that the decision to add to, or to make changes and improvements to, common elements will not be subject to protest or legal challenge. This process may also involve surveys to determine interest and objection, and the adoption of rules to mitigate the noise, appearance, timing, and disruption of play.
One community President offers the following anecdote: “Our community was originally built 11 years ago with 2 tennis courts. About 6 years ago we had a meeting with interested residents to explore if and how we could introduce Pickleball. The threat of lawsuits, because of noise, and “we bought here because of 2 tennis courts” were the major cries. However, after submitting this issue to a vote of the owners, 60% voted to add Pickleball lines to one tennis court. With the reduced number of tennis players (10) and the ever-increasing number of Pickleball players (110), we now have 4 dedicated Pickleball courts and 1 dedicated tennis court. We simply painted over existing tennis court lines without changing the physical dimension of the entire court space. No noise interference, complaints, or lawsuits!”
Following these guidelines and recognizing the potential pitfalls and limitations, changes and improvements to common elements can indeed be accomplished. Pickleball is but one example, other trends will surely follow.
This article is not legal advice and is provided for informational purposes only. Actual legal advice can only be provided after consultation by an attorney licensed in your jurisdiction.