Q&A: Can the Board Change a Rule That Was Already Approved by the Homeowners?

Q. At our annual meeting, the membership voted to allow all children to swim any time during the week of a holiday and all summer. We are a 55-plus community. All the homeowners just received a notice that the board took in upon themselves to change the rule that was voted on and approved by the homeowners. They are saying that children cannot swim between certain hours. Is this legal?

                               — Irked by Rule Change

A. “The answer basically depends on what exactly was voted on at the annual meeting,” says Stewart Wurtzel, an attorney and partner New York City-based firm Tane Waterman & Wurtzel, P.C.  “If there was a formal vote of unit owners to amend the bylaws to specifically allow children to swim at all times in certain seasons, then, no,  the board cannot ignore the amended bylaw and set different rules.  If it was an informal vote or poll simply to get the feel of the community, then the board is not obligated to follow such an advisory vote. If it was supposed to be a vote for a bylaw amendment and either notice of the bylaw amendment was not properly given (for example, there was a call from the floor of the meeting for there to be a vote on this issue) or if a quorum was not present at the meeting, the vote would also not be binding on the board.  While getting the pulse of the community is certainly a good thing and boards should take into consideration what owners want, many unit owners believe that such advisory votes are binding on the board.  They are not (unless the bylaws make them so, something that is not contained in most bylaws) and are just one factor, out of many, that a board should weigh when making a decision.  Generally, rules regarding pool operation are within the sound discretion of the board and setting aside times in a 55-plus community where residents could use the pool without children present are matters well within the discretion of the board.  However, a review of the corporate documents (particularly the bylaws) must be undertaken to determine whether there are any restrictions on the Board’s right to set restrictions and if any mechanism is set for changing any restrictions which may exist.”

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