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Amenities may not be forever

January 05, 2003|Stephen Glassman and Donie Vanitzian | Special to The Times

Question: I bought this Los Angeles condo more than 20 years ago because it had an indoor pool. There are 26 units here, and until the board hired a management company, I swam every day without incident.

Suddenly, the 83-degree pool temperature was decreased to under 79 degrees. On the management company's recommendation, the board refused to increase the temperature for only one user. Then the heater was shut off to save money on utility bills. Without heat, it is uncomfortable for me to swim in the summer and impossible in the winter.

Each board meeting for the last year has been consumed with discussing pool temperature. The management researched scientific studies on BTUs, evaporation, air temperature versus pool temperature, and percentage of cost for every increase in degree temperature. The company spoke to the National Swimming Pool Foundation, local pool maintenance companies and health spas.

Incredibly, management wrote me saying, "Your swimming activities consisting of 100 laps in a session more accurately describe active pool use, not general pool use. For active swimming, our notes indicate a range of 79 to 81 degrees."

I am livid at our board. The money it is paying management to do this "research" would have more than paid for heating the pool. What are my chances of ever using the pool again?

Answer: When you purchased your condominium, you relied on that pool being the same temperature, 83 degrees, for as long as you owned the unit. The board in concert with the management company has, in effect, made that amenity disappear for you since it is known that your use of the pool is predicated on maintaining it at a comfortable temperature.

This could be deemed an interference with individual property rights. Those property rights vested -- or should have vested -- when the condominium was purchased.

Deed-restricted common interest property sales often rely on amenities as selling points. Buyers should be warned that:

* The amenity you purchased when you bought your condo, may not exist or be usable during your homeownership.

* The amenity may exist at the time of purchase, but the homeowner may never be able to use it because of use restrictions or other inhibiting factors that are beyond the individual owner's control.

* Even though buyers base their purchase on amenities that supposedly "come with" or are "included" in that purchase, there can be additional costs for amenity usage not covered by monthly ownership fees.

* The association board can prevent an owner's use of the amenity through punitive measures that are costly for owners to dispute.

* Never rely on amenity photos in brochures or advertisements. See for yourself. If the amenity is not yet constructed but merely proposed, move forward on the assumption it could never materialize unless you have written assurances it will be built.

* Always request written documentation confirming who or what entity owns the amenity before you buy.

Seniors depending on the amenities need to consider these factors before they purchase. Unless the amenity is identified in either the declaration of condominium, which is recorded with the county before completion, or mentioned in the association's governing documents, such as the Covenants, Conditions and Restrictions, or CC&Rs, there is no statutory requirement that an association maintain an amenity.

Some complexes have seen tennis courts turned into parking lots, pools into patios, carports into storage facilities and putting greens into tot lots. Each change occurred because usage changed or membership voted against continued upkeep contributing to rising monthly association fees.

Unfortunately, your chances of heating your pool are contingent on all the other owners. During an annual meeting of the membership, a board can be directed to eliminate use of an amenity entirely. Because the majority of homeowners have decided against heating the pool, they have frustrated other owners who bought because of the amenity.

There is no guarantee that a lawsuit to enforce your right to use the pool at the previous 83-degree tempertaure will be successful since California courts presently defer to the board's decisions.

Stephen Glassman and Donie Vanitzian are the coauthors of "Villa Appalling! Destroying the Myth of Affordable Community Living" (Villa Appalling Publishing Inc., 2002). Please send questions to: P.O. Box 451278, Los Angeles, CA 90045 or e-mail your queries to: NoExit@mindspring.com.

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