Q. Our condo has a sauna adjacent to our fitness room that’s at least 65 years old, and which has been out of service for at least 30 years. Our property manager considers the sauna an amenity, but it’s not listed as such in our governing documents—in fact, it’s not mentioned in the documents at all. The sauna has never been properly maintained, does not meet current ADA access standards, and does not have any safety features, like high temperature shutoff or an emergency call system. There are no formal policies or rules regarding its use. Can our board close off this defunct sauna if it’s not listed as an amenity? We are very concerned about liability if an incident occurs and no maintenance inspections have ever been conducted. 

                                         —Concerned

A. “The scope of the board’s authority to alter the common elements, including amenities and recreational facilities, can vary from state to state,” says Scott Sandler, managing partner at Sandler & Hansen LLC in Middletown, Connecticut. “In Connecticut, where I practice, the law governing community associations is based on the Uniform Common Interest Ownership Act. The Act grants the association, acting through its board, broad powers to regulate the use and modification of the common elements.  

“In 2006, the Connecticut Supreme Court published an opinion in the case of Thomas P. Weldy, et al. v. Northbrook Condominium Association, Inc., et al., in which the Court detailed the need to broadly interpret the powers of the board, and why doing so is necessary for the operation of the community. Even more specifically, in 2003, the Supreme Court of New Hampshire ruled in the case of Phillip Schaefer v. Eastman Community Association that the permanent closure of a major amenity, in this case a ski lift, fell within the scope of the board’s authority under similar language found in the Uniform Act. Thus, depending on the laws of your state, the board may very well have the power to permanently close the sauna.

“The counterargument that commonly arises is when amenities are specifically referenced in the association’s governing documents, or shown on the survey or plat plans of the community. Some unit owners have argued that eliminating these amenities requires an amendment to the governing documents, or the survey or plat plans, and such amendments require a vote of the owners to approve. Additionally, some owners have argued that the elimination of an amenity constitutes a material change to the community that can only be accomplished by a supermajority vote of the owners. I don’t believe these arguments would carry much weight in Connecticut or New Hampshire, but again it would depend largely on state law.”