Article Courtesy of The Miami Herald

By Monique O. Madan  

Published February 8, 2016

Unit owners at Briarwinds Condominiums in Southwest Dade are fuming that association board members quietly negotiated to lease their private swimming pool to the local YMCA.

The unit owners say board president Dan Suarez — who leases out his own unit and doesn’t live there — didn’t have the right to make a deal with the South Dade YMCA, which is building a new pool and needs a place for members to swim for an undisclosed length of time.
   

“I don’t understand why owners don’t have a say in this. This is a direct violation of the bylaws,” said unit owner Franklin Longest at a Jan. 13 condo association meeting, where many residents said they first got official word of the YMCA deal. Another Briarwinds unit owner, John Chiarenza, said Suarez and four other board members didn’t tell residents of the plan and that condo meeting notices never mentioned it. “News would be bringing to everyone's awareness that Briarwinds is in negotiations with the YMCA to allow them to utilize our swimming pool,” Chiarenza told the Miami Herald, upset that the deal has never been mentioned in condo newsletters. “Why wasn’t that on there? I think that’s pretty newsworthy.”

Briarwinds swimming pool

    
Chiarenza said that having strangers use the pool at Briarwinds “will be the end of our small quiet community.”

At the Jan. 13 meeting, Suarez announced the deal and looked down at a table. “This is a board decision,” he said.

Suarez told unit owners that the YMCA deal would increase rental values at Briarwinds.

“What is this? A business deal with the YMCA? A partnership?” countered resident Alina Font, elevating her voice. More than two-dozen unit owners in the cramped clubhouse room applauded.

Suarez told unit owners that the deal was in the best interest of the condominium community.

“There’s been a lot of loitering, sex, alcohol, drugs,” he said. “We feel that if the YMCA is visiting, they can take better care of the community and deter people who don’t belong here.”

The YMCA would provide a lifeguard during daytime swimming hours, an “incentive,” according to Suarez, who declined to discuss the deal with the Miami Herald.

Chiarenza said having a lifeguard during the day would offer no benefit at night, when loitering might occur.

“[Suarez] made it sound like the YMCA would provide 24/7 lifeguard and some degree of security, but this would only be during the specific hours the YMCA was using it,” Chiarenza said.

Chiarenza, Font and other unit owners have sent complaint letters to the local YMCA in South Dade and to corporate headquarters in Raleigh, North Carolina. South Dade YMCA District Manager Peyton Tune did not return phone calls and messages from the Miami Herald.

Briarwinds is a small condo complex located just southwest of Kendall and northwest of Palmetto Bay on Southwest 92nd Avenue and 130th Street. The complex has one swimming pool, about 22 feet by 32 feet, shared by 110 unit owners and their families. More than half of all units are leased to tenants as rental apartments.

“You’re asking us to open our quiet, residential community – our home –to a steady stream of strangers who will use our pool, our clubhouse and our restroom,” unit owner Karen A. Cochrane said in a letter to the YMCA. “With all due respect, where’s the social responsibility and neighborly support in that? Briarwinds is not a public park.”

The condo association bylaws state that the Briarwinds pool is common property and usage is “limited to owners, occupants, and guests” and that “guests must be accompanied by a condominium resident.”

Allowing others to use the pool would require amending the bylaws — a process that would require a two-thirds vote of all unit owners.

Font worries that opening the Briarwinds pool to public use would be “an open door for lawsuits,” adding that it would be “a great opportunity to get sued by anyone who is injured on our property.”

Miami attorney Michael Góngora of Becker & Poliakoff, a law firm that has long specialized in Florida condominium law, agrees.

“Part of the reason [unit owners] buy into an association is to have access to those common elements,” Góngora said. “I don’t think it’s good business for an association because there is always liability to having people on your land. They are risking potential claims if someone is injured. Then, they are running the risk of having a case filed against them. Presumably, their insurance will go up and they will end up paying a major deductible.”

Another hitch, according to Tampa attorney Ellen Hirsch de Hann: The 1980 condominium complex would be required to come into compliance with the American with Disabilities Act of 1990.

Opening the premises to the public would “force the association to retrofit the pool to provide accommodation for the handicapped,” said de Hann, an attorney practicing condo law for more than three decades. “You would have to add a pool lift, have handicapped-designated parking, a bathroom available that would have to be retrofitted with rails and ramps.”

According to Florida Statute 718.111, condo associations have the power to lease out the common areas. Briarwinds’ laws, however, specify that the common areas are for the exclusive use of the owners and residents.

“It’s not common for associations to lease to third parties. Much more common is allowing individuals within the community to lease it out for their own purposes, like birthdays or events; they just can’t charge them for doing so,” de Hann said. “It’s is never a good idea to invite the general public into your building.”

In exchange for being allowed to use the pool, Briarwinds residents would be allowed to join the YMCA without paying a $99 membership fee — a seasonal promotion that applies to almost anyone in South Florida.

“My concern about this whole scenario is that I really don’t see the benefit for the association by doing this type of transaction,” Góngora said. “There’s no benefit to the unit owner, there’s no direct benefit to the association and it seems like they’re taking on liability with no reward.”