Melissa Doolan, Esq. shares her insights in this featured article, republished from HOAleader.com.
Two owners in a Florida HOA community have sued their board for failing to address noise issues from the community’s pickleball courts. They also claim the board’s process for converting HOA property to a pickleball court wasn’t sufficient. One lawyer’s update says this is part of a growing trend of disputes over pickleball. Our experts agree that the sport can serve up controversy if you’re not careful as you add it to your amenities.
These Tense Matches Are Playing Out All Over
The fight over pickleball is taking place at The Parkside At Boca Trail Community Association, which converted tennis courts to pickleball courts. Several owners say the community wasn’t asked if it wanted that conversion of common area to take place—which their documents allegedly require—and that the noise from the new courts is much different than that from tennis courts.
This type of argument isn’t surprising to Gregory R. Eisinger, a partner at Eisinger Law who represents condos and HOAs throughout the state and who also teaches a course on condo law at Nova Southeastern University, Shepard Broad College of Law, in addition to Florida state-approved condominium and HOA board certification courses.
“I have personal experience with this,” he explains. “I live in a community that transformed two of the six tennis courts to pickleball courts. Ours is an HOA, which in Florida is unlike a condo. For condos, this change would be considered a material alteration that would require membership approval. Sometimes, HOA documents might say a project needs owner approval if the work is more than a certain price. But for my HOA, this project didn’t require membership approval.
“I love pickleball, so I was in favor of it in my community,” says Eisinger. “But it turned into World War III between the tennis and pickleball folks. I live close to the courts, and I can hear it. But I have hurricane windows and can hear the pickleball play only when I’m outside. If I heard that ping, ping, ping in my home all day, I think there would be a valid argument that it’s a nuisance the association may be sued for.
“Our community used to say that tennis could start at something like 7 a.m. and must end at 10 p.m.,” he explains. “Now, to appease some of the homeowners around the pickleball courts, the rules are something like pickleball can’t be played until 8 a.m. and must stop at 9 p.m. Our board reduced the hours.
“This type of fight is happening all over,” says Eisinger. “I got a call this morning from a client that’s putting pickleball courts to a vote in their community. I also just finished a lawsuit involving a large HOA community where an owner built a full-court basketball court with lines that also allowed them to play pickleball. The basketball noise was a problem. But the complaint was really about pickleball noise.
“All the neighbors complained,” he notes. “The HOA filed a lawsuit saying the owner never got approval to build the court, and a judge ruled that owner had to remove that court.”
Before You Convert, Consider Potential Complaints
Thomas W. Chaffee, a partner at O’Toole Rogers LLP in Lafayette, Calif., who, after he became the president of his own HOA, began to focus more on community association work in his legal practice, has a client that’s been dealing with pickleball challenges for a year.
“They converted a tennis court that was almost never used into pickleball,” he says. “An owner has made strong claims about the noise. I was in Hawaii this year, and there were pickleball courts outside my room. They had a tournament, and I was like, ‘Oh, now I know what she’s hearing.’
“With my client, the board shut the court down for a while and did acoustical testing,” explains Chaffee. “We determined that if you used a hard ball, the noise level just on the line or just a little over the local noise ordinance. Then we found a ball that could be used that would bring us under those levels.
“We also implemented a series of rules to address the problem, but that owner still isn’t happy,” he reports. “She sends all kinds of emails quoting websites. We have said to her, ‘The study you’re citing isn’t using the same parameters as what we’re using. And we have acoustical testing that shows that if players use this type of ball, we’re not violating the noise ordinance.’
“We’ve also had some owners complain that some pickleball players make grunts while they play,” adds Chaffee. “We say that happens in tennis, too.
“One of the board members, who’s a super pickleball player, asked: ‘Why do we have to respond to this owner?’” he recalls. “My answer was that the association was going to lose this fight because it wasn’t complying with the noise law.
“The lesson for condo and HOA boards is that if you want to have this amenity, you have to make sure you do everything possible so that it’s not a nuisance,” says Chaffee. “Have operating rules covering hours of play. And once you know that noise can be a problem, focus on addressing it.”
Noise Leads to Cries of Foul Play
It’s also entirely possible these Florida owners who’ve brought suit have a fair claim that the board didn’t follow state law or governing documents in converting common area to pickleball courts. That’s a critical factor to consider before you take any action toward creating pickleball courts.
“In Ohio, a change like this typically requires an owner vote,” explains Shannon M. McCormick, a Cleveland-based partner and Ohio office chair at Kaman & Cusimano, who has represented condos and HOAs throughout Ohio for about 13 years and who specializes in collections. “If the governing documents or plat map specifically refer to tennis courts, it might require an amendment to change them. Also, whatever the requirement in the documents is for a capital addition might say it needs owner approval.”
For Melissa S. Doolan, an attorney at The Travis Law Firm in Phoenix, who has represented community associations for the last 15 years, the nuisance factor often triggers claims that boards haven’t followed proper procedures.
“It’s the noise that leads to people looking for a way to fight back,” she explains. “They don’t like the noise, and their one big way to fight back is to say the board didn’t get proper approval to change this common area. Communities really need to be getting legal advice before they say they’re going to put pickleball in.
“You should also be talking to your owners, asking if they want the courts in this particular area,” suggests Doolan. “Evaluate whether the courts are going to be close to homes, and consider implementing rules from the start about times people can play and who can be there. And maybe you need to think about noise mitigation from the start rather than on the back end.”
“In my experience, in the communities where the board has thought about converting areas to pickleball courts and started to ask homeowners, the homeowners have started to push back because of the noise issue,” she says. “I also have a client that converted a couple of tennis courts to pickleball, and the owners love it. But those courts are further away from homeowners in their clubhouse area, and the noise wasn’t much different from the tennis courts in that area.”
McCormick agrees. “The things we hear mostly is about the nuisance factor,” she says. “So we recommend that if boards make big changes like this that they gauge the interest of the community first. Get feedback that this is something owners really want, verify that they, as a board, can actually make this change, and always provide as much information as possible to owners about what’s happening.”