The question: user fee, or common expense collected outside the assessment structure?

Hawaii allocates common expenses by formula, not by use. HRS § 514B-146(a) makes sums assessed for “the share of the common expenses chargeable to any unit” a lien on that unit, and § 514B-144 requires assessments to be “made based on a budget adopted and distributed” and allocated under § 514B-41 — that is, by common interest as set in the declaration.

So if a charge is in substance a contribution to the cost of operating and maintaining a common element, the statutory route is the budget and the common interest allocation. Collecting the same money as a per-day entry charge changes who pays and in what proportion.

Three ways a charge can legitimately sit outside that structure:

A limited common element. Under § 514B-108 a declaration may allocate elements for the exclusive use of certain units, with maintenance allocated accordingly. A charge tied to a genuine limited common element is not a general common expense.

A separate amenity entity. Many Hawaii resort projects have a beach club, golf facility or ocean club owned by a separate entity, not by the association. A fee charged by that entity for access to its property is not an association assessment at all.

Misconduct or damage. Section 514B-144 allows expenses caused by an owner’s misconduct to be assessed exclusively against that unit — not a general user-fee authority, but the statutory recognition that not every cost is shared.

Where a board can go wrong

The failure mode is charging for access to something the association already maintains as a common element, out of assessments every owner already pays. That is not obviously within § 514B-104’s powers, it changes the allocation the declaration sets, and it is the kind of decision an owner can put into mediation.

A board contemplating an amenity fee should be able to answer, in writing:

• Who owns the amenity? The association, an amenity entity, or a resort operator.
• Is it a common element or a limited common element in the declaration — and if limited, to which units?
• Is the cost already in the operating budget? If yes, the fee is collecting the same cost twice from a subset of owners.
• Does the declaration authorise a use charge? If it does not, the amendment threshold is sixty-seven per cent of the common interest under § 514B-32(a)(11) — or a majority for a condominium created before July 1, 2006 under § 514B-23.

The guest-versus-owner distinction

A fee levied on a guest is a different instrument from one levied on an owner. House rules bind guests through the owner: § 514B-104(a)(1) gives the association power to adopt and enforce rules, and § 514B-104(b) lets it act directly against a tenant after notice and an opportunity to be heard, with the owner “responsible for the conduct of the owner’s tenant and for any fines levied against the tenant.”

So a guest amenity fee is, in practice, an owner obligation with a guest-facing collection point. That matters for how it should be adopted and disclosed — and for rental-dependent owners it lands on the same balance sheet as their income.

The commercial risk, which is in the story

The visitor quoted in the reporting had come for twenty years and cancelled. At a property where a large share of owners rent, the association’s fee policy and the owners’ revenue are not separable questions — and on Maui, where roughly 7,000 apartment-district units face a phase-out of transient use by 2029 or 2031, the pressure on that revenue is already acute.

What to watch

Whether any Hawaii owner puts an amenity fee into § 514B-161 mediation or § 514B-162 arbitration. The question — whether a use charge for a common element is a common expense in disguise — has not been answered by a Hawaii appellate court, and it is squarely arbitrable.