Page 6 - New England Condominium October 2020

6 NEW ENGLAND CONDOMINIUM -OCTOBER 2020 NEWENGLANDCONDO.COM Condominium Board Authority Checking the Limits of Power BY A J SIDRANSKY When making the choice to purchase a condo or a co-op apartment, many buyers understand and be familiar with the docu- choose a condominium so as to reduce the ments that govern the operation of con- board’s involvement in the decisions they dominium communities and the way the readily available but rarely taken advantage will make regarding their home. Condo ‘bundle-of-rights’ associated with real estate of – while arrogance is a state of being, and boards’ authority over certain decisions and are distributed between owners and the as- aspects of life in their communities is much sociation, which is represented by the board. more limited than that of co-op boards, but “Unfortunately,” says Lisa Magill, an attor- that doesn’t mean that some condo boards ney for the Florida-based firm Kaye Bender Braintree, Massachusetts, “‘Ignorance is bliss’ won’t try to impose rules, regulations, and Rembaum, “many board members simply do is a phrase that has a well-earned place... requirements on residents that are clearly not understand the constraints of the statutes However, condominium boards should be outside their lane. Doing so – even with the and the governing documents.” For example, mindful that such incorrect actions could best intentions – can lead to acrimony, con- flict, and sometimes even litigation. Understanding Limits “People buy into condos to begin with be- cause they generally want the freedom asso- ciated with a condo,” says Deborah Koplow- itz, an attorney with the New York City firm without verifying whether rules have been to run questions by your attorney before Anderson Kill. “You have more freedom to properly enacted.” rent your condo out, to do what you want with your unit. That’s sort of a baseline. That being said, that sort of freedom can be a slip- pery slope, and can lead to solutions where made worse by those that are arrogant,” says of a board out of bounds – precious few peo- owners think the looser rental provisions Sima Kirsch, an attorney in Chicago. “When ple truly want to litigate. It’s expensive, acri- give them the right to violate \[the\] law by owners become board members, some act monious, and agonizingly slow. One possible bringing in Airbnb-type tenants short term, ignorantly but innocently, while others ma- having parties, and making noise.” It’s also important for board members to law to meet their vision of how they want the while a tenant screening process is common appear to be a sign of arrogance when re- for prospective renters, “if this provision sponding to a situation. The board might in- does not appear in the documents, the board advertently overstep the bounds of authority has no right to obtain background reports or as set forth in statutes and their governing reject tenancies. Directors often rely on past documents and get themselves into trouble. practices believing ‘it’s always been that way,’ While it may sound self-serving, it is prudent Ignorance, or Arrogance? “Overstepping of a board’s authority is mostly the result of ignorance, which is then liciously cut corners around the rules and and mediation, often called alternative dis- association to run. Unfortunately, ignorance is easy to cure through education – which is rarely changeable.” According to attorney Ellen Shapiro of Marcus Errico Emmer & Brooks, PC, in quickly reacting based on thoughts, assump- tions, and possibilities.” ADR—Alternative Dispute Resolution Regardless of the nature of a conflict – or way to avoid all that is through arbitration pute resolution (ADR). Nationally, the trend toward requiring mediation or arbitration as an alternative to litigation is growing, says Eric Van Loon, a Boston-based attorney and accomplished mediator with JAMS, a national dispute resolution company. “The practicalities and expense move more people toward mediation and arbitration. Litigation comes with very high costs and a huge time frame – often it takes years just to get a court date.” And when it comes to condominium as- sociations going to bat in the courtroom, payment for the legal fees comes from the association’s dues, leaving less for what that money was originally intended. “It’s in an association’s best interest to try mediation first,” says Van Loon. Sheila Van Duyne, an attorney at the Van Duyne Law Group in Reno, Nevada, says that Nevada requires disputes to submit to resolution through ADR. “The Nevada Real Estate Division (NRED) has an office for complaint resolution between association boards and owners,” she explains. Of course, if the dispute can’t be resolved through ADR, the plaintiff may seek redress in court. Magill confirms that ADR is used in Florida as well. “We have an arbitration program,” she says. “For violations between an owner and the association, the dispute goes to mandatory but non-binding arbitra- tion.” This program was enacted because the courts were so clogged with cases. “We also have a government agency that an owner can complain to if they feel the condo is break- ing the law. First-time violators are issued a warning letter, but if it’s with regard to finan- cial issues or is a repeat violation, they have enforcement powers that can include fines or can preclude someone from serving on a condominium board.” Airbnb While the coronavirus pandemic has had a huge impact on travel and how people handle accommodations while on the road, Airbnb (as well as other home-sharing plat- forms) is still very much a going concern. And even in more placid times, few things can cause as much consternation as Airbnb rentals, particularly in condominium prop- erties. Travelers love them; neighbors hate them. Policy with respect to these short-term rentals changes from location to location. “In BOARD OPERATIONS continued on page 13