Page 8 - New England Condominium October 2020

8 NEW ENGLAND CONDOMINIUM -OCTOBER 2020 NEWENGLANDCONDO.COM enforce.” In many cases, there is also a question the building having documentation of it.” of what rules and regulations passed by the board may cover. In Massachusetts, sary component in the condominium en- explains Richard E. Brooks, a partner at vironment. “Fines are the most effective in Massachusetts to begin with,” he says. Braintree-based law firm Marcus Errico means of enforcement, because people “How do you enforce it? It can become efit of all residents. They may not be uni- Emmer & Brooks, boards can make rules control their behavior relative to their very ugly. If an owner is revoked access, versally liked, but they must be obeyed in that govern common areas—not the inte- rior of condominium units. “If there is a violation of a reasonable infraction for which they’re being penal- rule relating to the common areas, the ized, but if they admit they have done it, sometimes owners don’t challenge it, so it enforcement is within the law, the com- board can enforce it,” he says. “They can’t they tend to pay.” Brooks uses the exam- make one about what someone does in- side their unit, though. Say they might of the behavior, like a photo, the person want to limit rentals in any number of will pay rather than challenge the fine,” he ally a good thing, the pros who contrib- ways. They might not want more than a says. “If you put the fine on the unit own- certain number of the total units—say, 10 er’s account and it’s a lien and you leave it ally feel that boards should avoid getting percent —to be rented. Or they don’t want there, it can be effective because it gets to ‘creative’ when it comes to rules enforce- one person to own more than a certain them, and it grows. number of units. That would be a prob- lem. They can’t do that because that’s tell- ing unit owners what they can do inside their unit. Boards can make rules about what you can put on your deck, or where you can park your car, but not who can live in your unit or what or who you can put in your unit. Boards are in charge of common areas of the association.” Persuasion vs. Coercion Boards and managers walk a fine line when dealing with neighbors in residen- tial communities such as co-ops, condos, and HOAs. While the unwritten covenant is to make that extra effort to live within both the letter and the spirit of the rules and get along with your neighbors, con- flict inevitably erupts. Clearly, the first attempts at getting community members to at least coexist harmoniously is to per- suade them —nicely—to ‘go along to get move the infraction to your association’s rules equally, and go to court, an owner along.’ “Generally, I find the most effective ney will instigate a foreclosure or court were treated unfairly. It looks bad for way of getting folks to play by the rules injunction and order payment, plus legal a board. A court will research the mat- is to discuss it with them and encourage fees. At that point, the owner will defi- open communication,” says Hakim. “Ob- viously, if that does not work, then the threat of enforcement is next, followed how large or small the association, boards bring a lawsuit—a very serious one.” by fines, if applicable. Residents must re- member that they do not live in a bubble long. “Let’s say someone builds something and what they do can adversely affect the they’re not allowed to—like a bench. If no quality of life of those who live nearby.” Hakim’s mention of fines brings up ers do the same, and then a new board one commonly used ‘stick’ that may be comes in and tries to enforce the no- employed after the ‘carrot’ has failed to benches rule, it becomes much more dif- achieve compliance with community ficult. You’ve allowed the infraction for rules. “Typically, for a fine structure too long,” he says, and it becomes a fact to be upheld by a court, the governing on the ground. documents—the proprietary lease or bylaws—must permit the enactment of it. If it is not permitted, then an amend- ment to the lease or bylaws is necessary, shareholders who flout the rules and regs but may be difficult to obtain, given the is to limit their access to community ame- voting threshold of many buildings. Once nities, like a pool or a gym. Both Brooks would report a violation to the full board it is permissible, then a house rule set- ting the fine structure should be enacted, and a copy delivered to all residents. If a erning documents to do so,” says Hakim, It’s less personal than a board member shareholder or unit owner does not pay “we do not recommend it. We recommend getting involved. With respect to the cur- the fine, it will be added to their account, that each board revise its governing docu- and must be paid at some point; it doesn’t ments to permit, if not already included, In all cases, building employees should just go away. I explain to boards that they the imposition of fines for a breach, and not get involved in enforcement—and should maintain the records of that fine other remedies such as removal from the board members should use discretion be- to avoid it later being challenged without board, if a board member.” According to Brooks, fines are a neces- pocketbook. Some challenge fines when he might say he has an undivided inter- they believe they haven’t committed the est in the common areas in the deed. How must consider all options when seeking ple of illegal parking. “If there’s evidence “This method also tends to curb the its application of the house rules,” says bad behavior,” Brooks continues. “If you Hakim. “Eighty percent carpeting gener- attorney after multiple fines, the attor- nitely pay attention.” Brooks also cautions that no matter removed. If it’s discriminatory, it could should never ignore rule-breaking for too one says anything for too long and oth- Limiting Access to Amenities Another potential disciplinary ac- tion boards can take against owners and confrontation with anyone.” and Hakim advise against this. “Absent express permission in the gov- Brooks sees barring owners from com- mon areas or amenities as very detrimen- tal to the association. “It’s difficult to do polite way.” do you take that away? I don’t like it, but enforcement, but always make sure that can in some cases be effective.” Proceed with Caution While thinking outside the box is usu- uted their expertise to this article gener- ment. “The board cannot discriminate in ally means 80% carpeting. The Business Judgment Rule does permit a board some flexibility depending on reasonable facts, allowing them to enforce or delay en- forcement from time to time, including the issuance of a warning rather than a fine, for example. “That said, it’s important never to show or have favoritism in rule enforcement,” he continues. “Residents are generally ac- cepting when the enforcement of a rule differs slightly based on facts, the board wishing to seek an amicable solution, and similar items.” Brooks also cautions against even the appearance of discrimination. “There are legal consequences for unequal enforce- ment,” he warns. “If you don’t enforce could have photos and evidence that they ter—and it can create a terrible environ- ment and often results in a board being Who Should Do the Enforcing? “The board enforces the rules,” says Hakim. “The building staff are the eyes and ears, but should generally stay out of enforcement. However, if a resident is not permitted the use of an amenity, for example, it would be acceptable for the staff member to remind the resident of that. If the resident refuses to leave, then it should be reported to the board. I pre- fer that staff members who are involved in the daily lives of residents not get into Brooks further cautions that “tradi- tionally, a unit owner or a board member and/or management, and management will then provide an enforcement letter. rent COVID crisis, this is very important. fore commenting themselves. That really depends on the situation as well. If it’s mi- nor, okay, but it should be done in a very Community rules are there for the ben- the spirit of community harmony. Boards munity’s documents, and in the best in- terest of the community. n A J Sidransky is a staff writer/reporter for New England Condominium, and a pub- lished novelist. LIVING BY... continued from page 1 “Boards can make rules about what you can put on your deck, or where you can park your car, but not who can live in your unit or what or who you can put in your unit.” — Richard E. Brooks COMMUNITY... continued from page 1 While it’s true that courts typically defer to board decisions made in good faith as falling under the Business Judg- ment Rule, given the uncertainties fac- ing boards (and everybody else) going forward, it’s still a good idea to amend your documents to explicitly permit on- line and electronic meetings, voting, and other administrative functions—and that includes both monthly board meetings and annual association or corporation meetings. “When I draft an amendment,” Shapiro continues, “I specifically include monthly meetings. Most governing docs already provide that the board can act without a meeting by written consent if unanimous, but the better thing is to have a meeting in a virtual medium to flesh out the issues. “The best solution,” Shapiro stresses, “is to amend your documents to permit remote meetings via electronic means, electronic voting, and the like. It’s the single best thing \[the board\] can do. Hav- ing said that, we know it’s sometimes a difficult process due to unit owner apa- thy, fear of the unknown, and cost.” Meeting Virtually Condominium and co-op boards must hold regular meetings to conduct and transact the annual business of the corporation or association. The corona- virus has made that impossible to do in most buildings—at least in person. Meet- ing rooms are generally small and often poorly ventilated. Even when people feel fine, or aren’t running a fever, there is the ever-present danger of asymptomatic carriers spreading the virus. As a result, most boards have switched to virtual meetings, a trend that in actuality began well before the COVID-19 crisis. Andrew B. Freedland is a sharehold- er with the law firm of Anderson Kill, continued on page 10