Page 5 - New England Condominium March 2021

NEWENGLANDCONDO.COM NEW ENGLAND CONDOMINIUM -MARCH 2021 5 Legal Q A& ■ Depth of Knowledge & Experience ■ Expert Advice ■ Creative Approaches & Solutions ■ Flexible Billing Arrangements (781) 817-4900 O NE A DAMS P LACE , 859 W ILLARD S TREET , S UITE 440 Q UINCY , MA 02169 www.lawmtm.com MTM is a full-service Condominium & Real Estate Law Firm Experience, Integrity, & Drive Set Us Apart Uncommon Expertise for your Community of Common Interests Thomas Bhisitkul (617) 934-4603 tbhisitkul@lawmtm.com Kimberly A. Bielan (781) 817-4607 kbielan@lawmtm.com Christopher S. Malloy (617) 934-4604 cmalloy@lawmtm.com Douglas A. Troyer (781) 817-4605 dtroyer@lawmtm.com Thomas O. Moriarty (781) 817-4603 tmoriarty@lawmtm.com (617) 934-4550 265 F RANKLIN S TREET , S UITE 1801 B OSTON , MA 02110 (508) 459-8516 39 T OWN H ALL S QUARE F ALMOUTH , MA 02540 QUESTIONS & ANSWERS Stretched Beyond Limits Q My condo association has fi ve board members. Th e term of ser- vice is three years, which is clear- ly stated in our governing docs. Our asso- ciation was to have an election in November 2020, for three seats. Th eir three-year terms were ending on December 31, 2020. When owners reached out to our prop- erty management company to become can- didates for the election, the company re- plied via email that there were no open seats until the end of 2021, so there would be no election in 2020. Our meeting minutes documented when these three board members were elected, and our condo docs clearly state the length of the term, so these three board members appear to have unilaterally extended their terms—in violation of our condo, without owner approval, and with the assistance of the property management company. To further this injustice, the Certifi cate of Election that was fi led at the Registry of Deeds when these three members’ terms started was fi led with the false information still a driving force for decision-makers and circumstances are unprecedented, novel ac- that their terms were to last until the end of the daily news media was reporting that our tions meant to address the situation are be- 2021, which would be a four-year term. My question is: What legal action can be aging citizens to forgo even getting together taken against the three board members and for Th anksgiving with their families. While of the fact that the subject board members the property management company, for fi l- ing false documents, refusal to provide an ty manager’s statement that there were no at a specifi c time but were on a certifi cate election, an violation or condo docs? —Crushed Candidate A “Th e fact pattern presented (or perhaps occurring only via internet and that these board members were appointed by this question is quite spe- cifi c. At the same time, there a result, the next election would be put out year) and then either elected or appointed are additional facts that bear on the analysis for another year. and which are not set forth in the descrip- tion. Given the information presented, I tions do routinely state that the board mem- will do my best to provide a thorough re- sponse,” says Gary M. Daddario, Partner at members serve until their successors are was calculated at four years instead of three. Marcus, Errico, Emmer & Brooks in Brain- tree, Massachusetts. “In November 2020, a lot of associations essary extension of terms of existing board may be on record and may have changed that would have had annual or other meet- ings saw those meetings cancelled because seem to indicate that judges are allowing a to either create or preserve staggered terms of the governing board’s concerns relative to wide breadth to decision-makers dealing among board members. the pandemic. At that time, COVID-19 was with pandemic-related issues. Because the federal and state governments were encour- I do not know this for certain, the proper- open seats until the end of 2021 may have that put their term at four years. Without actually meant to convey that the associa- tion’s annual meeting was not occurring only possible to theorize. One possibility is thus not including an election) and that, as to complete an unfi nished term (perhaps a “Th e governing documents of associa- bers serve specifi c terms, but also that board an error was made and somehow the term elected. So, it is possible that a lack of elec- tion due to the pandemic served as a nec- members. Th e court cases reported thus far the length of terms. Sometimes this is done ing accepted. “Th e question also includes mention were documented to have joined the board examining the relevant documentation, it is to an additional term (which, according to the question, would be three years). Of course, there is always the possibility that Another possibility is that an amendment to the association’s governing documents continued on page 10