Page 5 - New England Condominiium December 2021

NEWENGLANDCONDO.COM NEW ENGLAND CONDOMINIUM -DECEMBER 2021 5 Disclaimer: Th e answers provided in this Q&A column are of a general nature and cannot substitute for professional advice regarding your specifi c circumstances. Always seek the advice of competent legal counsel or other qualifi ed profes- sionals with any questions you may have regard- ing technical or legal issues. QUESTIONS & ANSWERS Legal Q A& Is “Relatively” Qualifi ed Good Enough? Q . Th e person who serves as the “maintenance guy” for our asso- ciation is the brother of one of the board members. We feel he is doing a lousy job and have complained numerous times, to no eff ect. He apparently does not have a writ- ten contract with the association, but does have the approval of the board to do our land- scaping, snow removal, and any in-unit main- tenance that is determined to be the responsi- bility of the association. Is there a way for residents to force the board to hire someone who is really qualifi ed, rather than this person who simply has “con- nections” to a board member? —Dissatisfi ed Owner A “Unfortunately, there is likely no ‘quick fi x’ solution to the scenario presented,” says Kimberly A. Bielan, principal at Moriarty Troyer & Malloy LLC in Quincy, Massachu- setts. “However, there are steps that can be taken to assess the unit owner’s options rela- tive to the board’s retention of a related main- tenance man that is performing in a sub-par be possible to remove the board members currence of time and attorney’s fees and costs manner. “As with most issues facing condomini- ums, a review of the governing documents is al, and the governing documents will provide the best starting point, as the documents may direction as to how to call a special meeting by the board’s actions in this instance are ill- provide an answer to the question or guid- ance. Th e unit owner should read through the members so that the matter may be addressed. condominium’s governing documents to as- certain whether there is any specifi c prohibi- tion associated with engaging a person related about the circumstance, making the foregoing Recommended provisions include, among to a board member, or some similar language path unlikely of success, then the unit owner other things, that the individual performing that may provide support for the unit owner’s may still have options. While there is really no the work be properly licensed for any work position. Governing documents establish- ing or regulating unit owners’ organizations, a particular action, dependent on the specifi c surance coverage, which policy should name such as a declaration of trust, typically include factual circumstances, there could be facts the association as an additional insured.” provisions relating to self-dealing by board that support the initiation of a lawsuit against members. While the described scenario is the board. (By way of example only, and not distinguishable as it concerns the engagement supported by the facts that have been present- of a family member, rather than the board ed to date, the board member could be receiv- members themselves, it is possible (even if ing some personal benefi t from engaging their unlikely) that there is a specifi c prohibition brother, which would place their interests in against the retention of an individual related a manner adverse to the association.) In such to a board member. “If the governing documents do not an- swer the question, and enough unit owners ing the arrangement. While obtaining a court are upset about the circumstance, then it may order may be a high hurdle (and entail the in- so that the arrangement can be terminated. by the unit owner), it could be appropriate de- Board members are always subject to remov- and to remove and replace a number of board advised. As it does not appear the mainte- “In the event there are not a suffi cient there should be a written contract setting forth number of unit owners that are concerned the individual’s obligations to the association. way for a unit owner to force a board to take performed and that he maintain adequate in- scenario, a court may order the board to act in a particular manner, including by terminat- pendent upon the factual circumstances. “As an aside, the circumstances presented nance man is an employee of the association, n