Page 16 - New England Condominium May 2022

16 NEW ENGLAND CONDOMINIUM -MAY 2022 NEWENGLANDCONDO.COM 185 Devonshire Street, Suite 401, Boston, MA 02110 Quality Representation at Reasonable Rates. (617) 988-0633 Contact Attorney Frank Flynn: FRANK@FLYNNLAW-NE.COM Flynn_E4C.qxp:Layout 1 12/8/14 2:30 PM Page 1 ddlevy@roofmaxx.com 5 0 8 -4 4-4 7 66 3 DON’T REPLACE YOUR ROOF… REJUVENATE IT WITH ROOF MAXX! DAL CPA David A. Levy, CPA, P.C. Certified Public Accountants Areas of expertise in Condominiums ■ Cooperatives ■ Timeshares ALL COMMON INTEREST DEVELOPMENTS Call our office for a complimentary review of your financial needs 617-566-3645 or 866-842-0108 20 Freeman Place, Needham, MA 02492 DavidALevy_E4C_NEC_Sept15:Layout 1 10/7/2015 3:54 PM Page 1 SERVICING THE EAST COAST FOR OVER 30 YEARS Member AICPA, CAI-NE www.DALCPAPC.net dlevy@dalcpapc.net governing body won’t\\\] give the building a certificate of occupancy.” Refat adds that first and foremost, when a board heads into negotiations with an engineer, they should come to the meeting with a few fundamental facts in hand: first and foremost, the age of the building or community, as well as any cap- ital improvements that have been made already, and when. This information will give the engineer an idea of which codes could be triggered by the work being pro- posed, which agencies will need to be in- volved in inspections and approvals, and which elements might be allowed to by- pass certain requirements or restrictions because coming into compliance might be logistically or financially impossible. Refat gives an example of a lobby ren- ovation at one of his buildings that had to comply retroactively with Americans with Disabilities Act (ADA) regulations. “The lobby entrance had a little step that the town wanted removed, because it impeded wheelchair accessibility,” he recalls. “That sounds simple. But in re- ality, we had to remove the entire floor- ing from the lobby to where it connected with the sidewalk. So now we had to ad- dress the sidewalk, which had landscap- ing. And we had to address the size of the doors—the width and the height, and what we call the ‘clearance.’ How far will the door open into the lobby? How many seconds should it take to open electroni- cally? Et cetera. Everything we do now in redesigning a lobby or a hallway has be- come attached to some law.” Given this complexity, it is important to have a point person—someone who is involved in the project from inception to completion, who can manage the vari- ous vendors and agencies and be on site on a regular basis, and who addresses problems or questions when they arise. While these tasks can be assigned to the property manager (and often are), most management contracts stipulate that the client will incur additional fees for such services—sometimes on an hourly basis, sometimes a percentage of the project budget, sometimes a set fee or a combina- tion or charges. Given that most board or committee members do not have the time or the expertise to be engaged in a proj- ect on such a granular level, even though it’s an extra line item in the project bud- get, it pays to hire a specialist: a project manager, an owner’s rep, or a construc- tion manager who will handle everything from acquiring permits to liaising with residents to finding innovative ways to cut costs and create efficiencies over the course of a project. John Dimaras, COO of New York- based construction management firm EmpireCore, which has clients through- one is threatening the safety of a resident or property, it’s time to reach out to the legal team. “When dealing with an irrational indi- vidual, sometimes getting a lawyer involved is an easier path forward and less stress on a board and management,” Koppel says. “When a board member gets cornered in a hallway and put on the spot, it’s always easi- est to say, ‘sorry, but the co-op’s or condo’s legal counsel is dealing with this matter. I have no comment.’” Ciarlo feels that the best time to bring in legal counsel is at the beginning—before there are any legal issues that need to be dealt with. Many of the issues his firm gets involved with could have been avoided if the board had retained legal counsel before problems began. “Many co-ops and condos are run for years very informally and they do not properly follow the rules and procedures set forth in their own documents,” he says. “This becomes problematic when issues arise. Having legal counsel come in and re- view the building’s documents to see if they need to be updated and make sure that the existing regulations and procedures are be- ing followed will go a long way in avoiding issues before they even happen.” Mediation and ADR Alternative Dispute Resolution (ADR) is a process that HOAs use to address a dis- pute where a neutral party helps the parties reach an agreement and avoid litigation. “ADR is great because it puts \\\[the con- flict\\\] before a truly impartial arbiter of facts,” Hoever says. “\\\[However,\\\] it’s a little harder to get things coordinated when you have another person involved. COVID was a double-edged sword because \\\[in the be- ginning\\\] it was still difficult to schedule, but Zoom meetings made it easier.” There are two types of ADR. The first is mediation, where a neutral third party helps the parties come to a consensus on a settlement on their own. The second is ar- bitration, where a neutral third party acts like a judge and makes a decision, which resolves the parties’ dispute. In binding arbitration, the parties agree the decision of the arbitrator is final and enforceable in court and there is no right to an appeal. The problem with this is that there is no real opportunity to challenge the decision of the arbitrator if one party believes it was granted in error. AR Management often calls for a media- tor to act as a neutral party to hear any is- sues between a member of the community and the HOA board of directors. This has proven to be highly successful in working out grievances. But it’s not for everyone. “Generally, we do not recommend me- diation to our clients, as in our experience, it usually does not lead to a successful result unless both parties are willing to compro- mise,” Ciarlo says. “When we usually get involved in a dispute among neighbors or between unit owners and the board, things have escalated to a point where mediation will not work. There are also few cases we would recommend for arbitration as par- ties do not have the same protections and rules to follow as in litigation, and it can be difficult to predict the result.” One of the benefits of ADR is that it is quicker and less expensive than litigation; however, it only works if the parties are willing to participate and agree to bind- ing arbitration. A limitation of ADR is that the matter cannot be guided by legal prec- edents or discovery rules, which are avail- able in litigation, Ciarlo adds. “Also, many times, a party will use ADR as a stall tactic and will eventually decide to stop negotiat- ing, which will lead to litigation anyway.” Hoever says that dealing with any con- flict needs to be direct and to the point, and the quicker you handle things, the better. “Keep in mind that the truth is probably somewhere in the middle of what the two sides are telling you,” he says. “And above all, stay impartial and try to build consen- sus between the two sides.” n Keith Loria is a freelance writer and a con- tributor to New England Condominium. NOISE, ODORS... continued from page 15 CAPITAL... continued from page 1