Page 5 - New England Condominium May 2022

NEWENGLANDCONDO.COM NEW ENGLAND CONDOMINIUM -MAY 2022 5 QUESTIONS & ANSWERS 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 NE C ONDO • 10.125 6.25 X 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 (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 David M. Rogers (781) 817-4606 drogers@lawmtm.com Kimberly A. Bielan (781) 817-4607 kbielan@lawmtm.com Heather M. Gamache (617) 934-4660 hgamache@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 C M Y CM MY CY CMY K Bad Apple Ruins the Board Q I am the president of a condo board. An owner asked to join the board, and we simply let her—she was never formally voted onto the board. Since then, she has been so awful, self-centered, and abusive that one board member resigned. We have asked her to resign but she refuses. Since she was never voted onto the board, can we remove her? Or do we have to submit a letter to the own- ers to have her voted off? — Frustrated Colleague A “We have all heard the ‘bad apple’—you know, the one that goes something like: ‘All it takes is one bad apple to spoil the bunch,’” says Frank A. Lombardi of Lom- bardi Law Group in Lincoln, Rhode Is- land. “There is scientific truth to this statement. A decaying apple emits ethyl- ene gas, a naturally occurring plant hor- mone, the release of which will speed up best interests at heart. However, we have board members that it is only one of their the ripening (molding/decaying) of near- by apples or other fruit. That’s interest- ing trivia, but of course most of the time have abandoned the right reasons some- when we hear about ‘bad apples,’ it’s in the where along the way. metaphorical sense of the word. “A ‘bad’ board member, like the one establish rules and expectations for how tion explore more aggressive methods to described above, can present a real, se- rious problem for a community associa- tion. Board members stand in a fiduciary a number of such documents to guide question, as well as a more economic and role, and owe duties of loyalty and care to board members in their interactions with expedient route for the association. the associations they serve. Board mem- bers often have access to confidential in- formation and association funds, and also conduct is not always a cure-all for bad removal of the ‘bad’ member pursuant maintain a degree of power over the en- forcement of the governing documents. In this position, the potential for truly ‘bad’ in your bunch, you have to decide how vide a mechanism for removing board acts—misappropriation of funds, unlaw- ful dissemination of confidential infor- mation, selective enforcement of rules, frontation—behind closed doors about than just the board members, to accom- etc.—is significant. In our experience, we the offensive behavior may help to right plish removal. The best of these provi- have had the good fortune of dealing with the ship. Depending on the nature of the sions allow for removal ‘with or without mostly ‘good’ trustees—those who assume bad actor’s conduct, however, more dras- the often thankless position with genuine tic measures may be required. Gener- interest, attention, and their community’s ally, if there is consensus among the other seen the opposite as well: those who seek number who is ‘bad,’ it may be possible to serve for the wrong reasons, or who (and less disruptive to the community) to “A board code of conduct can help to ing’ their resignations—lest the associa- members of the governing body should address their ‘bad’ actions. This can be a conduct themselves. We have prepared face-saving measure for the individual in each other and their community. How- ever, the presence or absence of a code of association may have to consider formal behavior. “If you have identified a ‘bad apple’ ments—whether trusts or bylaws—pro- best to deal with her. Occasionally, an members. These provisions almost always honest conversation—rather than con- seek her resignation. As counsel, we have made demands upon individuals ‘request- “If worse comes to worst, however, the to its governing documents. Most docu- require a vote of the ownership, rather cause.’ Some provisions require a ‘due process’ hearing before the board or as- continued on page 18