Page 10 - New England Condominium February 2019

10 NEW ENGLAND CONDOMINIUM - FEBRUARY 2019 NEWENGLANDCONDO.COM V olunteerism is arguably the bed- rock of co-op and condominium communities. One buys into one or the other with the expectation of par- ticipating in the governance and operation of the property. Volunteering for board or committee service, though, is often a mat- ter of time – something many of us don’t have much of these days, especially the ‘extra’ kind. As a result in many communi- ties, it’s the older and often retired residents who have the hours to offer for board and committee service. The result is that often boards are dominated by older, longer- term residents, which in itself isn’t neces- sarily a bad thing – it’s just a fact. It should also be noted that the compo- sition of a board is usually representative of the residents of the building or association, and different types of communities tend to draw different demographics. So in a smaller community, perhaps a 10-unit co- op in a walk-up building with only studio apartments in a newly-fashionable neigh- borhood, everyone living there may be under 40 – thus, that board will likely be composed of younger people. Conversely, in an over-55 community, the board will mostly be composed of older people. But these specific situations may not be typical of most communities. Legislative Fix? Can a co-op corporation or condomini- um association do something specific with its bylaws or rules to require that board seats be distributed between various age groups? “Absolutely not,” says Mark Hakim, a co-op and condo attorney with Schwartz Sladkus Reich Greenberg Atlas, LLP, a law firm located in New York City. “You cannot create age limitations of any kind relative to the board. It’s illegal. And that’s under both federal and state laws and statutes.” Frank A. Lombardi, a partner at Good- man, Shapiro & Lombardi, a law firm with offices in Massachusetts and Rhode Island, concurs. “Age requirements are illegal,” he says. “Don’t get within a half mile of them.” Doing so is asking for a potential lawsuit, because age is a protected class under dis- crimination law. Sima L. Kirsch, a community law attor- ney located in Chicago, takes a slightly dif- ferent view of the possibility of introducing age as a factor in board composition. “With the changing demographics of our citizen- ry,” Kirsch says, “diversity in leadership en- ables a greater understanding and ability to plan for an association’s current and rapidly changing future needs. Staggering a board by age, although a unique take on the situ- ation, may allow much needed collective perspective. Whether to implement such a rule needs to be made on a case-by-case ba- sis based on the operating documents and composition of the association members and needs. “Is this rule discriminatory?” Kirsch continues. “Will it survive court scrutiny? It may very well. The association is a private corporation, and the purpose of the rule is not age-based or based on any other type of housing restriction, or discrimination cate- gory. Rather, it is connected to a purpose of the condominium, which is to protect the equity and health and safety of the mem- bers it serves for now and in the future. An amendment is the most secure method to adopt such a change. There are no cases on point as yet, so we can only wait and see.” Encouraging Diversity Hakim suggests there are steps that can be taken to encourage diversity in all direc- tions. “A corporation or association could amend its bylaws to require a certain level of attendance at meetings,” he says. “Failure to attend would be deemed an automatic resignation. A younger resident with a business lifestyle may elect not to obligate him or herself, or resign. The converse might be to amend how meetings are held, allowing use of Skype, or teleconferenc- ing via smartphone. That might encourage those who are more technologically savvy but not physically available. You have both sides of the coin. One side pushes to those with more time, the other by adding differ- ent means of attendance. That opens doors to younger, more time-strapped people.” Another avenue to more diversity, sug- gests Hakim, is the use of term limits and staggered seats. “Term limits are a great idea to force new blood onto a board. Com- placency is still a problem, though. You don’t want vacant seats, which could result if no new potential members step forward.” Scott Piekarsky, a co-op and condomin- ium attorney and principal at the Wyckoff, New Jersey firm of Piekarsky & Associates, concurs. “Some communities are turning to term limits to promote diversity and get more board turnover,” he says. “Older, long-serving board members tend to want to stay on forever.” “The best-run associations,” says Lom- bardi, “are those that are dedicated to in- creasing the value of the property.” He doesn’t see any correlation between that goal and the relative age of board members. “Every person approaches the job of being a board member with their own needs, ideas and wishes. It’s a matter of dedication, not age.” At Loggerheads In many communities, a lopsided age balance on the board can lead to confron- tation. “In diverse communities – particu- larly the newer ones – I’ve seen the differ- ences of opinion that can result from age differences on a board,” says Piekarsky. “If they don’t have full facilities, like a play- ground or a basketball court for the kids, there can be vocal, growing families who want these amenities, but the older resi- dents don’t want it – and the tug of war begins.” He cites one community in which the older empty nesters began moving out because the younger tenants became so vo- cal, and the resulting changes made them uncomfortable in the community. Interestingly, Piekarsky notes, this age friction doesn’t limit itself to multi-gener- ational communities. He says that in some over-55 communities the 50-year-olds are fighting with the 80-year-olds. BOARD RELATIONSHIPS ISTOCKPHOTO.COM Board Demographics Old Guard Versus New Blood BY A J SIDRANSKY continued on page 20