Page 20 - New England Condominium February 2019
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20 NEW ENGLAND CONDOMINIUM   - FEBRUARY 2019   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  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  SERVICING THE EAST COAST FOR 30 YEARS  Member AICPA, CAI-NE  DavidALevy_E4C_NEC_Sept15:Layout 1  10/7/2015  3:54 PM  Page 1  distributed to condo or co-op residents;   some allow for electronic communica-  tions, and some require actual hard cop-  ies to be sent via registered mail or to be   hand-delivered. Regardless of  the  rules   where you live, it’s important to note that   impersonal methods of outreach – like   email – should not be a substitute for   actually interacting with constituents in   person.   “Email should not be used to eliminate   or  avoid  discussion  at  board  meetings,”   warns Allison L. Hertz, a senior associ-  ate with Kaye Bender Rembaum, a law   firm that has offices in Pompano Beach   and Palm Beach Gardens, Florida. “In   most circumstances, board meetings are   required to be open to members \[so\] the   members of the association are able to   hear how the board makes its decisions.  “That  said,”  she  continues,  “meeting   minutes should be minutes. They should   not be a transcription of the entire meet-  ing. Such a document could be used   against the association and could result   in association liability.”  Even when withholding some infor-  mation from unit owners seems like the   prudent thing to do, a board should still   consider how owners may react to the ba-  sic idea of being left out of the loop. Mo-  riarty recalls one instance in the middle   of a construction defect litigation: “A   group of unit owners were demanding   the release of the board’s expert engineer-  ing report. On advice of counsel, and to   preserve privilege, the report – which had   been prepared in anticipation of litigation   with  the  developer  –  was not  disclosed.   The board didn’t withhold the report to   keep it from the owners; it was withheld   to keep it from the developer and other   defendants in the lawsuit. This was a per-  fectly reasonable decision, and it could   have been easily communicated to unit   owners, but it was not. Because of this, a   group of unit owners actually started to   act against the interests of the association   with regard to the report, simply because   they did not understand the reason why   the board was withholding it. This result-  ed in months of conflict, acrimony and   cost.”  “Even fairly minor changes, like alter-  ing the hours of the laundry room, can   create  issues  for  some  residents,”  adds   Axinn. “Any change in policy should first   be fully disclosed in a memorandum to all   the shareholders at least 30 days before it   goes into effect.”  The Perils of Oversharing  Of course, there is a point at which   revealing  too  much  information  to  resi-  dents can be detrimental (or just over-  whelming), and as such it needs to be   withheld for the greater good. A board   must know how to walk this delicate line.  “In addition to instances where infor-  mation cannot be disclosed because of   privilege or legal prohibition, there are   times when specific information can-  not be conveyed,” says Moriarty. “For   instance, if the board were in the middle   of negotiating a landscaping contract, the   board could not divulge to the unit own-  ers its bottom-line contract price because   of the risk that the other party to the ne-  gotiation would learn that information,   and all leverage would be lost. Similarly,   if the board were suing the developer for   construction defects, the board could not   communicate every detail of its settle-  ment strategy to the unit owners for fear   that it would undermine its bargaining   position in the case.”   “How much to disclose and when may,   in those instances, be more of an art than   a science,” Moriarty concludes, “but the   default position for the board should be   to disclose as much as it safely can and   explain why it cannot disclose additional   information. A board that explains where   it is in negotiations with another party,   how it got there, and what its goals are will   then be able to say with some credibility   to the unit owners that certain informa-  tion must be withheld, if only so their po-  sition is not compromised. Owners will   get it, and will likely be more appreciative   and more confident in the board as a re-  sult.”                                                             n  Mike Odenthal is a staff writer/reporter   with New England Condominium   BOARD OPTICS  continued from page 8  “The pool is often at the heart of the   problem,” Piekarsky says. In that particu-  lar setting, “older people don’t want to deal   with young kids. The pool toys, the poten-  tial for the pool to become contaminated by   children in diapers...older people don’t like   it.  In many  communities  in  Florida,  they   have adults-only swim times.” He explains   further: “Age stipulations in pools can be   a real legal problem though,” under anti-  discrimination laws, “despite health risks   and issues.” And clearly, when the problem   comes before the board for consideration,   a board skewed one way or the other may   find it harder than they thought to arrive at   a fair decision.  Some Cases in Point  Leonard T. Jordan, Jr., is the President of   Concord Village, located in Brooklyn, New   York. This complex of seven 16-story build-  ings has 1,023 units. “The property is very   diverse, both by age and other demograph-  ics,”  says  Jordan.  The  seven  buildings  are   governed by one board with seven mem-  bers. He says the current board reflects the   age diversity of the property. Two of the   members are between 30 and 40; two be-  tween 40 and 50; one is between 60 and 70;   BOARD...  continued from page 10

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