Page 20 - New England Condominium February 2019

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 www.DALCPAPC.net dlevy@dalcpapc.net 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