Page 19 - New England Condominium June 2019

NEWENGLANDCONDO.COM NEW ENGLAND CONDOMINIUM -JUNE 2019 19 the EXPERIENCE you need the firm you can TRUST delivering the RESULTS you expect for your association, the OBVIOUS choice Goodman, Shapiro & Lombardi, LLC OFFICES: Massachusetts & Rhode Island www.goshlaw.com 1-877-241-1600 THE RIGHT ATTORNEYS TO CALL BEFORE THE WRONG THING HAPPENS NE_Condominium_Horiz_HalfPg_4cv2.indd 1 1/15/2019 11:30:00 AM tablish the right to enforce it going for- ward. And should a law change, it could render a documentary provision unen- forceable, or even a violation of the law. One example would be the Fair Hous- ing Law regarding familial status, which would make rules restricting use of a pool to adults-only during certain hours ‘per se’ violations of federal law.” “Some inconsistencies between the law and the documents are simple and non-controversial, like sending meeting notices, conducting elections, budget- ing and other procedural issues,” adds Magill. “Other times, the members may not understand that the board is required to follow the law rather than the docu- BOARD... continued from page 10 or does so solely to line his or her own pockets, deviating from community gov- erning documents is always a bad idea. Those particular rules are laid out for good reason, and following them in good faith is a solid strategy for avoiding most serious trouble. When it comes to asso- ciation governance, the cool kids are the ones who dutifully follow all of the rules. n Mike Odenthal is a staff writer/reporter with New England Condominium ments, which could cause ire among the members. “For example,” she continues, “the as- sociation cannot enforce restrictions striction to cite when I prepare to send always try and appeal to the conscience against children residing in the commu- nity unless that community qualifies as “Obviously you cannot enforce a rule that board members and the managing agents Housing for Older Persons. The associa- tion must allow owners to install an up- to-one-meter receiver, even though most the level of rules, but are frowned upon says Shmulewitz. “If it feels wrong, or you governing documents prohibit outdoor or will draw backlash if violated. Failing would be embarrassed if the matter came antennae. The board may have to allow to wear decent attire, using foul language out in the media, just say no.” That may someone to maintain an emotional sup- port or service dog on the property, even bad’ behavior in common areas is prob- if the documents prohibit pets or ani- mals.” Katz-Leavy describes the debate over units is disgusting, but not typically ad- which rules should take precedence as a dressed in rules until it happens. Formal we’re all in this together! “legal hierarchy.” “Federal law trumps state law, state law an enforcement process, such as levying trumps declarations, declarations trump fines or pursuing arbitration, unless the bylaws, bylaws trump rules, etc.,” he says. conduct is so outrageous – and persistent “I would advise a board not to enforce – that it is considered a nuisance.” a provision of a condo document that clearly contradicts federal or state statute. footing when the enforcement action In Maine, we often see condo documents deals with a violation of a written regula- that have become outdated and are not tion,” admits Katz-Leavy. “Sometimes you consistent with the Maine Condominium can hang your hat on a more general rule, Act and/or the Maine Nonprofit Corpora- tions Act.” Blurred Lines Confusion can arise when a board for regulating conduct that occurs within member or manager is perceived to be en- gaging in behavior that is objectively not more limited when it comes to regulating in violation of anything in the law or the activities taking place within an individ- documents, but just seems, well...wrong. “I can’t tell you how many times a board or manager will call to report a fail to indict particularly egregious be- violation and I cannot find a rule or re- a demand for compliance,” says Magill. of the transgressor. “The best guide for doesn’t exist. However, there are mores who work with them is common sense in each community that may not rise to and an innate sense of right and wrong,” or derogatory slurs, and other simply-put sound overly optimistic, but it’s always lematic. Allowing your dog to urinate on teer to run their community associations the balcony so that it drips down on other to have a functional moral compass and a rule-making may be necessary to initiate “The association is on its most solid such as ‘a unit-owner cannot do anything that constitutes a nuisance.’ In general, the association has fairly broad latitude its common elements, but they’re much ual unit.” When the governing documents do havior, a board member or resident can important for the individuals who volun- respect for their fiduciary duty. After all, n Mike Odenthal is a staff writer/reporter with New England Condominium. the unit,” says Toscano. “We won’t nec- essarily fix the broken pipe, but we will turn off the water immediately, and dry out the unit to prevent mold. We don’t make repairs without the owner’s permis- sion. We preserve the unit so the damage doesn’t get worse. That’s a legal obliga- tion.” “There’s enough liability to go around,” says Halper. “Management has the au- ABSENT OWNERS continued from page 12 continued on page 20