Page 6 - New England Condominium September 2019

6 NEW ENGLAND CONDOMINIUM -SEPTEMBER 2019 NEWENGLANDCONDO.COM CONT... don’t know how anyone can read the news this intelligently and coherently, then you or even go outside anymore and not be can move them to make a change. When aware that climate issues are increasingly I’m speaking to people, I don’t necessar- important. Fortunately, the new genera- tion coming up is ever-more cognizant of islation, which is mostly sticks – I want these things.” Unfortunately, condo and co-op boards can sometimes be shortsighted and slow to move on things... “I think that’s right, and anyone who’s worked with boards understands the con- servatism and short-term outlook via which things often happen in associations ner with Olshan Frome Wolosky LLP in – some of that with good reason. But it New York City, says that in his experience, makes an attorney’s job challenging, be- cause, with this issue, you’re talking about really hit attorneys in a measurable way. long-term effects and proposing long-term “The managing agents and consultants actions that may seem drastic compared to how boards usually operate. “As important as all of this stuff is and as much as the government may require buildings to do, if you break it down step by step, everything is possible. Nothing is being asked that buildings can’t handle; most will be able to comply with these standards if they focus their energies properly, hire the right people, and adopt the right long-term perspective. And ide- ally, you’ll have board members that are savvy enough to really put the work in on these issues over a period of time.” So far, what have you found effective at activating hearts and minds? Because it often seems as if people don’t want to make any substantial change until they face serious financial penalties. “I do think that once specific legislation the particular circumstances of the build- and requirements are in place, that will ing. One big issue is that many buildings help. Once more jurisdictions adopt legis- lation and there are test cases, experiences, installing more efficient boilers and other and dialogues out there, then people will systems. How much more work will they be brought along almost by osmosis. If our be able to do in the time constraints ap- local legislation gets people thinking, and plied under the legislation?” they become more adept at this stuff, it will be easier for people in, say, Chicago, to tions haven’t been mandated to deal with follow that template, and that will eventu- ally reach a critical mass. Admittedly this boards are certainly considering implica- is speculative.” What advice would you give to attor- neys who haven’t had to deal with any type of local emission legislation yet, or to those working in areas where the gov- ernment is unlikely to ever take the lead on this stuff? “I think that the one motivating factor in Massachusetts and New Hampshire. that everyone has is saving money. If you “Where buildings were constructed with can educate yourself as an attorney as to many units and parking space is at a pre- what will save an association money in mium, there are some significant practical the long term, that can really add value issues, such as where charging stations can to a building, that’s the context that might be placed, and who would cover the costs prove the most convincing. As in, ‘I can of installation. As for solar panels, the make this easy for you; I’ve figured out the hows and wheres are again questions – as tax credits; I’ve ironed out the financing, is the calculation of financial benefit and etc.’ “People might be hesitant to spend at first, but if you can convince them that the incentives are there, and you can explain ily want to delve too far into specific leg- to show them the carrots, including that long-term savings. Just show them the numbers.” Second Opinions Even within New York City, not every attorney is this climate-focused. For his part, Thomas D. Kearns, a part- the Climate Mobilization Act has yet to are still trying to get their arms around the legislation,” he says. “The lawyer’s role is to help interpret the law and apply it to have upgraded significantly over the years, And in many other markets, associa- these issues yet, per se. But those proactive tions of legislation elsewhere – although it looks like slow going. “There’s some concern about legisla- tion that may come through regarding electric cars and solar panels,” says Gary M. Daddario, a partner with Marcus Err- ico Emmer & Brooks, which has offices fair distribution to the benefit of various unit owners. “I think that the attorney’s role here will be to review, understand, and then explain any changes in the law, as well as to review and negotiate the vendor contracts that will inevitably come for the installation, servicing, etc., of any new equipment,” Daddario continues. “Wisely-crafted leg- islation that leads to energy efficiency and less negative impact on the environ- ment can be a good thing. With respect to condominiums, however, I hope that the legislators take into account their unique physical, operational and governance characteristics. Legislation drafted from a single-family home perspective will likely only produce more questions and dilem- mas than answers.” In Chicago, there is an ordinance that requires benchmarking and reporting us- age, but nothing thus far mandating that owners curb their energy consumption, according to Howard S. Dakoff, a partner with the Community Associations Prac- tice Group of Levenfeld Pearlstein, LLC. “A few years ago, some architects were offering ‘green reserve studies’ to address energy usage by installing more energy- efficient equipment,” he says. “But other than light bulbs, we did not see associa- tions proactively purchase new energy- efficient equipment. Once a component needs replacement, energy-efficiency does become a factor – but so does price. “As a general rule, attorneys do not have expertise on energy consumption and car- bon footprint issues, as they are outside the legal wheelhouse and not a fiduciary obligation of legal counsel to community associations,” Dakoff continues. “If there is an organic/authentic opportunity to mention energy efficiency as not just a sustainability issue, but as a business deci- sion, then we speak up.” Finally, some attorneys are still skep- tical that climate change is even an issue warranting concern. “While I am gener- ally in favor of cost-cutting measures and energy efficiency, I do not subscribe to the climate ideology or the ‘science’ which very often propels it,” says Ronald J. Bar- ba, a partner with Bender, Anderson and Barba, P.C., in North Haven, Connecticut. The bottom line – should one seek to move their building or community asso- ciation to adopt energy-efficient materi- als and systems – is to appeal to, well... its bottom line. Even a board whose members consist of committed environmentalists will have an easier time convincing resi- dents to go along with a project that offers demonstrable savings in the future—re- gardless of where their constituents come down on the issue of climate change. n Mike Odenthal is a writer/reporter for New England Condominium. “Wisely-crafted legislation that leads to energy efficiency and less negative impact on the environment can be a good thing.” — Gary M. Daddario CLIMATE ... continued from page 1 York. She explains that, unlike the coop- erative corporation, a condominium asso- ciation has recourse against a unit owner only for monetary defaults issues – al- most exclusively nonpayment of common charges. Owners cannot be removed for bad behavior. She outlines the process as follows: “When a condominium is owed com- mon charges, the board can file a lien against the owner’s unit. Once the lien has been filed, the board has two options: it can bring an action to recover the money due, or it can foreclose on the lien. A lawsuit to recover the money due is less expensive and faster than a lawsuit to foreclose the lien, but neither is very fast. If the board is successful in a lawsuit to recover the money due, it will obtain a money judg- ment that can be enforced against bank accounts or other assets of the unit owner. The assistance of an enforcement official – specifically a city marshal or sheriff – is required to enforce the judgment.” Alternatively, “an action can be brought to foreclose the lien that is similar to a mortgage foreclosure action,” Schechter continues. “If the action is successful, the result is a judgment to sell the unit and ap- ply the proceeds to payment of the debt. It is important to note that in the event there is a first mortgage on the unit, the bank’s lien is superior to the condomini- um’s lien. There may be one other step that can be taken to encourage the unit owner to pay the money due. Depending on the particular community’s bylaws, rules and regulations, it may be possible to suspend certain non-essential services that the unit owner receives.” Scott Piekarsky, Managing Member with the law firm of Piekarsky & As- sociates in Wyckoff, New Jersey, says: “In terms of getting a condo owner out of their unit, it’s not like a landlord/ten- ant situation. The only way to remove an owner is if he or she defaults and you can get a lien, foreclose the lien, get a sheriff’s sale, and dispose of the unit.” And it has to be for monetary default. “If it’s non- monetary, you can get sanctions and fees, and maybe some monetary relief, but it’s virtually impossible to remove someone if they own the unit.” The statutes elsewhere are pretty much identical. Eric Thulin, an associate at the Needham, Massachusetts-based law firm Goldman & Pease, says: “First and fore- most, the association would have to estab- lish a lien against the unit.” However, he explains that “the board isn’t left without remedy.” In the event of non-monetary REMOVING... continued from page 1 continued on page 8