Page 5 - New England Condominium December 2019

NEWENGLANDCONDO.COM NEW ENGLAND CONDOMINIUM -DECEMBER 2019 5 QUESTIONS & ANSWERS Legal Q A& Avoiding Conflict Q I was just informed that a mem- ber of our condo association’s board of directors has accepted a job with our Association’s management company. They are going to be managing a different property in the area for the company. The biggest issue for me is that other board members have expressed dis- satisfaction with the management com- pany’s general manager for our property, specifically as it comes to the handling of a renovation project, but the GM was supposedly being ‘protected’ by two other board members who are friends — one of whom was given this job with the man- agement company. Is that a conflict of in- terest? What can we do? — Frustrated Owner A “I do think that it is a con- flict of interest — at least as to decisions involving management,” says Mary Joy Howes, part- ner in the law firm of Goodman, Shapiro & Lombardi, with offices in Massachu- setts, Rhode Island and New Hampshire. “Board members must always have the association’s best interest as their num- ber-one priority, and unit owners need to be able to trust that the elected board is acting in the association’s best interest at all times. The board members’ loyalty must be to the association and the asso- ciation only. “When a board member has a personal interest in a matter which could potential- ly affect his/her ability to be impartial in the decision making process on behalf of the association that is a ‘conflict of inter- est.’ In this case the board member would, at the least, have to excuse themselves from any decision making regarding the management company. The relationship would also have to be fully disclosed.” Can We Talk? Q I am a new condo owner. The way the trustees do business tant is more straightforward. The accoun- does not seem correct to me. tant works for and is paid by the board. First, they will not allow owners to com- municate directly with them or the con- do’s accountants. Every communication sionals it hires, including the accountant. must be sent to the one employee of the Allowing unit owners to communicate di- trust. The employee seems to be more rectly with the accountant would prevent qualified to see to maintenance items. the board from containing its costs. The by the board within a reasonable time,” Also there is an escrow account on the accountant, like any of the board’s profes- Trust’s balance sheet, with an offsetting sionals, does not work without charge. It Westford, Massachusetts firm of Perkins liability in the same amount. They refuse would be an unmanageable situation for & Anctil. “What is reasonable will vary, to explain the nature of the account. Does the accountant to have to respond to the and will depend upon the complexity this seem normal? —Feeling Disconnected A “Association boards vary transparent with regard to the asso- greatly in how they commu- nicate with their unit own- ers,” says Th omas O. Moriarty, a principal nancial records and make those records board meetings, there is no statutory re- and founding member of the law fi rm of available for inspection; it does not re- Moriarty Troyer & Malloy LLC in Braintree, quire the board to explain the financial to attend board meetings. In Massachu- Massachusetts. “Some trustees take calls at records. However, the failure or refusal setts, M.G.L. c. 183A is an enabling act home or on their cell phones and receive of a board to willingly detail the purpose which allows different condominium as- and respond to emails from their personal of any open accounts or any line item on sociations to set their own rules and reg- computers. Other boards adopt a more for- mal approach. Th e decision can sometimes to raise concern. It is quite possible that look to their association’s condominium be one of personal preference, but in some in a larger association, the financials may documents to determine if there are any instances more formal and focused direc- tion of communication may be the only of the board to explain. In such circum- way to eff ectively manage those communi- cations. “One can imagine how difficult it the board, which controls the activities of would be to track and respond to unit their accountant, to direct their accoun- owner communications in a 400-unit as- sociation with a seven member board if In the event a satisfactory explanation is every board member accepted and re- sponded to communications indepen- dently. The most critical factor to consider analysis done or express his or her dissat- is not how the communication is required isfaction with the board’s conduct at the to be directed, but whether the communi- cation is effective. Admittedly, when bar- riers are placed – even with good reason – that prevent direct communication, it can raise legitimate questions with owners about whether their concerns are being heard. Associations that limit communi- cations in such manner should be care- ful to ensure that there are mechanisms vited to sit at these meetings. Th ese meeting in place not only to respond to contacts, are held at a board member’s home. We are but to ensure that unit owners feel they told to inform the board if we would like have a means of expressing themselves to to attend. One woman asked to attend a their elected board. Nothing is more sure meeting (there are other members going) to sow seeds of discontent than an owner and she was told that she cannot attend be- who feels their concerns are not being cause they have too many residents going to heard by their board. Open meetings, the meeting. She was also told that she was posting of meeting minutes, maintain- ing a website are all ways to open lines of ing issue and that they will get back to her communication even where direct com- munication is funneled through a single standing, can the board refuse to let him/ point person. “The question of access to the accoun- The board must be in a position to con- trol and direct the activities of the profes- direct inquiries of the unit owners. There of the questions which are asked of the appears to me nothing odd about that re- striction. “One should expect the board to be swer them. The board is under no obliga- ciation’s financials. The statute simply lated to the association. requires an association to maintain fi- the financial statement would be enough ulations. Therefore, unit owners should be beyond the ability of the lay members rules allowing for the attendance of unit stance, while not required, it would be reasonable for a unit owner to expect that tant to provide the necessary explanation. not provided a unit owner could demand access to the records and have its own next election.” Unresponsive Board Q Each month the board of direc- tors holds a meeting to go over fi nances, work in progress and other subject matters. All members are in- allowed to speak or bring up her outstand- later. My question is, if a member is in good her attend? Also how long does the board have to answer a question of a member? —Feeling Left Out A “Questions asked by unit owners to members of the board must be answered says Daniel M. Lopez, an Associate at the board. The more complex the questions are, the longer the board will have to an- tion to answer questions which are unre- “As for a unit owner attendance at quirement that unit owners be permitted owners at board meetings.” n Disclaimer: Th e answers provided in this Q&A column are of a general nature and cannot substitute for professional advice regarding your specifi c circumstances. Always seek the advice of competent legal counsel or other qualifi ed profes- sionals with any questions you may have regard- ing technical or legal issues. Do you have an issue with your board? Are you wondering how to solve a dispute with a neighbor? Can’t fi nd informa- tion you need about a building’s fi nances? Our attorney advisors have the answers to all of your legal questions. Write to New England Condominium and we’ll publish your question, along with a response from one of our attorney advisors. Questions may be edited for taste, length and clarity. Send your questions to: patgale@yrinc.com. Q&A