Page 9 - New England Condominium April 2020

NEWENGLANDCONDO.COM NEW ENGLAND CONDOMINIUM -APRIL 2020 9 185 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 Quality Since 1974 • AGED DARK • AGED BLACK • MIX • HEMLOCK • WOOD CHIPS 1431 Bedford St. Abington, MA02351 Bus: 781-878-3351 r.a.piercetrucking@gmail.com www.rapiercetrucking.com a third possibility: when owners or share- holders read this article.” Experts agree that the two main factors that compel boards to review and possi- bly update their association’s or corpora- tion’s governing documents are changes in federal or state laws, and obsolete or problematic language in the documents that at best make it difficult for the board to make governance decisions, and at worst open the board to liability. Shap- iro points out an important, if extreme, example of the latter: older associations may still have covenants on their books that would be considered discrimina- tory today. Obviously, and for an array of reasons, those can’t be left in place. Hav- ing discriminatory rules, regulations, or policies of any kind in your documents — even if they’re not enforced — is con- sidered discriminatory, and not only can lead to liability and possible financial penalties, but also can have a corrosive effect on a community as a whole. Additionally, says Weinstein, as con- dos and HOAs have proliferated and outnumber co-ops by larger and larger margins, their more lenient provisions make them more appealing places to live for many — particularly younger buyers — and may put co-ops at a disadvantage when it comes to attracting new purchas- ers. “Co-ops may be restrained by old- fashioned regulations that may make at- tracting new shareholders difficult, such as no subletting, no pets, et cetera,” she says. “Buyers may be turned off. Co-ops may want to examine their documents to make them more ‘condo-like’ to attract potential buyers.” Additionally, adds Reich, these same provisions may contain outdated lan- guage — or omit language necessary to deal with modern-day realities and mo- res. “Omission is even more problematic than obsolete language,” he says. “Ad- ditionally, legal decisions taken since the documents were written may re- quire changes or amendments to reflect them. Many current issues didn’t exist when these leases \[and other documents\] were written.” A good example of that is smoking — both in common areas and private units. Today, smoking policies UPDATING... continued from page 1 or Crisis Text Line by texting “start” to 741-741. Wendy King is the Director of Health and Performance for insurance brokerage HUB International and a leader in the fi eld of healthcare communications and cor- porate wellness strategy, managing HUB’s team of health and performance experts. You can fi nd her blog at https://www.hu- binternational.com/blog/2020/03/reduc- ing-stress-during-social-distancing/. n must be codified and made public. Ban- ning smoking entirely usually requires an amendment, which would require a building-wide shareholder vote. Hot Topics As Reich observes, many issues fac- ing today’s co-ops and HOAs didn’t ex- ist when their leases and other founda- tional documents were written as much as 40 or even 50 years ago. Consider the requirement that boards meet monthly to make decisions about the operation of the building, for one example. Tele- meetings didn’t exist at that time — so contemporary options for meetings need to be incorporated into governing docu- ments. (The caveat here being that votes on some issues may be required by law to be made in person — so consultation with legal counsel is crucial to make sure that any alterations to documents are compliant in this regard.) Another major consideration today is the rewriting of documents to reflect changes in attitude toward gender. For example, Weinstein explains how old leases and bylaws refer to shareholders and owners almost uniformly as male — and often incorporate such language as “the shareholder and his wife.” In writing a new lease today, she says, she adjusts the language in it to be gender neutral and applicable to everyone in the com- munity. Other major considerations that should be taken into account when mak- ing governing documents more con- temporaneous are clauses dealing with occupancy — including who may live in an apartment, when, and under what circumstances, as well as repair respon- sibilities, smoking, flip taxes, and sublet- ting policies. Weinstein explains that the use provision in co-op proprietary leases, which governs who can live in the unit, may permit a child or parent of a share- holder to live in the unit with them, but not if the primary unit owner or share- holder is not themselves occupying the unit. So, if a shareholder in Boston wants to move to Florida, but wants to let their adult child — and perhaps that adult child’s family — live in the apartment, that may well be prohibited. The exist- ing language may be too vague or too restrictive, and might require some re- definition. The same is true of subletting provisions, says Weinstein; the language in these is often vague, and needs to be made crystal-clear. Additionally, some condos — which traditionally are ex- tremely liberal with lease provisions for non-owner tenants — are taking a page from co-op buildings and requiring more scrutiny and supervision of tenants. Provisions dealing with repairs often need clarification as well. Too often, a board and an owner may end up in con- continued on page 10