Having a disinterested, apathetic board is a problem in some buildings, though a board that oversteps the boundaries of its power or invades the privacy of residents also can cause hassles. But an informed board should be less apt to go beyond its authority and less likely to cause trouble for the community, due to having an informed perspective.

Reading Up

All residents of co-ops and condos should know about the legal and ethical boundaries under which boards operate, since understanding those parameters will help board members to know when to exercise caution, consult their professionals, and more. Not comprehending the limits of the board’s power, though, can lead to troubles, and even unnecessary lawsuits. Generally speaking, a co-op board is the governing body of a corporate entity which owns the property and is landlord. A condo board is in charge of management of common areas of the building, like hallways and recreational areas.

The extent of a board’s fiduciary duty is laid out in individual New England state’s laws, and all New England dwelling board members should check their respective state laws for specific details on requirements. Section 11 Chapter 183A of the Massachusetts General Law Chapter lists board requirements, Steven Reilly Jr., an attorney with Springfield, Massachusetts-based Reilly Associates, explains.

“[Board powers] are set forth either in the statute Chapter 183A or under the constituent documents of a condominium. Chapter 183A sets a general framework and the details are usually contained in the condo documents,” he explains.

Chapter 183A dictates that boards must maintain common areas and facilities, repairing and replacing when need be, enlist personnel, collect fees for common expenses, create a method of amending rules and regulations, and establish rules and requirements regarding how units and common areas and facilities are used and maintained.

A board’s powers often are also spelled out in the community’s bylaws under “board powers” and “duties and responsibilities.” Some of those responsibilities are keeping peace and order, maintaining insurance, making rules for the community and other managerial duties.

Board members are untrained volunteers who learn, while doing their volunteer job, how to manage a community. In order to get the most while giving the most in this public service, board members should do some homework. They should familiarize themselves with the community’s bylaws and any other documents that govern the board’s authority. Some lawyers who serve co-ops and condos will offer a tutorial as a service to familiarize board members with the bylaws and other rules governing the community, giving an overview of board members’ duties. Even if a building’s consultants don’t offer such a tutorial, board members and residents should read up on it themselves.

The board should read these documents and when possible, go to educational events to learn more about running a community, says David A. Brauner, an attorney with Windels, Marx, Lane & Mittendorf, LLP, which has an office in Stamford, Connecticut.

Safety First

A board must work to ensure the safety of the property and people in the community, but how many security measures are too much?

“They can only do anything that is authorized by state law, and then up to that limit; it depends on the discretion of the board and what they feel their unit owners are accepting of or what the unit owners want,” Reilly says of boards implementing security measures. “It really depends on where the condominium is located as well. If you’re in downtown Springfield there are different [safety and security] issues than someone that is in Sturbridge, so really it depends on the tolerances of the unit owners up to the legal limit,” he says.

The public has shown a willingness to accept measures including CCTV, logbook sign-ins and security guards, though having a visitor twice show his identification to guards and then provide his social security number could be considered onerous, depending upon the style of the community such measures are intended to protect.

A logbook, which visitors must sign into and out of a community, could be seen by many folks as an innocuous practice. But that view could depend upon how the logbook is handled. Who can look at it? Can a board member come along and page through the logbook, and discover information about a resident who’s had repeated visits from a local oncologist, or from an attorney who specializes in co-op/condo disputes? To have such information about a neighbor might be considered to be an invasion of privacy.

“I’m not sure I’d want a log book,” says attorney Frank Lombardi in the Rhode Island office of Goodman, Shapiro & Lombardi. “In a residential setting, people have an expectation of privacy.” On the other hand, if the association’s security staff recommends it, the board might consider one, because failure to heed their advice could become an issue if a problem arises. “But if that is done,” he says, “they need to take substantial steps to protect the privacy of the log.”

As for closed-circuit surveillance, “When a camera is positioned so it can see into an apartment, that’s crossing the line,” Brauner says. “Security is always a difficult balance for a board… How willing are you to sacrifice privacy for security? The board is charged with making that decision, but they must do so while recognizing the constituency they’re serving.”

Privacy is a serious matter, and the personal info of residents must not be shared by board members. Many industry insiders say never publish personal information such as a list of which residents are in arrears with maintenance fees, since it could be cause for a slander lawsuit. Having the wrong person’s name on such a list, or the incorrect amount next to a person’s name, could make the board and the community liable.

Just as residents expect to be safe and secure in their own apartment, they also presume that their personal information held by the building will be kept confidential and secure. Such data should be kept locked up and password protected, experts recommend.

Knock Before Entering

Common sense is needed when board members are enacting new rules, but others in the building must use their heads, too. Residents don’t expect nosy neighbors intruding on the logbook to scrutinize their visitors, nor do they want others poking around their apartment. But according to a community’s bylaws, in certain cases, such as an emergency, building staff can demand entrance into an apartment and even get the fire department to break down the door to get in if needed. Building workers have a right to enter an apartment to fix problems such as plumbing leaks, electrical problems and other urgent maintenance issues that need to be addressed inside the apartment. Usually the apartment owner is given at least a day of advance notice, but emergency admittance also can be required.

“Typically, upon accepting a deed you’ll grant the board or their designee entry into the unit for certain circumstances but that will be different at different condominiums,” Reilly says. “For emergency purposes, some will require notification to the owner, but we’ve been dealing a lot with that with freeze damage with foreclosed units where the units have been unheated and unwinterized. The pipes freeze and leak and typically the management company will get a call from someone downstairs or next door saying, ‘Hey, I have water coming into my unit.’ The assessment is usually made by the management company in terms of whether or not under those constituent documents they can write in or if they have to provide notice, but certainly in a water leakage situation, they would typically deem that to be an emergency situation because that could cause a lot of damage. We’ve seen different condominiums with quite substantial damage, particularly if there are butting units that are both vacant, because you’ll tend to see a leak that is going to persist for quite an amount of time before someone realizes what’s going. The board in that circumstance certainly would be more aggressive because there isn’t anybody in the unit to say, ‘Hey, you shouldn’t be coming into my unit.’ In terms of when they will make that entry or decision really depends on the particular condominium.”

Sometimes, odors coming from a unit are signs of troubles behind closed doors. In communities with a lot of retired people, a resident with dementia or some other malady night lose control of his faculties, creating an unhealthy and foul-smelling mess of his unit. Finally, the stench creeps into the hallway and adjoining units and everyone’s complaining, until the building’s management must get help for the sick resident, who’s steadfastly refused repeated management offers of help.

Check Yourself

When it comes to protecting the community, it can seem like there is no limit to what can be done, at least that is, with regard to what is expected of a building’s management. If board members know of a foreseeable harm that could be fixed on their properties, they must have it fixed, for themselves and for all of those who live in and frequent the place. However, the lines between a board being proactive and seemingly power hungry and privacy breaching can become blurred. When in doubt about whether a board policy exceeds board authority, consult the pros. With the right advice from legal counsel, a competent property manager, or both, a board will avoid angering the community, or worse, a potential lawsuit.

“The ultimate check is that the board members are elected. If owners feel they are not being treated fairly or the rules and regulations are overburdening, then they have the right to vote in a new board, so obviously that’s the biggest check with overreaching,” Reilly says. “If you have a good management company that’s familiar with what other rules and regulations are at different places and what is a fairly standard rule or regulation, they can help direct the board and certainly, the board has legal counsel they can contact as well. The board should use that because if they do have a question whether something is overreaching, overburdening or potentially not legal they should be checking with their attorneys,” he says.    

Jonathan Barnes is a freelance writer and frequent contributor to New England Condominium. Editorial Assistant Enjolie Esteve contributed to this article.