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Listen Up! Top Five Things Lawyers Wish Boards Knew

 While some condos and HOAs are lucky enough to have lawyers serve as members of  their board, the majority of boards don’t have an in-house legal expert. They often reach out to their attorney to  answer questions, vet documents, send the occasional stern letter to a  contractor or recalcitrant resident, and handle any litigation that’s not avoidable by other means.  

 The problem is that sometimes the board will reach out too often, calling  attorneys about things the board should already know, or which have nothing to  do with the lawyer, or that are just variations of the same questions that are  asked over and over. Then there are those boards that don’t call their lawyers enough, and try to do things on their own that they really  shouldn’t attempt.  

 It depends on the lawyer and the attorney-client relationship, but a competent  lawyer needs to be prepared to give difficult advice to the board members if  the actions are not in the best interest of the association.  

 We polled some area lawyers to come up with a list of the “Top 5 Things Attorneys Wish Boards Knew.”

 Who You Gonna Call?

 Often times, boards make the mistake of taking legal matters into their own  hands in an effort to save funds. However, this is a misstep that can lead to  financial woes much greater than the cost of professional counsel.  

 “While boards often consist of hard-working professionals who may be experts in  their given fields, sometimes boards need to consult with experts on particular  matters,” Mark S. Einhorn, a junior partner with Marcus, Errico, Emmer & Brooks in Braintree, Massachusetts says. “Mark Twain had a wonderful quote which I think is appropriate for boards to keep  in mind: ‘It ain’t what you don’t know that gets you into trouble. It’s what you know for sure that just ain’t so.’  

 “In other words,” he continues, “sometimes boards need to recognize when they don’t know something and seek out the information or experts that they need. In the  long run, even if there is an increase in expense or time, this will be better  than simply running on assumptions that may not be correct.”  

 “As a trustee, remember you are not on an island—use your resources,” says Charles Perkins, senior partner at Perkins & Anctil in Westford, Massachusetts. “Most associations have an accountant, manager, attorney and an insurance agent.  You don’t need to try to figure out of the blue what you need to do. You can use your  resources to help you manage your association.”  

 What good is having proper representation if you don’t take full advantage of it? While your attorney is surely an expert on all  things community association related, he or she is not omniscient. It’s therefore vital for boards to keep counsel updated on any questions or  concerns members might have, experts stress. Doing so can prevent unnecessary  litigation expenses in the long run.  

 Know When to be Flexible

 Implementing the rules and regulations expressed in governing documents is a  vital aspect of the board’s duties, but life situations are never black and white like the rules.  Sometimes, a little bit of leeway and compromise is necessary.  

 “Boards should try and be reasonable and to some degree, flexible on some  matters,” Einhorn says. “Each issue should be weighed and examined on the specific facts involved. When  you are dealing with a community and communal living, sometimes hard and fast  lines in the sand just don’t work or are not appropriate. Sometimes it is better to compromise than to go to battle on principle,” he says.  

 “Whenever possible without violating the ‘letter’ of the governing documents, the board should endeavor to promote a harmonious  and congenial atmosphere in the community rather than standing on principle,” Mark Rosen, an attorney with Goodman, Shapiro & Lombardi, LLC in Dedham, Massachusetts, says. “Someone may say, ‘Look, I want to put this up on my deck’ or ‘I want to hang this on my door.’ Now, maybe the documents do in fact prohibit that. And I guess you can’t set a precedent that’s going to be honored more in its breach than in its application. However, in  some situations, maybe you can [compromise]. This is more form over substance,” he says.  

 Sometimes, an association’s rules and regulations are not in line with state or federal laws, Perkins  warns, and when that occurs, said rules must take a back seat to avoid  litigation. An owner with an assistance animal in a pet-free multifamily  building is a common example of this kind of predicament.  

 “You want to understand that while you may want to enforce rules, sometimes those  rules give way to a federal or state law that overrule them,” Perkins says. “People who have handicaps may be entitled to a reasonable accommodation or  modification. Be sensitive to those [situations] so you don’t find yourself on the wrong side of a discrimination case. If you tell [an  owner] to get rid of the dog and they tell you, ‘I’m handicapped, I need the dog as a companion pet—here is a letter from my doctor,’ that should start a process where you make sure you don’t continue down the road of evicting that dog and bringing action against the  unit owner until you satisfy yourself that in fact that they are in need of a  companion pet,” Perkins says.  

 A Failure to Communicate

 As any couples’ counselor will say, strong and steady communication is essential to a  successful relationship. This sentiment applies to the board/owners  relationship as well.  

 “One of the most important aspects of governing, especially in a condominium, is  to communicate effectively with owners and residents,” Einhorn says. “The majority of complaints from owners about governing boards tend not to be  about the actual decisions that boards make. The criticism tends to be focused  on the process the particular board followed. Owners want to and should be  informed not just of the conclusion reached by the board on a specific issue,  but also the process and choices that the board may have explored but  ultimately rejected.”  

 “And by sharing as much information as possible,” he continues, “the board is more likely to gain the support and trust of the owners because  they will better understand the due diligence that went into making the  particular decision.”  

 This leads to a frequently asked question: What is the best way for a board to  be transparent?  

 Be Transparent

 The best way to ensure owners feel like they are clued in to the happenings of  the association is to make meetings as open and accessible as possible. This  includes not holding meetings unannounced to owners and making minutes  available, whether it be through publishing minutes on a website, posting them  on the property or sending them via email at owners’ request.  

 “There really are few issues that boards should not discuss in an open forum,” Einhorn says. “The more open a board is, the less likely owners will feel that the board is  disconnected from the owners,” he says.  

 Too much of a good thing, though, can make you sick—or in this case, make you catch a lawsuit—and transparency is not exempt. Keeping association members informed of  association happenings and the board decision-making process is ideal; however,  there is a legal limit.  

 “I think you should have as much transparency as possible—in any endeavor,” Rosen says. “However,” he continues, “there are limitations in the condominium world on transparency. One is, when a  unit owner falls into arrears; you can’t be completely transparent. There are laws that govern that in terms of privacy  and fair debt collection and so forth. The identity, the amount, et cetera, is  really not the business of every unit owner. That’s just not right. There may be other sensitive issues that the board just can’t share with all the unit owners.”  

 Choose a Liaison

 Want to know what irks a lawyer almost more than anything? It’s when several people from a board call about the same matter or when three  different board members reach out on the same day to discuss three different  issues.  

 “Right now we have, with several of our condominiums, a core contact person,” Rosen says. “[A liaison is helpful] so that you’re not, number one, responding to several different people who hear things  differently, and number two, you're not multiplying the cost of doing that by  having three, four conversations or three, four email exchanges. If it’s one person, then they have the responsibility to disseminate that information  to the remainder of the board.”  

 A liaison provides a much more structured flow of information to the board and  keeps the attorney better in the loop. 

 Keith Loria is a frequent contributor to New England Condominium. Editorial  Assistant Enjolie Esteve contributed to this article.

 

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