Q&A: Board Ignores Delinquency of Fellow Member

Q Last year, a board member discovered other directors have allowed our association secretary to be 10 months delinquent in his assessments. No action was taken. Other unit owners have been in the collection process for the same violation. After this problem was disclosed, the incumbent board members decided not to run in the next election.

We have another annual meeting this fall. It appears that some of the prior board members are going to run again despite their previous failure to uphold their fiduciary duty. Can they be held accountable?

— Up in Arms in MA

A There is no excuse for any condominium board to allow a unit owner to remain delinquentfor more than a few months without taking action under Massachusetts law. This is true whether the delinquent person is simply one of the unit owners or whether the delinquent owner is a member of the board. A person’s board member status unquestionably does not come with a corresponding privilege to not timely pay common charges – in fact, quite the opposite is arguably true.

The Massachusetts condominium statute requires association boards to take certain actions at prescribed time periods in order to maximize the association’s priority lien position.

At the outside, a complaint must be both filed in court and recorded at the Registry of Deeds no later than within six months – otherwise, the association’s priority lien position before the first mortgagee will be jeopardized. And, the statute prescribes the timing of pre-suit notices both to the delinquent unit ownerand to the unit owner’s first mortgagee such that the lien enforcement process should begin whenever a delinquency exists for four months.

The ultimate club that unit owners can wield against lax board members who simply ignore the statutory lien enforcement mandates is via the ballot box. Board members who refuse to take action to protect the association’s interests for no good reason – whether in connection witha delinquent fellow board member or a regular unit owner – should be accountable to the unit owners collectively when re-election time draws near.

— Joe Saurino, Esq.

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