Q&A: Is “Relatively” Qualified Good Enough?

Q&A: Is “Relatively” Qualified Good Enough?

Q. The person who serves as the “maintenance guy” for our association is the brother of one of the board members. We feel he is doing a lousy job and have complained numerous times, to no effect. He apparently does not have a written contract with the association, but does have the approval of the board to do our landscaping, snow removal, and any in-unit maintenance that is determined to be the responsibility of the association. 

Is there a way for residents to force the board to hire someone who is really qualified, rather than this person who simply has “connections” to a board member?

                           —Dissatisfied Owner

A. “Unfortunately, there is likely no ‘quick fix’ solution to the scenario presented,” says  Kimberly A. Bielan,  principal at Moriarty Troyer & Malloy LLC in Quincy, Massachusetts. “However, there are steps that can be taken to assess the unit owner’s options relative to the board’s retention of a related maintenance person whose performance is sub-par.

“As with most issues facing condominiums, a review of the governing documents is the best starting point, as the documents may provide an answer to the question or guidance. The unit owner should read through the condominium’s governing documents to ascertain whether there is any specific prohibition associated with engaging a person related to a board member, or some similar language that may provide support for the unit owner’s position. Governing documents establishing or regulating unit owners’ organizations, such as a declaration of trust, typically include provisions relating to self-dealing by board members. While the described scenario is distinguishable as it concerns the engagement of a family member, rather than the board members themselves, it is possible (even if unlikely) that there is a specific prohibition against the retention of an individual related to a board member.

“If the governing documents do not answer the question, and enough unit owners are upset about the circumstance, then it may be possible to remove the board members so that the arrangement can be terminated. Board members are always subject to removal, and the governing documents will provide direction as to how to call a special meeting and to remove and replace a number of board members so that the matter may be addressed.

“In the event there are not a sufficient number of unit owners that are concerned about the circumstance, making the foregoing path unlikely of success, then the unit owner may still have options. While there is really no way for a unit owner to force a board to take a particular action, dependent on the specific factual circumstances, there could be facts that support the initiation of a lawsuit against the board. (By way of example only, and not supported by the facts that have been presented to date, the board member could be receiving some personal benefit from engaging their brother, which would place their interests in a manner adverse to the association.) In such scenario, a court may order the board to act in a particular manner, including by terminating the arrangement. While obtaining a court order may be a high hurdle (and entail the incurrence of time and attorney’s fees and costs by the unit owner), it could be appropriate dependent upon the factual circumstances. 

“As an aside, the circumstances presented by the board’s actions in this instance are ill-advised. As it does not appear the maintenance man is an employee of the association, there should be a written contract setting forth the individual’s obligations to the association. Recommended provisions include, among other things, that the individual performing the work be properly licensed for any work performed and that he maintain adequate insurance coverage, which policy should name the association as an additional insured.”  

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