Q. My condo association has five board members. The term of service is three years, which is clearly stated in our governing docs. Our association was to have an election in November 2020, for three seats. Their three-year terms were ending on December 31, 2020.
When owners reached out to our property management company to become candidates for the election, the company replied via email that there were no open seats until the end of 2021, so there would be no election in 2020.
Our meeting minutes documented when these three board members were elected, and our condo docs clearly state the length of the term, so these three board members appear to have unilaterally extended their terms—in violation of our condo, without owner approval, and with the assistance of the property management company.
To further this injustice, the Certificate of Election that was filed at the Registry of Deeds when these three members’ terms started was filed with the false information that their terms were to last until the end of 2021, which would be a four-year term.
My question is: What legal action can be taken against the three board members and the property management company, for filing false documents, refusal to provide an election, an violation or condo docs?
A. “The fact pattern presented by this question is quite specific. At the same time, there are additional facts that bear on the analysis and which are not set forth in the description. Given the information presented, I will do my best to provide a thorough response,” says Gary M. Daddario, Partner at Marcus, Errico, Emmer & Brooks in Braintree, Massachusetts.
“In November 2020, a lot of associations that would have had annual or other meetings saw those meetings cancelled because of the governing board’s concerns relative to the pandemic. At that time, COVID-19 was still a driving force for decision-makers and the daily news media was reporting that our federal and state governments were encouraging citizens to forgo even getting together for Thanksgiving with their families. While I do not know this for certain, the property manager’s statement that there were no open seats until the end of 2021 may have actually meant to convey that the association’s annual meeting was not occurring (or perhaps occurring only via internet and thus not including an election) and that, as a result, the next election would be put out for another year.
“The governing documents of associations do routinely state that the board members serve specific terms, but also that board members serve until their successors are elected. So, it is possible that a lack of election due to the pandemic served as a necessary extension of terms of existing board members. The court cases reported thus far seem to indicate that judges are allowing a wide breadth to decision-makers dealing with pandemic-related issues. Because the circumstances are unprecedented, novel actions meant to address the situation are being accepted.
“The question also includes mention of the fact that the subject board members were documented to have joined the board at a specific time but were on a certificate that put their term at four years. Without examining the relevant documentation, it is only possible to theorize. One possibility is that these board members were appointed to complete an unfinished term (perhaps a year) and then either elected or appointed to an additional term (which, according to the question, would be three years). Of course, there is always the possibility that an error was made and somehow the term was calculated at four years instead of three. Another possibility is that an amendment to the association’s governing documents may be on record and may have changed the length of terms. Sometimes this is done to either create or preserve staggered terms among board members.
“As to potential legal action, it is best to seek a resolution without litigation. Standard management company contracts contain indemnification language in favor of the company. Standard governing document provisions contain indemnification language in favor of board members.
“In other words, litigation would likely deplete the financial resources of the association and its owners and would normally not contain the possibility of liability for a management company or board members. Further, violations of governing documents or even the condominium law are not subject to specific penalties under the law. Rather, the likely outcome would be a court order instructing any parties found to be in violation to correct the violation. This is the type of result that the parties should be able to reach themselves after an open discussion of the issues.”