Q. I live in a gated community and the manager seems to be controlling the board rather than vice versa. She has filled vacant board seats without an election—some new residents don’t even know that we’re supposed to hold elections. The board allows the manager to continue with board meetings via Zoom so she can control the complaints made by the homeowners. In order to log in to the meetings, the manager’s office must email you a code. If she doesn’t want you to log in, she simply doesn’t send you the code. Is this legal? And if not, how can we get rid of this manager and restore the board’s power to run our association?
—Tired of Tyranny
A. “In this situation the problem could be that the manager is overstepping, and/or that the board is not stepping up,” says Katherine G. Brady, principal at Moriarty Bielan & Malloy in Boston. “A condominium board has the statutory obligation to manage the association’s affairs and to manage the common areas. The relevant state statutes and governing documents of the association will set forth the specific duties of the board and may even specify what powers and/or tasks can be delegated to a managing agent.
“In general, a board is empowered to retain a managing agent to assist with the administration of the association affairs. In fact, there are many day-to-day administrative and operational tasks that boards can delegate to a managing agent and managers can provide critical support in formulating budgets, collecting assessments, coordinating vendors, communicating with residents, enforcing rules, and preparing for meetings, for instance.
“Some duties of the board are, however, nondelegable and managers cannot usurp powers that are strictly reserved for the board. The managing agent cannot appoint board members or otherwise fill board vacancies where those powers rest with the board to appoint and/or with unit owners through an election process. Further, the decision making powers rest with the board; the manager’s role is to help with implementing those decisions and executing the board’s plans.
“Where an owner believes that the manager is exceeding their authority, the owner could request a copy of the management agreement. The management agreement should spell out the tasks that the manager has been hired to perform and the provisions for termination of the management agreement. While an individual owner cannot enforce or terminate the management agreement, they may be able to take that information to the board to explain their concerns and better understand what opportunities exist for the board to terminate the agreement or put the manager on notice that they may be in breach of their agreement.
“It could also be that the board has, improperly, given over too much authority to the managing agent, either out of ignorance or to insulate themselves from criticism. In that instance, the owners could request to meet with the board members (without the manager) or outline their concerns in writing, noting the relevant provisions in the condominium statute that detail what powers can be delegated, and the relevant provisions in the governing documents which explain the election, meeting, or other process at issue and the roles and responsibilities that the board must perform.
“If the outreach does not prevail, an owner may wish to consult legal counsel about filing a lawsuit, and the requirements to do so, to enforce the law and governing documents of the association.”