Jack has heard talk that the board has voted to continue a contract with the poorly-run lawn care company the association has contracted with for years. Rumor has it that damage was done to a window by a careless worker and a complaint has even been filed.
As the unappointed spokesperson for the condo owners, Jack has spoken numerous times to the association board president (Eric) about this issue and has asked to see the current lawn service contract and the complaint. Jackhas yet to receive any of the records he has requested and is getting more convinced that something does not add up.
Eric, the condo board president, is at his wits’ end. The pressure is on at work and his job as president of his condo association has gone well beyond a part-time commitment. He has wanted for years to step down from the board but no one seems to be willing to step up to take his place. To make matters worse, the condo troublemaker, Jack, is stirring up rumors and getting the community up in arms about the lawncare service.
On numerous occasions, Jack has cornered Eric to “discuss” his lawn care complaints. Eric has tried to explain to Jack that the owner of the lawn service company they contract with has been ill and because of this, things have fallen through the cracks. Eric has also stressed that prior to this past season the lawn care service has consistently been of good quality and at a reasonable price.
Now Jack is requesting the lawn service contract information, as well as a complaint that was filed against a lawnservice worker, which is now entering litigation. Eric continues to stall Jack in hopes he will just let this issue go.
Two Sides to Every Dispute
There are two sides to every argumentand numerous avenues in resolving any dispute. However, in the self-governing world of the condo community, disagreements can take on a life of their own. Owners and association board members potentially may find conflicts causing friction and fractured relationships that can be hard to mend.
“A condo is a group ownership with divided costs but not necessarily sharedcontrol or vision,” explains Rosemary Macero, an attorney and principal at the law firm of Macero & Associates, PC, in Boston. “More times than not, condo owners are more than willing to hand off board responsibilities to neighbors. However, owners still have a desire to be kept in the loop and feel that they have a participating interest in the community in which they live. This, unfortunately, can prove to be a hard balance.”
Q: Is Jack valid in his concern over his board's lack of communication?
A: Yes and no.
Many condo owners voice concern at the lack of information as to when meetings and votes are held. Generallyspeaking, it is true that most boards need to make more of an effort in communicating; however, several reasons come into play as to why this is not being executed with consistency.
Typically, there is a lack of interest in board work on the part of many owners. More often than not, boards have difficulty recruiting individuals to become trustees or even attend the annual meetings. “There will be apathy as long as the building is being managed well,” states Michael Phillips, a property manager with The Copley Group in Boston. “You will get the biggest turnout (at meetings) and involvement when there is an issue or when things are not running smoothly.” Board members, therefore, do not viewa need or desire in the community to communicate much of what they do or their schedule of activities.
Unfortunately, many condo owners (just like Jack) also do not take enough of an active interest in the inner workings of the Board of Directors. If owners were to dive deeper into their board's work they would find that boards have little flexibility in defining their responsibilities and processes. The declaration of trust or bylaws of a condo govern much of what a board can and cannot do. The number of meetings, board positions, how votes are handled and the tenure and election of board positions are all spelled out and clearly defined. More times than not, boards have no secret agenda and are simply following the rules –but doing a poor job of informing owners.
In addition, there is the issue of time. What may appear as a lack of communication on the part of the board (in announcing meetings and or votes) may in actuality be an attempt to streamline an already heavily-burdenedmeeting agenda. “Most of the time, meetings are not closed, but the when and where of the meetings is not publicized,” Phillips says.
Phillips believes this is the case because most owners wishing to attend meetings “want to focus on individual issues instead of community-wide issues.” And an already time-stretched board meeting is not the forum for individual complaints. To resolve thosetypes of issues, Phillips’ boards have two meetings a year set aside for open discussions in which owners can voice any issues, concerns and complaints.
Q: Does Eric legally have to hand over the landscaping service contract to Jack?
Just as the declaration of trust/bylaws govern and dictate board management, safeguards have been put in place in the form of state statutes to assist owners with obtaining documents if issues arise. State statutes, as stated in (individual state) Condominium Acts, mandate what documents can and cannot be reviewed by owners. These statutes set the legal tone and spell out what documents associations needto have available for owners to review.
Despite specifics varying by state, basically anything having to do with financial, legal, insurance or building codes (see sidebar for specifics) is to be made obtainable for condominium owners and made available “within a reasonable period of time.” Documents may typically be obtained through themanagement company and copies made at the owner’s expense.
Q: What if Eric and Jack lived in a co-op? Would Eric still legally have to hand over the landscaping service contract to Jack?
Co-ops and condominiums differ on many levels, primarily as to how they are defined in legal terms. Co-op unit owners own a share of the building and in essence, lease a unit within their building. Condo owners have full ownership of their unit but equally divided ownership of common areas. There is limited power a condo board has inside the owner’s unit. Co-op boards are viewed as having more control, since all owners share equally in the space they live. By definition, a co-op acts as a corporation and as such falls under a corporation’s rules and regulations. This would include documentation requirements as well. However, setting aside legal definitions, co-ops and condos differ little in what can and cannot be handed off to owners. “Co-op shareholders (owners) have a right to review all the same information as condos. However, legally speaking, because they have different legal statutes it is just a different legal set of rules regarding the information,” states Macero.
Q: Is Jack’s request legitimate?
A: Maybe…maybe not.
Be it a condo or co-op, nine times out of ten owners requesting information will be doing so for a financial issue or dispute. "In my opinion, with the exception of privacy issues, issues involving attorney client privilege or similar issues, all documents should be accessible to owners," states Henry Goodman, a principal of Goodman, Shapiro & Lombardi, LLC of Dedham, Massachusetts and Providence, Rhode Island. "After all, they are the unit owners' documents." Goodman is also quick to note that some owners have legitimate reasons for viewing the condodocuments while others may not.
Attorney Stephen M. Marcus, a principal at the law firm of Marcus, Errico, Emmer & Brooks, LLC, in Braintree, Massachusetts, agrees. “Owners’ requests can range anywhere from a desire to view the financial records to see how the association is running and if it is in decent shape,” states Marcus, “to someone who may mistrust or have a suspicion that a wrong-doing is taking place in the association.” It is the latter, the potential“fishing expedition,” that gets boards riled up and causes them to respond by digging their feet in, in the form of a refusal to provide documents in a timely fashion.
Boards wishing to make accessibility to documents challenging for owners have limited options under the law, considering that most financial records are within the rights of owners to view. If owners requesting information are coming up against brick walls, Goodman advises owners to “put your request in writing.” Marcus agrees, stating, “Written requests by way of the management company will work best. Owners should state the specific document they are interested in and specific dates they wish to havethe document made available.” Owners can also petition the board, but considering that traditionally documents are held with the management company, this would be the first avenue to pursue.
Q: Can Jack legally request and get the complaint against the landscaping worker?
A: Jack can legally request anything he wants. But no, he cannot get the complaint against the worker.
Some association records and discussions, financial and otherwise, are not accessible, no matter how persistent owners may be. Typically, these records have privacy issues involved, such as litigation, hiring and dismissal decisions, compensation negotiations and specific complaints. All these records would be considered off-limits to non-board members.
Litigation issues or proceedings are particularly sensitive issues. During the litigation process any discussions and records should be kept under wraps – once the case is finished, the documents and records can be reviewed and then shared, but not until then. “Condo owners should be kept apprised of any legal matters pending but on a top level and all information should be first checked with the lawyer,” states Macero. “The last thing you want to do is compromise the case by letting too much information out.” In dealing with any privacy information, a top level review, void of specifics, is the safest and legally sound practice toundertake. It is important for boards to respect the rights of employees as well as owners.
Q: Who is in the “wrong” and who is in the “right,” Jack or Eric?
A: Both. Jack and Eric both have the best interest and intentions for their community.
What is considered confidential and who legally has the right to view what documents can be a precarious balance between legal statute and correct moral conduct. Fortunately, most board members fulfill their responsibilities with enthusiasm and dedication. Likewise, most homeowners have only the best interest of the condocommunity at heart. However, for the few who work counter to these principles, legal safety measures have been put in place to protect all parties concerned.
Hillary Pember is a freelance writer and a frequent contributor to New England Condominium magazine.