NEC APR20

April 2020 NEWENGLANDCONDO.COM

NEW ENGLAND
CONDOMINIUM
THE CONDO,HOA & CO-OP RESOURCE

Reduce Stress & Boost Your Urgent HOA Business vs. Updating Your
Immune System While Social Distancing Governing
Social Distancing Documents
Two Legal Tools to Help Your Board Cope
Five Things You Can Do Keeping Your HOA
BY JENNIFER L. BARNETT AND GARY M. DADDARIO Current and Compliant
BY WENDY KING
Some associations may have an urgent need to conduct particular business dur- BY A.J. SIDRANSKY
As COVID-19 continues to spread ing the COVID-19 outbreak, perhaps even in response to the crisis. Unfortunately,
and we make lifestyle adjustments in in the upcoming days and weeks, the governing boards of community associations The central governing documents in
response, the challenge is to maintain will likely find it to be more and more difficult to meet in person to conduct associa- condo ownership outline your control
your mental and physical health in light tion business. The governing boards of many community associations—in particular over your unit. They dictate the terms
of mounting stress. As social distancing those without provisions in their governing documents authorizing board members of your occupancy and your ownership
becomes our new “norm” over at least to participate in meetings remotely, and allowing for electronic signatures — may be rights, including who can live there,
the next several weeks, the pressures may at a complete loss as to how to proceed during these uncertain times. The goal may what activities may take place in the unit,
be overwhelming. There are challenges then become to accomplish necessary business without violating orders or posing an whether the unit can be leased, and any
finding childcare and keeping necessities undue risk to the community. restrictions thereon.
stocked — never mind keeping yourself
safe at work and out in the world. And Fortunately, there may be some specific guidance for both Massachusetts and New Governing documents are also unique
how much disinfectant is enough, any- Hampshire associations. In Massachusetts, guidance may be gleaned from the Ex- in that they define the details of certain
way? We all need to think about practical ecutive Order signed by Massachusetts Governor Charlie Baker on March 12, 2020 aspects of the relationship between the
coping strategies while dealing with the (hereafter referred to as the March Executive Order). Pursuant to the order, Gover- unit owner and the association as repre-
COVID-19 pandemic. Here are five to nor Baker temporarily suspended certain requirements of the Massachusetts Open sented by the board of directors. Like all
employ today: Meeting Law to reduce the risk of exposure to COVID-19 at public meetings, and to legal documents, governing documents
Use facts and precautions to manage provide public bodies with an outline for conducting meetings remotely. The March have to be living, breathing, and evolv-
Executive Order now suspends the requirement that municipal board meetings take ing, adapting over time to reflect changes
your fear. place in public places that are open and physically accessible to the public — provided in the laws and legislation that relate to
The unknown can be scary and can that the public still has access to the municipal board’s deliberations at no charge, them, as well as the larger cultural and
overwhelm us. Fear can inflate negative through adequate alternative means; e.g., via telephone, internet, or satellite-enabled market climate.
thoughts, which leads to unhealthy stress. audio or video conferencing, or any other technology that enables the public to follow
Ongoing stress releases hormones that the meeting in real time. If such alternative means are not available due to economic When, and Why?
get us ready for emergencies, but also “You don’t want to fix something that
severely depress our immune systems. hardship, a full and complete transcript, recording, or other doesn’t need fixing,” says Margery Wein-
Combat this fear by acting on facts, not comprehensive record of the proceedings should be posted to stein, an attorney with Ganfer Shore
on misinformation. Look at the statistics the municipal website soon after said meeting ends. Leeds & Zauderer, a law firm located in
and the real numbers of infections being New York City. “But when the governing
reported by the Centers for Disease Con- Further, municipal board members, applicants, participants, documents are not working, for whatever
trol (CDC) and local/national officials. and members of the public may now participate in municipal reason, it’s time to examine them.”
You can tackle fear by facing it head-on board meetings via remote or virtual means, and municipal According to Ellen Shapiro, a partner
with facts and smart precautions like boards are expected to provide for an alternative means of ac- with Goodman, Shapiro and Lombardi,
hand washing, disinfecting surfaces, and a law firm based in Dedham, Massachu-
social distancing. setts, “There’s really no hard and fast rule
Be smart about social and TV time. as to when governing documents should
Social media platforms can cause in- be updated, but [one should] look at
credible anxiety as rumors and misinfor- them every 10 years or so, because issues
mation spread on them. Limit time on relating to documents change. The law
social media, and don’t instigate hysteria changes, and that’s why documents need
by reposting unvetted information. Limit to be amended.”
your children’s exposure to television Jeff Reich, a partner with New York
news. Their perspective is different than City-based law firm Schwartz Sladkus
adults’, and they will have difficulty pro- Reich Greenberg & Atlas, adds that “hu-
man nature is such that documents usu-
continued on page 8 ally get reviewed when one of two things
happens: either some problem arises that
205 Lexington Avenue, NY, NY 10016 • CHANGE SERVICE REQUESTED can’t be satisfactorily resolved with exist-
ing provisions, or the board brings on a
new attorney, and as part of the transi-
tion they look at the existing documents
and suggest an update. Of course, there’s

continued on page 8 continued on page 9

2 NEW ENGLAND CONDOMINIUM -APRIL 2020 NEWENGLANDCONDO.COM

TABLE OF CONTENTS

URGENT HOA BUSINESS VS. SOCIAL DISTANCING. . . . . . . . . . . . . . . . . . . 1 COLLECTING COMMON CHARGES DURING CRISIS. . . . . . . . . . . . . . . . . . 4

Some associations may have an urgent need to conduct particular business during the The Community Associations Institute (CAI), a global nonprofit provider of resources and
COVID-19 outbreak, perhaps even in response to the crisis. Unfortunately, in the upcoming information for homeowners, volunteer board leaders, professional managers, and business
days and weeks, the governing boards of community associations will likely find it to be more professionals, released a Statement of Foreclosure Moratorium to address financial hardship
and more di cult to meet in person to conduct association business. arising out of the COVID-19 pandemic.

REDUCE STRESS & BOOST YOUR IMMUNE SYSTEM WHILE SOCIAL DISTANCING. . . 1 CENSUS 2020. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

As COVID-19 continues to spread and we make lifestyle adjustments in response, the challenge This year, due to the coronavirus pandemic, Census takers will not be able to visit neighborhoods
is to maintain your mental and physical health in light of mounting stress. As social distancing door-to-door to request survey responses as they did during previous counts. Instead, Census
becomes our new “norm” over at least the next several weeks, the pressures may be overwhelming. responses are now being requested online through 2020Census.gov and by telephone.

UPDATING YOUR GOVERNING DOCUMENTS. . . . . . . . . . . . . . . . . . . . . . . . . 1 .Q&A. . . . . . . . . . . . . . . . . . . . . 5

The central governing documents in condo ownership outline your control over your unit. They MARKETPLACE . . . . . . . . . . . . . . 10
dictate the terms of your occupancy and your ownership rights, including who can live there, what
activities may take place in the unit, whether the unit can be leased, and any restrictions thereon.

Yale Robbins Publisher Hannah Fons Senior Editor Shirly Korchak Art Director Alan J. Sidransky Staff Writer
Henry Robbins Executive Vice President Darcey Gerstein Associate Editor Anne Anastasi Production Manager Alyce Hill Director of Sales
Joanna DiPaola Associate Publisher Pat Gale Associate Editor Victor Marcos Traffic Coordinator

Copyright 2020 by New England Condominium Magazine LLC, dba Community Association Publishing.All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means without prior written permission. New England Condominium is published monthly in New York, New York by New England Condominium Magazine LLC, dba Community Association Publishing, 205 Lexington Ave.,
12th Floor, New York, NY 10016. 508-753-4630. ISSN 1550-946X. Periodical postage paid at New York, New York and additional mailing o ces. Subscriptions are available free by request to condominium and homeowner associations. POSTMASTER: Please send address changes to New England Condominium Magazine, 205 Lexington Avenue, 12th Floor, New York, NY 10016. FREE Subscriptions for Board Members, Trustees,
Property Managers and ReRalIEsStaEte_DNeceiswionEMnagkelrsa. TnodSuCbsocrnibde,oplAeadse_v3isi.t ups datf: neweng1landcon3do/.co4m//s2ub0scribe 9:32 AM

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NEWENGLANDCONDO.COM NEW ENGLAND CONDOMINIUM -APRIL 2020 3

BOARD OPERATIONS

Collecting Common Charges During Crisis

CAI Offers Guidance for Boards

BY DARCEY GERSTEIN

The Community Associations Institute Dawn M. Bauman, CAI’s senior vice cility with a gym membership and wonder 2. Community associations should adopt
(CAI), a global nonprofit provider of re- president of government and public affairs, why they need to continue to pay if it isn’t a moratorium on foreclosures for a period
sources and information for homeowners, explained why continuing to collect assess- open or available for use. Despite common of 60 days (or until at least June 1, 2020).
volunteer board leaders, professional man- ments and other fees is essential to an as- area closures, these facilities still need to be
agers, and business professionals, released sociation’s ability to pay its bills, provide cleaned and maintained, and they are still 3. Community associations should waive
a Statement of Foreclosure Moratorium to essential services, and acquire financing for owned by the association.” late fees and penalties for owners who
address financial hardship arising out of the continued operations. Failing to maintain face temporary financial hardships due to
COVID-19 pandemic. this income also may impact the ability of The six principles proposed in the state- COVID-19.
a potential purchaser to obtain a mortgage. ment follow. To read the statement in full,
In the statement, released on March 31, go to https://www.caionline.org/Pages/ 4. Community associations should
CAI urged boards of condominiums, hous- In remarks to Yahoo! Finance regarding covid19foreclosures. To read more about amend, temporarily relax, or follow existing
ing cooperatives, and homeowners associa- CAI’s statement, Bauman said that “To- CAI’s resources for homeowners and com- non-foreclosure collection policies that are
tions to suspend all foreclosure actions for day, we’re witnessing condominiums and munity associations regarding COVID-19, fair and applied equally to all members of
60 days — at least until June 1. It also rec- homeowners associations closing common visit www.caionline.org/coronavirus. the community association.
ommended waiving penalties and late fees areas—including clubhouses, gyms, play-
for this period, but emphasized the impor- grounds, pools, and more—to comply with 1. If an owner is unable to pay assess- 5. Community associations should con-
tance of full and timely payments by mem- government regulations. Some residents ments on time, the owner should notify tinue to record liens to protect their inter-
bers who are able to make them, to ensure who may not be familiar with the finan- their community association to work out a ests.
the general solvency and operations of the cial model of the community association payment plan. Homeowners with a finan-
association. may compare the association’s exercise fa- cial hardship should be encouraged to ap- 6. Community associations should em-
ply for government assistance, if available. phasize the importance of owners paying
their assessments on time, if possible. n

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4 NEW ENGLAND CONDOMINIUM -APRIL 2020 NEWENGLANDCONDO.COM

QUESTIONS & ANSWERS

Legal Q & A
sachusetts. “Secondhand tobacco smoke in the Boston area, cited the cost benefits of support for an amendment. We have found
No Escape from Smoke contains dozens of compounds which are reduced maintenance of common area air that associations who engage the ownership
We live in a 60-unit condomini- known to be or are probable human carcin- ducts and ventilation systems as a reason early in the process have a better chance
ogens, and is itself classified as ‘Class A’ car- for imposing restrictions. of obtaining the necessary votes to pass an
Qum in Massachusetts and share a cinogen by the United States Environmental amendment.
common balcony with our next- Protection Agency. In light of this informa- “Based on our experience, we believe
door neighbors, divided by just a short rail- tion, over the last two decades, there have that in order to implement an effective and “Assuming that the survey indicates a
ing. I have a sensitivity to cigarette smoke, been many changes to both public and pri- enforceable no smoking policy, the board reasonable level of support for adopting
and I don’t think it’s fair that the building vate policies in regards to smoking. From (or concerned owners) should take the fol- a policy, the next step is to prepare a draft
allows smoking on the balconies. I have my the workplace to airports to restaurants and lowing steps: amendment (or rule). The board would
door and windows open when It’s nice out, other gathering places, many government have to clearly define the purpose of the
but I have to close them when people go entities and public and private organiza- “Depending on the scope of the proposed policy, the scope and effect of the policy,
out and smoke on the neighboring balcony. tions have introduced a ban on smoking. restriction, an effective smoking policy may designated smoking areas (if any), as well
To make matters worse, when it rains, they require an amendment to the Master Deed as compliance and enforcement provisions.
smoke inside and the smoke comes through “How to handle smoking at condomini- or Declaration of Trust/Bylaws. In Massa- Communities may also want to consider
the walls. Is there anything we can do to ban ums, particularly apartment-style or town- chusetts, condominium boards generally incorporating a disclaimer to state that the
smoking on shared balconies? If so, how house buildings, has also been a hot topic of have authority to make rules regarding the board does not make any warranties that
would the association go about doing that? late. Secondhand smoke can drift through use of the common elements (and thus may the premises will be free from secondhand
common walls and ventilation systems and be able to effectively restrict or ban smok- smoke, even after the policy is implement-
—Looking for Clean Air contaminate air in common areas and indi- ing in common areas); however, restrictions ed, and to determine whether “grandfather-
“Based upon extensive re- vidual units. In addition to the health is- on the use of units will likely require an ing” for current smokers is appropriate (or
sues, a number of our clients have sought to amendment which almost certainly will en- politically necessary to secure the requisite
Asearch available on the sub- implement smoking bans to reduce the risk tail a vote of at least a majority or superma- votes). We have prepared amendments
ject today, it is clear that of accidental fires and/or to eliminate waste jority unit owners (depending on the docu- that go both ways as to this issue – that is,
smoking presents a serious health concern from improperly discarded and unsightly ments). If the proposed policy is intended amendments with limited grandfathering
and nuisance,” says Scott Eriksen, partner cigarette butts. One of our larger associa- to ban smoking outright, the first step that provisions and amendments without any
at Perkins & Anctil, PC in Westford, Mas- tion clients, an apartment-style community the association may wish to take is a sur-
vey of the ownership to gauge the level of continued on page 10

NEWENGLANDCONDO.COM NEW ENGLAND CONDOMINIUM -APRIL 2020 5

SECURITY

Census 2020

Be Counted Safely During COVID-19

BY THE BETTER BUSINESS BUREAU

This year, due to the coronavirus pan- While some of the information the Cen- If you still have questions, call 800-923- search to find the right website. Call a trust-
demic, Census takers will not be able to sus requests is personal, the Census Bureau 8282 to speak with a local Census Bureau ed phone number other than one provided
visit neighborhoods door-to-door to re- will never ask for your full Social Security representative. If it is determined that the by the caller to verify the caller’s identity.
quest survey responses as they did during number, money, donations, anything on visitor who came to your door does not
previous counts. Instead, Census responses behalf of a political party, your full bank or work for the Census Bureau, contact your Don’t click, download, or open any-
are now being requested online through credit account numbers, or your mother’s local police department. thing that comes from an anonymous or
2020Census.gov and by telephone. This maiden name. The Census Bureau also does suspicious-looking sender. That goes for
situation has opened up a world of oppor- not ask about citizenship status in their sur- Never give out your Social Security emails, text messages, or links on social me-
tunity for scammers posing as government vey. number or financial information. Census dia. Such communications are likely to be
Census officials and taking advantage of the takers will never ask for your full Social Se- an attempt to gain access to your personal
current crisis to trick people into giving up Better Business Bureau Serving Metro- curity number, bank account number, cred- information or install malware on your
personally identifying information. politan New York offers these tips to help it card number, money, or donations. computer. Always be wary of generic emails
you get counted while avoiding scammers: that don’t include your name, the last digits
“We encourage every citizen to fill out Census takers will never contact you on of your account number, or other personal-
the 2020 Census, but to be extremely wary Be on the lookout for Census Bureau behalf of a political party. If someone calls izing information, as these could be phish-
of Census-related fraud,” says Claire Rosen- impostors. All Census Bureau field work on behalf of a political party that claims to ing attempts.
zweig, President and CEO of Better Busi- is suspended until at least April 15 due to be from the Census, hang up.
ness Bureau (BBB) Serving Metropolitan COVID-19, and possibly longer; if someone Check the Census.gov page about this
New York. “The safest ways to respond are comes to your door requesting information Make sure you respond to the Census year’s count for the ways in which the Cen-
to contact the Census directly through their for the Census, that person is probably an through 2020Census.gov, the official web- sus Bureau will contact you, and check here
website at 2020Census.gov; by phone at a impostor. Once it is announced that field site. Your regional Census Bureau may also to investigate any rumors that may be cir-
number posted on the Census website; by work has resumed, check these tips from be able to help. cling around.
mail in response to an official printed Cen- the Census Bureau to identify legitimate
sus Bureau survey; or through the web ad- census takers: Census.gov and 2020census.gov are the Check BBB Scam Tracker for local re-
dress provided in an official Census mailing only websites you should be using to fill out ports of impostors in your area.
you may have received at home.” Ask to see their ID Badge. Census tak- the 2020 Census. Be wary of any small vari-
ers must present a field badge that includes ations in the website address, such as tiny For more than 100 years, the Better
Knowing how the Census Bureau oper- a photograph of themselves, a Department misspellings or improper extensions like Business Bureau has been helping people
ates can help you distinguish between legiti- of Commerce watermark, and an expiration .com or .net. find businesses, brands and charities they
mate invitations to participate and ones that date. can trust. There are local, independent
are probably fraudulent. If something sounds suspicious, check BBBs across the United States, Canada and
Census workers will be carrying a Cen- on it by calling the government agency di- Mexico. Visit BBB.org for more informa-
The Census Bureau might request infor- sus Bureau laptop or cellphone, as well as a rectly, or by checking the government agen- tion, or to reach your local bureau office. n
mation through almost all communication bag with a Census Bureau logo. cy’s website. Don’t click on any links in an
outlets, including phone, email, mail, or fax. unsolicited email. Instead, type the official
However, the Census Bureau states that they web address into your browser, or do a web
will not send unsolicited emails requesting
participation in the 2020 Census. Emails
claiming to be from the Census Bureau may
be ‘phishing’ attempts to obtain personal in-
formation, and should be viewed with great
caution.

Additionally, since in-person visits by
Census Bureau field representatives were
suspended effective March 18 through April
15 and likely beyond, anyone going door-
to-door requesting personal information
during that time frame is almost certainly
an impostor.

There are three ways to reply to the Cen-
sus: by phone, by mail, or online. The official
website of the Census Bureau is Census.gov,
while the homepage for the 2020 Census
specifically is 2020Census.gov. Responding
to the Census is as easy as visiting the offi-
cial Census Bureau web page and answering
the prompts. The survey is very short and
can be completed in just a few minutes.

6 NEW ENGLAND CONDOMINIUM -APRIL 2020 NEWENGLANDCONDO.COM

NEWENGLANDCONDO.COM NEW ENGLAND CONDOMINIUM -APRIL 2020 7

URGENT... mation with other owners regarding the Jennifer L. Barnett and Gary M. Daddario shouldn’t seek and give support. The up-
subject of the vote(s); and are partners at the Massachusetts- and New side to social media is that we truly are
continued from page 1 Hampshire-based law firm Marcus, Errico, more connected than ever before. Find
cess so that applicants, participants, and • A date and time are specified for the Emmer & Brooks PC. This advisory is offered out who needs help and offer it, in a way
members of the public may reasonably return of the ballot, which time is no few- as a service to clients and friends of MEEB that keeps everyone safe and cared for.
participate in municipal board meetings er than 10 days from delivery. and New England Condominium Magazine, Even with social distancing, you can drop
remotely. Otherwise, municipal boards and is intended as an informal summary of off medicine or supplies to a neighbor or
are encouraged to give due consideration As long as the requirements set forth certain recent legislation, cases, rulings, and friend. Call your church or check in with
to requests for postponement and con- in the statutory provision are met, New other developments. This advisory does not your online groups to find out who needs
tinuances of public meetings where the Hampshire associations may conduct a constitute legal advice or a legal opinion and a meal that can be left on their doorstep,
use of such ‘alternative means of public vote without a meeting, and thus accom- is not an adequate substitute for the advice or a prescription delivered. And of course,
access’ may not be practical or otherwise plish urgent business safely. of counsel. if you bought lots of “bulk extras,” maybe
feasible. Although associations are not di- spare a few food or household items for
rectly governed by the Open Meeting law, Although community association REDUCING STRESS... those who weren’t able to stock up. Be
by analogy it is reasonable for an associa- board members should continue to act in creative to ensure our social distancing
tion to utilize the measures presented to accordance with their association’s gov- continued from page 1 doesn’t lead to emotional distancing for
ensure that essential business of the com- erning documents when conducting as- those most in need.
munity is conducted. sociation business, in cases of emergency cessing the facts. Children also notice our
where in-person meetings are prohibited emotional state, so try to stay calm and Limit poor nutritional habits that
In New Hampshire, the current ver- or ill-advised because of concerns around provide facts to help them understand weaken your immune system.
sion of the Condominium Act actually COVID-19, boards may consider avail- the situation and how everyone can get
explicitly provides for voting without a ing themselves of the options provided by through this together. One habit to curb is eating or drinking
meeting. RSA 356-B:39-a provides, in the March Executive Order (i.e., utilizing more than 100 grams (8 tbsp) of sugar a
pertinent part, that a vote may be taken telephone, internet, or satellite-enabled Get some physical exercise. day. That much sugar reduces your white
without a meeting, provided that: audio or video conferencing technology) Exercise your body to help keep your blood cells’ ability to kill germs by 40%!
or the provisions of RSA 356-B:39-a (i.e., mind in check. In fact, aerobic exercise is Also limit your alcohol intake, as studies
• A ballot issues and identifies the ac- conducting votes without a meeting). as important for your head as it is for your show that three or more alcoholic drinks
tions subject to voting and provides an Thereafter, meeting minutes should be heart. It has a unique capacity to exhila- daily is enough to suppress your immu-
opportunity for owners to vote for or prepared to reflect the outcome of such rate and relax, provide stimulation and nity.
against each such action; activities, provided that the information calm, and counter depression and dissi-
therein was not privileged or otherwise pate stress. So, take a walk, a run, or even If anxiety or stress interfere with your
• The ballot indicates both the per- protected from disclosure. tune in to one of the thousands of free on- ability to function or care for yourself or
centage of returned ballots necessary to line yoga, meditation, or workout videos. your family, seek professional help. Check
establish a quorum and the percentage Moreover, acting now, or in the wake Dust off your weight bench and take the in with your personal physician, contact
required to vote in favor of the proposed of this crisis, associations should give laundry off the treadmill. Get on it. Use it. your company-sponsored Employee As-
action(s) in order for the action(s) to pass; serious consideration to amending their sistance Program (EAP) if you have one,
governing documents to allow for board Help each other. or call a support line like the National Sui-
• A date, time, and manner is provided members and communities to act utiliz- Social distancing does not mean you cide Prevention Lifeline (1-800-273-8255)
for those owners wishing to share infor- ing remote or other virtual means. n

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Executive Manager
8 NEW ENGLAND CONDOMINIUM -APRIL 2020 www.jbutlerpropertymgmt.com

NEWENGLANDCONDO.COM

or Crisis Text Line by texting “start” to must be codified and made public. Ban-
741-741. ning smoking entirely usually requires
an amendment, which would require a
Wendy King is the Director of Health building-wide shareholder vote.
and Performance for insurance brokerage
HUB International and a leader in the field Hot Topics
of healthcare communications and cor- As Reich observes, many issues fac-
porate wellness strategy, managing HUB’s ing today’s co-ops and HOAs didn’t ex-
team of health and performance experts. ist when their leases and other founda-
You can find her blog at https://www.hu- tional documents were written as much
binternational.com/blog/2020/03/reduc- as 40 or even 50 years ago. Consider the
ing-stress-during-social-distancing/. n requirement that boards meet monthly
to make decisions about the operation
UPDATING... of the building, for one example. Tele-
meetings didn’t exist at that time — so
continued from page 1 contemporary options for meetings need
to be incorporated into governing docu-
a third possibility: when owners or share- ments. (The caveat here being that votes
holders read this article.” on some issues may be required by law
to be made in person — so consultation
Experts agree that the two main factors with legal counsel is crucial to make sure
that compel boards to review and possi- that any alterations to documents are
bly update their association’s or corpora- compliant in this regard.)
tion’s governing documents are changes Another major consideration today
in federal or state laws, and obsolete or is the rewriting of documents to reflect
problematic language in the documents changes in attitude toward gender. For
that at best make it difficult for the board example, Weinstein explains how old
to make governance decisions, and at leases and bylaws refer to shareholders
worst open the board to liability. Shap- and owners almost uniformly as male —
iro points out an important, if extreme, and often incorporate such language as
example of the latter: older associations “the shareholder and his wife.” In writing
may still have covenants on their books a new lease today, she says, she adjusts
that would be considered discrimina- the language in it to be gender neutral
tory today. Obviously, and for an array of and applicable to everyone in the com-
reasons, those can’t be left in place. Hav- munity.
ing discriminatory rules, regulations, or Other major considerations that
policies of any kind in your documents should be taken into account when mak-
— even if they’re not enforced — is con- ing governing documents more con- that may well be prohibited. The exist-
sidered discriminatory, and not only can temporaneous are clauses dealing with ing language may be too vague or too
lead to liability and possible financial occupancy — including who may live restrictive, and might require some re-
penalties, but also can have a corrosive in an apartment, when, and under what definition. The same is true of subletting
effect on a community as a whole. circumstances, as well as repair respon- provisions, says Weinstein; the language
sibilities, smoking, flip taxes, and sublet- in these is often vague, and needs to be
Additionally, says Weinstein, as con- ting policies. Weinstein explains that the made crystal-clear. Additionally, some
dos and HOAs have proliferated and use provision in co-op proprietary leases, condos — which traditionally are ex-
outnumber co-ops by larger and larger which governs who can live in the unit, tremely liberal with lease provisions for
margins, their more lenient provisions may permit a child or parent of a share- non-owner tenants — are taking a page
make them more appealing places to live holder to live in the unit with them, but from co-op buildings and requiring more
for many — particularly younger buyers not if the primary unit owner or share- scrutiny and supervision of tenants.
— and may put co-ops at a disadvantage holder is not themselves occupying the Provisions dealing with repairs often
when it comes to attracting new purchas- unit. So, if a shareholder in Boston wants need clarification as well. Too often, a
ers. “Co-ops may be restrained by old- to move to Florida, but wants to let their board and an owner may end up in con-
fashioned regulations that may make at- adult child — and perhaps that adult
tracting new shareholders difficult, such cFhliylndn’s_Efa4mC.iqlyxp—:Lalyivoeutin1 th1e2a/p8a/r1t4me2n:t,30 PM Page 1 continued on page 10
as no subletting, no pets, et cetera,” she
says. “Buyers may be turned off. Co-ops 185 Devonshire Street, Suite 401, Boston, MA 02110 Quality Since 1974
may want to examine their documents to
make them more ‘condo-like’ to attract Quality Representation at Reasonable Rates. • AGED DARK
potential buyers.” • AGED BLACK • MIX
(617) 988-0633
Additionally, adds Reich, these same • HEMLOCK
provisions may contain outdated lan- Contact Attorney Frank Flynn: [email protected] • WOOD CHIPS
guage — or omit language necessary to
deal with modern-day realities and mo- 1431 Bedford St.
res. “Omission is even more problematic Abington, MA02351
than obsolete language,” he says. “Ad- Bus: 781-878-3351
ditionally, legal decisions taken since [email protected]
the documents were written may re- www.rapiercetrucking.com
quire changes or amendments to reflect
them. Many current issues didn’t exist
when these leases [and other documents]
were written.” A good example of that is
smoking — both in common areas and
private units. Today, smoking policies

NEWENGLANDCONDO.COM NEW ENGLAND CONDOMINIUM -APRIL 2020 9

UPDATING... your community’s relationship with its
legal counsel is key, because “attorneys
continued from page 9 should be on top of issues affecting the CONDOMINIUM MARKETPLACE
proprietary lease and keep the board in-
flict relative to who is responsible for formed!” “ e Directory to Everything You Need”
what repairs, particularly when the repair
involves systems like plumbing, which Board members, owners, and share-
traverse both common and private areas. holders must keep in mind that a co-op ACCOUNTANTS
For example, where within a wall does a or condo community is a living, breath-
pipe become the responsibility of the as- ing organism — and like any organism, David A. Levy, CPA, P.C.
sociation or corporation? Where does the it needs to grow and change in order to Condominium and Real Estate Law
liability of the owner or shareholder end? remain healthy and vital. Those changes Certified Public Accountants
Documents should contain specific pa- Phone: (781) 817-4900
rameters, spelled out in concrete terms of may be organic to the needs of the com- 20 Freeman Place Direct: (781) 817-4603
feet and inches to clarify these issues and Needham, MA 02492 Fax: (781) 817-4910
to avoid conflict. munity, like changing a policy relative to DAL Tel: (617) 566-3645
(866) 842-0108 We may be dressed up, but we aren’t afraid to
The Process Fax: (866) 681-2377 get our hands dirty.
The process of amending and updat- smoking or subletting, or they may be CPA www.DALCPAPC.net
ing documents is not a short one, and stimulated externally, by changes in law www.lawmtm.com
requires a number of steps. According
to Reich, “First, the attorney should re- and legislation that affect corporations See Our Display Ad on Page 4
view the existing [documents] and rec-
ommend changes. At the same time, the and associations. In either event, these
board should have some ideas of their changes need to be attended to for the
own about changes they would like to overall health and effective operations of M Love &Associates, LLC
see. The attorney and board should col- the community.
laborate on these changes. n Certified Public Accountants
“The second step is to draft amend-
ments. The attorney should then meet A J Sidransky is a staff writer/reporter Serving Condominium Associations
with the board to review the changes. The
next step is to memorialize the changes for New England Condominium, and a pub-
for the owners or shareholders in both ex-
act legal language and in a ‘plain English’ lished novelist. Solving your problems
translation, along with an explanation
from the board to the residents explain- today & strengthening your
ing why the review was done. A meeting association for tomorrow.
should then be set up for the residents to Q&A Accounting • Auditing • Taxes • Consulting
provide feedback. After that feedback, a 6 Lyberty Way, Suite 201
revision should be made, and a second continued from page 5 Worcester 67 Millbrook Street 508-797-5200 Westford, MA 01886
version of the amendments presented. Grafton 80 Worcester Street 508-839-0020
After a second community-wide review (978)496-2000
and perhaps another meeting, a final ver- grandfathering. The choice regarding the Holden 795 Main Street 508-829-5544 www.perkinslawpc.com
sion should be produced, and a date set
for a meeting to ratify the changes.” appropriate policy for the association is up ATTORNEYS
Shapiro outlines a similar process to the community.
for changes to governing documents for mlove 2.25 x 2.5 condo association color 9.19.2017.indd 1 9/19/17 12:59 PM
condominium associations in Massachu- Flynn Law Group
setts, but notes that in some cases mort- “Once the policy has been formulated, BANKING
gage holders on the individual units may the board should work with legal counsel 185 Devonshire St., Suite 401 • Boston, MA 02110
require consent to the changes, and that to prepare the formal amendment or rule
the changes must be recorded within six change to reflect the restrictions/limita- 617-988-0633
months of the first signatures obtained to tions that have been chosen. Then, in the
ratify them. Trust amendments also re- case of an amendment, the policy should “Quality Representation at Reasonable Rates - $150/Hr.”
quire filing at the county level. be put to a vote or community approval in Contact Attorney Frank Flynn
accordance with the terms of the govern-
When, and How Often? Frank@flynnlaw-ne.com 5/19/14 12
How often should a co-op or condo MEEB_NEC_Junwew1w4.fl.ynqnlxawp-n:e.Lcoamyout 1
association consider revising their gov-
erning documents? According to Reich, See Our Display Ad on Page 9
Shapiro, and Weinstein, about every five
to 10 years. One consideration factoring ing documents. In many cases, this may MARCUS
in to how frequently to review and revise require calling a special meeting of the ERRICO
is how attentive and responsive the board owners.
and its attorney have been to changes in “While there is no ‘one-size fits all’ so-
laws and operational needs, and wheth- lution to smoking at condominiums, there EMMER & DUCT/DRYER VENT CLEANING
er they’ve been amending the govern- are certainly measures that motivated board BROOKS, P.C.
ing documents regularly to reflect those
changes. The more prudent, incremental members or unit owners can take to ad- Representing Over 4,000 Condominium
changes that have been made to keep up vance smoke free or restricted policies.” n Associations... One Association at a Time
with legal and market factors, the less
frequently a total revision will be neces- Disclaimer: The answers provided in this Q&A 45 Braintree Hill Park, Suite 107 BetterVent is a NEW kind of 11
sary. According to Reich, this is where column are of a general nature and cannot Braintree, MA 02184 Indoor Dryer Vent.
substitute for professional advice regarding your
specific circumstances. Always seek the advice of (781) 843-5000/Braintree www.adr-products.com
competent legal counsel or other qualified profes- (508) 791-2120/Worcester Continental1-8c8l8e-a6n0:9L-5a5y1o2ut 1 12/22/09
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