By all accounts, most boards of condominiums, cooperatives or homeowners’ associations are doing their best. After all, they’re just groups of democratically-elected volunteers with a fiduciary duty to act in their constituents’ best interests and to preserve – or grow – the value of their properties. It’s a noble – and often thankless – pursuit. And while the vast majority of boards are conscientious and responsive to issues within their communities, they are not infallible.
Boards make mistakes – sometimes willingly, sometimes not – that can evoke the ire of residents. And when this does happen, those residents have every right to complain – so long as they make their feelings known in a productive manner. And ‘productive’ doesn’t mean cornering the building treasurer at the pool, or haranguing the board secretary in an elevator on a Saturday morning.
No matter the size or economics of a given building or association, there should be an orderly way for shareholders and unit owners to let their board know when its conduct or decision-making is off base. And there should be a subsequent procedure for following up on those complaints, should residents feel that their issue is being ignored. Following the appropriate steps will help maintain a tranquil communal environment while ensuring that the association functions optimally. And in the rare scenario in which a board is intentionally engaging in malfeasance, a resident acting in good faith can better effect meaningful changes to get things back on track.
Do Your Homework
While the numbers may vary by demographic and size of a community, there is usually a good chance that a board is fielding its fair share of complaints, of varying levels of urgency and credibility. So it behooves a resident to be as informed as possible before speaking out, in order to ensure that his or her particular gripe is accurate and supported by evidence.
“Owners need to fully investigate their claims before levying accusations,” warns Scott J. Sandler, Managing Partner at law firm Sandler, Hansen & Alexander, LLC, in Middletown, Connecticut. “They should attend the board meetings, inspect association records, and confirm that their grievance is in fact legitimate. If the claim does prove valid, then the owner should attempt to address it with the members of the board. If the board members refuse to address the claim, then the owner may work with his or her neighbors to decide whether to remove those board members. The owner may also contact his or her attorney to discuss other legal action that may be available.”
A major piece of advice for residents is to put everything in writing to provide themselves with a clear paper trail for all activity in pursuit of their complaint. “Be specific and detailed, but also concise,” suggests Adam Kahn, an associate in the Community Association Group at Chicago law firm Levenfeld Pearlstein. “A laundry list of random grievances and extraneous facts is unlikely to be well received by the board. I’d also make sure to include the redress or remedy sought. Just saying that there’s an issue with the laundry room, or that you don’t like that delivery folks are coming up to individual units, is insufficient. State what you would like to see done about an issue, including dates, times, and proper nouns; everything that could help a board address what specifically is going on. And establishing a written record allows everyone to keep up with going on. If something drags on for a year or two, and there’s disputing back and forth, at least you’ve got a log of those conversations.”
It’s also important for residents to remember that even the most diligent boards meet somewhat sporadically, and don’t typically spend their downtime considering various requests. It’s entirely possible that, should they not address a specific complaint right away, they may have simply not gotten to it yet, or even forgotten about it. “I’d recommend, after filing a written request, to follow up at the next open board meeting and politely bring up the fact that you wrote a letter, and that you hope that the board has had an opportunity to consider it,” Kahn says. “Add that should they need additional information, you’re happy to help them make a determination as to next steps. It’s a polite follow-up and, as it’s an open board meeting, no one will feel called out or caught off guard. But it also showcases your willingness to become a part of the solution. I think that’s a respectful way to indicate that you’re all on the same team.”
An attention to detail and a willingness to work with the board does not solve every problem, unfortunately. Occasionally a board and a resident will be unable to see eye to eye on a conflict, or a resident may feel that the board simply does not understand what they are trying to address. When possible in these scenarios, it can be helpful to introduce an objective third party to the proceedings who can potentially offer a fair and balanced suggestion for compromise.
If a shareholder or unit owner’s complaint falls on deaf ears, “the most peaceful and calm way to proceed without escalating to the Department of Community of Affairs [in New Jersey] or filing a lawsuit is to request alternative dispute resolution, or ADR,” says Robert J. Flanagan III, an associate at law firm Greenbaum, Rowe, Smith & Davis that has offices in New York and New Jersey. “Every condo association is supposed to have a method of pursuing ADR within their governing documents, and a resident can utilize organizations like the Community Associations Institute (CAI) to find a mediator who is either a property manager or an attorney working in the field.
“Oftentimes, there’s a much better chance for an amicable resolution by going through ADR than there is reaching out to a government organization like DCA,” Flanagan continues. “Contacting the latter can be a ‘be careful what you wish for’ situation, as they’re already tasked with coming out and inspecting an association every five years. So if you file a complaint with them, and they end up showing up to investigate, they could deem that certain repairs are necessary for which your association was in no way prepared, you could end up needing a special assessment. Also with a government entity, you’re relinquishing control; whereas with ADR, it’s a conversation and compromise between parties. DCA involvement can result in fines or other things that were not within your initial aims. But if you feel that there are fire or health and safety issues that are not being addressed by the board, you should probably go to the DCA.”
Of course, there are scenarios in which the board is knowingly in the wrong, and no amount of kindly-worded emails or civil discourse can straighten out the situation. The recourse in these instances will frequently involve outside assistance as well, and can prove to be expensive in more ways than one.
If a resident is repeatedly stonewalled by his or her board when trying to lodge a complaint, there are some options. “For starters, they could informally contact an individual on the board whom they do trust, and say, ‘I need to talk to you about this problem. What should I do about this?’” advises Kenneth Jacobs, an attorney at Spolzino, Smith, Buss & Jacobs, LLP, in Yonkers, New York. “Barring that, they could talk with the managing agent, – but unless the owner or shareholder believes that the managing agent has the discretion and authority to communicate privately with board members about the actions of other board members, that manager may feel constrained to contact the entire board, which might in turn intimidate or embarrass the owner or shareholder.
“If they’re concerned with something serious, like embezzlement, that’s something where they might contact the managing agent, or the legal counsel to the association, assuming they know who that is,” Jacobs continues. “With a criminal case, you can go to the district attorney. But when it’s a civil case, you have to trust somebody. And if you keep a record [of the offenses] and nothing is done about them, that will build your case. Suppose you’re concerned about discrimination, for example. If you write to a board member, then the attorney, and nothing happens, you can bring that record to the state’s human rights commission.”
Of course, because board members are elected officials, there’s always the option of voting them out and replacing them with more responsive and responsible residents. Remaining calm and methodical is imperative here, because as stated previously, being able to show a documented pattern of unresponsiveness, inaction, or mismanagement on the part of a board is key – not only in case legal action must be brought, but to raise awareness of the problem and build a coalition of like-minded residents.
“They can seek what I call the ‘51-percent solution,’” says Jacobs. “They may have to organize politically and seek a change in regime; a change in the makeup of the board. I’ve represented many associations of concerned owners who have attempted to deal with a misguided board that needs new energy, or has taken a decision which people sincerely believe is adverse to the interests of the association. It may take several months to organize and vote them out.”
Mike Odenthal is a staff writer/reporter for The Chicagoland Cooperator.