This time a treasurer of a Florida homeowners’ association decided to use her association’s bank account as a personal piggy bank. From 2003 when she became treasurer till 2015 she and her son took $123,000. Once again we see these situations throughout the country where volunteer Board members do not have unfettered access to association records and are not satisfying their fiduciary obligation as Board members.
Board members should make sure they have such access and regularly review the records. Thefts like this could be prevented or at least discovered early and minimized. There is just no excuse for Board members to sit idle and not satisfy their fiduciary obligations. This time for 12 years cost this HOA $123,000.
Read the story here.
There is increasing pressure towards Board transparency and member entitlement to records. This is yet another example. A New York City Appeal Court’s recent decision addressed in the article requiring greater access to Board records and the right to make paper and electronic copies of records subject to a confidentiality agreement is a huge transparency shift that Boards have to be prepared to deal with.
Read this Article from Habitat Magazine.
This time it happened in a 72-unit condominium in Massachusetts. The Board Member Treasurer did things like writing checks to her contractor son for made up work and none of the other Board Members or owners were reviewing condo records like bank statements. When other Board Members stumbled upon the records years later, the fraud was revealed but it was too late; the money was gone, there was no insurance available and the owners were left without $183,000.
It really is important for organizations to have framework, policies and procedures in place for their Boards. Board Members need to oversee their organization’s business but also their fellow Board Members. They are fiduciaries who are charged with looking out for the best interest of their members. There is no excuse for a Board Member of any type or size organization not to have unconditional and ready access to organization records and not to regularly review those records (like bank statements) and allow such a fraud to happen. This case also highlights what happens when volunteer organizations skimp on insurance that may have covered some of the damage for this inexcusable loss.
If you’re a volunteer Board Member you should ask yourself where are my organization’s records? How do I access them? When was the last time I looked at them? I may be responsible for the actions of my fellow Board Members and others running my organization so I’d better start overseeing them before its too late.
In buildings that are not smoke free, smoke-odor complaints are commonplace. Someone in an apartment smokes and the smoke finds its way in vents, through walls or floors, into adjacent apartments. In cooperatives, there is a warranty of habitability issue and in condominiums, a nuisance issue. The obligation of the cooperative corporation or the condominium association to deal with the complaint is a difficult one. Assuming they are responsible for stopping the odor condition, how do they do it? Very difficult. Maybe create a rule deeming a coop shareholder’s conduct (smoking and allowing secondhand smoke to eminate out of the apartment) objectionable or maybe a condo rule making a unit owner’s like conduct a nuisance. Trying to stop the odor from emanating can be quite a task and almost impossible. Sometimes convincing the offender to use an air purifier or other device to “eat” the smoke may help; particularly if the offender is ultimately responsible and may suffer exposure.
This situation manifested itself in a NYC cooperative called Connaught Tower over the last several years and a Supreme Court Judge in Manhattan decided to punish the cooperative Board for not doing much of anything to cure the condition. The punishment being disgorgement of maintenance back to 2007, amounting to $120,000 plus interest and attorneys’ fees. It appears that the cooperative’s general liability carrier was defending the case but it is not clear whether there was a reservation of rights in place by the insurance carrier so that the cooperative is on its own in paying the damage.
The Connaught Tower’s Board’s big mistake was not taking any reasonable action to try to intervene and abate the odor condition that a unit owner, Mrs. Reinhard was living with for years. The Supreme Court Justice on the case was a former law assistant to a Judge and was disturbed by the Board’s lack of action to the tune of over $120,000. The key for a Board faced with a second-hand smoke complaint is, at the very least, some action to try to intervene and stop the odor condition. We often intervene as negotiators or mediators to try to avoid these types of odor complaints from escalating as it did at Connaught Tower.
Whether you’re a community association trying to collect arrears, a business trying to force a vendor to comply with a contract, or anyone else trying to enforce their rights, good record keeping is essential. Waiting until a dispute arises or suit is necessary or ends up served on you, is too late in many instances to pay attention to record keeping.
The time to focus is the present. It is best to proactively manage what you keep and how you keep it so when its time to prosecute or defend a matter, you’re ready. Consider a well thought out record retention schedule. Which emails should you keep and how long. What documents, electronic or paper, should be kept or purged. Consulting with counsel to make sure your business and personal record keeping complies with the law and protects you is a question your attorney should be able to answer. Remember that being protective in keeping good records will not only protect you and your business, it will end up saving you a lot of aggravation and money in the long run.
