Posts by Team Colbert Law

As a board member or property manager for a condominium, cooperative or HOA, you shoulder significant responsibility. You make decisions impacting the finances, safety, and quality of life for a whole community. Your actions are, of course, guided by your entity’s governing documents – but were these documents designed to protect the association and its members in the best way possible?

Having experienced counsel review your governing documents isn’t just a good idea; it’s a critical step in safeguarding your association from costly disputes and potential liabilities. Let’s examine why:

1. Clarity and Consistency: Keeping Up with the Law

Governing documents – like your bylaws, declarations, and rules – may contain outdated language or internal inconsistencies that invite misinterpretations. Laws governing community associations change over time. An attorney can ensure that your documents are:

• Clear and Unambiguous: Are your rules around noise restrictions specific enough to be enforceable, or too vague to hold up in a dispute? Precision matters.
• In Line with Current Laws: Did a new state law change the requirements around virtual board meetings or electronic voting? Your attorney will catch potential conflicts.
• Internally Consistent: Do your bylaws conflict with your declaration of covenants on a key point, such as short-term rental allowances? This opens loopholes.

2. Protecting the Association’s Interests

Your governing documents are your shield from potential legal challenges. A savvy attorney will spot areas where you may be vulnerable and suggest strengthening them through amendments. For example:

• Enforcement Provisions: Do your documents allow the board to effectively levy fines or pursue legal remedies against rule-breakers?
• Dispute Resolution: Is there a clear procedure outlined for mediating disputes between residents, or between residents and the board? Predefined processes save time and costs.
• Insurance Requirements: Are there gaps in your coverage when it comes to board liability or a specific requirement that owners/shareholders maintain certain insurance? Your attorney identify areas that need to be improved to mitigate risk to the entity and board.

3. Avoiding Costly Mistakes

Proactive legal review is far less expensive than a lawsuit. Here are some common scenarios an attorney’s guidance can help prevent:

• Unenforceable Rules: Imagine spending time and resources enforcing a rule that turns out to be poorly worded and thus invalid.
• Discrimination Claims: Inadvertent use of language in your rules that could be perceived as discriminatory could open the door to costly litigation, even if no ill intent was present.
• Financial Mismanagement: Without clear guidance on board spending authority, your association risks financial trouble.

An Investment, Not an Expense

A clear, legally sound set of governing documents provides the solid foundation your entity needs to thrive. Don’t leave your community’s future to chance. Your proactive approach will pay dividends in peace of mind and long-term stability.

Last year, the Circa Central Park condominium decided to spend $60,000 to make the building’s many windows more visible to birds.  The board decided to add translucent dots to the windows so the birds would see them and not crash.   If this was your condo board, would you get unit owner approval before doing that project?

The answer is in your condo’s declaration and bylaws and should be analyzed before moving ahead and making a board decision, much less hiring a contractor and entering into a contract that the board can’t get out of if the answer to the approval question isn’t what the board thought it was going to be. 

In New York City, condominium boards generally are authorized to maintain, repair and replace the common elements of their buildings, but when it comes to improving them the unit owners typically have to approve before the board can proceed.  A threshold question is whether the windows are even common elements or are they defined as a part of the unit and thus, the windows in the unit owned by each unit owner.  There are parts of the condo’s governing documents that address these issues and other parts that address other ones like whether the board has the authority to spend $60,000 of the unit owner’s money without the unit owners approving.  If the condo doesn’t have the money and has to borrow, there are other parts of the governing documents addressing borrowing authority of the board. 

Another consideration is whether there are ordinances addressing bird-safe building design or window modifications.  In 2019, NYC passed the country’s first comprehensive collision-proofing legislation, requiring builders to use bird-friendly material in all new construction and large renovations.  The NYS lawmakers are trying to pass a law (“Feathered Lives Also Count”) requiring bird-friendly material to be used in more buildings throughout NYS.   

Counsel can advise the board on its authority and how all of this may impact board decision making. If the board has to first obtain unit owner approval, the board will be armed with sound advice so that it can achieve desired results. 

Failing to obtain owner approval for improvements may lead to legal ramifications for the condominium board. Unit owners who disapprove of an improvement or spending without proper authorization, may take legal action against the board, potentially resulting in financial damages or injunctions against the project.