Page 13 - NY Cooperator October 2020

COOPERATOR.COM THE COOPERATOR — OCTOBER 2020 13 ARCHITECTURE & ENGINEERING SERVICES: - Structural - MEP - Interior Design BUILDING ENVELOPE / RESTORATION / FACADE INSPECTION SAFETY PROGRAMS CONSTRUCTION DEFECT TESTING / INVESTIGATION ENERGY CONSULTING FORENSIC TESTING / LITIGATION SUPPORT NYC SPECIAL INSPECTIONS 5 YEAR CAPITAL PLANNING 350 7th Avenue, Suite 2000 New York, NY 10001 (646) 292 - 3515 info@falconengineering.com www.falconengineering.com ENGINEERS, ARCHITECTS AND ENERGY CONSULTANTS attorneys lawgapc.com @ www.lawgapc.com NORTHERN NEW JERSEY 973-366-1188 CENTRAL NEW JERSEY 732-514-6601 SOUTHERN SO NEW JERSEY 856-533-2379 NEW YORK 212-374-9790 PENNSYLVANIA 973-366-1188 ATTORNEYS AT LAW ▶ Wills, Trusts and Estate Law ▶ Municipal Law ▶ General Litigation ▶ Commercial Law ▶ Business Startups ▶ Community Association Law ▶ Landlord Tenant Law ▶ Land Use and Zoning Law ▶ Disability Law ▶ Real Estate Law and Closings Experienced attorneys providing the right moves towards achieving your endgame STRONG ADVOCATES LISTEN ATTENTIVELY WORK RELENTLESSLY RESOLVE CONFLICT Proceed with Caution While thinking outside the box is usually a good thing, the pros who contributed their expertise to this article generally feel that boards should avoid getting ‘creative’ when it comes to rules enforcement. “Th e board cannot discriminate in its application of the house rules,” says Hakim. “Eighty percent carpeting generally means eighty percent carpeting. Th e Business Judgment Rule does permit a board some fl exibility depending on reasonable facts, allowing them to enforce or delay enforcement from time to time, includ- ing the issuance of a warning rather than a fi ne, for example. “Th at said, it’s important never to show or have favoritism in rule enforcement,” he continues. “Residents are generally accepting when the enforcement of a rule diff ers slight- ly based on facts, the board wishing to seek an amicable solution, and similar items.” Brooks also cautions against even the ap- pearance of discrimination. “Th ere are legal consequences for unequal enforcement,” he warns. “If you don’t enforce rules equally, and go to court, an owner could have photos and evidence that they were treated unfairly. It looks bad for a board. A court will research the matter—and it can create a terrible envi- ronment and oft en results in a board being removed. If it’s discriminatory, it could bring a lawsuit—a very serious one.” Who Should Do the Enforcing? “Th e board enforces the rules,” says Ha- kim. “Th e building staff are the eyes and ears, but should generally stay out of enforcement. However, if a resident is not permitted the use of an amenity, for example, it would be acceptable for the staff member to remind the resident of that. If the resident refuses to leave, then it should be reported to the board. I prefer that staff members who are involved in the daily lives of residents not get into con- frontation with anyone.” Brooks further cautions that “Traditional- ly, a unit owner or a board member would re- port a violation to the full board and/or man- agement, and management will then provide an enforcement letter. It’s less personal than a board member getting involved. With re- spect to the current COVID crisis, this is very important. In all cases, building employees should not get involved in enforcement—and board members should use discretion before commenting themselves. Th at really depends on the situation as well. If it’s minor, okay, but it should be done in a very polite way.” Community rules are there for the benefi t of all residents. Th ey may not be universally liked, but they must be obeyed in the spirit of community harmony. Boards must consider all options when seeking enforcement, but always make sure that enforcement is within the law, the community’s documents, and in the best interest of the community. n A J Sidransky is a staff writer/reporter for Th e Cooperator, and a published novelist. to do this.” While it’s true that courts typically de- fer to board decisions made in good faith as falling under the Business Judgment Rule, given the uncertainties facing boards (and everybody else) going forward, it’s still a good idea to amend your documents to explicitly permit online and electronic meetings, voting, and other administrative functions—and that includes both month- ly board meetings and annual association or corporation meetings. “When I draft an amendment,” Shapiro continues, “I specifi - cally include monthly meetings. Most gov- erning docs already provide that the board can act without a meeting by written con- sent if unanimous, but the better thing is to have a meeting in a virtual medium to fl esh out the issues.” “Th e best solution,” Shapiro stresses, “is to amend your documents to permit re- mote meetings via electronic means, elec- tronic voting, and the like. It’s the single best thing \\\[the board\\\] can do. Having said that, we know it’s sometimes a diffi cult process due to unit owner apathy, fear of the unknown, and cost.” Meeting Virtually Co-op and condominium boards must hold regular meetings to conduct and transact the annual business of the corpo- ration or association. Th e coronavirus has made that impossible to do in most build- ings—at least in person. Meeting rooms are generally small and oft en poorly venti- lated. Even when people feel fi ne, or aren’t running a fever, there is the ever-present danger of asymptomatic carriers spread- ing the virus. As a result, most boards have switched to virtual meetings, a trend that in actuality began well before the COV- ID-19 crisis. Andrew B. Freedland is a shareholder with the law fi rm of Anderson Kill, with offi ces in Manhattan. He specializes in community law, governing co-op and con- dominium properties. “Boards,” he says, “have been permitted to meet via confer- ence-type call for a long time. Under Sec- tion 708(c) of the Business Corporation Law, unless restricted by the certifi cate of incorporation or the bylaws, one or more board members can participate by means of a conference telephone. I have person- ally not seen any bylaws that restrict this type of meeting. Th at’s not to say that they may not be out there, however—so check your bylaws and certifi cate of incorpora- tion.” Th at said, “Th e stipulation is that all persons must be able to hear each other at the same time,” Freedland continues. “A Zoom or other type of video call certainly complies with this provision of the bylaws. As a result of that, the vast majority—if not COMMUNITY... continued from page 1 continued on page 14