NY Cooperator April 2020
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April 2020                                  COOPERATOR.COM  continued on page 14   Perhaps that needs to be spelled out in a rule change. Before deciding   that, however, you should confer with counsel to make sure the rule is   within the confines of the law, doesn’t discriminate, and is evenly ap-  plied. Otherwise, your good intentions could turn into a discrimination   claim or a lawsuit. Exercising care and consideration in drafting rules to   protect all owners and residents will help, and is in the best interest of   the community as a whole.  continued on page 2   continued on page 16   (Editor’s Note: This article is a reprint   from a previous edition of   The Coopera-  tor.  The advice and guidance offered here   are sound anytime, but are especially vital   given the current coronavirus/COVID-19   emergency. We urge all our readers to look   out for themselves  and their neighbors.)  Multifamily  residential  buildings  provide both privacy and community.   Privacy, because a recluse in New York   City can have almost anything delivered   to his door and thus never have to leave   the sanctuary of his apartment; and com-  munity, because a single retiree in an ac-  tive adult community in Palm Beach can   enjoy the company of his or her peers, as   well as the benefits of supportive services   and social activities. Population density   is what makes co-ops, HOAs and condos   ideal  living  spaces for anyone—includ-  ing, and perhaps especially, the most vul-  nerable residents.  Whether we’re talking day-to-day   safety or emergency planning, most   buildings and HOAs have something   on the books to address both standard   operating procedures and things like   alerts and evacuations. And that’s great   if you’re a relatively young, able-bodied   resident — but what if you, or a loved   one or neighbor, are elderly, or live with   a mental or physical handicap, or are   a kid with working parents who takes   care of younger siblings? Who looks out   for the safety of these folks, and makes   sure they’re accounted for should a fire,   power outage, or other emergency arise?   How can boards, managing agents, and   residents promote the safety and secu-  rity of the more vulnerable members of   their community, both day-to-day and   in emergency situations? What happens   during  a  major  weather  event?  Or  an   On March 11, 2020, the World Health Organization (WHO) declared the coronavirus out-  break a global pandemic. Here in the US, the Centers for Disease Control (CDC) has detailed   recommendations for individual preparation and response to the outbreak of COVID-19, the   disease caused by the novel coronavirus. On March 14, President Trump declared a National   State of Emergency, joining many states — including New York —that had already made their   own declarations in the previous days. This is a scary time throughout the world, and we have   to take immediate action to help our communities.  This is especially true for condominiums, cooperatives and homeowners associations. Un-  like schools, sporting events or other large gatherings, that can be cancelled or dispersed to   avoid proximity to other people, these communities contain residents who live amongst each   other and share common areas. When quarantined, told to stay home from the office, or to   work from home, residents are still a part of a mass of people who are stuck living amongst   each other. So what can management and boards do to protect their community associations   as we navigate this new reality? Here are some steps you and your board-management team   can take right now.  Consider Your House Rules  For all practical purposes, your board is a quasi-governmental body. For the most part you   are allowed to make your own rules, provided that you do so within the confines of the law.   Your board should review your house rules and determine whether new rules are needed.   Rule changes can be done by a board vote. With residents home from work and children out   of school, there are going to be a lot more people in the common areas during the day for the   unforeseeable future. The rules may have to change. For example, communities usually have   rules against creating a nuisance condition; is having a fever and continuing to use common   areas like the laundry room, rooftop recreational area, gym, playrooms, pool, etc., a ‘nuisance’?   The motivation for volunteering to be an   uncompensated (and sometimes underap-  preciated) co-op or condo board member is   usually a sense of civic duty combined with   the desire to protect one’s own investment   and quality of life. This means that the ma-  jority of board members actually live in the   buildings and communities they serve. And   that means that most board members are   neighbors, serving with and for people who   share not just common areas with them, but   maybe even actual walls and ceilings.    Such closeness has its benefits: familiarity   with the community’s unique issues, people,   and history; easy access to documents and   other on-site information; and proximity to   other board members for meeting quora, for   example. But closeness also can lead to con-  flicts, from the personal to the professional.   So how do directors separate the business   from the kibbitz in the boardroom?  Fiduciary Duty  According to Mary-Joy Howes, a part-  ner in the law firm of Goodman, Shapiro &   Lombardi LLC, which has offices in Massa-  chusetts and Rhode Island, upon election,   board members become fiduciaries—a term   derived from the Latin word for ‘trust’—who   are charged with making policies and deci-  sions in the best interest of the community. A   fiduciary has two primary duties: the duty of   care and the duty of loyalty—meaning that a   board member must exercise reasonable care   when making decisions that will impact the   community, and that regardless of personal   feelings, board members must act in the best   interests of the corporation or association.    “Board members must always have the   association’s best interest as their number-  one priority,” Howes says, “and unit owners   need to be able to trust that the elected board   is acting in the association’s best interest at all   times. The board members’ loyalty must be   to the association and the association only.”    Decisions made out of self-interest or to   benefit a group of directors are therefore in   violation of fiduciary duty—but in reality,   board business runs more or less on the hon-  or system. At least in the state of New York,   residential boards are not really overseen by   any other regulatory or governmental body.   It is solely up to their electorate—the other   Managing Through the   Coronavirus Crisis   What Condo, Co-op & HOA Boards Can Do  BY JOSEPH COLBERT AND TEAM COLBERT LAW  Vulnerable   Residents  Safety for All  BY GREG OLEAR  Relationships on the   Board  How Close is Too Close?   BY DARCEY GERSTEIN  205 Lexington Avenue, NY, NY 10016 • CHANGE SERVICE REQUESTED

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