Social distancing, lockdowns, quarantine, remote work, distance learning—these once unfamiliar terms have changed the way we live our everyday lives in the time of a global pandemic. In a society where a handshake is the social gesture that confirms a positive feeling between individuals, the imposed separation between us and our family, friends, neighbors, and colleagues is a heavy burden under which to operate.
Perhaps nowhere is this enforced distancing felt more acutely than in multifamily residential communities such as co-ops, condos, and HOAs. Beyond just isolating formerly tight-knit, engaged neighbors, the need to keep our distance and not gather in groups has made upholding the requirement for communities to convene at least once a year (and sometimes more) to conduct the business of the corporation or association a logistical nightmare.
Reality Meets Documents
While more recently drafted condo, co-op, and HOA governing documents may already contain language spelling out the proper protocols for electronic meetings and voting, those established before virtual meetings became a common factor in business life are likely silent on the issue. Ellen Shapiro, a partner in the Braintree, Massachusetts-based law firm of Marcus Errico Emmer & Brooks, says, “If it’s not prohibited, it’s permitted. Given the extraordinary situation we find ourselves in today, a court would be inclined to favor a board that wanted online meetings for inclusivity, [even if] the documents were written before anyone would have thought to do this.”
While it’s true that courts typically defer 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 monthly board meetings and annual association or corporation meetings. “When I draft an amendment,” Shapiro continues, “I specifically include monthly meetings. Most governing docs already provide that the board can act without a meeting by written consent if unanimous, but the better thing is to have a meeting in a virtual medium to flesh out the issues.”
“The best solution,” Shapiro stresses, “is to amend your documents to permit remote meetings via electronic means, electronic voting, and the like. It’s the single best thing [the board] can do. Having said that, we know it’s sometimes a difficult process due to unit owner apathy, fear of the unknown, and cost.”