Despite their sizable influence, and the fact that their members are residents of the communities they govern, co-op and condominium boards are often misunderstood. What can they do? What can’t they do? Can they approve a request from one resident and deny that same request from another? Do shareholders and unit owners have to show board members deference, or can they unload their feelings when they share the elevator or cross paths in the mailroom? A surprising number of co-op and condo residents don’t know the answer to these fundamental questions about the administrators they and their neighbors elected.

What is a Board and Why is it There?

A board is neither landlord nor consultant; it’s actually something closer to the purest form of democracy, composed of the chosen representatives of the citizenry—in this case, the owners of co-op, condo, or HOA units. Board members are volunteers who commit their time and energy for the betterment of the community they call home.

“A board is not a landlord or an outside authority,” says Christopher Antonacci, managing partner with Association Advisors NJ, a management company located in Freehold, New Jersey. “It’s a group of owners elected by the community to make decisions on everyone’s behalf. People often feel that because they own their unit, they should be able to do whatever they want inside it. That’s understandable, but shared living comes with shared rules and responsibilities. The board’s job is to apply those rules fairly, not to police personal choices.”

“A board’s job is to set policy and procedure; that’s the job,” says Dan Wollman, CEO of Gumley Haft, a management firm based in New York City. “Those policies and procedures are then carried out and enforced through the manager and staff, whatever they are. A board does not—and should not—get personally involved in shareholders’ or residents’ problems.” 

For example, Wollman continues, “Say you have an arrears problem. An owner or shareholder is unable to pay their maintenance or condo fees, and don’t want to be evicted or removed. They should come to the manager and explain their situation, along with a proposal to resolve the problem, perhaps through a payment plan. The board should consider the offer and opine on it; it’s okay for a board to make allowances or accommodations on a case-by-case basis, but through the manager and staff—not directly with the resident. In other words, the resident shouldn’t go to the board to say, ‘Let’s make a deal!’ Whatever the board’s final decision, the manager will execute it. The manager insulates the board and its members from personal contact and conflict with shareholders. You need that distance.”

Another good example of the chain of command in shared interest communities is what happens when a policy is violated. For example, say a building allows dogs, but the board reserves the right to fine residents for any damage or disruption caused by their pet. A resident repeatedly allows their dog to foul the elevator and doesn’t clean up the mess; who enforces the policy and the fine? The management company, not the board members. That’s not the management doing the board’s dirty work (no pun intended); it’s just good policy.

Boards and board members are not all-powerful dictators who can run their building or association however they see fit, explains Harold Berlowe, director of sales at Denali Properties, a New York-based management firm. Not only must they abide by their community’s governing documents, but they also have a legal duty to uphold as well. “The reality is that board members are elected representatives of the owners or shareholders with fiduciary responsibilities to the association—not to individual owners,” says Barlowe. “The owners elect fellow owners who they feel best share their own ideas on how the association should be run to achieve two basic things: the first is to maximize the quality of life at the community, and the second is to protect the value of the owners’ investments in their real property. Boards must do all this while complying with the association’s governing documents and applicable laws.”  

The ‘Renter Mentality’

One common challenge of shared community governance is that many owners and shareholders join co-op or condo communities after renting for years or even decades, and often bring a so-called ‘renter mentality’ with them. They tend to think of the board and management as a landlord, not understanding that the responsibilities of ownership—everything from changing lightbulbs to paying for damage caused by the leaky shower head they never fixed—are now theirs, and not the domain or responsibility of the board.  

“Often new owners don’t understand who is responsible for what in a shared interest community,” says Scott Wolf, CEO of Brigs, a management company located in Boston. “I’m of the opinion that new owners should take a class or orientation to more fully understand what they bought into. They often think fees never change, and that any complaint or issue should be taken care of by management immediately. Often they think problems in their unit, say a broken dishwasher, are repaired by the association. The worst case scenario is when they don’t properly insure their units because they think the association has insurance for them. It’s a chronic problem.”  

Wolf adds that the other end of the spectrum—owners who think they get a vote in every decision—can be just as problematic. “I’ve got an association,” he says, “where there was an uprising because of necessary road repairs. They wanted a vote.  They weren’t entitled to it.  The simple truth is that If it’s in the condo documents, the board has the authority to do what they deem necessary to protect the community. That’s their fiduciary responsibility; it’s why the community votes for a board to represent them.”

The View From the Bridge

When it comes to shared interest communities, attorneys often have the best overall view of how healthy communities function. Unlike a board, they aren’t making tough decisions—and unlike management, they aren’t foot soldiers carrying out orders. They’re able to have a more detached view of how well things work, or don’t.

“One of the keys to effective board governance is good communication,” says Michael Simone, principal of the Simone Law Firm, located in Cinnaminson, New Jersey. “It’s best practice to inform and educate all homeowners by giving as much information to owners about the association as possible according to the rules set in the governing documents. This can be done through emails, newsletters, and monthly or quarterly meetings, but however it’s done, communication is always the key.”

Simone offers an example: “Snow removal is a good case in point. The board, through management, must be able to communicate to all owners what the costs are and what issues there are during a snow event. That helps keep everyone involved in this frustrating process, bypassing the renters’ mentality that it’s the ‘landlord’s’ (in this case the association board’s) job to address it. When a homeowner is complaining or has an issue, it’s a good policy to turn the question around and ask the aggrieved owner or shareholder how they might be able to help by asking them to come up with a solution to help the board resolve the issue. Flip the script!”

Richard Brooks, a partner with Marcus, Errico, Emmers & Brooks, located in Braintree, Massachusetts, points out that “condos are often a transient form of homeownership. It’s a stepping stone, especially for first-time buyers. It’s musical chairs, and they all play the same game. Keep costs low, and they all think they will be gone by the time whatever impending work has to be done. Then all of a sudden there’s a special assessment of tens of thousands of dollars, because that work must be done. It happens all the time. As a board member, I would reply to the owners that the board has a legal obligation to maintain, repair, and replace common areas. Done. Full stop. After all, board members have to pay increases and assessments too.”

“The common misunderstanding,” says Hal Coopersmith, a partner at Coopersmith & Coopersmith, a law firm based in New York City, “is either, ‘The board must act in my best interest’, or ‘The board is out to get me.’ Regardless of the situation, owners can have a feeling that their situation is, or should be, a priority. The reality is that boards owe a fiduciary duty to the corporation or condo as a whole, and can neither represent nor persecute individual owners. For example: having an alteration or a prospective application denied can feel unique to one owner, but the board owes its duty to the building and may have valid reasons for [the denial].”

Antonucci adds that “one of the biggest misunderstandings is the belief that owners get to vote on every increase or assessment. In reality, boards are usually authorized to approve budgets and assessments without a community vote. Another misconception is that boards can make decisions quietly or informally. Most boards are required to conduct business in open meetings with notice to the membership. Rule enforcement is also often mistaken for personal judgment, rather than the board’s legal obligation. Boards aren’t choosing when to enforce rules—they’re required to do so fairly and consistently.”

Whether you are buying your first unit in a shared interest community or you are a long term, long-time member, understanding the unique nature of your community is paramount for the success of your community. That means every owner or shareholder. Read your governing documents. Vote in board elections.  Understand who has responsibility for what. In the end, a clearer understanding will go a long way to community success.           

A.J. Sidransky is a staff writer/reporter for CooperatorNews, and a published novelist. He may be reached at alan@yrinc.com.