At the bedrock of a shared interest community, like a co-op or condo, is how and by whom the property is managed. While self-management may make the most economic sense for smaller communities, and there are certainly good examples of effective self-management in larger communities, most co-ops and condos of any size engage professional on-site management.

In most cases, those services are provided by a management company. Like all businesses, property managers seek a profitable provider/client relationship, and their services are generally subject to a contract designed to protect both the management and the community, laying out all the responsibilities and obligations assigned to both parties.

The Same, But Different 

“A contract is a legally enforceable agreement between two parties bound by promises they make to each other,” says Jeremy Kay, an independent attorney located in East Bridgewater, Massachusetts. “In the case of a management contract, it is an agreement for the manager to perform services for an association in exchange for payment by the association. The scope of services and the amount of the payment are up to the parties to determine. Putting the agreement in writing is done to memorialize the terms of the agreement and allow both sides to revisit what was agreed upon. The goal should be that the written contract is clear on its terms and that the management company’s obligations are clear. Clear terms help resolve disputes and avoid potentially expensive litigation.”

Most modern management contracts are fairly similar, says William McCracken, a partner with Moritt, Hock & Hamroff, a law firm with offices in New York and Florida. “Paragraph 1, we appoint you…,paragraph 2, these services will be provided…,etc., etc.  Everything is covered there, but it’s initially a boilerplate document, so it needs clarification. It’s important for the board to look at this closely to make sure the management company understands the board’s expectations. Then there are other typical provisions about money, term, and length of contract, indemnification, etc. That’s the heart of it.”

That said, every community is different, and each has its own specific menu of expectations and requirements. In today’s highly diversified and increasingly case-specific world, management contracts are tailored to the specific needs of a community—and they’re evolving as a result.

“Basic terms depend on the needs of the association and conversely, that’s what the management company is contracted to do,” says Michael Simone, an attorney and principal of Simone Law Firm, located in Cinnaminson, New Jersey. “For example, some associations are only seeking assistance for the financial aspects of their operation. Other associations may be more interested in the physical maintenance of the property or the management of tenant relations. Each should be handled in specific clauses in the agreement outlining the details of management’s responsibilities.”

Nuts & Bolts

Regardless of what specifics your community may require, there are certain basic components that should be reflected in all contracts. These include very basic things like the terms of the contract, the parties’ names, delineation of responsibilities, fees and charges, and reasonable expectations for things like how and when meetings are held, or who should attend. 

Other important clauses include protocols for providing a smooth transition in the event of a management change (a next clause provision), the circumstances under which a contract can be terminated, who has access to computer programs, banking logins, proprietary legal information, and any other systems used by management. “It’s all about who owns what,” says Simone. “One of the main issues that should be clear and protected is always for the association to have ownership of their own products. The association, not management, should own its website, accounting software, and any other related computer products.”

In terms of how long a typical contract is, McCracken explains that it varies.  “Anything from one to five years; most typically they are year-to-year. At some point they all become a year-to-year arrangement. They don’t just expire; typically, they roll over. The reason why there is a longer initial term is because it’s expensive for a managing agent to start up a new client relationship. The management company doesn’t want to be terminated after six months; they need to make back their initial investment. From a legal point of view, from the board’s side, you want the ability to exit the agreement on reasonable terms at any time.  Boards need to be able to terminate without cause on 30- to 60-day notice. To be able to say it’s not working, and we are moving on. That makes the term requirements in the contract nearly moot. The ability to exit is what’s important—not the length of the term in the contract.”

When it’s Time to Part Ways

Like some marriages, client/management relationships don’t always work out. When that happens, what’s to be done? And what are some of the reasons why a building or association might feel it’s time to cut ties with their management company and take their business elsewhere? 

Breach of contract is a big one, say the pros. Kay explains that “breaching a contract is when a party fails to perform their obligations under the agreement. But there is a distinction to be made between breaching a contract and terminating it. If a party breaches a contract, it can become liable for damages caused to the other party. Massachusetts General Laws, c. 183A, Section 10(e), provides that any contract between a manager and an organization of unit owners can be terminated by the organization of unit owners for cause with 10 days notice, during which time the manager has an opportunity to cure any default. In any case, the organization of unit owners can terminate the contract with 90 days notice without cause.”  

Simone adds that in New Jersey, “In any contract [dispute], you look to see if there was a duty breached that would be considered material. No company is perfect, and they will make mistakes. The question is, how egregious were the mistakes? If a board determines that an action on the part of management was a material breach, that’s when the association puts in writing why there’s a provision to cancel. Typically, the contract will have recourse for either party, since sometimes it’s the association that has breached their duty, and the manager will want out.” 

In other words, says Simone, the door swings both ways. If a client community doesn’t uphold their side of the contract, the manager or management company doesn’t have to stick around; “They can quit.”

Kay concurs. “The management company can terminate the relationship as is permitted by the terms of the contract,” he says. “Were a manager to terminate the relationship in violation of those terms, that would be a breach of contract and potentially result in the manager becoming liable to the association for ensuing damages.”

That said, Kay continues, “Most disputes between management companies and associations tend to arise contemporaneously with their disengagement.  Accordingly, I advise that the management agreements be as clear and unambiguous as possible when it comes to their respective obligations. This is especially true when it comes to terminating an agreement before its term is up.”

Advise & Consent

Given the stakes, it’s vital to involve your building or association’s attorney in reviewing and negotiating your management contract. After all, it’s a legal document, and as such, it makes good sense to get some expert eyes on it before signing on any dotted lines.  

“As attorneys,” says McCracken, “we always talk to our clients about their specific goals with respect to their management contract, new or renewal, and which goals might be particular to their building. For instance, did they have a problem in the past with an agent, and want the new agreement to reflect that experience, for instance?  Generally, the things we are looking for are agreed-upon duties, and that the agreement covers the field. We want to make sure the management will do what needs to be done. Sometimes you have to add in specifics. It’s also very important to avoid the hidden charges in an agreement. Typically an agreement will say if ‘X’ happens the manager will get paid ‘Y.’ We want to make sure that that only happens if the board agrees to it. For instance, upon the refinancing of an underlying permanent mortgage for a co-op, whether the management company earns a mortgage brokerage fee. Did they actually earn it ‘with the board’s consent?’ Those terms and conditions should be clear in the contract.”

Management contacts should always be reviewed by counsel, and should contain language that adequately outlines and delineates the manager’s responsibilities and fees. They should reflect the needs of each specific community, and provide a path out for that community if issues arise that can’t be fixed. Effective management contracts are a vital administrative and legal component for shared interest communities, and boards should take them seriously.

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