March 2018 Newsletter

Getting A Mulligan (Do-Over) for Your Board in 2018
Donna DiMaggio Berger | Becker & Poliakoff
Here are the solutions
to the foregoing problems:
1. We can prepare and pass a membership vote which
would allow your members to approve of and ratify all
prior changes, additions and modifications made by the
Association to the Common Elements and Association
property or any other action that required a membership
vote which was not taken.
Whether we call them mistakes, oversights, slip-ups or
boo boos, we all make them including volunteer board
members who are often hamstrung by both operational
and time constraints.
The new year provides an optimal opportunity to correct
items from 2017 or even earlier. The law allows a corporation
which has taken authorized actions, but which
were done in a procedurally incorrect manner to ratify
those actions by approving them again, but this time
following proper procedure.
Have any of the following occurred in your
community?
1. You made alterations to the common elements or
association property but failed to obtain the requisite
membership approval.
2. You did not hold your annual meeting on the date
specified in the documents and a member called you
out on it.
3. You had to discard several election ballots because
you did not have voting certificates on file for those units.
4. You were challenged when you attempted to enforce
a rule or restriction because a prior board failed to
enforce or failed to properly adopt that same rule or
restriction.
2. We can amend your documents to give your Board
more flexibility when setting the date and time for the
annual members’ meeting and election, so you do not
risk a technical violation in the future.
3. We can amend your documents to eliminate the
requirement for a voting certificate for husband and wife
and other co-owners of units other than units owned by
corporations or business entities. Doing so will eliminate
most of the confusion and time-consuming fuss
at your meeting to determine whether or not the outer
envelopes were properly signed by the voting certificate
holder. Along those lines, implementing online voting
will also eliminate these outer envelope judgment calls
at your election.
4. Just because a prior board has not strictly and
uniformly enforced certain provisions of your governing
documents does not mean your board is forever prohibited
from doing so. We can undertake a process known as
republication which will allow you to breathe new life
into those unenforceable restrictions and once again
allow you to successfully enforce them.
5. Prior unauthorized or procedurally improper actions
require a discussion regarding the nature of those actions
and preparation of the necessary materials to ratify
same.
5. You took a Board action (filled a vacant seat, signed
a contract, fired an association employee, levied a special
assessment or adopted a budget, etc.) outside the
scope of a duly noticed Board meeting and vote.
6. Your members passed an amendment and you failed
to record it or an amendment was prepared and never
presented to the membership for a vote.
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6. If the membership vote was within a relatively recent
period of time, we can proceed with recording that
amendment or amendments; if not we may need to start
the process over again. If you have been sitting on an
amendment which was prepared but never voted upon,
depending on the age of the amendment, we may need
to review and revise that language.