Page 8 - NJ Cooperator Fall 2020

8 THE NEW JERSEY COOPERATOR —FALL 2020 NJCOOPERATOR.COM MANAGEMENT Social distancing, lockdowns, quaran- tine, remote work, distance learning—all ing to electronic meeting and voting, a virtual medium to flesh out the issues. new terms to most of us just a few months older ones written before these became ago—have not just entered our everyday common business practices may be si- vocabularies; they have changed the way lent on the issue. However, this absence remote meetings via electronic means, has made such meetings impractical for we live our everyday lives. In a time when of language shouldn’t be construed as a electronic voting, and the like. It’s the most boards. Meeting rooms are gener- something as simple—and as socially fun- damental—as a handshake is ill-advised, with the law firm Marcus Errico Emmer said that, we know it \\\[can be\\\] a difficult and even when healthy people with re- the imposed separation between us and & Brooks in Braintree, Massachusetts. process due to unit owner apathy, fear of cently cleaned hands sit six feet apart, our family, friends, neighbors, and col- leagues can feel like an extreme shake-up says. “Given the extraordinary situation of our societal norms. Among the places where this enforced be inclined to favor a board that wanted tial communities include some that aren’t switched to virtual meetings. distancing is being felt most acutely is in \\\[to implement\\\] online meeting for inclu- residential communities such as co-ops, sivity, even if the documents were written specificity. This specificity is a result of online was well underway before the CO- condos, and HOAs. Not only has the coro- navirus pandemic separated people from this.” their neighbors and cast a pall of risk and doubt over everything from food deliver- ies to elevator rides, it has forced boards to explicitly permit online and electronic govern residential community elections a long time,” says Andrew B. Freedland, and communities to reevaluate how they meetings and other necessary business— will meet their formal meeting require- ments and conduct the business of their and annual association or corporation procedures for board elections and voter in community law governing co-op and corporation or association. Governing Documents vs. Current Reality While more recently drafted condo, co-op, and HOA governing documents may already contain language pertain- huge problem, says Ellen Shapiro, partner single best thing a board can do. Having ally small and often poorly ventilated, “If it’s not prohibited, it’s permitted,” she the unknown, and cost.” we find ourselves in today, a court would before anyone would have thought to do what’s typically referred to as ‘the Rad- That said, most legal pros agree that acted based on it. In a nutshell, the Rad- it’s a good idea to amend your documents burn case and its decision regulate and ted to meet via conference type call for including both monthly board meetings Chris Christie in 2017, the law governs law firm Anderson Kill who specializes meetings. “When I draft an amendment,” participation rights, including the count- Shapiro continues, “I specifically include ing of ballots in a public forum and the 708(c) of the Business Corporation Law monthly meetings. Most docs already requirement that certain board votes be (BCL), unless restricted by the certificate provide that the board can act without a conducted in public for the decision to be of incorporation or the bylaws of a corpo- meeting by written consent if unanimous, binding. but the better thing is to have a meeting in ness of the corporation or association. “The best solution,” Shapiro stresses, ated with being in an enclosed space with “is to amend your documents to permit people from outside of one’s household Unique New Jersey New Jersey’s requirements for residen- found in other states at the same level of burn decision’ and the subsequent law en- in New Jersey. Signed by former governor shareholder with the Manhattan office of More recently, “Governor Murphy amended some rules and legal require- ments in Title 15 after the Community Associations Institute (CAI) urged remote annual and member meetings,” explains Chris Florio, a partner with Stark & Stark, a law firm located in Lawrenceville. “Re- quirements established under the Radburn decision were adhered to and respected as much as possible. “When we do annual meetings right now,” Florio continues, “there’s no way to comply completely with Radburn. We can’t count ballots in front of owners— which it requires—though we are doing this on \\\[the online meeting platform\\\] Zoom. We can’t extend board terms vis-à- vis Radburn either, but we can’t postpone elections indefinitely. We do keep ballots for 90 days, as per Radburn, if anyone wants to see them. Associations are stick- ing to the spirit of the Radburn decision as well as possible.” Meeting Virtually Co-op, condominium, and HOA boards must hold regular meetings to conduct and transact the annual busi- The risks of COVID transmission associ- asymptomatic carriers can still spread the virus through their aerosolized respirato- ry droplets. As a result, most boards have In actuality, the trend toward meeting VID-19 crisis; the pandemic just hastened more boards’ adoption of the practice. “Boards \\\[in New York\\\] have been permit- condominium properties. “Under Section Community Meetings in the Time of COVID Staying Distant Without Disengaging BY A J SIDRANSKY continued on page 18