Page 15 - CooperatorNews New Jersey Summer 2021

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COOPERATORNEWS NEW JERSEY
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For several decades we have provided a full array of legal
services to community associations (i.e. condominiums,
cooperatives, and homeowners associations) in New
Jersey. We provide high-quality representation for both
large (1,000+ units) and small (three-units) associations,
including high-rise, mid-rise, garden apartment, town
home, and single-family home communities. Our
extensive experience and comprehensive knowledge in
this fi eld makes us a trusted advisor that has long-term
relationships with our clients.
Positive Outcomes Since 1913
This bill, supported by CAI New Jersey’s
Legislative Action Committee, arose from
the actions—not all of them popular—that
boards and property managers had to take
to mitigate the spread of coronavirus on their
properties and through their communities.
Closure of amenities, mandatory masking
and social-distancing rules, suspension of
community activities, and strict policies re-
lated to elevator capacity, outside guests, and
renovations were some of the measures insti-
tuted to slow or stop the viral spread in hous-
ing communities. But these actions were met
with resistance from residents in some cases,
and even the threat of litigation. Equally con-
cerned about being sued if they did
not
enact
such measures and a resident became infected
on the property, boards and managers found
themselves in very tricky legal waters.
So far, as
CooperatorNews
has previously
reported, insurers are not covering for claims
related to COVID, so even with Directors &
Officers (D&O) insurance, boards and board
members can be held financially responsible
in the event that a resident, visitor, or staff
member succeeds on an action against them
claiming negligence or breach of fiduciary
duty. They would be responsible for their
own legal defense as well. “There are always
liability concerns,” says Scott Piekarsky, an
attorney with Phillips Nizer, a law firm with
offices in Manhattan and New Jersey. “People
may get injured due to the pandemic through
infection. … A condominium association is
a business, and boards have a fiduciary duty
to protect the members. We are hearing now
that if someone gets COVID and sues the
association, insurance will not defend or in-
demnify. No defense and no payout, until this
is adjudicated.”
Passage of the COVID Immunity Bill
(A4979/S3584) would alleviate these con-
cerns, and perhaps encourage boards to re-
open amenities sooner, advocates argue.
Florida condo and HOA leaders might
have less to worry about in this regard now,
says Donna DiMaggio Berger, Board Certi-
fied Specialist in condominium and planned
development law and shareholder at Becker’s
Fort Lauderdale office. According to her, SB72,
which Governor Ron DeSantis signed into
law on March 29, “[Provides] civil immunity
to business entities, not-for-profit corpora-
tions, hospitals, nursing homes, government
entities, schools, and churches for COVID-19
related claims as long as the alleged negligence
doesn’t involve gross negligence or intentional
misconduct.”
Florida condominiums, cooperatives, and
homeowners’ associations are classified as
business entities that this bill protects. “How-
ever,” continues Berger, “the new law is not a
protective blanket under which all associa-
tions can take shelter regardless of how they
handled this crisis. … The association boards
who took steps (and continue to take steps)
to comply with local, state, and federal guide-
lines should be able to rely upon this new law
for protection.”
Berger stresses that the law does not pro-
vide or imply license for community lead-
ers to completely abandon health and safety
protocols in attempts to get back to “normal,”
especially as the majority of Floridians remain
unvaccinated and viral variants continue to
spread. “It is not only reasonable, but prudent
for boards to continue to exercise due caution
when operating and opening common ame-
nities and enforcing COVID-19 safety proto-
cols,” she concludes.
Virtual Governance
In New York, a change to the Business
Corporation Law (BCL) went into effect just
before coronavirus was declared a global pan-
demic. “This [change] amended section 602
of the BCL to allow for annual shareholder
meetings in business corporations to be held
virtually,” explains Margery Weinstein, an at-
torney at law firm Ganfer Shore in Manhat-
tan. Subsequently, in response to COVID, she
continues, “executive orders further amended
that you actually didn’t need to have a loca-
tion specified for a meeting. So the question
is: Is the legislature going to codify the execu-
tive orders going forward to dispense with
the need to have an actual location [in the an-
nouncement of a meeting and] some form of
in-person meeting?”
COVID-RELATED...
continued from page 1
“There are always
liability concerns.
… A condominium
association is a
business, and boards
have a fiduciary
duty to protect the
members.”
—Scott Piekarsky
In Massachusetts, the state legislature is
considering such a bill. House Bill 1416, “An
act relative to electronic meetings and voting
in condominiums,” addresses the need that
boards and owners of condominium units
have had over the past year-plus to conduct
community business electronically and/or
virtually. Matthew Gaines of Braintree, Mas-
sachusetts-based law firm Marcus, Errico,
Emmer, and Brooks, P.C. indicates that most
governing documents of housing associations
were drafted decades ago and refer only to in-
person meetings of boards and unit owners.
“There’s some question about all these
Zoom meetings that boards and unit owners
have been having for the last year,” says Gaines.
“Are they really valid? So because of that, [the
New England chapter of the Community As-
sociations Institute (CAI)] proposed this leg-
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