Social distancing, lockdowns, quarantine, remote work, distance learning—all new terms to most of us just a few months ago—have not just entered our everyday vocabularies; they have changed the way we live our everyday lives. In a time when something as simple—and as socially fundamental—as a handshake is ill-advised, the imposed separation between us and our family, friends, neighbors, and colleagues can feel like an extreme shake-up of our societal norms.
Among the places where this enforced distancing is being felt most acutely is in residential communities such as co-ops, condos, and HOAs. Not only has the coronavirus pandemic separated people from their neighbors and cast a pall of risk and doubt over everything from food deliveries to elevator rides, it has forced boards and communities to reevaluate how they will meet their formal meeting requirements and conduct the business of their corporation or association.
Governing Documents vs. Current Reality
While more recently drafted condo, co-op, and HOA governing documents may already contain language pertaining to electronic meeting and voting, older ones written before these became common business practices may be silent on the issue. However, this absence of language shouldn’t be construed as a huge problem, says Ellen Shapiro, partner with the law firm Marcus Errico Emmer & Brooks in Braintree, Massachusetts. “If it’s not prohibited, it’s permitted,” she says. “Given the extraordinary situation we find ourselves in today, a court would be inclined to favor a board that wanted [to implement] online meeting for inclusivity, even if the documents were written before anyone would have thought to do this.”
That said, most legal pros agree that it’s a good idea to amend your documents to explicitly permit online and electronic meetings and other necessary business—including both monthly board meetings and annual association or corporation meetings. “When I draft an amendment,” Shapiro continues, “I specifically include monthly meetings. Most docs already provide that the board can act without a meeting by written consent if unanimous, but the better thing is to have a meeting in a virtual medium to flesh out the issues.
“The best solution,” Shapiro stresses, “is to amend your documents to permit remote meetings via electronic means, electronic voting, and the like. It’s the single best thing a board can do. Having said that, we know it [can be] a difficult process due to unit owner apathy, fear of the unknown, and cost.”