There’s nothing worse than dealing with someone who has let power go to their head.  Just because someone is on the board of their building or HOA does not give  them the right to operate under a different set of rules from the rest of the  community. Preferential treatment for parking spots, flouting pet rules, and  fast-tracking one's own alteration projects are not only unethical, they're a  breach of fiduciary duty and downright toxic for the community as a whole.  

 Duty-Bound

 According to David J. Byrne, an attorney and shareholder with the Princeton-based law firm of Herrick, Feinstein, board members have a fiduciary duty to manage the physical and financial  well-being of their cooperative or condo for the benefit of all residents. One  party (the residents) puts its trust in another party (the board) and grants to  that second party a degree of influence and power. In a fiduciary relationship,  there is the understanding that the second party has a high level of  accountability—including moral accountability—to the first party, and will put the best interests of the first party  front-and-center.  

 When it comes to carrying out this fiduciary duty, "There aren't many  differences [between condos and co-ops]," says Byrne, "except that a condo  board's and members' rights are more limited by what is—and is not—in the New Jersey Condominium Act. Co-ops on the other hand are basically  governed only via their bylaws, proprietary lease and articles of  incorporation, which are often fairly easily amended by the shareholders to  address a particular issue arising from a problem board member."  

 Breaking All The Rules

 In any communal environment governed by shared rules, there is the expectation  that everyone will abide by the rules for the greater good. So what happens if  you have one of those "problem board members" in your community? A person who  feels that their position on the board gives them more wiggle room—or outright immunity—when it comes to following or enforcing the association's rules?  

 According to Tony Nardone, owner of Corner Property Management in Springfield, New Jersey, that just  doesn't fly. "A rule breaking condo member is dealt in the same exact way as a  resident," he says. "I have never had a problem putting a board member on  notice that they broke a rule and it was brought to our attention. With that  said, however, it has to be a legitimate complaint with supporting  documentation, just as with any other owner."  

 Sometimes when a board member bends or flouts the rules, it’s over mundane things, such as moving on a day there shouldn’t be a move, or telling the super to do something that's not necessarily in his  or her job description. Other times, it can be something much more serious,  like using HOA funds for personal projects, or even moving out of an apartment  to allow a relative to sublet it. Regardless of the scenario, legal and  management pros alike agree that the rules must be consistently applied to all  members of a community. Going after one person for something, then letting it  slide with someone else—especially a board member—is a recipe for disaster.  

 According to Ellen Stein, president of the board at Apple Ridge, a condo  community in Mahwah, “There are scenarios I've heard of—not at Apple Ridge, per se, but in the course of interacting with other board  members from all around the area—where [board members] don't enforce rules consistently. There are always issues  with not picking up after dogs. And there's always the the issue of allowing  friends to use the clubhouse for free when they should be charged for using  it."  

 When a violation of the rules occurs, a board member is held accountable to the  same penalties of any other resident in the building, be it fines,  cease-and-desist letters from the board or HOA attorney, and in some cases  dismissal from the board.  

 "What happens to these people? They're not on their board very long," says  Stein. "The community usually sets it straight. Not the board necessarily, but  the community. People in a community want to follow the rules for the most  part. They do want to live peacefully, and they do want to do the right thing.  There's always a few people who feel that rules don't apply to them, and they  probably belong in a single family home rather than a condo or townhome  setting."  

 "The real concern flows to the board member—not the association," adds Byrne. "Any board member engaging in fraud,  self-dealing, unlawful discrimination, etc. would very possibly not be entitled  to a defense and/or indemnification by that association vis-a-vis any lawsuit that arises out of  it."  

 Board members should read their community's governing documents in order to  understand the rules and regulations they have been entrusted to uphold. Board members, and owners as well, also should always be able to rely on their  management company and corporate counsel to guide them properly, says Nardone.  "Part of identifying issues like this is training your staff to recognize and  report it to the senior staff within the management company's hierarchy," he  says. "As a regional manager or person of authority, I believe it is their  responsibility to bring behavior like this to an immediate end."  

 Personality Traits

 In many of the newer luxury buildings that have popped up over the last decade  or so, one attorney says that he and his associates have seen an uptick in what  he calls “Masters of the Universe” personalities, which he explains are people who let the power of being a board  member get to their head.  

 “They feel they are in charge of everything and that the rules don’t apply to them,” he says. “Others rationalize that they are not hurting anyone and they don’t think of the consequences. People who break rules, whether they are board  members or not, generally do so because they think they are gong to get away  with it. Or they think they are more important than the collective membership  of the building.”  

 Stein recalls hearing about one condo on the Jersey shore several years ago  where the board were paying themselves to manage their own property. "Maybe in  their documents they were allowed to do that," says Stein. "I don't know, but  we certainly don't do that, and I don't know any board in this Mahwah area that  would allow that."  

 "At times we have dealt with individuals who became board members for the wrong  reasons," says Nardone. "While the initial intent might have been good, the  underlying reason was self-serving. These individuals begin with the simplest of requests, like, 'Can you have the  landscaper replace a bush in front of my unit?' or 'The gutters over my unit  need to be cleaned three times a year.' These board members consider it as an  entitlement for donating their time."  

 Then there are rare instances where people break the rules because they don’t read them or don’t truly understand them.  

 “I think what’s most important when dealing with board members is that they have to learn what  their responsibilities are,” says one attorney. “In my firm, when there is a newly elected board or a significant number of new  people elected to a board, we generally have a free meeting where we invite  them to our office and go over role and their fiduciary duties and that  reinforces their obligation. That’s something I think every firm should do for their clients.”  

 Taking Action

 What recourse do residents and boards have against board members who have jumped  the tracks and are abusing their position? One way is to simply remove them  from that position.  

 "It depends on your documents," says Stein. "In everyone's bylaws, there should  be a paragraph that says how to remove a board member. Each one might be  different—and a lot of people in communities don't want to come forward. They're afraid of  retribution. So if that doesn't happen, certainly at the next election, that  person is usually gone or they resign. If there's enough people in the  community. I think the hardest thing is getting people in the community to come  forward to address that issue."  

 "There are several ways to deal with this type of board member," says Nardone.  "For example they often send a special request directly to the manager and omit  notifying other board members of their request. This is usually the first sign of abuse, and if recognized right away and dealt  with up-front, it can eliminate future problems. As a manager, you should immediately forward the request onto ALL the board  members, and ask if they concur with the request. What you're saying without  saying it is that you need board approval before moving forward on special  requests."  

 Rogue board members are awful for building morale, have a corrosive effect on  residents’ confidence in their board, and can cause a myriad of problems. If you’re a board member, remember to stay fair and keep everything on an equal playing  field.   

 Keith Loria is a freelance writer and reporter, and frequent contributor to The  New Jersey Cooperator.