Condo Media - April 2021 - 40

The Region

VERMONT

skeleton with a Santa hat? Who decides? What should the standard be?
Frank the Gargoyle is a good reminder
that these discussions can get complicated quickly, even where the analysis
seems, to those on the outside, silly.

A Dirty Job...
Or Is It?

Perspective, Please
[by Christina A. Jensen, Esq.]

Many years ago, a newspaper
published a list of the worst jobs, and
concluded that " racehorse groom "
was at the top. Horse people have been
laughing ever since because we'd all
rather clean a stall than a bedroom.
Perspective matters.
At the risk of running off the rails, let's
posit a question: Is the enforcement of a
rule a dirty job? In this case, the question
of perspective in the community association context is pretty interesting. After
all, one person's dirt is another's compost
or - more aptly here - one person's art
installation is another's pile of junk.

One person's art installation
is another's pile of junk.
USE OF COMMON AREA
I'm referring to Frank the Gargoyle,
of course. Would Frank the Gargoyle
have annoyed his neighbor or gone
viral if it hadn't been for the pandemic?
And is his story real or fictional?

CONDOMEDIA April 2021

Good questions, and I'm sure I'm
not the only one of us who can see
both sides, because we've all had to try
to reconcile differences in style and
taste among community members.
Is Frank funny, creative, and arty, or,
is he offensive? Does the increasingly
involved display around him change
the response at some point?
Many communities have written
standards for use of common and
limited common elements, often
prohibiting storing " stuff " on them.
Many have rules more particularly
specifying what can and can't be done
in those areas. It's a simple matter to
prohibit residents from leaving bags of
garbage in common hallways because
it's unlikely a disagreement would
arise from this restriction, and a bag
of garbage is, well, a bag of garbage.
But what about the case where a
porch is a limited common element
appurtenant to a single unit and a rule
permits seasonal decorations, as many
do? Is a gargoyle with a Santa hat a
seasonal decoration? What about a

NAVIGATING THE GRAY AREA
First, under Vermont's Common
Interest Ownership Act, the executive
board has authority to adopt a reasonable rule establishing aesthetic standards if the declaration so provides.
It also has authority to enforce the
rule. Enforcement authority is discretionary; the board does not have
a duty to enforce a rule where, for
example, it finds that any violation
which may have occurred " is not so
material as to be objectionable to a
reasonable person or to justify expending the association's resources, "
or where enforcement action is not
in the association's best interest.
Moreover, in making an enforcement decision, the board must act with
due regard to the association's duty to
the association. Vermont's Common
Interest Ownership Act imposes on
board members of common interest
communities, including those created
before the law's effective date, a duty to
exercise the degree of care and loyalty
to the association required of an officer
or director of a non-profit corporation.
In addition, board members in
Vermont are protected by the business
judgment rule. They are not subject to
liability for their actions as directors
where they act in good faith, with the
care an ordinarily prudent person in
a like position would exercise under
similar circumstances, and in a manner
they reasonably believe to be in the
best interests of the association.
A director's good faith, or the
perception of good faith, can be
impacted by a personal interest in
the matter before the board. Even if
the interest does not rise to the level
of a financial conflict of interest,
it may adversely affect member
confidence in the board's decisionmaking process.

Condo Media - April 2021

Table of Contents for the Digital Edition of Condo Media - April 2021