Condo Media - November 2021 - 43

Keep in mind that trustees of a
condominium owe a fiduciary duty to
all of the unit owners and to the condominium
trust. Part of that fiduciary
duty is taking reasonable steps to make
sure the common areas are maintained
and structurally safe. Getting an
engineer to do a structural inspection
is a reasonable step to maintain the
common areas and comply with your
fiduciary obligations.
MANAGEMENT SUPPORT
Property management companies are
in a uniquely convenient and practical
position to assist boards with these
inspections, and if these inspections reveal
repairs are needed, handling these
repairs. Property managers are often
with a board longer than any one single
individual board member and can
provide some institutional memory on
whether a recent inspection was done if
records are unclear. Property managers
should give gentle reminders to the
board if it is not on the board's radar to
review inspection records. If records
are unclear and no one can recall the
last time an inspection was done, then
in an abundance of caution, an inspection
should be conducted.
Most condominium unit owners and
trustees are not readily familiar with
various optional structural engineering
firms that are qualified to and capable
of conducting these inspections. A
property manager can really add value
by presenting a structural engineer he/
she is familiar with or by presenting
multiple for the board to choose from.
Because of the attention Surfside
brought to this issue, a lot of engineering
firms are currently swamped with
calls to conduct these inspections.
That's why having a few options for an
engineering firm is critical to timely get
these inspections done.
Once an inspection is completed and
a report is presented to the board, it's
important to take the results - whatever
they may be - seriously. We, of course,
hope that all the reports come back that
the buildings are structurally sound, and
no repairs or repointing is necessary.
Unfortunately, that is not always the
case, and boards and property managers
should be prepared for the eventual
news that repairs are needed. Property
managers are again in a uniquely helpful
position to arrange for the various
contractors that may be needed for
the repairs.
REPAIR COSTS
Unfortunately, the costs to make
structural repairs to a building can
often be very expensive and cost in the
hundreds of thousands if not millions
of dollars. This sometimes places additional
pressure on a board or management
as owners do not want to spend
the money. Good management can help
guide a board through this process and
help explain that while owners may
complain, having structural repairs
performed is at the sole discretion of
the board, no matter how significant
the cost.
Courts in Massachusetts have agreed
with this position. In Bonderman v.
Naghieh, 2005 WL 1663469 (2005)
(Piper J.), the Land Court reviewed
a $6,000,000.00 repair project at a
condominium and found that the work
proposed was a repair and not an improvement
and was within the sole discretion
of the board to have the necessary
repair work done. When working
effectively with management, a board
has a greater ability to understand this
role and duty and make sure necessary
repair work is done, no matter the cost
or unit owner approval.
ACT, DON'T PANIC
Should a condominium at any time be
thought to be unsafe, the most important
thing to do is act, not panic.
A common reaction to a report that
says your building is in need of repairs
and/or needs to be evacuated can
often lead to board " analysis paralysis "
whereby boards overthink or over
analyze the situation, which ultimately
prevents any forward movement or appropriate
response to the report.
A recent example of action and
not panic or paralysis was seen at a
condominium in Belmont, MA, where
an engineer inspected a condominium
and raised significant concerns
regarding the building's structural
integrity and the condominium's
residents' safety. There, the property
manager and the board both sprang
into action to coordinate with town
officials a building evacuation.
Further, the impact of this situation
creates substantial administration on
the part of the property manager, who
had to coordinate with multiple agencies,
engineering firms, attorneys, and
other relevant parties.
If the recommendation from the
engineer is that repairs must be made
in the interests of human safety, then
those repairs must be undertaken
as soon as possible. The practical
side of this, of course, includes costs.
Condominiums do not always have
funds readily available for such expensive
repairs, and unit owners can
sometimes baulk at the typically high
cost for engineers and structural repairs.
This is another opportunity for
a management company to provide
expertise on various financing options
for condominiums to afford this kind
of repair work. Money is a reality
all condominiums face, but money
should not sacrifice safety.
In summary, boards and property
managers should work together to ensure
compliance with state and local
building codes and inspect their buildings
to ensure they are structurally
sound. And, in the unfortunate case a
building poses a safety risk, property
managers can really assist boards
and residents in all of the logistics of
evacuation and remediation to get the
building safe and everyone back into
the buildings as timely as possible.
n ANTHONY
GALLINO, ESQ. AND
NORMAN ORBAN,
ESQ. ARE ASSOCIATES
WITH THE
LAW FIRM MARCUS,
ERRICO, EMMER &
BROOKS, P.C.
November 2021 CONDOMEDIA 43
Condo Media - November 2021

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