Condo Media - November 2022 - 43

On the other hand, advising the
lender (and the real estate agents
clamoring to get the unit closed)
that the questions cannot be
responded to often runs the risk of
being labelled as obstructionist, or
characterized (with direct emails to
individual board members) as failing
to do their job correctly.
Accordingly, for the foreseeable
future, managers are going to have
to walk a tight rope and try to balance
competing interests and viewpoints
when filling out condominium
questionnaires.
OPTIONS AND BEST PRACTICES
Our general advice to property managers
remains the same as it was before
the Surfside tragedy and new lender
guidance. There is no legal obligation
for a property manager or association to
answer a condominium questionnaire.
However, because the questionnaires -
and ultimately the ability for purchasers
to obtain financing - are crucial to
maximizing the value of units, managers
should try to accommodate lenders
and try to answer the questions being
posed as best as is possible.
However, although it can be tempting,
managers should only answer what
they know (no guessing) and only give
a response that does not create (or at
least minimizes any) additional liability.
For questions about structural
conditions and deferred maintenance,
which are outside the scope of a
property manager's or layperson's expertise,
professionals should be used.
For example, instead of a manager
answering that there is adequate funding
to meet deferred maintenance, if
a reserve study is available, providing
that study directly may be better than
answering a question that could come
back to haunt the manager or association
if it turns out not to be true.
Likewise, although it is not always
possible, when giving out information
to a third party, we recommend having
the owner of the unit - as well as the
buyer in the case of a sale - sign an
indemnity agreement releasing the
For the foreseeable future, managers are going to have to
walk a tight rope and try to balance competing interests and
viewpoints when filling out condominium questionnaires.
manager, management company, and
association from liability related to
answering the questions or providing
information such as reserve studies,
engineer reports, etc. Managers
should not be pressured to answer
" yes " or " no " to any question. It is
appropriate, and often required, to
modify the answer that a manager
or association can comfortably give.
For instance, if a question is too broad
to be answered - such as those which
ask if the association is " aware " of
any deficiencies related to soundness,
structural integrity, safety, and/or
habitability - a limited response may
be appropriate to use: for example,
that the association has not received
any written citation regarding the
building in the last 12 months.
(Not answering at all and providing
association reports may work as well.)
When in doubt, managers should
consult with the association's attorney
to review responses.
EDUCATING BOARDS
AND OWNERS
There are also some steps that managers
can take to proactively facilitate
the process and anticipate potential
blowback from boards when they
receive complaints about the questions
not being answered. Managers
should let their boards know about
this issue and the balance between
answering the questions to facilitate
sales and not increasing liability for
the association.
The more a board knows about the
process, the more they will understand
why some questions should
not be answered and why some complaints
may be inevitable. Managers
should also encourage boards to be
proactive in putting a reserve study
in place and reviewing whether the
association is adequately funded.
The economic health of communities
is being scrutinized now more
than ever, and associations that
prepare now will fare better than
those who are not prepared. In addition
to educating boards, education
for unit owners is equally important.
Boards are often derailed or put under
significant pressure from unit owners
when it comes to increasing fees or
undertaking needed projects. But the
more unit owners understand the risks
of not performing repairs or being
underfunded, and the more involved
they are in the process, the less likely
(being optimistic here) they will resist
the actions of the board.
n MARK EINHORN, ESQ. IS A
PARTNER IN THE LAW FIRM MARCUS,
ERRICO, EMMER & BROOKS, P.C.
FROM
DAILY MAINTENANCE
TO
FINANCIAL MANAGEMENT
WE TAKE CARE OF
ALL ASPECTS
OF YOUR PROPERTY
978-452-7708
PO BOX 315, North Billerica, MA 01862
www.apmanages.com
November 2022 CONDOMEDIA 41
Condo Media - November 2022

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