Condo Media - July 2020 - 25

Edmund Allcock, a partner in Marcus, Errico, Emmer & Brooks and the 2020 president of CAI-NE,
thinks the idea has merit; Michael Weintraub, principal in The Rosebrook Group LLC, isn't convinced.
They explain their differing perspectives here.
MICHAEL
WEINTRAUB
"I am not
opposed to
emergency
powers per
se," Weintraub
emphasizes, but
he is not convinced the powers are
necessary. He thinks it is too soon to
make that determination, and he is
concerned about the risk that broad
powers might be abused and infringe on
individual rights.
"I think the condominium industry
overall has done a good job of responding to the pandemic in responsible,
reasonable, measured ways," he says.
"But I asked a number of managers
responsible for hundreds of associations what emergency powers would
have permitted that they were not able
to do," and none identified any actions
they weren't able to take. "That doesn't
mean there weren't some problems,"
Weintraub acknowledges, but most
communities were apparently able to
do what was needed to manage their
pandemic response.
Many of the actions boards took -
closing amenities and restricting access
to the community, for example - were
arguably authorized by their broad
authority to adopt rules and policies
governing common areas, Weintraub
suggests. It is measures targeting owners themselves that don't fall clearly
within that framework and that trigger
his concern about emergency powers.
"When you're talking about requiring
owners to wear face masks or gloves
or to submit to tests for the
virus, or to have their
temperature taken, you
begin to head down a
slippery road"
that could lead
to infringements on individual
rights, he fears. "Do we really want our
volunteer boards, even with the advice
of experienced managers and attorneys,
to be exercising this kind of authority?"

Weintraub asks. "I wonder if board
members or managers themselves
would want to have that kind of power."
"I think these issues are ripe for
discussion," he adds. "And I am in favor
of having that discussion." But he also
thinks the discussion should be broader,
"separating the health and safety issues
that seem to be driving the [interest] in
emergency powers" from financial and
operational issues the pandemic has
highlighted. He notes two in particular:
D
 elinquencies. Many boards have
responded to pandemic-related
delinquencies by offering more
compassion and flexibility to
struggling owners than they do
in normal times. "Why are we so
compassionate with owners who
lost their jobs due to the pandemic,
but not with owners who lost their
jobs through no fault of their own
in other times?" Weintraub asks.
The question, he suggests, is not
whether boards need emergency
powers to deal with delinquencies in a crisis, but whether they
should rethink their handling of
delinquencies generally.
 eetings.
M
Many boards
unable to meet or
conduct elections
in-person, as their documents or
statutes may have required, either
met virtually, postponed meetings,
or allowed owners to vote by mail.
Did the pandemic illustrate the
need for emergency powers that
would authorize those measures,
Weintraub asks, or simply illustrate
that "outdated" laws and policies
prohibiting them should
be revised?
Instead of
looking specifically
at emergency powers, he believes, "we
should look at best practices and come
up with ideas on how best to [incorporate] them."

"I'm not saying boards don't need
emergency powers [in some areas],"
Weintraub emphasizes. "I'm just saying there is still far too much we don't
know" about what worked in the pandemic, what didn't work and what additional authority, if any, boards might
need. "I think we should look at these
questions holistically, and we should
wait until we have more information
before we jump into changes in legislation or governing documents."
EDMUND
ALLCOCK
One of the
major arguments in favor
of emergency
powers is that
they give boards
legal cover for actions they take to deal
with an emergency. One of the major
arguments against is that this cover
isn't necessary, because the courts
aren't likely to reject reasonable
actions boards take to protect
community associations and
their residents on the grounds
that the actions weren't specifically authorized.
Allcock doesn't dispute that logic. Boards
that closed amenities,
limited access to the
community, or met remotely relied on
local, state, and federal mandates and
guidance, and that may be sufficient,
he says. Boards did what they felt
they had to do, he agrees, but the fact
remains, "their actions were illegal.
Why expose them to the risk that major decisions may be challenged and
possibly overturned?" Spelling out a
board's authority to act in an emergency "gives them more flexibility
to maneuver legally," Allcock says.
This may both reduce the likelihood
that owners will challenge board actions and reduce the risk that some
boards might refrain from taking
necessary actions because they lack
the authority for them.
July 2020 CONDOMEDIA

25



Condo Media - July 2020

Table of Contents for the Digital Edition of Condo Media - July 2020

Contents
Condo Media - July 2020 - Cover1
Condo Media - July 2020 - Cover2
Condo Media - July 2020 - Contents
Condo Media - July 2020 - 2
Condo Media - July 2020 - 3
Condo Media - July 2020 - 4
Condo Media - July 2020 - 5
Condo Media - July 2020 - 6
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Condo Media - July 2020 - 8
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Condo Media - July 2020 - Cover3
Condo Media - July 2020 - Cover4
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