Condo Media - September 2020 - 33

notice by email is not sufficient. Failure
to give proper notice can result in a
domino effect whereby any action taken
subsequent to insufficient notice could be
deemed invalid. The solution is to amend
the notice section in the documents
(usually found in the bylaws) to permit
notices to be sent by email. Amendments
to the bylaws do require the approval of
unit owners. If such an amendment is
adopted, the board or property manager
should keep a list of the current email
addresses for all unit owners.
ELECTRONIC BOARD
MEETINGS AND VOTING
While the issue of whether boards may
meet and vote using electronic means
has come up from time to time over the
years, the COVID-19 pandemic and
related restrictions on gatherings brought
greater attention to this issue. Many condominium documents are either vague
or require actual in-person meetings and
voting by the board. Actions taken by a
board that are not in compliance with the
strict language of the documents could
be subject to challenge. Given that many
board discussions take place via email,
coupled with the fact board members
are volunteers who often have full-time
jobs and lives outside of the board, it
would be prudent for the board to have
the ability to meet via conference call,
video conference, or other electronic
means, and to permit the board to make
decisions via electronic means, including
email. The reality is that many boards are
likely already doing this, but such practice
may not be permitted by the documents.
Therefore, it is advisable to amend the
relevant provisions in the condominium
documents to permit boards to meet and
vote by electronic means.
ELECTRONIC UNIT OWNER
MEETINGS AND VOTING
Many condominium documents require
the annual meeting of the unit owners
and elections of board members take
place during April, May, or June. Due to
the COVID-19 restrictions on gatherings, our office received many calls from
boards and property managers asking
what they should do given the inability
to actually hold a unit owner meeting
and election. Many clients inquired

whether they could hold a virtual annual meeting and vote by electronic
means. As such technology was not
available until recently, very few documents permit unit owners meetings to
be held virtually, nor do the documents
permit electronic voting. Once again,
the solution is to amend the documents.
With respect to voting electronically,
there are various services available set up
to handle voting by unit owners over the
internet. Security and fraud is of course
always a concern; thus, it is important to
ensure the service chosen has adequate
protections in place. If a unit owner indicates he or she is not comfortable voting
via the internet for whatever reason, the
board should have paper ballots available.
With respect to holding unit owner
meetings by electronic means, this is a bit
trickier. Unlike electronic voting, which
can have the alternative of a paper ballot,
a meeting is either in-person or virtual; a
hybrid approach likely would not work.
During the height of the COVID-19
pandemic, as many boards sought to hold
unit owner meetings via Zoom, several
concerns were expressed. What if a unit

owner does not have the technology to
enable them to participate? In addition,
for large condominiums, a Zoom meeting with 100 or more people could be
difficult to manage. Therefore, virtual
unit owner meetings may not work for all
condominiums. Before a board considers amending its documents to permit
virtual unit owner meetings, it would be
advisable to survey the unit owners to
determine their comfort level with such
an approach and to discuss alternatives if
owners are not comfortable.
While boards often propose amendments to documents which could be
viewed as controversial (smoking, leasing, pets, etc.), it is unlikely boards will
run into much opposition for amendments to permit notices by email, and
to permit boards to meet and vote by
electronic means.
n MATTHEW W. GAINES, ESQ.
IS A PARTNER WITH THE LAW FIRM
MARCUS, ERRICO, EMMER & BROOKS,
P.C. AND CO-CHAIR OF THE CAI
MASSACHUSETTS LEGISLATIVE ACTION
COMMITTEE (MALAC).

www.hkinsurance.com

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September 2020 CONDOMEDIA

33
Condo Media - September 2020

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