Hellmuth & Johnson attorney, Nancy Polomis, discusses various topics with HOALeader.com:
Should Your Condo/HOA Agree to Let Your Manager Off the Hook?
“I review the standard contracts for all the management companies in the Twin Cities, and they all include these,” reports Nancy Polomis, a partner at Hellmuth & Johnson PLLC in Edina, Minn., whose clients include local and national residential builders and developers and condos and HOAs throughout Minnesota.
“I think what a lot of people forget is that managers take their instruction or directive from the board,” she states. “Let’s say the board says, ‘Susan, we want you to do X,’ and Susan as the manager says, ‘Are you sure? I’d caution you on doing that for these reasons.’ Then the board says, ‘We’re in charge here; do it.’
“Susan is doing things at the direction of the board,” explains Polomis. “Assuming what she’s doing isn’t illegal, she shouldn’t be responsible for dutifully carrying out the decisions of the board. Furthermore, many of the tasks managers take care of are pretty ministerial. They’re delegated from the board—they’re assessing a fine or late charges or sending late notices.
“So when someone has an issue with something management had done at the direction of the board and they take it to court, 9 times out of 10, they name the management company as a defendant solely without the association,” she states. “Or they name both the management company and the association. Since the management company is working on behalf of the association, it’s appropriate that the association back them up, if you will. There’s a certain amount of indemnification that’s appropriate.”
Read full article here.
Does a Condo/HOA Board President Vote on Issues Before the Board?
This question never goes away. Here, our experts explain whether a condo board president or chair should vote in every matter before the board or refrain from voting unless there’s a tie.
The Culprit? Robert’s Rules
The idea that a board president or chair shouldn’t vote on a motion before the board is one that’s been around forever, but it should be retired, says Nancy Polomis, a partner at Hellmuth & Johnson PLLC in Edina, Minn., whose clients include local and national residential builders and developers and condos and HOAs throughout Minnesota.
“If you go to the Robert’s Rules of Order website, the first FAQ addresses this point,” she explains. That FAQ states: “No, it is not true that the president can vote only to break a tie. If the president is a member of the voting body, he or she has exactly the same rights and privileges as all other members have, including the right to make motions, to speak in debate, and to vote on all questions.”
There is further explanation, however, that the impartiality required of a presiding officer “precludes exercising the rights to make motions or speak in debate while presiding, and also requires refraining from voting except (i) when the vote is by ballot, or (ii) whenever his or her vote will affect the result.”
Read full article here.
What to Know About Spouses Running for Your Condo/HOA Board
An HOAleader.com reader asks: “We have a husband running for president and his wife running for vice president. There are no state rules in Alabama that I know, and there’s nothing in our bylaws. Anyone else have this happen?”
Nothing in Minnesota law prohibits this. “The law is silent on it,” reports Nancy Polomis, a partner at Hellmuth & Johnson PLLC in Edina, Minn., whose clients include local and national residential builders and developers and condos and HOAs throughout Minnesota. “It’s legal for nonprofit corporations to include in their bylaws a restriction that says that no more than one owner in a home can serve at a given time, and that depends on how owner is defined in the declaration of covenants. Or it could state that no more than one person from a given household—which can be trickier—may serve on the board at any given time.”
“A lot include that, but not all do,” adds Polomis. “Typically, if they’ve been drafted more recently or completely rewritten, they’ll often include such a provision.”
Read full article here.
Chicago Condo Mulls $500 Mask Fine; Should You Follow Suit?
There’s a similar but slightly different concern for Nancy Polomis, a partner at Hellmuth & Johnson PLLC in Edina, Minn., whose clients include local and national residential builders and developers and condos and HOAs throughout Minnesota. She’s been asked by board clients if a mask mandate is permissible, and her concern is the polarization that’s developed over masks.
“Generally what I tell my clients is that you may have the right to do it, but let’s think about whether it’s the right thing to do,” she says. “Everyone living there is a neighbor. If we’re going to say everyone must wear a mask, that’s even more strict than Minnesota’s mandate.
“Associations can make rules that are more strict than state laws, but who’s going to enforce it is the big question,” asks Polomis. “In Minnesota, if you’re over two years old and can medically tolerate wearing a mask, you should be a wearing a mask. But even in the state, there aren’t any mask police, expect in public places; they do inspect those from time to time, usually on a tip from the public. For the most part in Minnesota, we’re pretty mask compliant, with some exceptions.
“There’s already so much anxiety and angst over everything COVID, and to add this finable offense to that list, I don’t think it’s a good idea,” she states. “Usually I ask my boards: Is that really how you want to deal with the pandemic? Do you want to deal with it neighborly or strictly?
“I think neighborly is the way to go,” she asserts. “At the end of the day, we’re all adults. If someone isn’t going to wear a mask, no rule is going to change that. They’re also not going to pay the fine, and then it’s a completely different argument.
“This is a road filled with obstacles and potholes that an association doesn’t want to go down,” opines Polomis. I don’t think it’s worth it.”
Have any clients essentially said, “Nancy’s full of baloney” and gone forward with a mask mandate? “Probably, and they might say that about so many issues,” jokes Polomis. “I’m sure there are clients who’ve said, ‘Let’s check with Nancy and management.’ Then they get those opinions but say, ‘That’s all fine and good, but we’re doing it, anyway.’ They’d be in the minority, I think.”
Read full article here.