Thanks to Arthur Johnson, Esq.

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What document lists the trustees of a condominium association?

How can we address disputes between smokers and nonsmokers regarding secondhand smoke?

What forms does a bank require (in Massachusetts) for setting up a condo association account?

Our property manager and her husband are selling their unit. After the sale, she intends to "hire" him as a board member. Can she do that?

What information does a developer/original trustee have to provide to new trustees once the final unit is sold (e.g. financial statements, payment of condo fees, budgets)?

Our board members have given themselves permission not to pay condo fees, violating our bylaws. What can we do?

The following information applies only to Massachusetts.

A notice with the names of the condominium trustees should be filed with the Registry of Deeds for the county where the condominium is located. So, if the condo is located in Jamaica Plain, the notice would be filed with the Suffolk County Registry of Deeds. For a sample Appointment of Trustee form, see the Condopedia Downloads section.

Because the Trustees of a condominium association have the legal responsibility for running the condominium, anyone who deals with the condominium association may want to know the information on the Appointment form. For example, lawyers and title examiners for a condo buyer might review the form to confirm that a bonafide trustee signed the 6D Certificate (which states that all condo fees and assessments are up-to-date). A serviceperson might want to review the form to confirm that a trustee signed the contract.

The Notice of Appointment can be filed anytime, but should generally be filed when the trustees are first appointed/elected and then whenever there is a change in the position. The filing fee is $75.00 per document. There are no consequences for not filing the notice provided that the term of office of the trustee does not begin or end until the notice is filed. However, when the condo trustees have to take an act, like to issue a 6d Certificate, if the notice is not on record, then someone would have run around and get the form signed, notarized, and filed.

In general, a unit owner has the right to smoke in his or her own apartment, but condo associations can make rules regarding smoking in the common spaces, including hallways, gardens, decks, and laundry rooms.

If smoke makes its way into other units through vents and windows, one might be able to pursue a legal course of action. For instance, it has been argued that smoke pollution is no different than noise pollution and affects other owners' rights to enjoy their apartments. People who suffer asthma or other conditions may have health grounds for legal action. On the other hand, a smoker may be able to claim an addictive disability, which could give that person a way to fend off the rights of nonsmokers.

While legal action is an option, it provides no guarantees. If you want to pursue that route, discuss it with a lawyer who can explain the potential risks and benefits. You might also want to check out the Clean Lungs website and the Smoking hurts website. For a Massachusetts perspective, visit this link.

If the neighbors are willing to work toward a solution, there are several steps the condo association or the affected unit owners can take to reduce problems associated with smoking:

• Ask the smoker to consider smoking only in one part of his or her apartment. This would simplify the challenge of reducing odors.
• Ask the smoker to install or allow the condo association to install smoke odor removers. Many air purifiers that are available online and at department stores reduce smoke odors.
• Ask the smoker to buy smokeless ashtrays to reduce smoke odors.

The best way to resolve a problem between smokers and nonsmokers is for all parties to work together. In most cases, it will be possible to find a compromise that will allow the smoker to smoke and the nonsmoker to fully enjoy the comfort of their own home.

The bank will have a form to be filled out by the Trustees of the condo association and may also require that the Trustees show the bank proof that you are in fact the designated Trustees.

You can show them the Appointment of Trustee forms for each Trustee, which should be recorded at the Registry of Deeds in your county and which show that the persons who sign the bank account form are in fact the Trustees. The bank may also require the Trustees to show where they get their power to act, which is in the Declaration of Trust and By-laws, which should also be recorded in the Registry of Deeds.

Every condo association should already have a Declaration of Trust and By-laws, because these are recorded when the condo is first set up.

This question comes from a contentious association in South Carolina where there is concern among condo owners that the board may be dishonest as well. The main question is whether a property manager can "hire" a board member who is not (will not be) an owner.

It’s unlikely she has the right to do this. In all the cases that we know of, only a unit owner can be a board member, and a property manager cannot appoint a board member. Your condo bylaws spell out how board members get elected or appointed. You might also ask the person designated Secretary of the condo board for a copy of the contract with the property manager. In addition, you can review some of the South Carolina laws here:

http://www.scstatehouse.net/code/t27c031.htm

If you don’t want to go through the trouble of reviewing those documents, at the next board meeting say, “I think it’s against the rules for a non-owner to be a board member,” and let the board try to prove you wrong!

If you think the board or property manager is dishonest, consider proposing that the board set up an independent committee to review its records. I would suggest that you point out such a review could help clear the air of rumor and innuendo. Hopefully the board would agree. In our experience, boards are more often overworked or guilty of bad decisions than dishonest. Hopefully that’s the case in your association.

Developers always keep control of the condo association until they sell off all or most of the units by being the Original Trustee. The Original Trustee then gives up control and new trustees take over, depending on how the trust documents set up the election of the new trustees. The new trustees are entitled to receive all the financial records from the Original Trustee, including budgets, list of expenses, records of payment of the condo fees by unit owners, etc. from the date of conversion to condos.

Unless the condo docs require it, there is no obligation to provide audited financial statements. So you should be able to learn how much money was collected from unit owners (so that you could go after unit owners who are behind in their payments) and what the money was spent on. Finally, one note - the Original Trustee, that is, the developer is responsible to pay condo fees for all units the developer owned from the date of conversion (the filing of the Master Deed) to the date of sale of the unit in the amount of the unit's proportionate share of the common expenses. Arthur Johnson, Esq.

The most effective solution would be to contact a real estate lawyer (preferably one who specializes in condo law) and show that lawyer the relevant section(s) of your condo bylaws plus, if you have them, copies of all back minutes to show there was never a vote.

Your lawyer, after researching relevant state laws, might then prepare a sharply worded letter to the condo board ordering them to pay the condo association back fees and to stop engaging in such practices. The lawyer could also help protect your association in the event your board is really bad and chooses to fight. (For instance, this could require steps to protect the association's bank account, apply liens against the board members' units, and possibly even oust the board.) Although you (and hopefully other condo owners) would have to pay for this lawyer, it probably wouldn't be too expensive and you might be able to recoup the money from the condo board. (Discuss this with the lawyer.)

If you wanted to approach the condo board directly, then I would try to get as many unit owners as possible to the meeting and present your objections directly to the board. But, if the board does not comply or present evidence that a vote was taken, in our opinion, you would still need to see a lawyer.

Good luck, and let us know how things work out.