Proposed Condominium Legislation 2019 - Part I

Well, here go again. For the fourth year in a row, the Legislature is proposing more changes to the Condominium Act. That in itself is not a bad thing as change can be, and frequently is, good. But let's take a look at a few of the proposed changes. One in particular made me chuckle.

The proposed legislation is for the establishment of a Condominium Dispute Resolution Board. The theory, apparently, is that people don't like how their boards of directors act, can't get relief through the normal process of appealing to its board or association, can't get on its board, and so they complain of unfairness. And now they have a new place to register complaints as a new Board will be established.

The CDRB will have nine (9) members. There will be two (2) members from the House of Representatives (appointed by the Speaker). Three members, appointed by the governor, will be residents of condominiums from three (3) different senate districts. Those members may not be members of a condominium board of directors. Two (2) members, also appointed by the governor, will be members of condominium association boards of director. One (1) member who represents a condominium management company, and one (1) attorney, who may not have any experience in condominium law, appointed by the President of the New Hampshire Bar Association.

And, in all their spare time, the Attorney General's Office, with its existing staff (there is no provision for adding an employee to the Attorney General's Office) shall provide legal assistance to the Board. That will turn into a near constant requirement of advice.

So let's think about this. Someone doesn't like a fee increase. They can claim the Board passed an illegal budget which, by the way, has been ratified by the Owners. Or, they can complain, as often happens, that they don't like how the minutes of a meeting reflected what they said at the meeting. Or they can complain the Board had no right to tell them to stop smoking, move their car, or simply doesn't respond to their daily emails to the Board. Now the unhappy person has a forum.

The Legislature has no idea the Pandora's Box they have opened. They will be inundated with complaints. For perspective, someone should ask the Attorney General's Office how many calls they get each week from people who want to complain about something in their association. I guarantee it's at least twenty. That's 1,000 per year. That's 1,0000 hearings a year or twenty (20) a week. That's a problem because the Legislature set one hearing day every 90 days, i.e. four (4) days a year, to hear upwards of 1,000 complaints.

All of this extra legislative work does a disservice to the representative democracy that is a condominium association where owners elect boards to operate the Association. (As one judge said, “If the Board is so bad, why do they keep electing them?”) And there's a much simpler solution, and it works at associations where it has been adopted. It doesn't stop the complaining, but it does do away with a lot of problems, and courts around the nation have required it.

When a board of directors makes a decision, such as imposing a fine or other sanction, have a Rule (preferably it should be in the Bylaws), that any directly affected owner can appeal the decision to the owners themselves at a properly called association meeting once each quarter. An owner gets the opportunity to make his/her appeal directly to fellow owners and away from the allegedly bad board. Owners themselves get to make the final decision on how their elected members of the board have done.

If not, the unintended consequenceis it will discourage good, intelligent, hard-working, fair owners from running for a board. Why would they want the added grief of knowing that every decision they make can result in them being smeared publicly and hauled before a board of nine politically appointed persons to be publicly, yet errantly, smeared as incompetent or criminal?

Why not do away with the long, complicated legislation proposed and simply pass legislation that requires such an in-house appeal to owners of their own association? Maybe that's too simple.

On the other hand, who knows? This could work … for me. I'll be traveling to Concord so often, maybe I'll be able to pay off my mortgage early and maybe even be able to pay for my daughter's full college and grad school tuition. With money to spare. But that's not the way it should be.

You may want to call your local legislator.