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Winds of Change ... All leaves must fall and wither before new growth begins.
As fall settles in over our little piece of Crotched Mountain, it reminds us that change is a good thing. The leaves have started to fall and wither.
While the Country has had it's Presidential Election, we should be preparing for our Election and Annual Meeting ...
The Board of Directors refused to let us vote for a new director last year (Our Bylaws require a new director each year) and may possibly choose to do so again this year. Since ECMCA does not follow many of the Bylaws, Declaration or RSA 356 B, a history lesson is needed to figure out the mess they have made of our elections using invalid proxies, invalid notices, non-notice of all unit owners, lack of ballots, and precluding eligible/entitled unit owners from voting.
The New Hampshire Condominium Act has brought changes that all ECMCA members should be aware of. Many of these changes affect proxies, ballots, voting, meetings, budgets, and special assessments.
Since our Board of Directors does not share information with it's members (Where are Board of Director meeting minutes? where is the 2015 Audit? Where is missing documentation of expenditures in the monthly financial statements?) ... it is prudent for EASTSIDE CONDO FRIENDS to let the members know about these changes.
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| Courtesy of: http://www.ctnewsjunkie.com |
Section 356-B:37-c
I. For purposes of this section, a gathering of board members at which the board members do not conduct association business is not a meeting of the board of directors. The board of directors and its members may not use incidental or social gatherings of board members or any other method to evade the open meeting requirements of this section.
II. Not less than once each quarter, and at such additional times as may be specified in the condominium bylaws, the board of directors shall, subject to the provisions of RSA 356-B:37-d, hold an open regular meeting during which unit owners shall be afforded a reasonable opportunity to comment on any matter affecting the association. At its discretion, the board of directors may meet in a meeting not open to unit owners provided the meeting is recorded and the recording is made available to unit owners for up to 30 days upon request.
III. Unless the meeting is included in a schedule given to the unit owners or the meeting is called to deal with an emergency, the secretary or other officer specified in the bylaws shall give notice of each meeting of the board of directors to each board member and to the unit owners. The notice shall be given at least 10 days before the meeting and shall state the time, date, place, and agenda of the meeting.
IV. If any materials are distributed to the board of directors before the meeting, the board of directors at the same time shall make copies of those materials reasonably available to unit owners, except that the board of directors need not make available copies of unapproved minutes or matters that are to be considered in executive session.
V. In the case of self-managed community associations, meetings of the board of directors or committees expressly for purposes of implementation of decisions made in open meetings shall be exempt from the requirements of RSA 356-B:37, 356-B:37-a, and this section.
Source. 2016, 311:2, eff. Aug. 1, 2016.
So ... those of us here at Eastside Condo Friends have not received any notices of any Board of Director Meetings nor have we received any meeting minutes or been made available meeting minutes on the Harvard Management website as of October 27, 2016. The new law at 356-B:37c was in effect as of August 1, 2016. What tidbits are the Board of Directors hiding?
Section 356-B:37-d
356-B:37-d Executive Session. – The board of directors and association committees may hold an executive session only during a regular or special meeting of the board or a committee. No final vote or action may be taken during an executive session. An executive session may be held only to:
I. Consult with the association's attorney.
II. Discuss existing or potential litigation or mediation, arbitration, or administrative proceedings.
III. Discuss labor or personnel matters.
IV. Discuss contracts, leases, and other commercial transactions to purchase or provide goods or services currently being negotiated, including the review of bids or proposals, if premature general knowledge of those matters would place the association at a disadvantage or prevent public knowledge of the matter to be discussed if the board of directors or a committee determines that public knowledge would violate the privacy of any person.
I. Consult with the association's attorney.
II. Discuss existing or potential litigation or mediation, arbitration, or administrative proceedings.
III. Discuss labor or personnel matters.
IV. Discuss contracts, leases, and other commercial transactions to purchase or provide goods or services currently being negotiated, including the review of bids or proposals, if premature general knowledge of those matters would place the association at a disadvantage or prevent public knowledge of the matter to be discussed if the board of directors or a committee determines that public knowledge would violate the privacy of any person.
Source. 2016, 311:2, eff. Aug. 1, 2016.
Section 356-B:38
356-B:38 Quorums. –
I. Unless the condominium instruments otherwise provide, a quorum shall be deemed to be present throughout any meeting of the unit owners' association until adjourned if persons entitled to cast more than 33 1/3 percent of the votes are present at the beginning of such meeting. The bylaws may provide for a smaller percentage, not less than 25 percent, or for a larger percentage for associations having fewer than 25 units; provided, however, this paragraph shall not apply if the condominium is comprised of time sharing interests.
II. Unless the condominium instruments specify a larger majority, a quorum shall be deemed to be present throughout any meeting of the board of directors if persons entitled to cast more than 1/2 of the votes in that body are present at the beginning of such meeting.
III. If a quorum is not met for an annual meeting, the board shall reschedule the meeting within 60 days and provide proper notice and proxies.
I. Unless the condominium instruments otherwise provide, a quorum shall be deemed to be present throughout any meeting of the unit owners' association until adjourned if persons entitled to cast more than 33 1/3 percent of the votes are present at the beginning of such meeting. The bylaws may provide for a smaller percentage, not less than 25 percent, or for a larger percentage for associations having fewer than 25 units; provided, however, this paragraph shall not apply if the condominium is comprised of time sharing interests.
II. Unless the condominium instruments specify a larger majority, a quorum shall be deemed to be present throughout any meeting of the board of directors if persons entitled to cast more than 1/2 of the votes in that body are present at the beginning of such meeting.
III. If a quorum is not met for an annual meeting, the board shall reschedule the meeting within 60 days and provide proper notice and proxies.
Source. 1977, 468:1, eff. Sept. 10, 1977. 2016, 311:2, eff. Aug. 1, 2016.
Section 356-B:39
356-B:39 Voting. –
I. The bylaws may allocate to each unit depicted on site plans and floor plans that comply with RSA 356-B:20, I and II, a number of votes in the unit owners' association proportionate to the undivided interest in the common areas appertaining to each such unit.
II. Otherwise, the bylaws shall allocate to each such unit an equal number of votes in the unit owners' association, subject to the following exception: each convertible space so depicted shall be allocated a number of votes in the unit owners' association proportionate to the size of each such space, vis-a-vis the aggregate size of all units so depicted, while the remaining votes in the unit owners' association shall be allocated equally to the other units so depicted.
III. Since a unit owner may be more than one person, if only one of such persons is present at a meeting of the unit owners' association, that person shall be entitled to cast the votes appertaining to that unit. But if more than one of such persons is present, the vote appertaining to that unit shall be cast only in accordance with agreement of a majority in interest of the owners unless the condominium instruments expressly provide otherwise, and such consent shall be conclusively presumed if any one of them purports to cast the votes appertaining to that unit without protest being made forthwith by any of the others to the person presiding over the meeting. Since a person need not be a natural person, the word "person'' shall be deemed for the purposes of this paragraph to include, without limitation, any natural person having authority to execute deeds on behalf of any person, excluding natural persons, which is, either alone or in conjunction with another person or persons, a unit owner.
IV. (a) The votes appertaining to any unit may be cast pursuant to a proxy or proxies duly executed by or on behalf of the unit owner, or, in cases where the unit owner is more than one person, by or on behalf of all such persons. A person may not cast undirected proxies representing more than 10 percent of the votes in the association. The proxy or proxies shall list the name of the person who is to vote. No such proxy shall be revocable except by actual notice to the person presiding over the meeting, by the unit owner or by any of such persons, that it be revoked. Any proxy shall be void if it is not dated or if it purports to be revocable without the required notice. The proxy of any person shall be void if not signed by a person having authority, at the time of the execution thereof, to execute deeds on behalf of that person. Any proxy shall terminate automatically upon the adjournment of the first meeting held on or after the date of that proxy. The board of directors shall deliver to the unit owners, together with their notice of meeting and agenda, proxy forms bearing a control number which the board of directors shall correlate to the list of all unit owners then entitled to vote. At the noticed meeting, the board of directors shall recover all proxies and compare them to the control list maintained for that purpose. Any proxies which are on a form other than that provided by the board of directors or which do not correlate with the control list maintained by the board of directors shall be disregarded for purposes of determining whether a quorum was present at the meeting and for purposes of casting any vote at that meeting; provided, however, this paragraph shall not apply if the condominium is comprised of time sharing interests.
(b) The board of directors shall retain all proxies delivered to the board of directors and all independent written confirmation of any such proxies for inspection by the unit owners for a period of not less than 3 years from the date of the unit owners' association meeting.
V. If 50 percent or more of the votes in the unit owners' association appertain to 25 percent or less of the units, then in any case where a majority vote is required by the condominium instruments or by this chapter, the requirement for such a majority shall be deemed to include, in addition to the specified majority of the votes, assent by the unit owners of a like majority of the units.
VI. If more than 50 percent of the votes are acquired by a single person after developer control is terminated, a 2/3 majority shall be required to change bylaws, budgets, and any contracted property management.
I. The bylaws may allocate to each unit depicted on site plans and floor plans that comply with RSA 356-B:20, I and II, a number of votes in the unit owners' association proportionate to the undivided interest in the common areas appertaining to each such unit.
II. Otherwise, the bylaws shall allocate to each such unit an equal number of votes in the unit owners' association, subject to the following exception: each convertible space so depicted shall be allocated a number of votes in the unit owners' association proportionate to the size of each such space, vis-a-vis the aggregate size of all units so depicted, while the remaining votes in the unit owners' association shall be allocated equally to the other units so depicted.
III. Since a unit owner may be more than one person, if only one of such persons is present at a meeting of the unit owners' association, that person shall be entitled to cast the votes appertaining to that unit. But if more than one of such persons is present, the vote appertaining to that unit shall be cast only in accordance with agreement of a majority in interest of the owners unless the condominium instruments expressly provide otherwise, and such consent shall be conclusively presumed if any one of them purports to cast the votes appertaining to that unit without protest being made forthwith by any of the others to the person presiding over the meeting. Since a person need not be a natural person, the word "person'' shall be deemed for the purposes of this paragraph to include, without limitation, any natural person having authority to execute deeds on behalf of any person, excluding natural persons, which is, either alone or in conjunction with another person or persons, a unit owner.
IV. (a) The votes appertaining to any unit may be cast pursuant to a proxy or proxies duly executed by or on behalf of the unit owner, or, in cases where the unit owner is more than one person, by or on behalf of all such persons. A person may not cast undirected proxies representing more than 10 percent of the votes in the association. The proxy or proxies shall list the name of the person who is to vote. No such proxy shall be revocable except by actual notice to the person presiding over the meeting, by the unit owner or by any of such persons, that it be revoked. Any proxy shall be void if it is not dated or if it purports to be revocable without the required notice. The proxy of any person shall be void if not signed by a person having authority, at the time of the execution thereof, to execute deeds on behalf of that person. Any proxy shall terminate automatically upon the adjournment of the first meeting held on or after the date of that proxy. The board of directors shall deliver to the unit owners, together with their notice of meeting and agenda, proxy forms bearing a control number which the board of directors shall correlate to the list of all unit owners then entitled to vote. At the noticed meeting, the board of directors shall recover all proxies and compare them to the control list maintained for that purpose. Any proxies which are on a form other than that provided by the board of directors or which do not correlate with the control list maintained by the board of directors shall be disregarded for purposes of determining whether a quorum was present at the meeting and for purposes of casting any vote at that meeting; provided, however, this paragraph shall not apply if the condominium is comprised of time sharing interests.
(b) The board of directors shall retain all proxies delivered to the board of directors and all independent written confirmation of any such proxies for inspection by the unit owners for a period of not less than 3 years from the date of the unit owners' association meeting.
V. If 50 percent or more of the votes in the unit owners' association appertain to 25 percent or less of the units, then in any case where a majority vote is required by the condominium instruments or by this chapter, the requirement for such a majority shall be deemed to include, in addition to the specified majority of the votes, assent by the unit owners of a like majority of the units.
VI. If more than 50 percent of the votes are acquired by a single person after developer control is terminated, a 2/3 majority shall be required to change bylaws, budgets, and any contracted property management.
Source. 1977, 468:1. 1993, 186:2, eff. June 9, 1993. 2016, 311:2, eff. Aug. 1, 2016.
Section 356-B:39-a
356-B:39-a Voting Without a Meeting. – Unless prohibited or limited by the declaration or bylaws, an association may conduct a vote without a meeting. In that event, the following requirements apply:
I. The association shall notify the unit owners, in the manner prescribed by RSA 356-B:37-a, that the vote will be taken by ballot and deliver a paper or electronic ballot to every unit owner entitled to vote on the matter.
II. The ballot shall:
(a) Set forth each proposed action and provide an opportunity to vote for or against the action.
(b) Indicate the number of responses needed to meet the quorum requirements.
(c) State the percent of votes necessary to approve each matter other than election of directors.
(d) Specify the time and date by which a ballot must be delivered to the association to be counted, which time and date may not be fewer than 10 days after the date the association delivers the ballot.
(e) Describe the time, date, and manner by which unit owners wishing to deliver information to all unit owners regarding the subject of the vote may do so.
III. Except as otherwise provided in the declaration or bylaws, a ballot is not revoked after delivery to the association by death or disability or attempted revocation by the person that cast that vote.
IV. Approval by ballot pursuant to this section is valid only if the number of votes cast by ballot equals or exceeds the quorum required to be present at a meeting authorizing the action.
I. The association shall notify the unit owners, in the manner prescribed by RSA 356-B:37-a, that the vote will be taken by ballot and deliver a paper or electronic ballot to every unit owner entitled to vote on the matter.
II. The ballot shall:
(a) Set forth each proposed action and provide an opportunity to vote for or against the action.
(b) Indicate the number of responses needed to meet the quorum requirements.
(c) State the percent of votes necessary to approve each matter other than election of directors.
(d) Specify the time and date by which a ballot must be delivered to the association to be counted, which time and date may not be fewer than 10 days after the date the association delivers the ballot.
(e) Describe the time, date, and manner by which unit owners wishing to deliver information to all unit owners regarding the subject of the vote may do so.
III. Except as otherwise provided in the declaration or bylaws, a ballot is not revoked after delivery to the association by death or disability or attempted revocation by the person that cast that vote.
IV. Approval by ballot pursuant to this section is valid only if the number of votes cast by ballot equals or exceeds the quorum required to be present at a meeting authorizing the action.
Source. 2016, 311:2, eff. Aug. 1, 2016.
Section 356-B:40
356-B:40 Members of the Board of Directors and Officers. –
I. Except as provided in the declaration, the bylaws, paragraph II, or other provisions of this chapter, the board of directors acts on behalf of the association. In the performance of their duties, officers and members of the board of directors appointed by the declarant shall exercise the degree of care and loyalty to the association required of a trustee. Officers and members of the board of directors not appointed by the declarant shall exercise the degree of care and loyalty to the association required of an officer or director of a corporation organized under RSA 292, and are subject to the conflict of interest rules governing directors and officers under RSA 292. The standards of care and loyalty described in this paragraph apply regardless of the form in which the association is organized.
II. The board of directors shall not:
(a) Amend the declaration except as otherwise provided in this chapter.
(b) Amend the bylaws.
(c) Terminate the unit owners' association.
(d) Elect members of the board of directors but may fill vacancies in its membership for the unexpired portion of any term or, if earlier, until the next regularly scheduled election of executive board members.
(e) Determine the qualifications, powers, and duties, or terms of office of members of the board of directors.
II-a. An officer shall not directly receive any salary or compensation from the association for the performance of duties as an officer or board member and shall not in any other way benefit financially from service to the association.
II-b. If annually approved by a 2/3 majority of the voting interests present at a properly called meeting of the association, the association may waive the requirements of paragraph II-a.
III. The board of directors shall adopt budgets as provided in RSA 356-B:40-c.
IV. Subject to the provisions of paragraph V, the declaration may provide for a period of declarant control of the association, during which a declarant, or persons designated by the declarant, may appoint and remove the officers and members of the board of directors. A declarant may voluntarily surrender the right to appoint and remove officers and members of the board of directors before the period ends. In that event, the declarant may require during the remainder of the period that specified actions of the association or board of directors, as described in a recorded instrument executed by the declarant, be approved by the declarant before they become effective. Regardless of the period provided in the declaration, and except as provided in RSA 356-B:36, a period of declarant control terminates no later than the earliest of:
(a) Sixty days after conveyance of 60 percent of the units that may be created to unit owners other than a declarant;
(b) Two years after all declarants have ceased to offer units for sale in the ordinary course of business;
(c) Two years after any right to add new units was last exercised; or
(d) The date the declarant, after giving notice in a record to unit owners, records an instrument voluntarily surrendering all rights to control activities of the association.
V. Not later than 60 days after conveyance of 1/4 of the units that may be created to unit owners other than a declarant, at least one member and not less than 25 percent of the members of the board of directors shall be elected by unit owners other than the declarant. Not later than 60 days after conveyance of 1/2 of the units that may be created to unit owners other than a declarant, not less than 1/2 of the members of the board of directors shall be elected by unit owners other than the declarant.
VI. Not later than the termination of any period of declarant control, the unit owners shall elect a board of directors with at least 3 members, a majority of whom shall be unit owners. Unless the declaration provides for the election of officers by the unit owners, the board of directors shall elect the officers. The members of the board of directors and officers shall take office upon election or appointment.
VII. If the condominium instruments provide that any officer or officers must be unit owners, then any such officer who disposes of all of his or her units in fee or for a term or terms of more than one year shall be deemed disqualified from continuing in office unless the condominium instruments otherwise provide, or unless the officer acquires or contracts to acquire another unit in the condominium under terms giving the officer a right of occupancy thereto effective on or before the termination of the right of occupancy under such disposition or dispositions.
VIII. If the condominium instruments provide that any officer or officers must be unit owners, then notwithstanding the provisions of RSA 356-B:12, I, the term "unit owner'' in such context shall, unless the condominium instruments otherwise provide, be deemed to include, without limitation, any director, officer, partner in, or trustee of any person which is, either alone or in conjunction with another person or persons, a unit owner. Any officer who would not be eligible to serve as such were he or she not director, officer, partner in, or trustee of such a person shall be deemed disqualified from continuing in office if the officer ceases to have any such affiliation with that person, or if that person would itself have been deemed to have disqualified itself from continuing in such office under paragraph I were it a natural person holding such office.
IX. Any officer is a suitable person to receive service of process in any proceeding against the association.
X. For the purpose of receipt of notification by a municipality of a local land use board hearing, the officers shall be responsible for serving as agents of the unit owners' association.
I. Except as provided in the declaration, the bylaws, paragraph II, or other provisions of this chapter, the board of directors acts on behalf of the association. In the performance of their duties, officers and members of the board of directors appointed by the declarant shall exercise the degree of care and loyalty to the association required of a trustee. Officers and members of the board of directors not appointed by the declarant shall exercise the degree of care and loyalty to the association required of an officer or director of a corporation organized under RSA 292, and are subject to the conflict of interest rules governing directors and officers under RSA 292. The standards of care and loyalty described in this paragraph apply regardless of the form in which the association is organized.
II. The board of directors shall not:
(a) Amend the declaration except as otherwise provided in this chapter.
(b) Amend the bylaws.
(c) Terminate the unit owners' association.
(d) Elect members of the board of directors but may fill vacancies in its membership for the unexpired portion of any term or, if earlier, until the next regularly scheduled election of executive board members.
(e) Determine the qualifications, powers, and duties, or terms of office of members of the board of directors.
II-a. An officer shall not directly receive any salary or compensation from the association for the performance of duties as an officer or board member and shall not in any other way benefit financially from service to the association.
II-b. If annually approved by a 2/3 majority of the voting interests present at a properly called meeting of the association, the association may waive the requirements of paragraph II-a.
III. The board of directors shall adopt budgets as provided in RSA 356-B:40-c.
IV. Subject to the provisions of paragraph V, the declaration may provide for a period of declarant control of the association, during which a declarant, or persons designated by the declarant, may appoint and remove the officers and members of the board of directors. A declarant may voluntarily surrender the right to appoint and remove officers and members of the board of directors before the period ends. In that event, the declarant may require during the remainder of the period that specified actions of the association or board of directors, as described in a recorded instrument executed by the declarant, be approved by the declarant before they become effective. Regardless of the period provided in the declaration, and except as provided in RSA 356-B:36, a period of declarant control terminates no later than the earliest of:
(a) Sixty days after conveyance of 60 percent of the units that may be created to unit owners other than a declarant;
(b) Two years after all declarants have ceased to offer units for sale in the ordinary course of business;
(c) Two years after any right to add new units was last exercised; or
(d) The date the declarant, after giving notice in a record to unit owners, records an instrument voluntarily surrendering all rights to control activities of the association.
V. Not later than 60 days after conveyance of 1/4 of the units that may be created to unit owners other than a declarant, at least one member and not less than 25 percent of the members of the board of directors shall be elected by unit owners other than the declarant. Not later than 60 days after conveyance of 1/2 of the units that may be created to unit owners other than a declarant, not less than 1/2 of the members of the board of directors shall be elected by unit owners other than the declarant.
VI. Not later than the termination of any period of declarant control, the unit owners shall elect a board of directors with at least 3 members, a majority of whom shall be unit owners. Unless the declaration provides for the election of officers by the unit owners, the board of directors shall elect the officers. The members of the board of directors and officers shall take office upon election or appointment.
VII. If the condominium instruments provide that any officer or officers must be unit owners, then any such officer who disposes of all of his or her units in fee or for a term or terms of more than one year shall be deemed disqualified from continuing in office unless the condominium instruments otherwise provide, or unless the officer acquires or contracts to acquire another unit in the condominium under terms giving the officer a right of occupancy thereto effective on or before the termination of the right of occupancy under such disposition or dispositions.
VIII. If the condominium instruments provide that any officer or officers must be unit owners, then notwithstanding the provisions of RSA 356-B:12, I, the term "unit owner'' in such context shall, unless the condominium instruments otherwise provide, be deemed to include, without limitation, any director, officer, partner in, or trustee of any person which is, either alone or in conjunction with another person or persons, a unit owner. Any officer who would not be eligible to serve as such were he or she not director, officer, partner in, or trustee of such a person shall be deemed disqualified from continuing in office if the officer ceases to have any such affiliation with that person, or if that person would itself have been deemed to have disqualified itself from continuing in such office under paragraph I were it a natural person holding such office.
IX. Any officer is a suitable person to receive service of process in any proceeding against the association.
X. For the purpose of receipt of notification by a municipality of a local land use board hearing, the officers shall be responsible for serving as agents of the unit owners' association.
Source. 1977, 468:1. 1986, 33:1, eff. June 28, 1986. 2016, 311:2, eff. Aug. 1, 2016.
Section 356-B:40-a
356-B:40-a Managing Agent and Contractors; Disclosure of Fees; Qualifications. –
I. If the unit owners' association or the board of directors has delegated certain powers and duties to a managing agent, the managing agent shall disclose any referral fees received from contract work performed on behalf of the association to the board of directors prior to the next regularly scheduled board meeting, unless the terms of any referral fees are disclosed in the managing agent's contract with the unit owners' association, in which case disclosure of fees actually received shall not be required.
II. The managing agent also shall disclose to the board of directors the amount and purpose of any fees, other than maintenance fees, received from a unit owner, unless the terms of any such fees are disclosed in the managing agent's contract with the unit owners' association, in which case disclosure of fees actually received shall not be required.
III. Any contractor licensed by the state of New Hampshire who performs work for a unit owner shall disclose on the bill any referral fee paid by the contractor.
I. If the unit owners' association or the board of directors has delegated certain powers and duties to a managing agent, the managing agent shall disclose any referral fees received from contract work performed on behalf of the association to the board of directors prior to the next regularly scheduled board meeting, unless the terms of any referral fees are disclosed in the managing agent's contract with the unit owners' association, in which case disclosure of fees actually received shall not be required.
II. The managing agent also shall disclose to the board of directors the amount and purpose of any fees, other than maintenance fees, received from a unit owner, unless the terms of any such fees are disclosed in the managing agent's contract with the unit owners' association, in which case disclosure of fees actually received shall not be required.
III. Any contractor licensed by the state of New Hampshire who performs work for a unit owner shall disclose on the bill any referral fee paid by the contractor.
Source. 2011, 96:1, eff. Jan. 1, 2012. 2016, 311:2, eff. Aug. 1, 2016.
Section 356-B:40-b
356-B:40-b Removal of Officers and Directors. –
I. Notwithstanding any provision of the declaration or bylaws to the contrary, unit owners present in person or by proxy at any meeting of the unit owners at which a quorum is present, may remove any member of the board of directors and any officer elected by the unit owners, with or without cause, if the number of votes cast in favor of removal exceeds the number of votes cast in opposition to removal, provided that:
(a) A member appointed by the declarant may not be removed by a unit owner vote during the period of declarant control.
(b) The unit owners may not consider whether to remove a member of the board of directors or an officer elected by the unit owners at a meeting of the unit owners unless that subject was listed in the notice of the meeting.
II. At any meeting at which a vote to remove a member of the board of directors or an officer is to be taken, the member or officer being considered for removal shall have a reasonable opportunity to speak before the vote.
I. Notwithstanding any provision of the declaration or bylaws to the contrary, unit owners present in person or by proxy at any meeting of the unit owners at which a quorum is present, may remove any member of the board of directors and any officer elected by the unit owners, with or without cause, if the number of votes cast in favor of removal exceeds the number of votes cast in opposition to removal, provided that:
(a) A member appointed by the declarant may not be removed by a unit owner vote during the period of declarant control.
(b) The unit owners may not consider whether to remove a member of the board of directors or an officer elected by the unit owners at a meeting of the unit owners unless that subject was listed in the notice of the meeting.
II. At any meeting at which a vote to remove a member of the board of directors or an officer is to be taken, the member or officer being considered for removal shall have a reasonable opportunity to speak before the vote.
Source. 2015, 131:1, eff. Jan. 1, 2016. 2016, 311:2, eff. Aug. 1, 2016.
Section 356-B:40-c
356-B:40-c Adoption of Budgets and Special Assessments. –
I. The board of directors, at least annually, shall adopt a proposed budget for the unit owners' association for consideration by the unit owners. Not later than 30 days after adoption of a proposed budget, the board of directors shall provide to all the unit owners a summary of the budget, including any reserves, and a statement of the basis on which any reserves are calculated and funded. Simultaneously, the board shall set a date not less than 10 days or more than 60 days after providing the summary for a meeting of the unit owners to consider ratification of the budget. Unless at that meeting 2/3 of all unit owners or any larger number specified in the declaration reject the budget, the budget is ratified, whether or not a quorum is present. If a proposed budget is rejected, the budget last ratified by the unit owners continues until the unit owners ratify a subsequent budget.
II. The board of directors, at any time, may propose a special assessment. Except as otherwise provided in paragraph III, the assessment is effective only if the board of directors follows the procedures for ratification of a budget described in paragraph I and the unit owners do not reject the proposed assessment.
III. If the board of directors determines by a 2/3 vote that a special assessment is necessary to respond to an emergency:
(a) The special assessment becomes effective immediately in accordance with the terms of the vote.
(b) Notice of the special assessment shall be provided promptly to all unit owners.
(c) The board of directors may spend the funds paid on account of the special assessment only for the purposes described in the vote.
I. The board of directors, at least annually, shall adopt a proposed budget for the unit owners' association for consideration by the unit owners. Not later than 30 days after adoption of a proposed budget, the board of directors shall provide to all the unit owners a summary of the budget, including any reserves, and a statement of the basis on which any reserves are calculated and funded. Simultaneously, the board shall set a date not less than 10 days or more than 60 days after providing the summary for a meeting of the unit owners to consider ratification of the budget. Unless at that meeting 2/3 of all unit owners or any larger number specified in the declaration reject the budget, the budget is ratified, whether or not a quorum is present. If a proposed budget is rejected, the budget last ratified by the unit owners continues until the unit owners ratify a subsequent budget.
II. The board of directors, at any time, may propose a special assessment. Except as otherwise provided in paragraph III, the assessment is effective only if the board of directors follows the procedures for ratification of a budget described in paragraph I and the unit owners do not reject the proposed assessment.
III. If the board of directors determines by a 2/3 vote that a special assessment is necessary to respond to an emergency:
(a) The special assessment becomes effective immediately in accordance with the terms of the vote.
(b) Notice of the special assessment shall be provided promptly to all unit owners.
(c) The board of directors may spend the funds paid on account of the special assessment only for the purposes described in the vote.
Source. 2016, 311:2, eff. Aug. 1, 2016.
Section 356-B:43
356-B:43 Insurance. –
I. The condominium instruments shall require the unit owners' association, or the board of directors or managing agent on behalf of such association, to obtain:
(a) A master casualty policy affording fire and extended coverage in an amount equal to the full replacement value of the structures within the condominium, or of such structures that in whole or in part comprise portions of the common areas;
(b) A master liability policy, in an amount specified by the condominium instruments, covering the unit owners' association, the board of directors, if any, the managing agent, if any, all persons acting or who may come to act as agents or employees of any of the foregoing with respect to the condominium, and all unit owners and other persons entitled to occupy any unit or other portion of the condominium; and
(c) Such other policies as may be required by the condominium instruments, including, without limitation, workers' compensation insurance, liability insurance on motor vehicles owned by the association, and specialized policies covering lands or improvements in which the unit owners' association has or shares ownership or other rights.
II. When any policy of insurance has been obtained by or on behalf of the unit owners' association, written notice of the obtainment thereof and of any subsequent changes therein or termination thereof shall be promptly furnished to each unit owner by the officer required to send notices of meetings of the unit owners' association. Such notices shall be sent in accordance with RSA 356-B:37-a.
III. Unless the unit owners vote to terminate the condominium under RSA 356-B:34, the proceeds of the master casualty policy shall be used to repair, replace or restore the structure or common area damaged by casualty.
I. The condominium instruments shall require the unit owners' association, or the board of directors or managing agent on behalf of such association, to obtain:
(a) A master casualty policy affording fire and extended coverage in an amount equal to the full replacement value of the structures within the condominium, or of such structures that in whole or in part comprise portions of the common areas;
(b) A master liability policy, in an amount specified by the condominium instruments, covering the unit owners' association, the board of directors, if any, the managing agent, if any, all persons acting or who may come to act as agents or employees of any of the foregoing with respect to the condominium, and all unit owners and other persons entitled to occupy any unit or other portion of the condominium; and
(c) Such other policies as may be required by the condominium instruments, including, without limitation, workers' compensation insurance, liability insurance on motor vehicles owned by the association, and specialized policies covering lands or improvements in which the unit owners' association has or shares ownership or other rights.
II. When any policy of insurance has been obtained by or on behalf of the unit owners' association, written notice of the obtainment thereof and of any subsequent changes therein or termination thereof shall be promptly furnished to each unit owner by the officer required to send notices of meetings of the unit owners' association. Such notices shall be sent in accordance with RSA 356-B:37-a.
III. Unless the unit owners vote to terminate the condominium under RSA 356-B:34, the proceeds of the master casualty policy shall be used to repair, replace or restore the structure or common area damaged by casualty.
Source. 1977, 468:1, eff. Sept. 10, 1977. 2016, 311:3, eff. Aug. 1, 2016.
While the laws of the State of NH (specifically RSA 356-B and RSA 292), The Declaration, and Bylaws of Eastside at Crotched Mountain Condominium Association govern and guide our Association ... The Board of Directors past and present have willfully chosen to not follow the laws protecting our members. More disturbing is the fact that the members continue to vote for and with these Directors.
Slight of hand ...is the MO for the Board of Directors at Eastside at Crotched Mountain Condominium Association.
It is now November 15, 2016 ... in December, all unit owners should receive a Proposed Budget that the Board of Directors have adopted for consideration. This is by far the most important and relevant work that the Board of Directors undertake. The Budget is more than what "they think they will take in and spend". The proposed numbers should make sense and the Board of Directors, by putting forth these numbers should adhere to the budget in all items. If there is an emergency, the governing documents provide for collection of such.
The Condominium's budget is the cornerstone of all successes and failures of any Association.
It is the duty of unit owners to be able to understand and dissect a budget and to understand the numbers and mathematics applied to every budget ... proposed and actual!
The effect of not adhering to the budgets, not budgeting items required by the bylaws and declaration is why this association is in the trouble it is in. The Board of Directors past and possibly present have spent monies outside of the budget for non-emergency items repeatedly. When it came to care of the property in it's entirety ... not just certain units ... maintenance, repair and care were non-existant for years. These issues have compounded and have resulted in damage to the property. The property that 24 units own together.
How is this relevant today and to the upcoming budget?
The value of the property is directly related to it's condition ... financial and physical.
The governing documents layout the financial responsibilities ... expenses for maintenance, repairs and replacements of the common area and costs.
A Budget should be a proactive in it's approach and reactive to historical trends ... not an easy task.
Take snow removal for example ...
Immediate Historical Association Data/NH Weather Data show:
Actual Cost of Snow Removal Inches # of storms 1" or more $per inch/$per storm
2015 $23,000 79.1" 16 $291/$1437.00
2014 $15,000 82.0" 21 $183/$714.00
2013 $14,000 71.2" 24 $197/$583.00
2012 $10,000 38.7" 15 $258/$667.00
2011 $17,000 97.3" 24 $175/$708.00
2010 $10,000 56.3" 18 $178/$555.55
2009 $11,000 58.3" 16 $188/688.00
Local Weather Averages (NH Weather Data) show our area receives an average of 82" of snow each year over the last 30 years.
What do these numbers mean?
Firstly, the Board of Directors need to look at the cost in relation to the snowfall amounts ... what do we see here?
A huge deviation in the correlation of numbers in the years 2012 and 2015. Price increases perhaps ... # of times the plows had to return ... sanding? Clean up?
So, take a look ... in 2015, we paid $8000.00 more for 3" less snow, and 5 fewer storms than 2014.
Interesting .. the BOD was so proud to tell us at the Annual Meeting:
In 2014 we paid $1000.00 more for 11" less snow and 3 fewer storms than 2013.
In 2013 we paid $4000.00 more for 33" more snow and 9 more storms than 2012.
What is that 5 year rate? Tuck and Take?
Now, if the average snowfall is 82" and over the last seven years we have seen an average of 19 storms per year then at the current charges the BOD should be planning on $23,000.00 or getting another quote for snow removal! The Budget for Snow removal for 2015 was $13,000.00.
Since the BOD saw fit to mention gas prices ... let's look at Historical Gas Prices in NH ....
Note that gas prices decreased dramatically in the winter of 2014 and 2015.
Let's move on to look at where the Board of Directors spend the most of your money ...
As we have seen the BOD spends approximately 13% of 'real' expenses on Snow Removal. The other "BIG TICKET" items are:
INSURANCE - 15%
Ok, so this is a no brainer to explain! Two Lawsuits! One against the Association and one against former Board of Directors personally where they choose to use the Association's insurance. Several burst pipe claims have also added to the increased costs.
How can the BOD mitigate these costs? Simple ...
The Burst pipes on all units occur in approximately the same areas ...
replace frost barriers that have deteriorated in the entryway and kitchen/lower bath areas of each unit and consider replacing piping in those specific areas with PEX (not all piping, but using PEX to copper couplings).
Mitigating lawsuit probability is easy ... follow the laws according to ALL of the governing documents and stop having to 'payoff' the litigants. When the BOD "get" that they have a fiduciary duty to ALL of the members and that, they alone do not 'own' the Association... then conduct themselves accordingly ... the Insurance should go down ... but not for many years to come, unfortunately.
LEGAL - 15%
Why are we spending so much money on lawyers ... As of August, 2016 ... $14,000.00!
What did we get for $14,000.00? 3 Liens and 1 Lien release.The 'face value' of the 3 liens is $15814.24. Th 'face value of the lien released due to bankruptcy is $7541.67. Now, if 2 liens totaling $$1452.49 get discharged in bankruptcy along with added fees from Association attorneys ... our Association will be further in the hole! Now, add fees for 1 illegal lien and the results from that lien ... we are looking at legal fees and insurance climbing higher.
We, as an association, would hope that the Association attorneys would be guiding the BOD to follow the laws that protect us all but alas they do not ...
So now we come to the real issues:
Those who 'cannot' pay their Association assessments and "special" assessments...
is it morally right or wrong to force them into bankruptcy?
Since the costs associated with the issues surrounding budgets and spending currently are affected by deeds done previously by the corporation through no fault of the delinquent owner than ... are they (as well as all) not paying for the sins of others?
is it economic for the Association to force them into bankruptcy?
It is the experience in our Association that we spend more on the lien process than we recoup, infact, we lose money historically.
is it politically correct to force them into bankruptcy?
Well, of course! If some of the people have to pay, than all of the members have to share the same responsibility. But, herein lies the problem. Was it not the Association that was in charge of following the laws, spending within budgets, saving reserves and keeping financials transparent? is this not a chicken and egg discussion? Is this not a fox and henhouse discussion?
is it socially correct to force them into bankruptcy?
There is nothing 'Socially Correct' about the situation at Eastside at Crotched Mountain Condominium Association.
Eastside at Crotched Mountain Condominium Association is a neighborhood with no neighbors ...
a collection of people who have been manipulated, frightened, coerced, and threatened into believing that each of their neighbors is a 'bad' person, 'deadbeat', or 'crazy'. Have you even tried to get to know your neighbor?
Realistically, if 25% of the Association members declare Bankruptcy in the period of a year to year and a half ... the problem is not the people. Of the 25% contemplating or being forced into bankruptcy ... 90% have been here more than 10 years.
While Bankruptcy may be the answer for the problems the BOD have bestowed upon unit owners of the Association ... it is not the answer for the overall health of the Association entity.
The Association cannot prosper by breaking the backs of its constituents ... the Association will fail and fall.
While the current Board of Directors have tried to 'rescue' the Association from the perils of decomposition physically and financially in some respects ... they have failed to pour a proper foundation on which to prosper.
Failure to fund the Operating Reserve known as the Working Capital Fund in the Bylaws.
Failure to adress damages caused by refusal to fix physical deteriorations.
Failure to adress budget issues and spending despite limitations.
Failure to spend budget monies on items that will promote value.
Failure to communicate truths.
Failure to communicate.
How does this relate to the up-comming budget?
Lets look at the data we have available thru August ...
$20,000.00 budgeted for repairs and maintenance - $3,414.00 spent.
$8000.00 budgeted for legal - $14,000.00 spent.
$16,000.00 budgeted for Insurance - $14,000.00 spent.
While the BOD may say that they did not do the repairs because of cost overruns in other areas or because they used some of the designated funds for roofs or because people did not pay their condo fees ...
the question is...
did they need to spend more money on lawyers?
did they need to break the laws causing insurance rates to rise?
did they need to do more roofs than budgeted for this year?
Reasonableness is the answer ... by everyone.
What is reasonable?
It is reasonable to expect that foundation accounts (Reserve for Replacement of the Common Area, Operating Reserve/Working Capital Fund, Operating Account) are according to the Bylaws, Declaration and RSAs.
It is reasonable to expect a Capital Plan, to know future expenses and timing. Required for a Reserve for Replacement of the Common Area to exist on our Audits.
It is reasonable to expect Special Assessment needs to be specific, detailed and used for reason assessed.
It is reasonable to expect that budgeted items are received ... like landscaping ... it improves the condition of the property.
It is reasonable to expect that the governing documents are followed.
It is reasonable to expect an accounting of our Association's monies.
It is reasonable to expect to know what is going on in our Association through timely meeting minutes, open BOD meetings, opportunities to communicate with the BOD.
It must also be reasonable to expect that all understand our circumstances to be what they are ...
it is too late to file claims of missing monies with insurance companies, it is too late to file suits, it is just too late. It is what it is!
It is reasonable to expect that the BOD stand up for the rights of all members in matters involving utilities (Mountain Maintenance).
It is reasonable to expect that all those who have received work to their common area/limited common area and those who have damaged common area/limited common area be held responsible for those costs that have been incurred by all according to:
356-B:45 Liabilities for Common Expenses. –
I. Except to the extent that the condominium instruments provide otherwise, any common expenses associated with the maintenance, repair, renovation, restoration, or replacement of any limited common area shall be specially assessed against the condominium unit to which that limited common area was assigned at the time such expenses were made or incurred. This provision shall also apply to the expansion or creation of limited common areas pursuant to RSA 356-B:19, III. If the limited common area involved was assigned at that time to more than one condominium unit, however, such expenses shall be specially assessed against each such condominium unit equally so that the total of such special assessments equals the total of such expenses, except to the extent that the condominium instruments provide otherwise.
II. To the extent that the condominium instruments expressly so provide, any other common expenses benefiting less than all of the condominium units, or caused by the conduct of less than all those entitled to occupy the same or by their licensees or invitees, shall be specially assessed against the condominium unit or units involved, in accordance with such reasonable provisions as the condominium instruments may make for such cases.
I. Except to the extent that the condominium instruments provide otherwise, any common expenses associated with the maintenance, repair, renovation, restoration, or replacement of any limited common area shall be specially assessed against the condominium unit to which that limited common area was assigned at the time such expenses were made or incurred. This provision shall also apply to the expansion or creation of limited common areas pursuant to RSA 356-B:19, III. If the limited common area involved was assigned at that time to more than one condominium unit, however, such expenses shall be specially assessed against each such condominium unit equally so that the total of such special assessments equals the total of such expenses, except to the extent that the condominium instruments provide otherwise.
II. To the extent that the condominium instruments expressly so provide, any other common expenses benefiting less than all of the condominium units, or caused by the conduct of less than all those entitled to occupy the same or by their licensees or invitees, shall be specially assessed against the condominium unit or units involved, in accordance with such reasonable provisions as the condominium instruments may make for such cases.
"the budget last ratified by the unit owners continues until the unit owners ratify a subsequent budget."
According to condominium documents ... January 31, 2010 was the last time a budget was ratified by the owners ... The condominium fees were $250.00 per month. So if 2/3 of the Association members reject the budget ... 16 units ... then the condo fees would be $250.00 month. But we are pretty sure that that would ensure a court battle!
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