Legal Fair Warning:
by Frank A. Flynn, ESQ.
Rumors are starting to circulate amongst the condo trustees. Inevitably, the rumor spreads to the general population of the unit owners. Word is that a check, written by the treasurer of the board of trustees, has bounced. Even worse, when you speak with the treasurer in private about the rumor and ask to take a look at the accounts, he refuses to allow it.
It is April and the trustees are beginning to talk about the upcoming landscaping season and the vice president is very, very eager to take on the task of hiring a company to perform the duties, even though it is not really his job. When the final bill comes after the season is over, it is much, much higher than anticipated. After some sleuthing by the other trustees and unit owners, it turns out that “Joe’s Landscaping” (the company hired to do the lawn and plant care) is actually owned by the brother-in-law of the vice president of the board.
Some of you have possibly had a situation like this arise in the past or one similar. You may have thought about getting rid of a trustee but then just figured that there is nothing that you can do. Well, that is not exactly the case at all. In removing a trustee, you should look first and foremost at your trust by-laws. If the by-laws are well written, they will usually provide you with step-by-step guidance of how to remove a trustee. Generally, it will require an affirmative vote of unit owners holding at least 51 percent interest at a special meeting. The removal needs to be in writing and recorded at the Registry of Deeds with an appointment of a new trustee.
However, often times this is not as easy of a process as it sounds. Sometimes, albeit inadvertently so, there are terms and provisions in the by-laws that conflict with one another. For instance, what if you are seeking to remove three of the five trustees on your board? You go through the process in your by-laws and remove the three trustees. However, a careful look at your condo docs reveals that there is also a provision in them which states that “there must be no less than four trustees in office at any given time.” Moreover, what happens when our treasurer, who is bouncing checks, is properly removed from office but in a fit of rage fails to give up control of the checkbook? In these instances, judicial relief is typically authorized by the condo docs. An action in superior court is likely needed using the court’s equity powers.
In any event, you should not feel that it is impossible to remove a trustee. Obviously, some trustees have been members of the board for many years. However, that is not an excuse for behavior that it not fitting of the office of trustee. It is important to consult with a condominium attorney prior to initiating the procedure. He or she will be able to recommend the best strategy to pursue the case based on the language in the condo docs and the circumstances. Or, if you have one of those instances where there is no direction in the documents, then a condominium attorney can possibly pursue an action under state statute or some other legal theory, such as breach of fiduciary duty.