Year: 2001

December 22, 2001

Any landlord who has surveyed the damage created by a hyperactive three-year-old (with unsupervised access to crayons and paints) or who has fielded complaints about the teenager who plays hard rock at 3 a.m., has no doubt considered attaching a “no children allowed” rider to future “apartment for rent” signs. The sentiment is understandable, but the discrimination is illegal. Both federal and state fair housing laws (Title VII of the Civil Rights Act of 1968, [Read More...]

November 23, 2001

All too, often some accident or casualty occurs, a claim is submitted to the Association’s insurance agent for forwarding to the carrier, and a response is received informing the Board and its Manager that this is not covered, or some obtusely worded exclusion applies. Likewise, all too often these letters go on for pages quoting provisions from the policy which, in all candor, even we lawyers are hard pressed to follow. Considering recent trends in [Read More...]

November 23, 2001

Fifteen years ago I knew all of the answers. Today, I am not sure that I know anything. A Homeowner’s Association in Margate, Florida is battling with a homeowner who enclosed his porch with screening, blocking another neighbor’s view of the canal. The enclosure was done without obtaining the permission of the Homeowner’s Association or of the neighbor. The answer to this used to be simple. Certainly, you would demand that the owner remove the [Read More...]

November 23, 2001

One of the more difficult issues facing Boards is dealing with non-unit owners who either fail to abide by the governing documents or who cause damage to the Condominium. This is the case as very few master deeds or by-laws make Unit Owners responsible for the wrongful acts of those at the Condominium at their invitation. Fortunately, among the many salutary provisions of Chapter 400 of the Acts of 1992 is an often overlooked clause [Read More...]

November 22, 2001

It’s been about eight years since the Massachusetts courts considered whether entities other than attorneys should be allowed too conduct real estate closings. But the court’s thinking on the issue has not changed. Reaffirming a long-standing, and well-entrenched judicial view, a Suffolk Superior Court justice ruled recently that a company providing closing services for lenders was engaged in the unauthorized practice of law. The Massachusetts Conveyancers Association (which has fought this battle successfully before) filed [Read More...]

November 22, 2001

A recent Massachusetts court decision has given condominium associations a new legal tool – or at least, sharpened an existing tool – for dealing with disputes over liability for unpaid condominium fees. Interpreting Mass. General Laws Chapter 60 Section 77 (governing municipal tax takings) for the first time in a condominium context, the Supreme Judicial Court held in Town of Milford v. James S. Boyd that the town had benefited from the community association’s “continued [Read More...]

November 4, 2001

Nobody would ever purchase a product which had a 10-year warranty which excluded labor and materials. Or would they? During the 1980’s, there were various problems with alleged improper manufacturing of shingles. The problem related to the shingles having a high degree of fiberglass, as opposed to asphalt. The problems that have manifested themselves is that the shingles have exhibited a greater degree of cracking and/or splitting than other types of shingles. Most, if not [Read More...]

October 23, 2001

An issue which often arises in the administration of condominiums is how to conduct an election in a simple manner, particularly where it is rare that a quorum is present. Unfortunately most documents require that Board Members be elected by the Owners holding fifty-one percent or more of the interest in the association. They also require there to be fifty percent or more in interest present in person or by proxy to have a quorum. [Read More...]

October 22, 2001

We typically use this space to discuss court decisions or legal trends. But like everyone else, our thoughts have been directed elsewhere since September 11. The world really did change that day and it continues to change as the political, economic, and emotional aftershocks of that unimaginable and unimagined attack register in ways we are still trying to understand. Economists are debating the long- and short-term impact on consumer confidence and economic growth. A recession [Read More...]

October 4, 2001

Although insurance policies are arguably the most important contract entered into by community associations, there appears to be no great desire of community associations to actually read the insurance policy. Since the contract is generally not understandable, good reasons exist for community associations and their professionals to avoid the task of actually reading the coverage to determine what is covered and what is excluded. In legal parlance, such contracts are known as “contracts of adhesion”. [Read More...]

September 9, 2001

Being a board member is, in the best of situations, a difficult and demanding job. A common complaint is that every owner wants, wants, wants, but no one but the board is willing to do. Often board members respond to this constant demand upon their time, energy and patience by focusing on what they believe to be appropriate, ignoring the concerns, opinions or desires of the owners. Let me hasten to note at their juncture [Read More...]

September 2, 2001

Make it two in a row for property rights advocates. On the heels of the U.S. Supreme Court’s ruling in Palazzolo v. Rhode Island giving a landowner a limited but significant victory in a takings case, a Massachusetts Superior Court has ruled that telecommunications companies do not have the unlimited access they claimed to enter office buildings and multifamily dwellings in order to provide services to tenants. The ruling came in a suit filed by [Read More...]

September 2, 2001

The topic of earthquake and flood insurance was the subject of much debate at the 39th CAI National Conference held in Baltimore, Maryland, in October. The community association industry continues to wrestle with how best to deal with these issues. In California, earthquake insurance is very difficult to get, the deductibles have been increased dramatically and Freddie Mac (Federal Home Mortgage Corporation) has threatened to discontinue buying mortgages on condominium units in certain geographical areas [Read More...]

August 14, 2001

n an ideal world, all Community Associations would undertake an annual review of their governing documents, their contracts, their residents’ manual, their standard operating procedures, their employment handbook and all other matters relating to the operation of the Community Association. If this task were undertaken, Community Associations could continuously update their operations and procedures in light of new cases, new law, input from owners and advances in technology. However, the world is not ideal and [Read More...]

July 30, 2001

Last month, I discussed a curious battle California community associations were waging over proposed legislation which would prohibit community associations from restricting motorcycles from their property. In order to ensure fairness as well as to indicate that unreasonableness is not something reserved solely for California, I will discuss a Florida matter as well as a Massachusetts matter which appear to me to be even more curious than the California motorcycle debate. Because community associations are [Read More...]

July 29, 2001

For many years now there has been an issue of whether either the state or federal fair debt collection practices act applies to the collection of common area fees. A series of recent federal trial court decisions interpreting the federal act have analogize condominium fees to real estate taxes and held that because there is no extension of credit the act did not apply. Most Massachusetts attorneys took heart in this reasoning since the Supreme [Read More...]

July 28, 2001

A few months ago I discussed a case from a Federal Court in Illinois which held that as a result of the agency relationship between a manager and an association there was an implied obligation of indemnification. This month I will discuss whether a unit owner can properly state a claim against a manager when the essence of the claim is that there has been a failure to maintain the common elements. As a general [Read More...]

July 24, 2001

At the recent National Conference a reoccurring theme was the need for boards to adopt a kinder and gentler approach in dealing with homeowners. Though to some degree, much of this is a swing of the pendulum to the opposite extreme from rigid, aggressive covenant enforcement and the bad press that has resulted from it, there are aspects of this new mantra which warrant attention. Many of us in this field have repeatedly noted that [Read More...]

July 15, 2001

On many occasions in the past I have discussed various issues surrounding condominium insurance matters. The recent report in the CAI Law Reporter of a case arising in Florida in the aftermath of Hurricane Andrew pointed to an issue oftentimes overlooked when a casualty loss occurs. All too often the association will file and negotiate a claim and then dole out the proceeds to the various unit owners who have suffered a loss. Doing so [Read More...]

June 15, 2001

A reader recently wrote inquiring whether a Board may prohibit specific breeds of dogs which have reputations for being aggressive. The answer to this question, as one might expect from a lawyer, is, “it depends”. At the threshold a Board cannot ban the keeping of any pet at a condominium unless there is an appropriate restriction in either the Master Deed or By-Laws. This was the holding of the Massachusetts Supreme Judicial Court in the [Read More...]

June 14, 2001

It seems that whenever a condominium association is sued these days, a claim for violation of the Massachusetts General Laws c.93A can be expected. Chapter 93A, the so-called “Consumer Protection Statute,” prohibits entities involved in “trade or commerce” from committing any “unfair and deceptive trade practices. Recently, Massachusetts Courts have adopted the position that condominium associations, acting through their Boards of Trustees, are not considered to be involved in trade or commerce as defined by [Read More...]

May 23, 2001

Sometimes, we get so wrapped up in new and emerging trends in Community Association law that we forget to look at the basics. It is sometimes easy to forget that although many professionals have been involved with Community Association law for years, that new Board Members are getting elected daily throughout the country. Recently, I have heard several instances where Board Members have stated that they could not be sued individually. More importantly, we have [Read More...]

May 13, 2001

In mixed use condominiums there is often substantial concern over to what uses commercial units can be put and whether an owner of such a unit can obtain a change in such use without the consent of either the association and/or the other unit owners. In the case of The 39 Joy Street Condominium Association v. Board of Appeal of Boston, Et Al., Suffolk Superior Court No. 95-0788 (7/31/96), at least one Judge has provided [Read More...]

April 29, 2001

As usual, this title is far more interesting than the article. However, associations, association managers and association practitioners should reexamine the unique relationship among the three parties. Obviously, everybody knows that the attorney’s client is the condominium association and not the property manager. Therefore, the duty of loyalty is only to the condominium association. However, the reality is that the association practitioner typically deals with the property manager and not the condominium board members on [Read More...]

April 26, 2001

A recent trial court decision has caused a great deal of concern among managers and attorneys who have learned about it. As you will see in the discussion which follows, this case poignantly points out the importance of ensuring that contractors have adequate insurance and that associations, additionally, carry adequate liability insurance. The relevant facts of the case are relatively simple. A condominium association contracted with a painting contractor to have the exterior of their [Read More...]

April 26, 2001

…… the Massachusetts Supreme Judicial Court rendered a decision on an insurance claim which has import to condominiums. The case, Peterson v. Silva, involved a subrogation claim (a claim brought by an insurance company who has paid its insured against the person who caused the damage) against a tenant who had caused a fire which substantially damaged the insured’s building. The lease contained a standard clause providing that the tenant would indemnify and save the landlord [Read More...]

April 23, 2001

At a recent meeting I was attending progressed, a board member turned to me and asked, “You’ve been doing this for a while now, what makes a board successful?” I thought for a moment, flipping through the pictures in my mind of good and bad meetings, crises and successes, and then turned to my questioner and replied, “If there was one thing I could point to its a board which knows its community.” Often I [Read More...]

April 14, 2001

Let me focus this month on something which, if individual Board Members fail to do, will only result in a fracturing of a Community. What I’m referring to is failing to respect the confidences of the Board’s workings. Often times an issue comes before a Board which has the potential for being, or already is, a controversial matter. In these situations different Board Members may have differing opinions. Only if each Board Member feels free [Read More...]

March 23, 2001

everal weeks ago a article appeared in a local newspaper which raised an issue of considerable concern to most communities – the conduct of home businesses. In this day of the need for two incomes and with the widespread acceptance and use of computers, home businesses are becoming a more reoccurring issue. And, if trends continue in the direction they are currently going, this will be an ever increasing issue. In reviewing this situation, boards [Read More...]

March 22, 2001

In July, the Seventh Circuit of the United States Court of Appeals, in a case of first impression, decided that community association practitioners who collect common expenses for condominiums and homeowner associations are debt collectors under the Federal Fair Debt Collection Practices Act. It should be noted that the Eleventh Circuit has affirmed without a published decision a decision which stated that the collection of community association fees is not the collection of a debt [Read More...]