Year: 2002

December 22, 2002

A recent Massachusetts Appeals Court decision has renewed interest in a somewhat obscure and little-used legal theory about the relationship between zoning changes and concessions made by developers who benefit from them. The decision (McLean Hospital Corporation vs. Town of Belmont) doesn’t break any new legal ground, but it does clarify an area in which there has not been, until now, much judicial enlightenment. The legal principle at issue is “contract zoning” – an illegal [Read More...]

November 22, 2002

The rising cost of property and liability insurance premiums and the shrinking scope of the coverage available have been sources of continuing and increasing concern for apartment building owners and community associations. The scramble to find the most cost-effective coverage has highlighted a problem that has always existed, but was less obvious in less tumultuous insurance markets — those responsible for purchasing insurance often do not know: What kind and how much insurance coverage they [Read More...]

October 22, 2002

The state Supreme Judicial Court (SJC) has altered the legal landscape for commercial landlords and tenants in subtle but significant ways. In a decision that may have somewhat more impact on legal theory than on real estate practice, the court ruled that the obligations of commercial landlords and tenants are “mutually dependent.” That means commercial tenants for the first time have a recognized right to break a lease in some circumstances if the landlord fails [Read More...]

September 22, 2002

It is not exactly the equivalent of discovering oil in the back yard, but many homeowner associations in Massachusetts are finding that they are sitting on expired, and extremely valuable, development rights for planned but uncompleted phases of their communities. Developers, for their part, are making the far less happy discovery that they must buy back development rights they thought they still controlled. The origins of this scenario date back to the real estate crash [Read More...]

August 22, 2002

As far as court decisions go, this has been a good season for Massachusetts homeowners generally and for condominium owners in particular. Earlier this year, the Supreme Judicial Court (SJC) held that home buyers can rely on an implied warranty of habitability in the purchase of new homes. Lower courts have hinted broadly at that conclusion in past decisions, and the implied warranty for new homes is well-established in most other jurisdictions. But this is [Read More...]

July 28, 2002

An often debated question is what the appropriate role of the Board is with respect to physical aspects of the Condominium. Many believe that the Board’s role is limited to maintaining the property in a state of good repair. While others believe that the Board has a greater responsibility – to not only preserve the property, but to enhance it If, in fact, a Board’s role is the more limited one, then Board’s, subject to [Read More...]

July 24, 2002

When I was growing up, life was certainly simpler. Dandelions were considered pretty and landscaping consisted of mowing a lawn with a manual lawn mower. With the advent of powered lawn mowers, automatic underground sprinkler systems, sod and chemicals which virtually turn lawns green overnight, landscaping has become much more complicated. Who would have guessed that landscaping could actually become an issue which would involve potential liability and litigation to community associations? Attorneys Juan R. [Read More...]

July 22, 2002

If there were any lingering questions about the intent and force of the state’s anti-SLAPP statute, the Massachusetts Supreme Judicial Court (SJC) quashed them recently, with an opinion that endorses unambiguously the rights of petitioners to oppose private as well as public transactions they don’t like. That decision, in Office One, Inc v. Lopez, also provides clear statements on two issues of peripheral interest in this case but of central concern to condominium associations: Whether [Read More...]

July 2, 2002

As I write this article in late January, I question whether the rains in California will ever subside so that swimming pools may open. However, pools in the Northeast and Florida are sure to open and Californians will resort to courtesy arks (no pets allowed) to transport people to the pool. Unfortunately, attorneys find problems with everything, including swimming pools, and therefore, it is up to the reader to listen to the advice and decide [Read More...]

June 22, 2002

Comprehensive affordable housing permits issued under Chapter 40B (the state’s anti-snob zoning statute) have always involved a tug-of-war between developers seeking to build the housing and local communities that want to limit or prohibit it. But a recent state Supreme Judicial Court (SJC) decision has significantly shifted the balance in those contests and possibly altered the way developers and communities will approach 40B proposals in the future.  The decision in Zoning Board of Appeals of [Read More...]

May 22, 2002

Community association rules and regulations are as varied as the communities they govern, but these documents nonetheless seem to share a single guiding philosophy: “Just say no!” No unit shall be used for these purposes…. No drapes shall be hung…. No pets shall be allowed… No vehicles shall park… No, no, no, no, no. It’s like an endless conversation with a two-year-old. This “thou-shalt-not” mentality is partly the fault of the lawyers who drafted the [Read More...]

May 8, 2002

John Swalm, an attorney in Florida, has defined condominiums as being the Latin derivative for sharing walls with people of lesser intelligence. In this article I will discuss some of the emerging new philosophies relating to dealing with rules and regulations against two legged pests. It appears that new trends are evolving relating to the manner of enforcing rules and regulations. In the past, the traditional philosophy was that all restrictions had to be enforced [Read More...]

April 22, 2002

Note: When I was a much younger attorney, working on my first condominium, a client I respected told me, “I don’t need a lawyer to tell me why I can’t do something; I need a lawyer to help me find ways to do what I want to do.” That advice has assumed a decidedly negative hue in the shadow of Enron’s shenanigans and Andersen’s shredding. But I interpreted the message then, and still view it [Read More...]

March 22, 2002

Can we talk? I’m asking you, the condominium owner who thinks your common area fees are too high and so is refusing to pay them. And you, too, the unit owner over in the corner with the Dalmatians you assumed somehow weren’t included in the “no pets” provision of your condominium’s bylaws. I get calls about you and owners like you all the time, from the condominium board members and property managers you are suing, [Read More...]

March 15, 2002

At the last two Attorneys Committee meetings one of the items which were discussed was the extent to which Boards should, as regards the Common Areas, go beyond maintaining and operating the common areas. The issue discussed was not whether “the law” as enunciated by the Courts prohibited this or that, but whether, assuming a particular thing was within the Board’s authority or arguably within its authority, should a Board defer to the collective will [Read More...]

February 22, 2002

Most attorneys will tell you that bad cases make bad law – usually, but not always. And sometimes a judicial outcome that appears negative in theory can be quite positive in its effects. A recent decision by the Massachusetts Supreme Judicial Court (SJC) illustrates both points. The fact pattern certainly made New Bedford Housing Authority v. Olan a textbook example of a “bad case.” New Bedford police officers followed a fleeing suspect onto the grounds [Read More...]

January 21, 2002

Massachusetts is one of only a handful of states that have not recognized an implied warranty of habitability in the purchase of new dwellings. But the state Supreme Judicial Court (SJC) seems poised to change that. The SJC this month will consider two cases, which, combined, raise these key questions: Should purchasers of residential dwellings reasonable assume that they have an implied warranty of habitability, similar to the warranty the courts have extended to tenants [Read More...]