Year: 2011

December 14, 2011

In DeWolfe v. Hingham Centre Ltd., the Massachusetts Appeals Court recently considered a Realtor’s duty to disclose and independently verify zoning information about a listing property.  The agent, relying on what turned out to be erroneous information supplied by his client, listed a Norwell property on Multiple Listing Service (MLS) and newspaper advertising as “zoned Business B.” The property was not in fact zoned for business use; it was zoned residential, thereby prohibiting the hair [Read More...]

December 12, 2011

Here’s a landlord’s nightmare — at least one of them. A fire has caused extensive damage to one of your buildings. No one was injured, fortunately, but all 50 tenants will have to be relocated while the building is being repaired, which will take at least five months and probably longer. The cause of the fire, as is often the case, is unrelated to the landlord or the physical structure of the property. A Massachusetts [Read More...]

November 18, 2011

“You can’t always get what you want” applies to court decisions, as it does to most things in life. It is also true that you don’t always get what you expect. That was the case in a recent Massachusetts Appeals Court decision holding that a community association’s rules must respect an owner’s constitutional right to freedom of speech. To understand why this decision (Board of Managers of Old Colony Village Condominium vs. Steven Preu) was [Read More...]

November 14, 2011

The Massachusetts Supreme Judicial Court recently answered an important zoning question in their decision in Connors v. Annino, 460 Mass. 790 (2011).  In reaching its opinion in Connors, the SJC confirmed the 2008 Appeals Court decision in Gallivan v. Zoning Board of Appeals of Wellesley, 17 Mass. App. Ct. 859 (2008), that an aggrieved party has thirty days from the issuance of a building permit to file an administrative appeal, if the aggrieved party received [Read More...]

October 24, 2011

There’s actually some good news to report on the Federal Housing Administration (FHA) condominium certification front, along with some news that isn’t good at all. The good news first – because there’s not much of it: Responding to pressure from the Community Associations Institute (CAI), FHA officials decided to back off of one provision in the new certification guidelines that would have required condominium managers or management companies to obtain fidelity bond coverage in addition [Read More...]

October 17, 2011

Just about a month ago, the Supreme Judicial Court interpreted the newly enacted MGL 186A, and rendered a decision in the case of Federal National Mortgage Association (“Fannie Mae”) v. Nunez, in which the Court determined that any action by the foreclosing owner in furtherance of an eviction against a tenant was sufficient to trigger the Act.  MGL 186A essentially prohibits certain owners from evicting a tenant unless there is just cause. The bad news: [Read More...]

October 17, 2011

Occasionally, Unit Owners seek to perform modifications and renovations within their Units. Often times, this proceeds without incident. Sometimes, however, the modifications implicate or impact the Condominium’s common areas and facilities, and therefore in such instances, prior approval from the Condominium’s governing body is required in advance of undertaking such modifications or renovations. Unit Owners may be frustrated by this requirement, especially in cases where the impacted common areas and facilities may not be accessible [Read More...]

October 17, 2011

The Massachusetts Supreme Judicial Court has agreed to hear an appeal considering the controversial “produce the note” defense in foreclosure cases and whether a foreclosing lender must possess both the promissory note and the mortgage in order to foreclose. Based on arguments asserted by the lender, the court may also consider the circumstances by which a mortgage granted to Mortgage Electronic Registration System (MERS) can be effectively foreclosed in Massachusetts.  Ultimately, the SJC will have [Read More...]

September 15, 2011

In an important insurance-related decision for condominiums and unit owners, the Massachusetts Appeals Court recently ruled that easements constitute “tangible property” and thus claims for damages based upon the loss of use of an easement will likely trigger an insurance company’s duty to defend under the standard form condominium unit owner’s homeowner’s policy. The underlying dispute in the case of Citation Insurance Company v. Newman involved two adjacent unit owners at a small condominium in [Read More...]

September 15, 2011

All too frequently, property managers find themselves named as defendants in connection with lawsuits brought against the condominiums they represent.  One case may concern a contract that the manager helped negotiate on behalf of the condominium.  Another might involve a unit owner who has a dispute with the trustees and decides to sue the manager too. With all the great work that property management professionals perform for their associations, it can be frustrating to be [Read More...]

August 31, 2011

Looks can be deceiving. That was certainly the case for the manager of an ultra-luxury apartment building in downtown Boston, when an attractive, well-dressed, well-spoken young woman announced that she needed to rent an apartment immediately. The prospective tenant explained that she had recently arrived from Turkey and had secured a highly-paid position; a letter from her employer, confirmed the $8,000 per month salary she claimed. She was currently living in a high-end hotel, but [Read More...]

July 31, 2011

Those who fail to learn from history will almost certainly repeat it. Although few question this adage, many fail to heed it. The Federal Housing Administration’s (FHA’s) new guidance for condominium loans offers an unfortunate case in point. The agency published the first iteration of this guidance in June 2009, with little, if any, input from the community association industry. The outcry from industry executives was immediate, loud and effective. Agency officials withdrew the guidance, [Read More...]

June 23, 2011

Pitched battles over parking rights —perpetual conflicts in many community associations — are likely to intensify as more owners acquire electric cars and begin requesting, or demanding, facilities to recharge them. This prospect is not as remote as it may seem. Although electric cars are still relatively rare in this country, a Morgan-Stanley study published in 2008 estimated that there will be 100,000 plug-in cars on U.S. roadways by 2012, a projection that the economic [Read More...]

June 15, 2011

Two years after an Australian lawyer caused a stir by sending a foreclosure notice via Facebook, the practice of online legal service is spreading as a means for courts to keep their dockets moving. A court in Australia has approved the use of Facebook to notify a couple that they lost their home after defaulting on a loan.  The Australian Court approved the request to use Facebook to serve the legally-binding foreclosure documents after several [Read More...]

May 23, 2011

Take a deep breath these days, and you may detect the unmistakable, sweetly pungent aroma of marijuana – even if you’re not on a college campus or at a rock concert. Sixteen states (Rhode Island, Maine and Vermont among them) have enacted laws or approved Constitutional amendments legalizing medically-related uses of marijuana and 10 states (including Massachusetts) are currently considering medical marijuana laws. This trend — and it clearly is a trend — will pose [Read More...]

May 16, 2011

In the 2008, the Massachusetts Legislature passed a new law, which takes effect on September 30, 2011, relative to upgrades of home heating systems equipment to prevent leaks from tanks and pipes that connect to a furnace.  The new law, G.L. c. 148, Section 38J, as amended, requires that an owner of residential property (defined as 1-4 unit dwellings) must take certain action relative to the installation of an oil safety valve or an oil [Read More...]

May 16, 2011

The Massachusetts mechanic’s lien law, going back more than 100 years, allows contractors to file a lien on a tenancy interest. See G.L.c. 254, §25. There is nothing new in that concept. But a battle is often waged over whether the contractor can also assert a mechanic’s lien on the landlord’s premises. A lien against the landlord’s interest is typically couched in terms of the “owner’s consent” to the tenant construction work, but just as [Read More...]

May 9, 2011

The Massachusetts Condominium Law (Chapter 183A) is an enabling statute, designed to give condominium developers and community associations the flexibility required to address circumstances that can change over time. It is generally assumed, however, that within this flexible structure, some statutory requirements are fixed — if not unalterable, alterable only with considerable difficulty and unanimous, or close to unanimous, owner approval. A recent Massachusetts Supreme Judicial Court decision (Scully v. Tilley) suggests that may not [Read More...]

April 18, 2011

What happens when a unit owner files for Chapter 7 bankruptcy and abandons the unit?  Who is responsible for the common area fees?  Who owns the unit?  Shouldn’t the unit owner have some responsibility?  This article addresses some of those common questions and concerns in light a new decision that we just obtained from the Bankruptcy Court, written by Judge Melvin S. Hoffman. There has been an ongoing dispute between condominium associations and unit owners/debtors [Read More...]

April 18, 2011

My passion is Football, my practice is Litigation.  The NFL has caused my passion to collide with my practice.  Now my upcoming football season (and Patriots season tickets and tailgating) is in jeopardy.  My Fantasy Football league is in chaos.  So far I have contemplated adjusting my Fantasy schedule to have non-divisional games played first, so that in the event some games are canceled, my Fantasy Football league will have a balanced schedule.  Suggestions from [Read More...]

April 18, 2011

On March 30, 2011, the Essex Superior Court ruled that the One Salem Street Improvement Association, a homeowners association governing a 45 lot subdivision in Swampscott was not terminated by the Massachusetts Restriction Statute.  While homeowners associations (sometimes called HOAs) are not as popular in the Northeast as they are in other regions of the Country, here condominiums seem to be the preferred choice of developers for creating ownership of common land and shared facilities, [Read More...]

March 24, 2011

Condominium owners have no constitutionally protected right to freedom of speech within their common interest ownership communities. This has the ring of heresy to those who view the First Amendment, correctly, as moral and legal bedrock on which our democracy rests. But other legal principles add shades of gray to an area that is often viewed as black and white.

March 15, 2011

The statutory duty of a landlord under G.L.c. 186, §19, to exercise reasonable care to correct an unsafe condition described in a written notice from a tenant applies to commercial leases, the Supreme Judicial Court has ruled in an issue of first impression. The issue arose in a case involving a tanning salon with a leaking roof.  Superior Court Judge Thomas R. Murtagh entered a directed verdict for the defendant landlord, on the theory that G.L. [Read More...]

March 15, 2011

United States Bankruptcy (NY) Judge Robert Grossman has ruled that MERS’s business practices regarding assignments and foreclosure of loans and mortgages are unlawful. He explicitly acknowledged that this ruling sets a precedent that has far-reaching implications for half of the mortgages  in this country.  The Decision is in some respects similar to the Ibanez decision which was decided by the Massachusetts Supreme Judicial Court, U.S. Bank Nat’l Ass’n v. Ibanez, 458 Mass. 637 (2011) and [Read More...]

February 28, 2011

“It has been said that democracy is the worst form of government except all the others that have been tried.” – Winston Churchill Condominiums are truly self-governing communities, reflecting democracy in its purest form. Residents can vote on the issues that directly affect them and have a powerful say in how their communities are governed. So you would think that annual elections to select the board members responsible for protecting owners’ interests and preserving their [Read More...]

February 14, 2011

            We’ve all seen them in the newspaper.  Legal notices with print so small your head hurts trying to read them.  Ironically, the people who actually read those notices can cause even bigger headaches, especially for litigants in real estate matters.             Take a recent case from the Massachusetts Appeals Court, RJR Para Corp. v. Pond, 78 Mass. App. Ct. 362 (2010), for example.  The plaintiff sued in the Land Court to establish a claim [Read More...]

February 14, 2011

On January 7, 2011, the Massachusetts Supreme Judicial Court affirmed the Land Court’s Judgments in U.S. Bank National Association v. Ibanez (and a consolidated case), SJC-10694, and held that two banks, which were not the original mortgagees but who rather claimed to hold the mortgages by virtue of assignments, and who sought to foreclose, failed to show that they were the holders of the mortgages at the time of the foreclosure.  The Court found that [Read More...]

February 1, 2011

“All the little birdies go, ‘tweet, tweet, tweet.’” But they’re not alone. And with the millions of tweets, blogs, and other messages now swirling in cyberspace, it’s a wonder the birds can hear each other above the human din. The use of Twitter and other social networking platforms, such as Facebook, LinkedIn and MySpace, is growing geometrically. And while community associations are hardly in the forefront of this (or any other) technology, they haven’t been [Read More...]

January 11, 2011

We are certainly many years into this recession.  Real estate prices continue to decline or have stabilized in some areas, but certainly have not rebounded.  More and more individuals have no equity in their homes.  The jobless rate continues to undermine the economy.  Lastly, and of course of most concern to our readers, condominium fee collections continues to be a problem. Even with many years of experience behind us, we continue to see similar problems [Read More...]

January 11, 2011

The Massachusetts Homestead Statute was first enacted in 1851, to exempt from the reach of creditors a limited amount of equity in one’s primary residence.  Recently, the Homestead Statute has come under fire for being ambiguous and in need of reform to address the modern family and modern ownership structures. Accordingly, on December 16, 2010, Governor Deval Patrick signed a comprehensive revision to the Massachusetts Homestead Statute proposed and advocated by the Real Estate Bar [Read More...]