Year: 2015

December 28, 2015

The condominium “superlien” is under attack. That doesn’t overstate at all the concerted efforts now under way to revoke a measure that has been working well in many states for more than two decades. Nor does it exaggerate the potential threat to the financial health and viability of condo associations all over the country. The Federal Housing Finance Agency (FHFA), primary regulator for the secondary market Government sponsored Enterprises (GSEs), Fannie Mae and Freddie Mac, [Read More...]

December 13, 2015

HUD SMOKING BAN The Department of Housing and Urban Development is proposing rules that would ban smoking in all of the nation’s public housing developments. Approximately 228,000 public housing units are already covered by smoke-free policies that HUD has been encouraging housing agencies to adopt voluntarily since 2009. The proposed rules would make the remaining 940,000 units smoke-free. “We have a responsibility to protect public housing residents from the harmful effects of secondhand smoke, especially [Read More...]

December 12, 2015

I want to talk about the ABCs of community associations, or, more precisely, the CAs and HOAs, which can be confusing even to people who live in one of these communities. First the basics: Condominium Associations and Home Owner Associations — CAs and HOAs, respectively — are the corporate entities governing different kinds of common interest ownership communities. HOAs aren’t as common in New England as in other parts of the country and they tend [Read More...]

November 29, 2015

We don’t usually discuss employment law in this space, but a recent decision of the National Labor Relations Board (NLRB) will have significant implications for condo associations and association management companies, potentially affecting their employment practices and their liability risks. The ruling, in Browning Ferris Industries of California, 362 NLRB No. 186 (2015) revised and expanded the decades-old criteria for determining whether two entities are “joint employers” and thus jointly liable for complaints filed by [Read More...]

November 12, 2015

A SURE BET….MAYBE A December rate hike is looking increasingly like a sure bet. But then, we’ve heard that assessment before, and more than once, only to see what had seemed a foregone conclusion that the Federal Reserve would act derailed. That’s what happened in October, when turbulence in the international financial markets and a surprisingly weak September employment report convinced the Fed policy makers that the economy wasn’t quite ready to absorb higher rates. [Read More...]

November 4, 2015

“Take your baby by the hand And make her do a high hand stand And take your baby by the heel And do the next thing that you feel We were so in phase in our dance hall days”                                                                                       ― Wang Chung   In Sarkisian v. Concept Restaurants, Inc., the SJC decided whether the “mode of operation” approach to premises liability, adopted by this court in Sheehan v. Roche Bros. Supermkts., Inc., 448 Mass. [Read More...]

November 4, 2015

The inevitable turnover that occurs with almost all condominium boards has the unfortunate byproduct of a lack of consistency in the enforcement of the condominium’s rules and regulations. While a board may have seen no harm in turning a blind eye toward certain minor infractions of a rule, what happens when the board believes that it must enforce the same rule against a unit owner that has committed a more egregious transgression? For example, a [Read More...]

November 4, 2015

The transition of a condominium association from developer to unit owner control can be a complicated process. In a transition circumstance in which the association is dealing with the defective construction of a condominium’s common area, those complexities are multiplied.  Often times – with the distraction of many competing issues that all must be addressed simultaneously – unit owners and associations miss critical deadlines that limit, or even prevent, an association from obtaining recovery for [Read More...]

November 4, 2015

The Massachusetts Housing Finance Agency defines hoarding as: “the acquisition of, and inability to discard items even though they appear (to others) to have no value. Living spaces (are) sufficiently cluttered so as to preclude activities for which those spaces were…designed. [It causes]…significant distress or impairment (to tenant, others in building, owner, etc.)…” Hoarding may be discovered in community associations under a variety of circumstances, including but not limited to during routine inspections, in connection [Read More...]

October 31, 2015

PUSHBACK ON FHA CONDO RULES Condo associations objected strenuously three years ago when the FHA tightened the requirements they had to meet to make units in their communities eligible for FHA financing. Now the National Association of Realtors and other housing trade groups are pushing back as well, arguing that the restrictions are making it more difficult for condo buyers to qualify for FHA loans. And they’re finding support in Congress, where more than 50 [Read More...]

October 14, 2015

NOW WHAT? September’s lackluster (to say the least) employment report may have put another crimp in the Federal Reserve’s plan to begin easing its tight grip on interest rates. After the Federal Open Market Committee (FOMC) decided to stand pat again in September, largely because of concerns about the international economic climate, Fed Chairwoman Janet Yellen said a move would likely come before the end of this year – possibly as soon as this month. [Read More...]

October 12, 2015

The fall weather has been glorious. The foliage has been spectacular. The Red Sox didn’t make the playoffs, but the Yanks have been eliminated, so at least we won’t have to watch them in a World Series, or worse, in a victory parade. With so many positives to contemplate, why would anyone want to think about winter? The obvious answer: Because it’s going to come again and anyone who endured the last winter in New [Read More...]

September 30, 2015

CFPB MORTGAGE RULES: THE DEBATE CONTINUES The statistics indicate that the Consumer Financial Protection Bureau’s (CFPB’s) new mortgage rules haven’t had the devastating impact that industry executives had predicted. But critics say the statistics don’t paint an entirely accurate or complete picture of what is happening in the market. And cynics point out that it is still too early to gauge the impact on residential real estate closings, which almost everyone agrees will take longer, [Read More...]

September 24, 2015

FIRST TIME BUYERS WAITING LONGER AND PAYING MORE First time homebuyers today are waiting longer before entering the market and devoting a larger chunk of their income to homeownership when they do. Median income for first-time buyers averages $54,340 today – about the same as in the 1970s, according to an analysis by Zillow economists. But today’s buyers are paying roughly 2.7 times their income for a median priced home that would have taken 1.7 [Read More...]

September 3, 2015

HUD TARGETING PRIORITY LIENS Condo industry executives concerned about the Federal Housing Finance Agency’s (FHFA’s) efforts to challenge the priority of the condominium superlien can’t be happy about the recent announcement that the Department of Housing and Urban Development (HUD) is requiring liens created by PACE (a popular energy retrofit financing program) to remain subordinate to FHA-insured loans. The HUD policy statement, issued in late August, doesn’t mention the condo superlien; it simply emphasizes HUD’s [Read More...]

August 26, 2015

A policyholder who defeated an insurer’s declaratory action asserting that it had no obligation to cover a negligence claim brought against the policyholder was entitled to attorneys’ fees, a U.S. District Court judge has ruled. The insurance company, which continued to defend the policyholder on the underlying claim while its declaratory action was pending, had sought a declaratory judgment that the insured’s policy should be rescinded based on misrepresentations he made in his policy application. [Read More...]

August 26, 2015

Unit owners who serve as members of condominium boards typically do so out of a sense of responsibility to their condominium communities.  Serving on a condominium board can be a challenging but rewarding experience.  When a person begins serving on a condominium board, he or she automatically takes on a duty known as a “fiduciary duty.”  Most people have heard of fiduciary duty, but what does it mean?  Understanding fiduciary duty is important for condominium [Read More...]

August 26, 2015

By Ed Allcock Everyone that knows me, knows that I am and have always been the biggest Patriots fan.  As a fan, the NFL’s witch hunt against its best player, New England Patriots QB Tom Brady is maddening.  As a lawyer and litigator the legal battles that have ensued are fascinating and enlightening and provide keen insight into the legal system which can benefit every condominium association. Takeaway #1:  Don’t Agree to Arbitrate Disputes. While [Read More...]

August 18, 2015

When it comes to technology I am somewhat of a technophobe. I was a Blackberry holdout and I still read newspapers (the paper version) in my hand. So, not surprisingly, I hadn’t thought much about drones ― until I looked up recently and saw one buzzing over my deck with what looked like a high resolution camera. My first thought (“What is it?”) was followed quickly by, “Is it going to fall on my house, [Read More...]

August 15, 2015

EYES ON THE FED When will the Federal Reserve raise interest rates? Economists, business executives and consumers have been asking that question with increasing intensity for the past two years. The July employment report may have brought the Fed closer to answering it. Employers added 215,000 jobs for the month, a little short of the consensus forecast, but still above the 200,000-per-month level the market has averaged consistently this year. The unemployment rate remained at [Read More...]

July 31, 2015

TRID DELAYED The Consumer Financial Protection Bureau (CFPB) has delayed for two months the implementation date for the new consolidated Truth-in-Lending/RESPA disclosure rules. Mortgage lenders, settlement service providers and their vendors, who have been scrambling to prepare for the new requirements, will now have until October 3rd to make the adjustments in software, procedures and staffing they will need. Many industry executives had warned they would not be able to complete those preparations by August [Read More...]

July 21, 2015

FED POISED TO RAISE RATES – MAYBE The June economic reports brought a spate of mostly good news, peppered with continuing concerns about the employment outlook. Although employers added 223,000 jobs for the month wage gains remained anemic, leaving the timing of the Fed’s interest rate move still in doubt. On that point, Federal Reserve Chair Janet Yellen told a Congressional committee last week that the Fed plans to begin raising interest rates this year. [Read More...]

July 16, 2015

If you ask condo association board members to list their most challenging tasks, maintaining appropriate insurance coverage for their community would probably rank at or near the top. Managing insurance claims – almost as complicated and often more difficult ─ wouldn’t be far behind. The first question many boards ask about an insurance claim is whether they should file it at all. That question arises most often on smaller claims that are close to the [Read More...]

July 2, 2015

SUPER LIEN STRUGGLE CONTINUES The tug-of-war over the condominium superlien is becoming more intense and more complicated. In Nevada, the current center of the struggle, within the span of about two weeks: A federal district court ruled that an HOA’s suprelien could not extinguish the interests of a lender holding a first mortgage on the property; and The Nevada state Senate approved legislation retaining the super priority position of a condo lien, but establishing a [Read More...]

June 19, 2015

REG RELIEF FOR BANKS The Senate Banking Committee has approved a sweeping regulatory relief bill, exempting smaller banks from many of the Dodd-Frank supervisory requirements, establishing markers for the restructuring of Fannie Mae and Freddie Mac, and modifying the integrated mortgage disclosure rules (taking effect August 1) by waiving the three-day notice required for changes in loan terms if the only change is a reduction in the borrower’s loan rate. The proposed legislation would also [Read More...]

June 2, 2015

One of our clients received a request recently to waive the association’s smoking ban to allow a resident to smoke medically-prescribed marijuana. This is the first such marijuana-related accommodation request our office has seen (though it certainly won’t be the last) since Massachusetts approved a law permitting the use of this otherwise illegal drug for medical purposes, joining 23 states and the District of Columbia in doing so. Treating this “reasonable accommodation” request like any [Read More...]

May 29, 2015

A CAPITAL ISSUE.   You know an industry issue should be written in capital letters when you start seeing ads promoting services to deal with it. So condo industry executive should note with some degree of concern recent reports that vendors have begun marketing HOA Super-Lien Services to manage the perceived risks the condominium superlien poses for lenders and investors. “There are super lien laws on the books in 21 states, plus Washington, D.C. Historically, [Read More...]

May 17, 2015

STILL GROWING.  The number of community associations, and the number of people living in them, continues to grow. The Community Associations Institute (CAI) tallied 333,600 common interest ownership associations in the U.S. at the end of last year (including homeowner associations, condos and cooperatives), and projects that another 8,000 to 10,000 communities will be added to the total by the end of this year. That’s up from 260,000 in 2004 and 10,000 in 1970, when [Read More...]

May 5, 2015

Sometimes persistence pays off. In this case, MEEB handled an appeal on behalf of a Defendant that was found to have breached a real estate contract entitling the buyer to liquidated damages in the amount of $375,000. Initially, MEEB succeeded in reversing and vacating the Judgment at the Appeals Court. However, the Massachusetts Supreme Judicial Court in 2014 reinstated the Judgment, which then carried interest dating back to 2004 (when the case was filed) which [Read More...]

May 5, 2015

Whether you work or live in a community association, a situation could arise where you believe that you are a victim of harassment. Massachusetts has enacted a law, G.L. c. 258E, which: (1) provides protection to victims of stalking, sexual assault, and criminal harassment that is unavailable under the domestic abuse prevention law, G.L. c. 209A; and (2) makes violations of these orders punishable as a crime. Unlike the domestic abuse prevention law, which adjudicates [Read More...]