Year: 2016

December 30, 2016

We congratulate MEEB’s Ed Allcock who was elected by his peers to serve a two-year term on the CCAL Board of Governors. The Board of Governors mission is to manage CCAL’s recognition program and to govern the program’s quality and standards.  CCAL includes lawyers who demonstrate skill, experience and high standards of professional and ethical conduct in the practice of community association law and who are dedicated to advance the betterment of the communities they [Read More...]

December 30, 2016

We are beaming with pride and excitement to announce that our own Stephen Marcus has been awarded the Don Buck Lifetime Achievement Award, the highest honor given by CAI’s College of Community Association Lawyers (CCAL). Stephen will be accepting the award in January during the 2017 Community Association Law Seminar in Las Vegas. The award recognizes attorneys who exhibit exceptional leadership in the field of community association law. Stephen is only the 5th recipient in [Read More...]

December 30, 2016

In a recent decision, the Massachusetts Appeals Court faced a question of first impression—whether natural accretion to a registered littoral parcel automatically acquires registered status at the time of its creation. In Brown v. Kalicki, 90 Mass. App. Ct. 534 (2016), the Appeals Court split 2-1 on the issue, with the majority answering in the affirmative and the dissent taking a strong stance against automatic registration.   In Brown, three owners of registered parcels filed [Read More...]

December 30, 2016

On December 15, 2016 the recreational use of marijuana became legal in the Commonwealth of Massachusetts, after voters on election day approved Ballot Question 4 The Regulation and Taxation of Marijuana Act. Personally, I do not think that everyone knew what they were voting for. The new recreational marijuana law did not simply legalize or decriminalize marijuana. The new law recognizes that Marijuana is big business and it encourages it as big business because the Commonwealth [Read More...]

December 23, 2016

UNEXPECTED SURGE Overcoming the headwinds created by rising interest rates, higher home prices, and anemic inventories, existing home sales surged unexpectedly in November. The third consecutive monthly increase pushed sales to an annual rate of 5.61 million units, their highest level in nearly 10 years, the National Association of Realtors (NAR) reported. Industry analysts speculated that higher interest rates, and the expectation that they will move higher in response to the Federal Reserve’s less accommodative [Read More...]

December 15, 2016

By Stephen Marcus and Edmund Allcock Relations between the developers who produce condominiums and the owners who purchase them are not always harmonious, to say the least. They clash over many issues, but disputes over retained developers’ rights and construction defects are among the most common. These disputes are also complex and often result in litigation. One condominium community – Commercial Wharf in Cambridge – has actually spurred two seemingly contradictory court decisions on the [Read More...]

December 5, 2016

OVERTIME DELAYED Employers bracing for a sweeping and (for them) costly change in overtime laws have won a reprieve. A Federal District Court Judge in Texas approved a nationwide injunction sought by state governments and business groups opposing the change, preventing, at least for now, a redefinition that would have made approximately 4 million more workers eligible for overtime pay. President Barak Obama had championed the change in Department of Labor rules as a means [Read More...]

November 28, 2016

In today’s fast-paced world, we are all under pressure to get issues resolved more quickly, to close deals, and to move on to the next pressing matter.  Technological advances make it possible to communicate instantaneously using a variety of means, including e-mail and text messages.  As the use of these newer forms of communication become more common in the workplace, new issues arise, which require Massachusetts’ courts to utilize centuries-old standards to analyze the legalities [Read More...]

November 28, 2016

It is not unheard of for a condominium developer to reserve the right to use a portion of the condominium property after the condominium is completed.  For example, in Commercial Wharf East Condominium Association v.  Waterfront Parking Corp., 407 Mass. 123 (1990), the Massachusetts Supreme Judicial Court upheld the right of a developer to control and manage a parking business on condominium land.  The Court ruled that the developer’s reserved rights (which had been transferred [Read More...]

November 28, 2016

As you may be aware, effective August 1, 2016, the law for NH condominium associations has changed.  While the changes are numerous, the bulk of changes in the law will primarily impact Unit Owner Meetings and Board Meetings.  There are now certain requirements for notice of meetings, proxies, records of the meetings, including minutes, voting, open Board meetings and executive session Board meetings.  The other significant change is a requirement for Unit Owners to approve budgets [Read More...]

November 28, 2016

There is no question that construction projects can consume your time and resources, whether you are the person performing the work or the association commissioning the project. One of the biggest headaches can be navigating the labyrinth of safety requirements that may or may not be triggered by the project. For example, Section 26I of the Massachusetts Fire Prevention Act controls when automatic sprinkler systems have to be installed in existing residential structures of four [Read More...]

November 28, 2016

In a divided opinion in the case of America v. Mardo, 140 A.3d 106 (RI 2016), the Rhode Island Supreme Court allowed a unit owner, who constructed an expansion to his unit without 100% unit owner consent required under the Rhode Island Condominium Act, §2.17(d), to retain the expansion.  In so deciding, the Rhode Island Supreme Court affirmed the decision of the Trial Court that the unit owner proceeded with the good faith belief that [Read More...]

November 28, 2016

On May 18, 2016 the United States Department of Labor published its final rule (“Final Rule”) updating the overtime regulations governing the exemption of executive, administrative, and professional employees from the minimum wage and overtime pay protections.  The most significant part of the Final Rule updates the salary and compensation levels required for such employees to be exempt by increasing the standard salary level for the first time since 2004 to ($913 per week or [Read More...]

November 28, 2016

The ability to collect unpaid condominium fees was dealt a severe blow by a recent decision of the NH Supreme Court in the case of New Hampshire Housing Authority vs. Pinewood Estates Condominium Association.  The Court ruled that a foreclosure sale buyer was not responsible for the satisfaction of a Termination of Services lien related to pre-foreclosure sale debt owed by the foreclosed former owner. NHHA acquired the unit after it foreclosed on the owner, [Read More...]

November 28, 2016

Ready or not, winter is quickly approaching and far too often, condominium associations find themselves unprepared for Mother Nature’s wrath. Accordingly, it is essential for condominium associations to plan for the winter ahead, even as the last of our summer tans are still fading. First, associations should ensure that the condominium’s insurance coverage is up to date and is consistent with the requirements set forth in the condominium’s declaration of by-laws. It is also recommended [Read More...]

November 28, 2016

Condominium fair housing and discrimination claims continue to be a source of horror for condominiums.  As illustrated by the four cases below, even the federal government can be scary.  Condominium Boards need to think carefully and consult with counsel as appropriate to ensure that what they think is a treat, does not turn out to be a trick. On July 15, 2016, the Division filed a Statement of Interest in Arnal v. Aspen View Condo. Ass’n (D. [Read More...]

November 28, 2016

The Housing Opportunity Through Modernization Act of 2016 (HOTMA) was signed into law on July 29, 2016, which, among other things, required the Secretary of HUD to provide further guidance and clarity regarding the percentage of owner occupied units required to obtain project approval for condominium communities. In response to HOTMA, HUD issued Mortgagee Letter 2016-15 effective October 26, 2016, which establishes a 50% owner-occupancy requirement for Existing projects and a 30% owner-occupancy requirement for Proposed, Under [Read More...]

November 28, 2016

The idea that all are equal before the law has been a cornerstone of democratic societies for the last 2,400 years. There are situations, however, where one side appears to have an advantage – for example, a developer whose condominium documents appear to limit the ability of a condominium association to sue.  Even then, however, courts have – perhaps unwittingly – found ways to uphold that basic principle of equality by drawing a distinction between [Read More...]

November 28, 2016

Condominium homeowners’ associations throughout Massachusetts have struggled with attendance and participation at unit owner meeting, and to some extent at board meetings as well.  The selection of an arbitrary place and time for a community of homeowners to convene for their annual meeting, each with conflicting schedules, seems almost archaic in the advent of digital communication technologies such a Skype, Go-To Meeting, and Facetime.  The Massachusetts Condominium Act, M.G.L. c. 183A, does not address the [Read More...]

November 28, 2016

Dressed in holiday style In the air there’s a feeling of Christmas Children laughing, people passing Meeting smile after smile… Silver Bells, Nat King Cole   Its holiday season and the sidewalks will soon be busy with shoppers galore.  Apparently, city sidewalks and silver bells are on the minds of the Massachusetts Appeals Court as well.    On November 18, 2016, the Massachusetts Appeals Court decided in a split (2-1) decision that a private landowner [Read More...]

November 9, 2016

READY, SET….. The Federal Reserve is signaling that a December rate hike is almost certain. As widely expected, the Federal Open Market Committee left rates unchanged at its November meeting, reflecting somewhat more concern than the FBI about interfering in the impending election. But the committee’s post-meeting statement indicated that Fed officials see the moon, and sun, and stars aligning nicely to justify the long-awaited increase in the Fed’s benchmark rate, which has remained unchanged [Read More...]

October 14, 2016

By Patrick Brady and Mark Einhorn Equifax, one of the major consumer credit reporting bureaus, announced recently that it will begin including the common are fees and assessments condominium owners pay in the calculation of consumer credit scores. Sperlonga, a data aggregator that will be collecting this information for Equifax, says the expanded reporting will help consumers improve their credit scores by adding another source of timely payments that will count in their favor. That [Read More...]

October 3, 2016

NEW CONDO FINANCING RULES The Federal Housing Administration (FHA) has proposed new regulations easing some of the requirements condominium associations must meet to make units in the communities eligible for FHA-insured mortgages. Key changes would: Reinstate the “spot approval” process, under which the FHA will insure loans on individual units in associations that have not themselves been certified by the FHA; ease the recertification requirements for condos that have obtained initial certification; potentially reduce the [Read More...]

September 15, 2016

COOLING OFF The overheated rental market is beginning to cool off. The annual increase in apartment rents fell to 3.1 percent in July – the lowest level in two years, according to Axiometrics, which tracks rental trends. Rents actually gave ground in some of the hottest markets, the company found. “Lower rates of job growth and an abundance of new supply have been causing decreased apartment performance in [major] metros, Jay Denton, senior vice president [Read More...]

September 1, 2016

TEMPORARY EXTENSION The Federal Housing Administration has extended its temporary rules governing the certification of condominiums – a requirement to make buyers and owners eligible for FHA-insured mortgages. The extension – until August 31, 2017, will give agency officials time to incorporate changes mandated by Congress in the Housing Opportunity through Modernization Act, which was signed into law at the end of July. Among other changes, the law: Requires the FHA to streamline its recertification [Read More...]

September 1, 2016

By Stephen Marcus The risks confronting condo associations are generally well-known. Although there are always variations on old themes, the risk fundamentals don’t tend to change much from year to year. But every now and then new risks emerge, like Loch-ness monsters from the deep, to threaten condo communities and challenge the boards and managers who oversee them. We have three new risks to add to association worry lists: Pokémon, Zika and Marijuana. Pokémon Most [Read More...]

August 17, 2016

STILL SAYING NO Resisting increasing public support to legalize the use of marijuana, the Federal Drug Administration (FDA) has rejected a recent request to rethink its classification as a highly addictive drug – on a par with heroin. Gina Raimondo and Jay Ins, Democratic governors of Rhode Island and Washington, respectively, had asked the FDA to reclassify the drug, noting the conflict between laws in 42 states permitting the medical use of marijuana, and federal [Read More...]

August 1, 2016

SUSPICIONS CONFIRMED Board members who suspect that at least some of the owners requesting “emotional support animals” don’t really qualify for them, will find confirmation in a recent New Yorker magazine article noting the ease with which pet owners can document their right to bring animals into residential and commercial properties where they aren’t otherwise allowed. “The Fair Housing Act says that you and your [support animal] can live in housing that prohibits pets,” the [Read More...]

August 1, 2016

By Stephen Marcus Cyber-thefts are becoming more frequent, more sophisticated and more costly. This isn’t news to anyone who surfs the Internet, reads newspapers (I’m told I’m not the only one who still does that) and watches television news. But if you think only the largest financial institutions and giant corporations are at risk, you are badly and dangerously mistaken. Symantec, a computer security company, reports that nearly half of the cyber-attacks launched last year [Read More...]

July 26, 2016

A tenant could prevent her landlord from recovering possession of the leased premises in a summary process action by showing that he violated the security deposit statute, the Supreme Judicial Court has ruled. Housing Court Judge (and former MEEB attorney) MaryLou Muirhead ruled that the tenant properly could assert a violation of the security deposit statute as a counterclaim for damages, but that a counterclaim on this basis is not a defense to the landlord’s claim [Read More...]