Category: Legal Alerts

By Edmund Allcock and Haley Byron Life is full of transitions. In the life of a community association, the most important transition by far is the one that transfers control of the community ─ and responsibility for it ─ from the developer to the owners. A successful transition will set the community firmly on the path to self-governance and financial health. A less than successful transition can set the community back for months or even [Read More...]

By Janet Oulousian Aronson and Mark Einhorn The temperatures are still screaming summer, but the calendar is whispering that fall is near. And for condominium boards and managers, that means it’s time to bring out the fall maintenance checklist to make sure the community’s buildings, operating systems and grounds are ready for the cold weather to come. But buildings and grounds aren’t the only components that require regular maintenance. The associations policies, procedures, rules and [Read More...]

By Jennifer Barnett and Dawn McDonald With the passage of the Paid Family Medical Leave Act (PFMLA) in 2018, Massachusetts became one of only six states (plus the District of Columbia) that now require employers to offer paid leave to employees who have serious medical problems or who need time to care for family members with serious medical problems. Benefits for Massachusetts workers will begin to phase in starting in January of 2021, but employers [Read More...]

By Stephen Marcus You are the president of a condominium board and you don’t appreciate getting a call from a fellow board-member Sunday at midnight. The reason for the call is even less welcome. The board member has lost a laptop containing every essential piece of association related information it would be possible for anyone to have. Names, addresses, account information and credit card numbers for association residents, passcodes for association bank accounts, budget details [Read More...]

By Richard Brooks Condo owners usually understand that they give up some of the rights enjoyed by single-family homeowners. The right to paint their front door any color they choose, to play their music at any decibel level they choose, and even to smoke in their residences, for example, all may be prohibited by condo associations rules or covenants. But condo owners pay property taxes, just like single-family homeowners, and they expect to receive the [Read More...]

By Mark Einhorn Reading the real estate section of the New York Times recently, I was struck by the number of ads featuring condominiums for sale. There would be nothing remarkable about this in the Boston Globe, but condominiums historically have been relatively rare in New York, where cooperatives have long been the primary form of common interest ownership. In Massachusetts (and in New England generally), it is cooperatives that are the exception. There are [Read More...]

By Matthew Gaines and William Thompson A newly enacted state law restricting the authority of condo associations to regulate the installation of electric car charging stations will apply only to condominiums located in Boston. But the implications extend well beyond Boston’s city limits. The reason: More consumers are buying electric cars. They purchased more than 360,000 of those vehicles in the U.S. last year – an 81 percent increase over 2017, which topped the previous [Read More...]

  By Gary M. Daddario If you look at a list of states that have a condominium superlien, you will find New Hampshire among them. But you can’t judge a book by its cover – and you can’t judge a statute by its name. All superliens are not equal. And the New Hampshire superlien includes some differences of which New Hampshire associations should be aware. It is important for boards and managers to understand the [Read More...]

By Jennifer Barnett During the course of their tenure on an association’s governing board, board members will come into possession of a seemingly endless amount of information. While owners are entitled to access the association’s books and records regarding the general operation and management of the association, there are certain categories of sensitive information that board members should safeguard and protect from disclosure. Among those categories of information, are information and materials that are protected [Read More...]

By Jennifer Barnett Condominium board members are often encouraged to be open, honest, and transparent in their communications with the condominium community. However, because of their leadership position, board members often possess confidential information, the disclosure of which may have significant legal and financial implications for the community associations they represent. Confidential information protected by attorney-client privilege is of particular concern. Contrary to a common misunderstanding, the attorney-client privilege doesn’t belong to the attorney; it [Read More...]

By Mark Einhorn and Patrick Brady A friend traveling through the deep south many years ago stopped at a small gas station to ask for directions. The owner, happy to oblige, told him: “Go to the end of this road, take a left and….Nope,” he said. “That won’t work.” Thinking again he said, “Go out of the station, turn right and take your first left… Nope,” he said again. “That won’t work either.” After a [Read More...]

When MEEB opened its doors in 1993, the legal landscape for condominiums was sparse. “There were maybe 100 cases nationally, and only four appellate cases in Massachusetts,” Seth Emmer, one of the firm’s founding partners recalls.” There was virtually no guidance anywhere,” he adds. “We were making it up as we went along.” Over the past 25 years, that barren landscape has been filled in with precedents and policies, laws and regulations, test cases brought, [Read More...]

By Patrick Brady Boston has joined a growing list of cities and towns nationwide moving to regulate and/or restrict the short-term rental of single-family residences. Like other initiatives, the newly enacted Boston ordinance attempts to balance the competing concerns of homeowners, who want or need the revenue generated by renting their homes; vacationers, who want an affordable alternative to hotels; the hotel industry, which objects to what it deems to be unfair competition from properties [Read More...]

By V. Douglas Errico Condo developments have three phases, equivalent in the minds of many developers to the “stages of grief” that describe the mourning process. There is no question that construction glitches, quarrelsome owners, litigation, or the threat of it, that plague some projects can make many developers mourn their career choice. But the development process doesn’t have to be grievous. There are common sense steps developers can take to avoid many of the [Read More...]

By Mark Einhorn Of all the problems condo associations confront – and there are many – hoarding is among the most difficult. Hoarding is both an illness for the hoarder and a nuisance (or worse) for other residents. Handling hoarding situations require boards and managers to balance two sides of a difficult equation: Sensitivity for the hoarder on one side and their obligation to protect the health, safety and well-being of everyone in the community [Read More...]

By Stephen Marcus Depending on their size, condominium associations may receive a variety of professional services – from managers, security guards, lifeguards, maintenance workers and administrative assistants, among other personnel. Boards and owners often question the cost and quality of these services, but few, if any, ever wonder, “Whose employees are they?” If you haven’t asked that question, you should, because some of the rules governing employee-employer relationships have changed, and the changes are creating [Read More...]

By Stephen Marcus When we talk about insurance, which we do frequently, we talk about its complexities, and there is no question that insurance decisions are complicated, confusing and often intimidating for condo boards. But it isn’t the complexity of insurance that creates the biggest risks for board members and the association’s they govern; it’s the type of coverage and the amount: Many boards don’t buy the kind of insurance they need or enough of [Read More...]

By Pamela M. Jonah Imagine this: Susan and Bill, a retired couple in their late 60s, are sitting around the community association’s pool on a warm summer day, chatting with other residents. They have no children of their own and are becoming increasingly agitated by the high-pitched squeals of children who are swimming and splashing in the water. “I think children should be barred from the pool on weekends, so adults can enjoy it,” Bill [Read More...]

OR, IF YOU PREFER A SHORTER HEAD: SJC Rejects Developers’ “Poison Pills” By Edmund Allcock The Massachusetts Supreme Judicial Court (SJC) has ruled that condominium developers can’t unreasonably restrict the ability of owners to file suits against them. The court rejected the “poison pill” provisions developers often use to insulate themselves from liability for construction defects, design flaws and other claims condominium owners might pursue against the developers of their communities. I represented the plaintiffs, [Read More...]

by Janet Oulousian Aronson Consistency may be “the hobgoblin of little minds,” as Ralph Waldo Emerson suggested. But it is also an article of faith for many condominium boards, who fear, and rightly so, that if they don’t enforce rules consistently, they may not be able to enforce them at all. Exceptions can all too easily swallow a rule. Owners will have little incentive to obey rules they see others ignoring without consequences. Inconsistent or [Read More...]

By Matthew Gaines and John Shaffer Anyone who tracks legislation and regulations affecting condominiums has to wonder if lawmakers and regulators understand what condos are and how they operate. Proposed revisions to the state Sanitary Code demonstrate once again that they do not. The Department of Public Health wants to update the existing code ─ unquestionably a reasonable undertaking, both necessary and long overdue. But provisions aimed at controlling pests in multi-family housing would cause [Read More...]

Most people think about disasters as something that happens to others, not to them. But after witnessing back-to-back weather catastrophes in Houston, Florida, the Caribbean, and more recently in Puerto Rico, many condominium associations are recognizing that the unthinkable could, in fact, happen to their communities, and considering what they should do to prepare for that possibility. Disaster planning and disaster recovery are huge topics about which others have written entire books. Since I don’t [Read More...]

By Mark Einhorn The short-term rental of residential property is producing long-term concerns. Those concerns, which were just emerging when I wrote about this issue three years ago, have grown exponentially as short-term vacation rentals have ballooned, creating what is now a $34 billion business and triggering an avalanche of conflicts and complaints to which the governing boards of condominiums, municipal officials, and lawmakers are all beginning to respond. At the federal level, a group [Read More...]

By Matthew Gaines We face many challenges in life. Obtaining a doctor’s note certifying the need for an emotional support animal isn’t one of them. And for condo association board members and managers, this is a source of considerable and increasing frustration. The federal Fair Housing Act and its Massachusetts counterpart (MGL c. 151B) require housing providers, including condominium and homeowner associations, to offer “reasonable accommodations” to residents who suffer from physical or emotional disabilities. [Read More...]

By Edmund Allcock Litigation is unpredictable. That’s no surprise to anyone who fights court battles regularly. It is also a theme reflected in three recent court decisions dealing with developer rights. In the first case, Condominiums at Lilac Lane v. Monument Garden, LLC, the New Hampshire Supreme Court ruled that additions to an existing condominium were not subject to time limits and other statutory restrictions on phased developments. The New Hampshire Condominium Act created the [Read More...]

By Stephen Marcus It is a sign of technology’s fast and firm grip that few of us can remember a time when we communicated by mail (letters inserted in envelopes, affixed with stamps and delivered by the post office) rather than e-mail, delivered instantly to one recipient or dozens of them by pressing the “send” button on a computer. E-mail has become the communication standard, used to communicate just about everything to just about everyone. [Read More...]

By John Shaffer, Esq. Do you have LUST? Not “in your heart,” as former President Jimmy Carter once confessed, but buried underground, somewhere in your condominium community? That ‘LUST’ is an acronym for “Leaking Underground Storage Tanks,” either currently in use or abandoned long ago, that could have leaked and may still be leaking fuel oil, gasoline or other toxic substances. Few condominium communities have underground tanks. You won’t typically find them in new construction, [Read More...]

By Edmund Allcock Proponents of the new state law permitting recreational use of marijuana, and the voters who approved it, viewed the measure as a long overdue move to put marijuana in the same category as alcoholic beverages ─ no more or less harmful and no more or less subject to abuse than beer and wine. Voting ‘yes’ for marijuana was relatively easy; dealing with the avalanche of legal, political and administrative questions the law [Read More...]

By Mark Einhorn and John Shaffer We regularly advise condominium boards to be wary of taking on obligations beyond those state laws or their association’s governing documents require them to assume. A recent decision by a Massachusetts Appeals Court adds a judicial exclamation point to that advice. The decision (Eric Halbach vs. Normandy Real Estate Partners) deals with the obligations of property owners to maintain walkways. The property owner in this case owned a commercial [Read More...]

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...]

© 2019 Marcus Errico Emmer Brooks PC