Category: Legal Alerts

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...]

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...]

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...]

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...]

by Mark Einhorn When a gunman opened fire on patrons at an Orlando nightclub a few weeks ago, killing and injuring more than 100, commentators grappled initially with the horror of the act. But they also speculated about the obligation of the nightclub owner to provide better security. Community association boards confront the same question: What obligation do they have to protect community residents? The answer, once fairly straightforward, has become a bit murkier with [Read More...]

By Matthew Gaines The Department of Housing and Urban Development (HUD) has issued guidance restricting the use of criminal background checks to screen prospective residents. The guidance warns property owners that a blanket policy rejecting residents solely because they have a criminal record may violate the Fair Housing Act, because it could have a discriminatory impact on minorities. Although this HUD advisory primarily targets rental property, it has potential implications for condo communities, which, like [Read More...]

By Thomas Moriarty “Those who can’t remember the past are doomed to repeat it.” That oft-repeated and often-needed reminder comes to mind following a recent decision by the Massachusetts Supreme Judicial Court (SJC), affirming the ability of condominium associations to establish multiple contemporaneous priority liens to collect unpaid monthly common fees. The history of the “rolling lien,” and the Massachusetts Superlien statute on which it is based, is instructive. The Legislature enacted the Superlien statute [Read More...]

By Stephen Marcus and John Shaffer We’ve all heard that oral contracts “aren’t worth the paper they’re written on.” The same might be said of the certificates of insurance condo associations demand from their contractors: The certificates aren’t what they appear to be; they don’t provide the protection boards and association managers think they are getting. Certificates of insurance purport to offer three assurances: That the contractor has a specified amount of liability insurance; That [Read More...]

By Thomas O. Moriarty A tiny political sign triggered a giant-sized dispute in a Colorado condominium, when the association manager said the sign violated an association rule governing common area displays and told the residents to remove it. The college students renting the unit, who had hung the 1.5′ x 1′ sign (supporting Bernie Sanders) from their balcony, complained that the removal order violated their free speech rights. But faced with a one-time fine of [Read More...]

When the dentist says, “this won’t hurt a bit,” most of us know to brace for intense pain – or at least acute discomfort. The same assumption applies when government officials say new laws or regulations won’t impose new obligations or create additional liability. The department of Housing and Urban Development (HUD) has offered that assurance for regulations the agency has proposed, clarifying the standards for assessing harassment claims under the Fair Housing Act. The [Read More...]

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...]

© 2017 Marcus Errico Emmer Brooks PC