Category: Legal Alerts

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...]

“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 in 1993, in [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...]

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 up to $5,000 plus [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...]

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...]

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...]

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...]

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...]

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...]

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...]

“My condo community is insured for full replacement value,” the board’s president announced confidently. “Our manager assures us,” he added, “that we have all coverage we need.” I hear these confident assertions often, and they make me shudder. Many condo associations have learned through painful experience that their full replacement policy may not fully cover a devastating loss. Some association managers and insurance agents have found themselves in serious legal and financial trouble for suggesting [Read More...]

Most of us have never seen a winter like the one that (we hope) has finally ended. We’ve never seen this much snow, temperatures this cold sustained for this long, this many ice dams or this many leaking, sagging roofs. And the damage resulting from these “never seen” conditions is likely to achieve “never seen” status as well. You can measure misery in many ways. For us, it’s the number of calls we’ve gotten from [Read More...]

It might be possible to find an issue more prone to error and confusion than condominium insurance, but it wouldn’t be easy. Hundreds and probably thousands of treatises have been written on different aspects of this complicated topic, but like a fire that isn’t completely extinguished, the questions keep coming. New questions arise as old ones are answered; old questions are asked anew by successive generations of owners and board members confused by the same [Read More...]

You’d think a condominium law that has been in place for nearly two decades and is working well by all accounts would be reasonably secure. But apparently not. The condominium superlien, widely credited with helping condominium associations navigate several economic downturns, including the most recent one, with minimal economic damage, is being questioned by lenders, weakened by courts and attacked by federal regulators, forcing industry executives to fight again battles they thought they had long [Read More...]

The holidays are past; the ubiquitous holiday music has (mercifully) been silenced; and community associations that had been arguing with owners about the holiday decorations they were displaying, or wanted to display, are now arguing about when the decorations should be removed. Arguments about holiday displays are perennial. And while the arguments themselves (over inflatable Santas, sparkling lights, towering trees and multi-colored candles) may seem trivial, the issues they raise are anything but. When these [Read More...]

‘Twas six weeks before Christmas, but in all areas common, The voices of residents already were hummin’ With gripes about what should be hung on the walls, Installed or removed from the floors and the halls. In one lobby corner, Mrs. Jones with great care, Had placed a large Santa, inflated with air. A few feet away several elves vied for space, With symbols of Kwanzaa on a ledge draped with lace. On the opposite [Read More...]

The newly enacted “retainage” law calls to mind the adage about not wanting to see laws or sausage being made. The sausage, at least, is likely to be digestible and maybe even tasty. It’s not clear that either can be said about this new law. Long sought by the Associated Subcontractors of Massachusetts and ultimately supported by the Associated General Contractors, who had initially opposed it, the “Act Relative to Fair Retainage Payments for Private [Read More...]

An owner in your condominium community has begun renting his unit to vacationers, who occupy it for short periods – a day or a few days ─ at a time. The owner is delighted with this new source of income, but his neighbors are less pleased with the revolving door of people they don’t know cycling in and out of the building. How will the board respond to their concerns? That question is arising with [Read More...]

For condominium boards trying to anticipate future challenges, here’s a prediction that bears considering: Fair housing accommodation requests are going to multiply. This prediction doesn’t require a crystal ball; a general knowledge of demographic trends will tell you what you need to know. Baby boomers are getting older and many of these aging boomers are choosing to age in place, remaining in the condominium units they have occupied for years and sometimes for decades. Grab [Read More...]

© 2020 Marcus Errico Emmer Brooks PC