Category: Newsletter

It is often the case that the law can change as frequently as the weather in New England. Recently, the National Labor Relations Board (“NLRB”), a federal labor law enforcement agency that is charged with enforcing the National Labor Relations Act (“NLRA”), demonstrated this by vacating a decision on joint employer liability that it had made only in December. The change in decision means that it is important for both associations and management companies to [Read More...]

Can we learn anything about serving on a condo board from the movie The Godfather? You wouldn’t think so, but as it turns out, there is some sage advice to be found in Mario Puzo’s classic story. Let’s take a look at some memorable quotes and what they say about serving on a condo board. Never tell anybody outside the family what you’re thinking again. – Don Corleone   Board decisions should stay between board [Read More...]

INTRODUCTION Every day it seems as though an ever increasing number of property owners are seeking to earn extra income by offering their properties for short-term/transient purposes, and the increased popularity of platforms such as AirBnB, VRBO, and HomeAway have made it easier than ever for an property owner to connect with anyone who seeks a place to stay for a night or for several. While this commercial enterprise may seem like a quick and [Read More...]

A number of new condominium related bills came before the NH House Commerce and Consumer Affairs Committee on January 25, 2018. As a member of CAI-NE’s NH Legislative Action Committee, I appeared with other committee members before the legislative committee to oppose these bills as the majority were very bad for associations and board members.  I am proud of the work our committee did to stop these bills at the outset.  We were able to [Read More...]

In a case of first impression, the Massachusetts Supreme Judicial Court (SJC) in the case of Trustees of the Cambridge Point Condominium Trust vs. Cambridge Point, LLC, has ruled that condominium developers cannot unreasonably restrict the ability of owners to file suits against them. In its Decision, dated January 19, 2018, the Court rejected as violative of public policy, the anti-litigation provisions that developers have been routinely inserting into condominium documents for the last 10-15 [Read More...]

Remember when George W. Bush described his politics as “compassionate conservatism”? At first it is a phrase that seems self-contradictory but then at a second glance it starts making some sense. Well when it comes to the collection of unpaid condominium assessments, my ethos is “sensible aggression”. In Massachusetts, the priority lien is the ultimate hammer and provides all the leverage an association needs to collect up to six months of regular monthly fees.  At [Read More...]

What is better than a dinner reservation? The condominium board members have been looking forward to that meal all week.  It’s a new place, they have been dying to try it.  Suddenly, they get sued.  Now they go from dinner reservations to insurance reservations.  Their appetite is lost. Your Condominium gets sued. Sorry but it happens.  What is the first thing you should do?  You guessed it, contact your lawyer, sadly he has an appetite [Read More...]

There’s an old adage that goes, “if it ain’t broke don’t fix it.” Recently, the Massachusetts Appeals Court issued a decision that could be said to stand for a somewhat contrary proposition: “if it’s broke, you can’t fix it” – at least as to restrictive covenants of common interest communities that are not condominiums created under the provisions of Chapter 183A of the Massachusetts General Laws. In Berger v. 2 Wyndcliff (2017), the Court concluded [Read More...]

The MEEB litigation department recently obtained a long awaited victory for a Condominium Board in a maintenance dispute that first originated over a decade ago. The disagreement between the Board and a Unit Owner centered around a maintenance provision of the Condominium’s governing documents that discussed the duty to repair and replace a valuable set of luxury balcony doors.  One Unit Owner in particular was alleging serious issues with the set of balcony doors in [Read More...]

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...]

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...]

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. [Read More...]

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 abutting a [Read More...]

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...]

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...]

This past weekend many areas saw their first significant snow fall this season.  If Associations have not done so already,  it is not too late to adopt snow and ice policies which clearly (and correctly) establish the duty and responsibility for snow and ice treatment between those that unit owners are responsible for, those that the association is responsible for, as well as those gray areas in between. In Massachusetts, courts now evaluate liability for [Read More...]

Last month, I advised all Massachusetts condominiums to adopt master deed amendments banning the smoking, growing and/or distribution (if your condominium contains commercial units) of marijuana.  Since, then you may have heard that the Massachusetts Legislature voted to delay the “marijuana bill” an additional 6 months.  What does this mean? The legislative delay only impacts the licensure of recreational marijuana dispensaries.  Basically, the legislature decided that it needed more time to propose and implement regulations [Read More...]

July in Boston can be stifling, this was one of those days.  It was 9:00 AM and it was already 90⁰.  Temperatures were expected to hit 103⁰.  I was headed to the kind of meeting every lawyer hates….a meeting after a loss.  Trial lawyers hate losing just like athletes and coaches.  Meeting clients after a loss is worse than facing the media after losing the Super Bowl.  You feel bad enough about the loss, litigators [Read More...]

With Airbnb rentals on the rise, many condominium associations are faced with growing concerns about short-term rentals and the implications associated with the same, including safety and security issues, noise complaints and damage to the common areas. As a preliminary matter, condominium associations may only restrict rentals of units if already provided for through the condominium’s governing documents, or through an amendment to the condominium’s constituent documents. To that end, some condominium governing documents prohibit [Read More...]

The U.S. District Court Western District of Virginia Abingdon Division recently decided that an insurance company had waived attorney client privilege when an investigation placed materials on a public drop box type of site, that was not password protected.  An excerpt from the case follows:   Excerpt   In an effort to share information electronically, Thomas Cesario, a Senior Investigator for Nationwide Insurance Company, (“Nationwide”), which owns Harleysville, uploaded video surveillance footage of the fire [Read More...]

On the evening of May 5, 2017, police discovered the bodies of Richard Field and Linda Bolanos, whom were two well-respected physicians, at their luxury South Boston condominium. Bampumium Teixera (“Teixera”), a former employee of Palladion Services, LLC (“Palladion”), the condominium’s former concierge and security company, presently stands accused of the murders of Dr. Field and Dr. Bolanos.   In August 2017, a wrongful death lawsuit was filed against Palladion, among others. The complaint alleges [Read More...]

A recent Appeals Court decision calls into question longstanding legal precedent in enforcement of the so-called “no-damages-for-delay” clauses typical in construction contracts in both the public and private sectors, and also creates new law in Massachusetts for the acceptance of the “total cost” method in calculating damages. Central Ceilings, Inc. v. Suffolk Construction Company, Inc., et al. involved a public construction project for the Massachusetts State College Building Authority. The MSCBA hired Suffolk Construction Co. [Read More...]

Condominium Attorney extraordinaire, Marv Nodiff from St. Louis, Missouri, who is a Member of the College of Community Association lawyers and a tireless advocate for CAI in its ongoing battle in Nevada with the Federal Housing Finance Agency over the priority lien has recently written and published his fifth novel.  This novel, like his four previous novels, is based on life in the community association world.  The title to his fifth novel struck me.  It’s [Read More...]

The amendment which was signed by the governor on June 29, 2017 takes effect immediately.  The new legislation allows a unit owner to obtain a written copy of any insurance company damage appraisal or any damage appraisal (regardless of who prepares it) in regard to a casualty loss/damage to a unit.  The legislation requires a condominium board to provide this information/documentation within 14 days of the request.  The legislation also entitles a unit owner to [Read More...]

The Massachusetts Supreme Judicial Court ruled that “Where an insurance policy required the insurer to defend any claim initiated against the insured, the insurer’s duty to defend did not require it to prosecute affirmative counterclaims on behalf of its insured.” Insurance defense is often sought in condominium litigation.  When an insurer defends the lawsuit, it is obligated to pay counsel fees to defend the lawsuit. However, until now, it has not been clear whether the insurer was [Read More...]

With all of this talk in the news about healthcare and insurance, I am reminded that prevention is always better than the cure.   As a condominium litigator, I am often seeking a “cure” for our clients of something that could have been prevented.  Condominium insurance can be just as tricky and controversial as health insurance. Insurance is typically one of the highest budgeted item for condominium associations.  Because of this, condominium boards are often looking [Read More...]

Tucked in to a recently passed supplemental budget bill was a change to Section 10(c) of the Massachusetts Condominium Act that requires minutes of condominium meetings to be made available to unit owners via e-mail, if so requested. The bill was signed by the Governor on November 3, 2017, and is effective immediately. The relevant section of the statute is Section 10(c)(3) and now reads as follows: “The organization of unit owners shall keep a [Read More...]

On November 2, our own Stephen Marcus and representatives of Rogers & Gray Insurance held an insurance seminar for board members and managers.  If Cher could help us turn back time, I would urge everyone in the industry to attend as the presentation was incredibly helpful to understanding the tricky world of condominium insurance.  What follows are some important takeaways from the seminar. Co-Insurance Penalties:   I think this term would make more sense if [Read More...]

On September 29, 2017, the Massachusetts Appeals Court issued a decision in the case Calvao v. Raspallo, 16-P-1143 (September 29, 2017) that involved a dispute between the unit owners of a two unit condominium over an addition onto one of the units.  One of the unit owners renovated her unit, and included an approximately 111 square foot addition or expansion.  The expansion was constructed upon limited common area designated for her exclusive use.  The other [Read More...]

Under the Volunteer Protection Action Act (42 U.S.C. §14501) (hereinafter the “Act”), volunteers of a non-profit organization or a governmental agency have immunity, meaning they are generally protected, from negligence claims, if they are acting within the scope of their responsibilities in the organization/agency and they are properly licensed and/or certified (to the extent required) and authorized to act. Under the Act, volunteers are not protected if the harm and/or injury occurred through the operation [Read More...]

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