Category: Newsletter

Representing condominium associations in three different states can be daunting.  MA, RI and NH have three very different condominium acts.  This document compares and contrasts the differences in the developer related provisions in the 3 acts. This comparison chart refers to pure statutory provisions themselves and does not include case law interpreting the same, I will leave that for another day. I hope you will find this reference chart helpful. Differing Statutory Levels of Developer [Read More...]

SLAPP stands for strategic lawsuit against public participation and the Anti-SLAPP law is codified under M.G.L. c. 231, s.59H. The purpose of the law is to prevent a person or business from suing someone for the sole reason of trying to silence that person’s petitioning activity.  For example, a group of protestors consistently rail against the local Board of Selectman as the protestors believe the Board is corrupt and engaged in self-dealing.  In response, the [Read More...]

Recently, the Massachusetts Legislature enacted and Gov. Baker signed into law several important changes to the Massachusetts Zoning Act, General Laws chapter 40A, and the Smart Growth Zoning and Housing Production Act, General Laws chapter 40R. Summaries of these amendments are as follows: New Starter Home Initiative. Sections 37 through 54 of Chapter 219 of the Acts of 2016, St. 2016, Ch. 219, amend General Laws chapter 40R, Smart Growth Zoning and Housing Production, by [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 [Read More...]

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...]

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...]

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...]

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...]

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...]

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...]

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...]

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...]

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...]

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...]

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. Ass’n (D. [Read More...]

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...]

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...]

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...]

A group of five community association professionals, known as the Massachusetts Five, have spent the last 8½ months spearheading legislative efforts against FHFA, in order to preserve the Community Association Super Lien.  As many of you know from past articles FHFA, which is the conservator for Fannie Mae and Freddie Mac, has taken the position that federal law prompts application of state Super Lien statutes as to loans held by Fannie Mae or Freddie Mac.  [Read More...]

Governor Baker signed a major overhaul of the state’s Public Records Law, mandating changes to the way municipalities and state agencies administer and charge fees for public records requests. In addition to amending the public records request process, the bill authorizes new penalties for violations of the Public Records Law, and requires that municipalities and state agencies appoint a “Records Access Officer” and make certain records available for free online. The new provisions affecting municipalities and state [Read More...]

You’ve probably heard the expression that “a little learning is a dangerous thing.”  Unless you have the required training or experience, it’s unlikely that you’d pretend to be a doctor, an airline pilot or sushi chef, because an amateur in any of those positions is likely to do more harm than good.  Yet you and your fellow board members – whether you know it or not – might be playing the part of state building [Read More...]

One June 23, 2016 the Massachusetts Appeals Court affirmed a Judgment of the Land Court in the case of Thomas Graves Landing Condominium v. Paul Gargano.  In this case, the Condominium Association gave a release deed for an easement over the common area parking lot to the FDIC in 1993 for use in connection with a commercial unit at the condominium owned by the FDIC.  The release deed explicitly said that the condominium trust made [Read More...]

Some Rules and Regulations adopted by the Board of Trustees of a Condominium Association, which are enforced by the Board and followed by the unit owners on a daily basis, may be entirely unenforceable if they were ever brought to the attention of a Judge.  Rules prohibiting pets, smoking, or even unreasonably loud noises within the units may be unenforceable based on a technicality of how those rules were adopted by the Association.  Very common [Read More...]

Parking is always tight in urban condominiums, especially in Boston, Brookline and Cambridge.  It is also expensive.  Parking spaces can sell for six figures.  As such, condominium parking is often the subject of controversy and sometimes litigation as the following case illustrates. In the case of Sewall-Marshal Condominium Assoc. v. 131 Sewall Ave. Condominium Assoc., one condominium challenged the validity of a 1978 agreement dividing parking spaces with a neighboring condominium association on the grounds [Read More...]

Under the Massachusetts Privacy Act (M.G.L. c. 214, §1B), individuals have a “right against unreasonable, substantial or serious interference with his privacy.” That being said, in a number of cases, it has been held that there is no reasonable expectation of privacy in the common areas of a community associations (which would include common area hallways, community rooms, common basements, foyers, etc.). Com. v. Serbagi, 23 Mass. App. Ct. 57, 498 N.E.2d 1363 (1986); Com. [Read More...]

On February 2, 2016, progress was made towards helping condominium projects recertify their FHA approval. H.R. 3700 the “Housing Opportunity through Modernization Act” passed the House and was referred to the Senate. The bill addresses the problems in FHA’s condominium program by simplifying the recertification process, allowing the Department of Housing and Urban Development (HUD) to grant commercial space requirement exemptions and reducing the minimum owner occupancy requirement from 50 percent to 35 percent. If [Read More...]

Recently, this question was posed: what is the extent of a condominium board’s obligation to repair a defect in the common area left behind by the developer? For purposes of this discussion, let us assume there are two broad classes of “defect”: (1) a problem with the design or construction of a common area element that is causing damage to other common area or individual units; and (2) the absence of a common area element [Read More...]

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