Category: Newsletter

On December 4, 2015, the Rhode Island Supreme Court issued its opinion today in the much anticipated case of Twenty Eleven, LLC vs. Botelho. The question before the Court was whether a condominium lien foreclosure sale on the association’s super priority lien, conducted pursuant to the Rhode Island Condominium Act, Section 36.1 et seq., extinguished a first mortgage on the unit, when the mortgagee failed to exercise the statutory right of redemption. Edmund A. Allcock submitted [Read More...]

The New Hampshire Governor signs House Bill 158 which will be effective January 2016.  Irrespective of any language in its contract with the association, this Bill requires the managing agent to return to the Board of Directors, President or the counsel to the association any and all association records held by the managing agent within thirty (30) days from the date of the request for such records.  If the managing agent wants to make copies [Read More...]

A recent change in the Massachusetts Condominium Statute is making it much easier for Associations to amend their condominium documents.  Effective as of April 7, 2015, the addition of Section 23 to M.G.L. c. 183A has streamlined the process for obtaining the required consent from mortgagees in order for Associations to amend their documents. In order to amend the Master Deed, Declaration of Trust, or By-Laws many condominium documents require the Association to obtain the [Read More...]

Questions about private beach rights are common in Massachusetts and are frequently the subject of highly emotional disputes among those involved.  Often, the dispute is not about the beach itself but about private access to the beach.  As coastal communities were developed, it was not unusual for subdivision developers to create private ways between beach front lots to allow beach access by inland owners. Under such circumstances, however, some beach front owners have claimed a [Read More...]

When signing a document or entering into a contract a trustee can exempt themselves from personal liability by stipulation or agreement.  However, a signature as “trustee” or a description of themselves as a “trustee” does NOT constitute such an agreement, and they may be personally signing the contract without knowing it. When acting in the capacity as a trustee, sign all documents “as trustee but not individually.”  It must be the understanding of both the [Read More...]

One of the hallmarks of a healthy association is the free and open exchange of information between and among the board and unit owners.  There are few things which create more dissension or frustration in an association then poor or non-existent communications from the board.  However, there is a legitimate need for a board to maintain certain confidences, most importantly in connection with seeking advice and direction from its legal counsel.  Managing the tension between [Read More...]

Recently, our office has received many questions regarding 6(d) Certificates. Therefore, I have been asked to write a short article dealing with some of the basic issues that continue to arise relating to the issuance of 6(d) Certificates. The first issue that seems to be brought up quite often is what should be the date of the 6(d) Certificate? The answer is simple. The 6(d) Certificate should be dated the date it is signed. Many [Read More...]

On June 1, 2015, the United States Supreme Court, in a unanimous decision, issued its decision in Bank of America, N.A. v. Caulkett and held that wholly unsecured junior mortgages constitute “allowed secured claims” and are therefore not subject to being stripped off by Chapter 7 debtors in bankruptcy. The decision comes after months of speculation and fear on the part of junior mortgage holders that their liens may be voided in bankruptcy simply because [Read More...]

The management of condominiums presents many challenges – interpretation of condominium documents, enforcement of rules and regulations, collection of common expenses – each of these represent issues encountered on a day-to-day basis. With so much to be addressed, it is likely that less frequent matters relating to ownership of the condominium, including issues relating to land use and zoning, may be easy to put on the back burner.  Like all owners of property in Massachusetts, [Read More...]

It is undeniable that the Commonwealth’s population is getting older. At home, families face the difficult task of caring for elderly loved ones, and in the public, taxpayers and politicians grapple with the challenges and expense of an aging population. As this happens on the small and large scale around us, condominium boards may also be placed in the difficult, and likely uncomfortable, position of handling problems associated with their community’s maturing population. While the [Read More...]

“Take your baby by the hand And make her do a high hand stand And take your baby by the heel And do the next thing that you feel We were so in phase in our dance hall days”                                                                                       ― Wang Chung   In Sarkisian v. Concept Restaurants, Inc., the SJC decided whether the “mode of operation” approach to premises liability, adopted by this court in Sheehan v. Roche Bros. Supermkts., Inc., 448 Mass. [Read More...]

The inevitable turnover that occurs with almost all condominium boards has the unfortunate byproduct of a lack of consistency in the enforcement of the condominium’s rules and regulations. While a board may have seen no harm in turning a blind eye toward certain minor infractions of a rule, what happens when the board believes that it must enforce the same rule against a unit owner that has committed a more egregious transgression? For example, a [Read More...]

The transition of a condominium association from developer to unit owner control can be a complicated process. In a transition circumstance in which the association is dealing with the defective construction of a condominium’s common area, those complexities are multiplied.  Often times – with the distraction of many competing issues that all must be addressed simultaneously – unit owners and associations miss critical deadlines that limit, or even prevent, an association from obtaining recovery for [Read More...]

The Massachusetts Housing Finance Agency defines hoarding as: “the acquisition of, and inability to discard items even though they appear (to others) to have no value. Living spaces (are) sufficiently cluttered so as to preclude activities for which those spaces were…designed. [It causes]…significant distress or impairment (to tenant, others in building, owner, etc.)…” Hoarding may be discovered in community associations under a variety of circumstances, including but not limited to during routine inspections, in connection [Read More...]

A policyholder who defeated an insurer’s declaratory action asserting that it had no obligation to cover a negligence claim brought against the policyholder was entitled to attorneys’ fees, a U.S. District Court judge has ruled. The insurance company, which continued to defend the policyholder on the underlying claim while its declaratory action was pending, had sought a declaratory judgment that the insured’s policy should be rescinded based on misrepresentations he made in his policy application. [Read More...]

Unit owners who serve as members of condominium boards typically do so out of a sense of responsibility to their condominium communities.  Serving on a condominium board can be a challenging but rewarding experience.  When a person begins serving on a condominium board, he or she automatically takes on a duty known as a “fiduciary duty.”  Most people have heard of fiduciary duty, but what does it mean?  Understanding fiduciary duty is important for condominium [Read More...]

By Ed Allcock Everyone that knows me, knows that I am and have always been the biggest Patriots fan.  As a fan, the NFL’s witch hunt against its best player, New England Patriots QB Tom Brady is maddening.  As a lawyer and litigator the legal battles that have ensued are fascinating and enlightening and provide keen insight into the legal system which can benefit every condominium association. Takeaway #1:  Don’t Agree to Arbitrate Disputes. While [Read More...]

Sometimes persistence pays off. In this case, MEEB handled an appeal on behalf of a Defendant that was found to have breached a real estate contract entitling the buyer to liquidated damages in the amount of $375,000. Initially, MEEB succeeded in reversing and vacating the Judgment at the Appeals Court. However, the Massachusetts Supreme Judicial Court in 2014 reinstated the Judgment, which then carried interest dating back to 2004 (when the case was filed) which [Read More...]

Whether you work or live in a community association, a situation could arise where you believe that you are a victim of harassment. Massachusetts has enacted a law, G.L. c. 258E, which: (1) provides protection to victims of stalking, sexual assault, and criminal harassment that is unavailable under the domestic abuse prevention law, G.L. c. 209A; and (2) makes violations of these orders punishable as a crime. Unlike the domestic abuse prevention law, which adjudicates [Read More...]

On April 2, 2015, the New Hampshire Supreme Court issued an Opinion affirming a Judgment of the Hillsborough County Superior Court striking a developer’s unilateral attempt to extend condominium development rights beyond the statutory five year period. In New Hampshire, most condominium development rights are limited to a five year period (with one five year extension, which the developer exercised in this case while he still owned all the units). This means that the project [Read More...]

SNOW BUDGET SHORTFALLS, DAMN ICE DAMS AND INSURANCE CLAIMS Many condominium associations in Massachusetts, New Hampshire and Rhode Island have major shortfalls due to the winter of 2015. Even condominiums without areas to plow incurred snow costs to shovel roofs and/or deal with ice dams. So, let’s assume, that your snow budget shortfall is $50,000.00. What options does a condominium association have to pay the contractors? Here are the options: 1. Snow Loans to Condominium [Read More...]

On Saturday, July 17, 2015, Elevated, Rhode Island’s first medical marijuana vapor lounge, opened for business. It was a modest opening, with a little more than a dozen customers and potential members dropping by in its first day. Located in a small storefront on Peck Street, Elevated combines two things — medical marijuana and vaping — that have become prominent in recent years. Vaporizing drugs — either tobacco or marijuana — instead of burning them [Read More...]

Just in case you haven’t noticed, it’s been snowing lately – a lot. And with snow comes slippery conditions, and with slippery conditions comes that nine letter word that strikes fear in the hearts of all property owners – “liability.” Which is why it is absolutely essential for associations and communities to adopt snow and ice policies which clearly (and correctly) establish the duty and responsibility for snow and ice treatment between those that unit [Read More...]

On his last day in office, former Massachusetts governor Deval Patrick signed into law Senate Bill 865. This set in motion a process by which the Massachusetts Parental Leave Act (“MPLA”) will replace the Massachusetts Maternity Leave Act (“MMLA”) effective on April 7, 2015. Most significantly, the new MPLA will expand the categories of workers entitled to parental leave. It also will modify certain notification provisions to the benefit of employees and include one new [Read More...]

Life is full of transitions, but the transition from developer to owner control of a community association undoubtedly ranks among the most challenging and (for novice board members) potentially overwhelming on that list.  More often than not, the developer delivers a huge box, or several huge boxes, crammed with official looking documents, miscellaneous papers and sometimes scraps of paper, invoices, reports and spare change (if you’re lucky) – arranged in no discernible order and identified [Read More...]

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