Category: Newsletter

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...]

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...]

© 2020 Marcus Errico Emmer Brooks PC