Category: General

Where condominium trustees decided in 2013 to reallocate the common elements expenses assessed against the owner of the lower level of the development’s parking garage, the trustees could not retroactively enforce the reallocation for the years prior to 2013, a Massachusetts Superior Court judge decided. “This case arises out of a dispute between plaintiff Gerfman Global, LLC (Gerfman), which owns the Parking Garage Units (Garage Unit) of the Nautica Leasehold Condominium (Nautica), and the defendant [Read More...]

Master Deed     Declaration of Trust

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...]

BROOKLINE BANK Wesley K. Blair 131 Clarendon Street P.O. Box 179179 Boston, MA 02117 wblair@brkl.com Tel: (617) 927-7974 AVIDIA BANK Howard B. Himmel 42 Main Street Hudson, MA 01749 h.himmel@avidiabank.com Tel: 978-567-3630 ROCKLAND TRUST COMPANY Timothy W. Murphy 120 Liberty Street Brockton, MA 02302 Timothy.Murphy@RocklandTrust.com Tel: 781-982-6629 NORTH SHORE BANK William J. Kell or Lisa Scopa 248 Andover Street Peabody, MA 01960 bkell@northshore-bank.com or lscopa@northshore-bank.com Tel: 978-538-7068 or 978-538-7082

Do the following: Try to shave the snow down to 2-3 inches on the roof instead of scraping the roof clean, which will risk damage to the shingles or other roof covering. \ Keep all ladders, shovels and roof rakes away from utility wires Shovel snow from flat roofs throwing snow over the side away from the building Remove large icicles carefully if they are hanging over doorways or walkways. Consider knocking down icicles accessing [Read More...]

Last Sunday’s balmy weather compounded the ongoing issue of ice dams for many of our clients and the risk of further damage remains. For this reason we are sending out this alert in an effort to help associations cope with the ongoing snow crisis that we are all struggling with. QUESTION: Do roofs have to be fully raked of snow and ice dams broken up before any damage occurs, and by whom? Answer: In almost [Read More...]

The manager sitting across from me looked as if she had just walked 10 miles through a desert at mid-day without water. She might actually have enjoyed that exercise more than the one she had just endured – attending the monthly board meeting at a community association she managed. The scenario she described will be all-too recognizable to many managers and board members: The meetings rarely begin on time and often run past midnight. Discussions [Read More...]

Two years ago, Northeast Housing Court Judge David Kerman issued a ruling that an owner of a mixed used building was “strictly liable” for an intoxicated tenant’s fall through a defective porch guardrail in the case of Sheehan v. Weaver. The building contained three residential apartments located above a commercial establishment. None of the apartments were owner-occupied. After a night of drinking, one of the tenants fell through a porch guardrail suffering serious injuries. The connection of [Read More...]

The Supreme Judicial Court has issued a landmark decision that has effectively carved out an exception to the “economic loss rule” for condominium associations seeking to recover for defective construction and design.  In Wyman v. Ayer Properties, LLC, a case handled by Tom Moriarty and Dave Rogers of this office, the Supreme Judicial Court reversed the Superior Court’s dismissal of a condominium association’s claims associated with negligently constructed masonry – finding that the association could [Read More...]

Senate Bill 1987 Passes Legislature at Midnight Hour Senate Bill 1987, sponsored by Shrewsbury State Senator Michael Moore and the Massachusetts Land Title Association, would render clear and marketable to any title affected by a defective foreclosure arising out of the U.S. Bank v. Ibanez ruling. Estimates are that hundreds of innocent homeowners are affected by paperwork errors by foreclosure lenders, rending them unable to sell or refinance their homes.  The issue created by the [Read More...]

In the first of what should be many cases dealing with marijuana use in rental housing, the SJC ruled recently that a Section 8 tenant could be evicted for the possession of under one ounce of marijuana combined with allowing her live-in boyfriend to deal marijuana and possess a gun at the leased premises. The court overruled Boston Housing Court Justice Jeffrey Winik’s prior decision preventing the eviction of the tenant. Judge Winik was unconvinced that [Read More...]

The new law will be codified at Massachusetts General Law Chapter 149, Section 29F. Every contractor should be aware of this new law.  Condominiums with large projects and property managers managing large projects should be aware of this new law as well. The new law takes effect on November 6, 2014 and applies to construction contracts signed after that date on private construction contracts where original value of the prime contract is at least $3,000,000.  It [Read More...]

An Orange County jury found a homeowners association negligent for failing to resolve a secondhand smoke dispute between neighbors at a Trabuco Canyon condominium.  Trends usually move west to east so New England condominiums and HOAs should be concerned and pro-active. After a five-week trial, Superior Court jurors last week awarded a family more than $15,000, finding the condo association and management failed to ensure the non-smoking family’s right to the “quiet enjoyment” of their own [Read More...]

Over the past twenty years or so, Massachusetts condominiums were able to collect six months of unpaid condominium fees and attorney’s fees.  In addition, they were able to collect on-going condominium fees by filing a second or third lien action, etc.  Unfortunately, on Friday, November 7, 2014 the Appeal’s Court decided that Condominium Associations are only allowed to have one priority lien at a time. Condominium Associations must now be aware that they may not [Read More...]

The Massachusetts Supreme Judicial Court (“SJC”) recently issued another decision affecting the foreclosure of mortgages in Massachusetts. In Easthampton Savings Bank v. City of Springfield, No. 11612, slip op. (Mass. Dec. 19, 2014), the SJC struck down two mortgage ordinances adopted by the City of Springfield (“City”) in 2011, holding that both ordinances are preempted by existing state laws. The ordinances deal with the foreclosure process and were adopted in response to a wave of [Read More...]

As one of his last acts in office, Governor Patrick signed into law a bill that adds a new section to the Massachusetts Condominium Act that will make it easier for associations to obtain mortgagee consents when amending condominium documents.  The bill, which was proposed by Community Associations Institute Massachusetts Legislative Action Committee, chaired by MEEB’s Matthew W. Gaines, will greatly benefit many condominium associations in Massachusetts that for years have been faced with an [Read More...]

Just when you were getting used to your iPhones, it is time to get ready for the next wave.  Smart phones may soon be replaced with smart glasses.  Google Glass allows the user to view images called up in the glass through voice activation or by touching the rims of the glasses.  The product is expected to hit the market in 2014.   Currently they sell on e-bay for around $2,300 a pair. Google Glass like [Read More...]

Registered Land is unassailable.  This is one of those “truths” Massachusetts Real Estate Lawyers have had drilled into their heads over the years.  Registered Land is supposed to be unassailable because land boundaries, easements and encumbrances are determined through an exhaustive, time consuming and expensive process and ultimately certified in the form of a Certificate of Title signed by a Land Court Judge.  Anybody who goes through that process (which some real estate lawyers think [Read More...]

A recent Decision out of the Maine Supreme Court illustrates that condominium smoking bans continue to be a legal hot topic.  In 2010, the Sunspray Condominium Association adopted a condominium wide smoking ban, banning smoking in the entirety of the condominium property, including within units.  Presumably this was done by a Declaration Amendment, however the Court record is unclear on this point.  As an aside, MEEB recommends that if a smoking ban extends within units, [Read More...]

The term “associational discrimination,” in the context of an employment discrimination claim, refers to a claim that a plaintiff, although not a member of a protected class himself or herself, is the victim of discrimination animus directed toward a third person who is a member of the protected class and with whom the plaintiff associates. The Massachusetts Supreme Judicial Court (“S.J.C.”) has, in a narrowly tailored decision, expanded the reach of the state’s anti-discrimination statute, [Read More...]

By Edmund A. Allcock Developers and their attorneys across the state are ecstatic about a U.S. Supreme Court ruling that reduces the amount of concessions and conditions municipalities can extract in granting permits. A 5-4 majority in Koontz v. St. Johns River Water Management District held that the U.S. Constitution’s takings clause not only applies to cases in which a project is approved with “extortionate” conditions, but also to those denied when a developer refuses [Read More...]

Recently, the Massachusetts Supreme Judicial Court (“SJC”) had an occasion to review the case law and policies concerning the interpretation of the Massachusetts lodging house law.  In the matter of City of Worcester v. College Hill Properties, SJC 11166 (May 15, 2013), the SJC considered a case involving two-family and three-family rental properties in the City of Worcester owned by the Defendants.  The properties contained units consisting of a living room, dining room, kitchen, bathroom [Read More...]

Recently, the Massachusetts Supreme Judicial Court (“SJC”) had an occasion to review the case law and policies concerning the interpretation of damage provisions in commercial leases in the event of a default.  To that end, in the matter of 275 Washington Street Corp. v. Hudson River International, LLC, SJC 11217 (April 30, 2013), the SJC considered a case involving a commercial landlord who entered into a twelve (12) year commercial lease with a tenant who [Read More...]

The Massachusetts Supreme Judicial Court recently concluded that a real estate broker has a duty to exercise reasonable care in making representations, and that certain exculpatory provisions contained within a standard form purchase and sale agreement do not relieve real estate brokers of that duty. In the case of DeWolfe v. Hingham Centre, LTD, SJC-11168 (April 11, 2013), a real estate broker was hired to sell property in Norwell, Massachusetts. The sellers informed the broker [Read More...]

“Condominium Association to Pay $1 million in Discrimination Case.” “Justice Department Obtains $120,000 Settlement in Discrimination Suit Against Condominium Association.” “Condominium Pays $20,000 to Settle Fair Housing Complaint.” To read the headlines, you’d conclude that condominium associations are forever on the wrong end of Fair Housing-related discrimination complaints, and in fact, they do lose often enough to make Saint Jude (the patron saint of lost causes) seem an appealing ally. But condominium boards win some [Read More...]

The sky is not falling! I feel compelled to make that point in the wake of another in a series of recent court decisions concluding that community association rules must respect, at least to some degree, the Constitutional right to freedom of speech. These decisions – three of them now in New Jersey and one in Massachusetts – have unnerved some association board members and industry executives, who have long assumed, correctly, that because associations [Read More...]

Pursuant to G.L. c. 183A, §6(a), condominium common expenses are to be assessed against all units in accordance with their percentage interest in the condominium’s common areas, and the “organization of unit owners shall have a lien on a unit for any common expense assessment  levied against the unit from the time the assessment becomes due.” G.L. c. 212, §3 provides that actions may proceed in Superior Court only if the amount in controversy exceeds [Read More...]

It can be an unpleasant consequence of doing business: your employee damages property or impermissibly consumes your property and the bill comes to you, the employer.  What can you do about it?  For those condominium associations and management companies who are considering a policy of a wage set-off for their employees who damage property during the scope of their employment or impermissibly consume employer property, recent developments in Massachusetts employment and wage laws should give [Read More...]

Over the past few years we have seen an increase in the number of requests for reasonable accommodations/modifications by residents with disabilities.  The most common requests are for emotional support or service animals; however, the requests can be for just about anything, so long as it is related to the resident’s disability and necessary for that individual.  When presented with a request for a reasonable accommodation/modification, condominium boards must handle each request on a case-by-case [Read More...]

Massachusetts voters last fall said a resounding “yes” to medical marijuana, approving a petition legalizing the use of that otherwise illegal drug for medical purposes. The Bay State joins 17 other states ― Rhode Island, Vermont, Maine and Connecticut among them ―and the District of Columbia on a rapidly growing list of states that have approved similar measures and are grappling with the avalanche of legal questions they have spawned. Those questions are proving particularly [Read More...]

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