Category: General

In Massachusetts, the general rule is that a property owner owes a duty to all lawful visitors on the premises to use reasonable care to maintain the property in a reasonably safe condition in consideration of all the circumstances. Generally, a landowner does not owe a duty to affirmatively protect visitors against the dangerous or unlawful acts of third persons. Similarly, landowners typically do not owe a duty to warn of open and obvious dangers [Read More...]

Over the past several years, the Massachusetts Legislature has been busy in instituting major changes in the area of employment law.  Two significant changes regarding personnel records and employment applications that every condominium association and management company employer should be aware of include the following: I.          Employers are Required to Notify Employees of  Negative Information Placed in Personnel Records and Provide Access to Personnel Records Upon Written Request. Massachusetts law defines a personnel record as [Read More...]

It is undoubtedly true, and something of an understatement, to say that ‘you don’t always get what you want’ in court decisions. It is also true that you don’t always get what you expect. A Massachusetts Appeals Court recently provided a rare combination: An outcome we wanted but didn’t really expect. In Wyman v. Ayer Properties, the court held that the “economic loss” rule, which limits recovery in tort actions (as distinguished from breach of [Read More...]

Whether you sign up for that gym membership promising yourself that this will be the year that you finally shed those unwanted pounds, or you find yourself having just a little extra time to think beyond the day-to-day blur that each of us call our lives – this time of year, for some reason, really does lend itself to new beginnings and planned changes.   If you live in a small condominium, it may be difficult [Read More...]

The Appeals Court has issued a pivotal decision that has effectively carved out an exception to the “economic loss rule” for condominium associations seeking to recover against developers for defective construction.  In Wyman v. Ayer Properties, LLC, the Appeals Court reversed the Superior Court’s dismissal of a condominium association’s claims associated with negligently constructed masonry – allowing the association to recover more than $375,000 from the developer of a Lowell condominium. The Appeals Court (Sikora, [Read More...]

Most community associations and their attorneys would probably agree that mediation can be a desirable alternative to litigation for resolving some disputes. But should associations be required to arbitrate disputes with condominium developers, even if neither the association’s board nor its owners explicitly agree to that requirement? The California Supreme Court answered that question affirmatively in a recent decision, ruling (in Pinnacle Museum Tower Association v. Pinnacle Market Development) that mandatory arbitration provisions are enforceable [Read More...]

On November 6, 2012 Massachusetts voters overwhelmingly voted in favor of ballot question 3. The approval of Petition Number 11-11, “An Initiative Petition for a Law for the Humanitarian Use of Marijuana,” legalizes the medical use of marijuana in the Commonwealth.  With almost all precincts reporting, 63% of voters registered their approval for the measure. In so doing, Massachusetts joins 17 other states and Washington D.C., including nearby Connecticut, Maine, Rhode Island and Vermont, in [Read More...]

“Don’t try this at home!” This warning, which scrolls under some television ads and programs, would be equally appropriate advice for the way one community association board managed a major construction project. (This is not actually one specific board but a composite, reflecting the experiences of several different boards.) The trustees obviously didn’t set out to provide a case study in how not to manage a construction project, but on the list of “things not [Read More...]

As of October 16, 2012, sixteen municipalities in California have banned smoking in condominiums and apartment complexes.  Most trends seem to work from west to east so you can expect to see this in the east in years to come. SAN RAFAEL, Calif., Oct 15 (Reuters) – A San Francisco suburb on Monday banned smoking in duplexes, condominiums and other multi-family homes, with city leaders saying they hoped to lead a wave of such regulations [Read More...]

California Supreme Court upholds Arbitration Provision On August 16, 2012, California Supreme Court in the case of Pinnacle Museum Tower Association v. Pinnacle Market Development held that a covenant to arbitrate with the developer in homeowner association documents is properly enforceable against the association, and is not void as against public policy.  In so deciding, the Supreme Court reversed an earlier decision of the California Court of Appeals the arbitration provision unenforceable. This issue has [Read More...]

In a long-anticipated case of first impression, the U.S. Court of Appeals for the 9th Circuit held that medical marijuana use is not protected by the Americans with Disabilities Act in James v. Costa Mesa. The plaintiffs were ill individuals who lawfully used medical marijuana under the state laws of California. They acquired their marijuana from dispensaries located in Costa Mesa and Lake Forest. These cities took steps to close the dispensary facilities within their [Read More...]

The Federal Housing Administration released a long-awaited revision of its condominium project approval guidelines on September 13th. The revisions to FHA condominium guidelines are contained in Mortgagee Letter 2012-18 and expire on August 31, 2014. FHA states it is making temporary adjustments to its condominium standards in response to market conditions. CAI has the new guidelines, Mortgagee Letter 2012-18, under review. FHA appears to have been responsive to several key CAI concerns including delinquency rates, [Read More...]

 Massachusetts has recently passed a law that provides cities and towns may no longer enact ordinances or by-laws that treat pit bulls as dangerous breeds (See Section 31 of Bill S02192). While it may be confusing to some condominium associations, condominiums still have the right to amend the Master Deed and to ban pit bulls within their private communities. However, Condominiums should be aware of this law as many of them have relied upon city ordinances [Read More...]

State Fire Marshal Stephen Coan says that, starting September 1, 2012, there is a ban on wood landscaping mulch within 18 inches of the base of wood- or vinyl-sided buildings.  Small residential buildings with fewer than six units are exempt.  But Coan says all property manager and homeowners should consider following the safety rule.  He says crushed rock is safer close to outside walls, and safe containers for discarded smoking materials outside will discourage careless [Read More...]

In condominiums as in society generally, laws and legal theories change over time as technologies, economies and stoical structures evolve. The changes are usually slow, often (though not always) welcome, and occasionally jarring. An apparent change in condominium law falls into the latter (largely unsettling) category. The change, reflected in a series of recent court cases, is “apparent,” because a handful of cases hardly constitute a judicial trend. But the common theme reflected in these [Read More...]

Attorneys and judges have always recognized that community associations are, for all practical purposes, quasi-governmental in nature.  They are empowered by statute to levy “taxes” (in the form of assessments) and enact and enforce their own “laws” (being their restrictions, rules and regulations).  When those powers have been legally challenged, courts all over the country have, by and in large, upheld them, as long as they have been applied in a reasonable manner.  However, the [Read More...]

In a long-anticipated case of first impression, the U.S. Court of Appeals for the 9th Circuit held that medical marijuana use is not protected by the Americans with Disabilities Act in James v. Costa Mesa. The plaintiffs were ill individuals who lawfully used medical marijuana under the state laws of California. They acquired their marijuana from dispensaries located in Costa Mesa and Lake Forest. These cities took steps to close the dispensary facilities within their [Read More...]

A decade ago, most condominium associations would not have considered applying for a bank loan, and a good thing – because they would have been hard-pressed to find a bank willing to make one. Today, associations will find that banks are not only willing to lend them money, but often enthusiastic about doing so. “In 30 years of originating these loans,” an area banker once told me, “I’ve never had to write one off.” He [Read More...]

“The New York Yankees beat the Boston Red Sox 7-3 to head into the three-day All-Star break with the best record in major league baseball.”   How much worse could it get? Quite a bit worse, actually. Since the All Star Break, the Sox have sunk below .500 and into last place in their division, 10-1/2 games behind the Yankees, as of this writing. For Sox fans, still reeling from last season’s appalling end-of-season collapse, [Read More...]

On June 22, 2012, the Massachusetts Supreme Judicial Court (SJC) issued a highly anticipated decision in the case of Eaton v. Federal National Mortgage Association.  The decision resolves a number of inconsistent and contrary decisions amongst Massachusetts Superior courts, the Land Court and U.S. District Court on the issue of whether there must be “unity” of the note and mortgage for a mortgagee to be legally entitled to foreclose on a defaulted borrower.  Said differently, [Read More...]

Ask condominium managers and trustees about the major headaches in their communities, and pets will invariably be at or near the top of the lists they create. Many issues engender strong feelings in the condominium world, but few equal the passions unleashed when pets are involved, as anyone who has tried to enact pet restrictions or enforce them can attest. Developing pet policies that are acceptable both to owners who love pets and those who [Read More...]

The killing of Trayvon Martin, an unarmed black teenager, by the head of a neighborhood watch group, has focused a harsh spotlight on these increasingly popular community-based crime prevention organizations. The incident, which has attracted national attention, has also raised questions about whether community associations should sponsor watch groups directly and whether, in fact, they should encourage these groups to operate in their communities at all. The details of this incident are well known. While [Read More...]

Hoarding is in the news again. A Tennessee Appeals court recently upheld a lower court ruling evicting a condominium owner from her unit and terminating her ownership rights. Agreeing that the owner’s hoarding, and the nuisance and health threat it created for other owners, violated the association’s covenants, the court approved the board’s request that the unit be sold and the proceeds used to repay the more than $100,000 in legal costs the association had [Read More...]

Massachusetts condominium jurisprudence typically reflects the guiding principle that the condominium statute is essentially an enabling statute, setting out a framework for the development of condominiums in the Commonwealth, while providing developers and unit owners with planning flexibility.  It is widely known that the Massachusetts Condominium Act, G. L. c. 183A, sets forth certain minimum requirements for the establishment of condominiums, but those matters that are not specifically addressed in the statute are to be [Read More...]

Massachusetts Condominium Associations continue to struggle with the ongoing ripple effects of foreclosures and high delinquency rates.  When fewer Owners are footing the bill the burden on those who are paying of course increases.   Unfortunately, even with recent government and banking industry plans to stem the tide of mortgage delinquencies, it appears that, at least for the immediate future, lost revenues and unpaid common area fees will continue to be a major issue for many [Read More...]

The battle between smokers and non-smokers may be reaching a tipping point in community associations. More boards are introducing master deed or by-law amendments prohibiting smoking completely – in individual units as well as in the common areas of their communities. And those proposals are attracting considerably more support and considerably less opposition than they have in the past. This is largely a reflection of changing attitudes toward smoking. Only 20 percent of the population [Read More...]

Condominium associations have dodged another bullet fired in their direction by federal regulators. This one, from the Federal Housing Finance Agency (FHFA), would have prohibited Fannie Mae, Freddie Mac and the Federal Home Loan Banks from purchasing mortgages on properties encumbered by “deed transfer fees” charged every time the properties are sold. The FHFA’s primary target was fees charged by private developers, but as proposed initially, the regulation would have barred all deed transfer fees, [Read More...]

Last week, the Federal Housing Finance Agency (FHFA) published a Final Rule restricting the Federal National Mortgage Association (Fannie Mae), the Federal Home Loan Mortgage Corporation (Freddie Mac) and the Federal Home Loan Banks from dealing in mortgages on properties encumbered by certain types of private transfer fee covenants. The Rule bears an effective date of July 16, 2012. The FHFA is an independent agency of the federal government which was established by the Housing [Read More...]

The courts in Massachusetts and most states typically defer as much as possible to the judgment of administrative boards responsible for enforcing local ordinances and codes. When a court finds that a municipal agency has erred, it will usually remand the case for further review, either by a lower court or by the agency, giving the local officials another bite of the enforcement apple – another opportunity to achieve the result they desire. So it [Read More...]

On November 23, 2011, the Governor signed into law Chapter 199 of the Acts of 2011, adding “gender identity” as a protected class under the Commonwealth’s non-discrimination laws.  Gender identity is defined as “a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.” Under the law, gender-related identity may be shown by providing evidence including, [Read More...]

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