Category: General

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...]

In August 2010, Massachusetts enacted a statute that set in motion two waves of reform in the state’s Criminal Offender Record Information (“CORI”) system. Employers already have had at least fifteen months to adjust to the “ban the box” reform that became effective in November 2010. See M.G.L. c. 151B, §4(9½) (amending the Massachusetts Fair Employment Practices Act to bar requests for criminal offender information on initial written employment applications, unless a statutory exception applies). [Read More...]

The law of unintended consequences is playing out big time for Massachusetts condominiums. Much has been written here and elsewhere about the unintended — and certainly unanticipated ― consequences of the Federal Housing Administration’s new underwriting requirements for condominium loans, which have made it considerably more difficult to buy, sell or refinance condominiums. Less widely recognized, but equally dramatic in their impact, is a trio of Massachusetts court decisions that have tied an already badly [Read More...]

On December 20, 2011, the Appeals Court ruled in an unpublished decision brought by a contractor against a condominium trust that mechanics liens imposed by contractors are inapplicable in the condominium context and cannot be utilized to attach common areas and/or secure contractor claims for non-payment. The case involves a subcontractor who was not paid by a general contractor hired by the condominium trust to perform work at a condominium.  The general contractor went bankrupt [Read More...]

In DeWolfe v. Hingham Centre Ltd., the Massachusetts Appeals Court recently considered a Realtor’s duty to disclose and independently verify zoning information about a listing property.  The agent, relying on what turned out to be erroneous information supplied by his client, listed a Norwell property on Multiple Listing Service (MLS) and newspaper advertising as “zoned Business B.” The property was not in fact zoned for business use; it was zoned residential, thereby prohibiting the hair [Read More...]

Here’s a landlord’s nightmare — at least one of them. A fire has caused extensive damage to one of your buildings. No one was injured, fortunately, but all 50 tenants will have to be relocated while the building is being repaired, which will take at least five months and probably longer. The cause of the fire, as is often the case, is unrelated to the landlord or the physical structure of the property. A Massachusetts [Read More...]

“You can’t always get what you want” applies to court decisions, as it does to most things in life. It is also true that you don’t always get what you expect. That was the case in a recent Massachusetts Appeals Court decision holding that a community association’s rules must respect an owner’s constitutional right to freedom of speech. To understand why this decision (Board of Managers of Old Colony Village Condominium vs. Steven Preu) was [Read More...]

The Massachusetts Supreme Judicial Court recently answered an important zoning question in their decision in Connors v. Annino, 460 Mass. 790 (2011).  In reaching its opinion in Connors, the SJC confirmed the 2008 Appeals Court decision in Gallivan v. Zoning Board of Appeals of Wellesley, 17 Mass. App. Ct. 859 (2008), that an aggrieved party has thirty days from the issuance of a building permit to file an administrative appeal, if the aggrieved party received [Read More...]

There’s actually some good news to report on the Federal Housing Administration (FHA) condominium certification front, along with some news that isn’t good at all. The good news first – because there’s not much of it: Responding to pressure from the Community Associations Institute (CAI), FHA officials decided to back off of one provision in the new certification guidelines that would have required condominium managers or management companies to obtain fidelity bond coverage in addition [Read More...]

Just about a month ago, the Supreme Judicial Court interpreted the newly enacted MGL 186A, and rendered a decision in the case of Federal National Mortgage Association (“Fannie Mae”) v. Nunez, in which the Court determined that any action by the foreclosing owner in furtherance of an eviction against a tenant was sufficient to trigger the Act.  MGL 186A essentially prohibits certain owners from evicting a tenant unless there is just cause. The bad news: [Read More...]

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