Category: General

Many homeowner associations, if not most of them, have established Web sites for their communities; far too few of them have also created the privacy and use policies that are essential both to protect residents from the theft or misuse of their personal information, and to help associations reduce and manage those potential Internet risks. Privacy policies describe the framework for protecting the personal information associations collect from residents and make available on the community’s [Read More...]

The Massachusetts Board of Fire Prevention Regulations has adopted regulations implementing the state’s new law requiring the installation of carbon monoxide detectors in virtually all residential structures. The statute applies to all residential structures that either contain “fossil-fuel burning equipment” (defined as furnaces, water heaters, stoves, fireplaces, clothes dryers or other equipment that produces carbon monoxide as a byproduct) or incorporate enclosed parking within the structure. The implementing regulations, published in February, 2006 and revised [Read More...]

A fire in a community association is always upsetting and often destructive, but, it is hardly a rare occurrence anymore. This one, however, made the national news. The fire, in an Arizona condominium, started in a carport crammed with debris and then spread to the owner’s equally cluttered residence. The owner survived, but was burned severely, because debris covering virtually every surface and stacked several feet high in every room, blocked her escape. The elderly [Read More...]

All homeowner associations have rules and regulations and most have at least some residents who violate those rules occasionally, if not repeatedly. Enforcing the rules and the association’s covenants, conditions, and restrictions, is the responsibility of the association’s governing board — a responsibility that some boards execute more effectively than others. The boards that do the best job realize there is a lot more to enforcement than simply identifying violations and punishing violators. Effective enforcement [Read More...]

What’s in a name? When Shakespeare’s Juliet asked that question, she was talking about Romeo, whom she loved despite the name that placed him on the opposite side of a family feud. Community associations asking that question today would more likely be thinking about their Web sites, because “what’s in a name” on the Web is the potential for confusion, litigation, and liability. That’s why it is essential for a community to protect its name [Read More...]

Not-in-my-back-yard (NIMBY) describes the common and (for developers) frustrating reaction of community residents to plans for the construction of new housing, new commercial structures, or new anything in close proximity to where they live. But NIMBY doesn’t begin to describe the reaction to news that a convicted sex offender may be living nearby. NIMBies protesting low-income housing are concerned (or say they are concerned) primarily about their property values. Residents protesting the presence of a [Read More...]

The Pledge of Allegiance (to the United States flag) remains a morning ritual for students in many classrooms throughout the country. While there is no comparable public oath recited by the volunteers elected to the boards of their homeowner associations, association directors do make a formal, if silent, promise to execute their responsibilities in good faith and to act in the best interests of the communities they serve. Unlike the pledge of allegiance, which often [Read More...]

Picture this, although it’s not a pleasant image. A fire caused by an electrical short swept through your community last night. No one was hurt, fortunately, but one building was destroyed completely and two others suffered extensive damage. Your first thought as a member of the board of directors: Buildings can be repaired or replaced. Your second thought: It’s a good thing our insurance will cover the costs. But will it? There is no question [Read More...]

Although the governing documents of most community associations include nuisance provisions, an increasing number of attorneys are concluding that these provisions themselves may represent a nuisance for the boards responsible for enforcing them. One problem, although not the only one, is simply defining the term. Most documents use language similar to this: “No owners shall engage in noxious or offensive activities, or do anything which may become an annoyance or a nuisance, or in any [Read More...]

A homeowner association is really a small business, and like any business, it generates volumes of documents. Invoices, bank statements, minutes of board meetings, contracts, communications with owners and vendors, committee reports — the list is endless and the document management task can be onerous. All of the varied documents associations produce are not equally important, of course, but for trustees wrestling with mounds of paper, the distinctions between what is essential and what is [Read More...]

Special assessment. The mere mention of the term infuriates condominium owners and terrifies condominium trustees, who duck and cover instinctively whenever the topic comes up. In an ideal world, special assessments – levied to finance major and unanticipated expenditures – would never be required, because community associations would always have the funds they needed, either in their operating budgets or their reserves, to cover the costs. But the world, as you have no doubt noted, [Read More...]

“This land was your land, but now it’s my land….” That cynical rewrite of the popular folk song overstates the case, but it accurately reflects the angry reaction to the U.S. Supreme Court’s recent decision in Kelo v. New London, Connecticut, affirming the right of a local government to take private property to further an economic development plan. The public outcry notwithstanding, the decision was really a logical extension of existing judicial precedent, highlighting rather [Read More...]

The formal ceremony lasted only a few minutes, but it took credit card companies, banks, and large retailers eight years to win Congressional approval of the Bankruptcy Abuse Prevention and Consumer Protection Act President Bush signed into law April 20. “This law will protect those who legitimately need help, stop those who try to commit fraud, and bring greater stability and fairness to the system,” President Bush said of the new law, which mandates the [Read More...]

Tenants often withhold their rent as a means of pressuring their landlords to make essential repairs. Following similar, if not identical logic, condominium owners sometimes withhold payment of their common area charges, because they think the fees are too high, inappropriate or unjustified, or because they just don’t like the way the association is being run. But there is a crucial difference between the actions of tenants, who rent their units and the residents of [Read More...]

Litigation having become something of a national pastime, the odds of being sued are now, if not quite as high as the likelihood of catching a cold, close enough to make risk reduction a major concern in the community association industry, as it is in virtually every other business sector. It is not surprising then, that community association managers and management companies almost always insist on including indemnification clauses in their contracts. Because my firm [Read More...]

Insurance companies hate mold and they aren’t terribly fond of water, either. This will hardly qualify as news to any community association that has purchased an insurance policy recently or tried to renew existing coverage after having filed a claim for mold or water damage. A mold or water claim on your insurance record is the equivalent of a scarlet letter, virtually guaranteeing that your insurer will increase your premium costs and possibly refuse to [Read More...]

Eminent domain – the governmental authority to take private property for public purposes – and the right of property owners to be compensated for those “takings,” are well-established legal principles, grounded firmly in Constitutional law and reflected in the policies and practices of state and local governments. These legal concepts are not new, nor is the dynamic tension that has long existed between them. But it appears that attitudes about how and where to strike [Read More...]

Mold continues to frighten homeowners, infuriate insurance companies, and unnerve property managers, despite a raft of studies concluding that the concerns may be exaggerated, if not unjustified. Several different reports have now challenged the conventional wisdom – made so by media coverage of huge liability judgments – that mold is a health hazard, responsible for many severe and even life-threatening ailments. The most recent of those studies, overseen by the Institute of Medicine (an affiliate [Read More...]

The call comes, as these calls always seem to come, at midnight. Water is pouring into two units and an adjoining common area from a breach in the newly installed roof. The trustees contact a contractor, who makes the necessary repairs the next day. The quick action pleases the affected owners, who were not enjoying the waterfall in their living rooms. But, unfortunately, the repair also destroyed the evidence the association needs to pursue a [Read More...]

Landlord-tenant relationships have never been held up as models of harmony. Insert them in a condominium community, and an already unstable mix becomes potentially combustible. In almost any homeowners’ association, the subject of rentals will divide owners between those who rent their units or might want to, and those who don’t rent their units and don’t think anyone else should be allowed to either. The nay-sayers cite a host of arguments to support their view [Read More...]

It would be hard to think of an area that attracts less attention than notary public services, but concerns about fraud and the illegal practice of law have produced new rules that will mean significant changes for the state’s 130,000 notaries. The rules, embodied in an executive order signed last year by Gov. Mitt Romney, set specific performance standards and impose extensive record-keeping requirements on anyone providing notary public services in Massachusetts. The order, signed [Read More...]

It is winter in New England, and, as you have no doubt noticed, a particularly messy one, at that. Some people (one of my partners among them) managed to fly off to much warmer and snowless Houston to watch the Patriots win the Super Bowl. I stayed behind to field phone calls–eight in one day alone – from community associations grappling with frozen pipes and the assorted legal and insurance problems they are creating. Typically, [Read More...]

A Massachusetts court has delivered a clear and not at all welcome message to community associations, in the form of a $500,000-plus award to a condominium owner as compensation for health problems she claimed resulted from a mold outbreak in her unit. The message: If you’re not concerned about mold and the potential liability it creates for your community, you should be. The suit that produced this award, Stevens v. Fennessy,, apparently represents the [Read More...]

Many court battles turn on the precise interpretation of ambiguous and sometimes obscure legal phrases. But sometimes the language of a contract or a statute means precisely what it says. Fortunately for the property owner we represented, the Massachusetts Supreme Judicial Court (SJC) found the plain language of the statute to be quite clear in a suit questioning whether a parcel of land was exempt from zoning changes enacted after the property was acquired. The [Read More...]

Massachusetts courts have been clarifying, and progressively weakening, the theory of “contract zoning” for years. But a recent decision by the Supreme Judicial Court (SJC) all but completely discards this legal precept. Plaintiffs have used contract zoning claims to thwart or delay developments they oppose, by arguing that zoning changes approved by local officials benefit private parties exclusively, to the detriment of the public interest as a whole. Prior court decisions have weakened this legal [Read More...]

On March 14th the Massachusetts Supreme Judicial Court, the State’s highest court, rendered a decision which this writer sees as a fighting extension of the grounds for liability for community associations – O’Brien v. Christensen. While the Court makes but a passing reference to the fact that it has not examined whether any special rule should apply because the case involved a condominium since none of the parties raised the issue, in actuality the Court’s [Read More...]

Most commercial landlords and tenants are aware that Massachusetts landlord-tenant laws are far more solicitous of residential tenants. But the Supreme Judicial Court (SJC) made the legal landscape, if not entirely even, then certainly a bit less rugged for commercial tenants when it ruled last year that the principle of “mutually dependent covenants,” which provides legal ammunition for residential tenants, applies to commercial tenants as well. [SJC Decision Gives Commercial Tenants New Rights….] That decision, [Read More...]

This year marks the 35th anniversary of the signing of the federal Fair Housing Act, an occasion the Bush Administration commemorated with a proclamation urging all Americans to promote equal housing opportunities and a press release highlighting the federal government’s efforts to advance fair housing goals. Like most fair housing discussions, the announcement emphasized the laws barring discrimination against racial and ethnic minorities and families with children. But the Fair Housing statute also contains important [Read More...]

Smoke doesn’t just get in your eyes, as an old torch song proclaims. In multifamily buildings, cigarette smoke from nearby units wafts annoyingly into units occupied by non-smokers, creating tensions between neighbors and spurring demands for remedial action in apartment buildings and condominium communities alike. The question for community associations is, what, if anything, can you do about it? Landlords clearly have the right to ban smoking, if they choose, in units they own and [Read More...]

Municipal officials have been grumbling for years about Massachusetts General Laws Chapter 40B – the state’s anti-snob zoning statute. But last year, they mounted an aggressive and very nearly successful campaign to undermine it. The law allows developers of new projects with an affordable housing component to short-cut the local approval process, by obtaining one, all-inclusive local permit from the Zoning Board of Appeals in communities where affordable housing constitutes less than 10 percent of [Read More...]

© 2020 Marcus Errico Emmer Brooks PC