Category: General

The process for appealing local site plan decisions will be clearer in the future, thanks to a recent decision by the Massachusetts Appeals Court (“Appeals Court”). The Appeals Court’s ruling, in Cumberland Farms, Inc. vs. Planning Board of Bourne, establishes a uniform judicial standard for reviewing planning decisions, bringing a welcome measure of procedural order to a process that has evolved somewhat haphazardly from disparate local development approval practices. Cumberland encountered that procedural thicket when [Read More...]

A recent Massachusetts Appeals Court decision has renewed interest in a somewhat obscure and little-used legal theory about the relationship between zoning changes and concessions made by developers who benefit from them. The decision (McLean Hospital Corporation vs. Town of Belmont) doesn’t break any new legal ground, but it does clarify an area in which there has not been, until now, much judicial enlightenment. The legal principle at issue is “contract zoning” – an illegal [Read More...]

The rising cost of property and liability insurance premiums and the shrinking scope of the coverage available have been sources of continuing and increasing concern for apartment building owners and community associations. The scramble to find the most cost-effective coverage has highlighted a problem that has always existed, but was less obvious in less tumultuous insurance markets — those responsible for purchasing insurance often do not know: What kind and how much insurance coverage they [Read More...]

The state Supreme Judicial Court (SJC) has altered the legal landscape for commercial landlords and tenants in subtle but significant ways. In a decision that may have somewhat more impact on legal theory than on real estate practice, the court ruled that the obligations of commercial landlords and tenants are “mutually dependent.” That means commercial tenants for the first time have a recognized right to break a lease in some circumstances if the landlord fails [Read More...]

It is not exactly the equivalent of discovering oil in the back yard, but many homeowner associations in Massachusetts are finding that they are sitting on expired, and extremely valuable, development rights for planned but uncompleted phases of their communities. Developers, for their part, are making the far less happy discovery that they must buy back development rights they thought they still controlled. The origins of this scenario date back to the real estate crash [Read More...]

As far as court decisions go, this has been a good season for Massachusetts homeowners generally and for condominium owners in particular. Earlier this year, the Supreme Judicial Court (SJC) held that home buyers can rely on an implied warranty of habitability in the purchase of new homes. Lower courts have hinted broadly at that conclusion in past decisions, and the implied warranty for new homes is well-established in most other jurisdictions. But this is [Read More...]

An often debated question is what the appropriate role of the Board is with respect to physical aspects of the Condominium. Many believe that the Board’s role is limited to maintaining the property in a state of good repair. While others believe that the Board has a greater responsibility – to not only preserve the property, but to enhance it If, in fact, a Board’s role is the more limited one, then Board’s, subject to [Read More...]

When I was growing up, life was certainly simpler. Dandelions were considered pretty and landscaping consisted of mowing a lawn with a manual lawn mower. With the advent of powered lawn mowers, automatic underground sprinkler systems, sod and chemicals which virtually turn lawns green overnight, landscaping has become much more complicated. Who would have guessed that landscaping could actually become an issue which would involve potential liability and litigation to community associations? Attorneys Juan R. [Read More...]

If there were any lingering questions about the intent and force of the state’s anti-SLAPP statute, the Massachusetts Supreme Judicial Court (SJC) quashed them recently, with an opinion that endorses unambiguously the rights of petitioners to oppose private as well as public transactions they don’t like. That decision, in Office One, Inc v. Lopez, also provides clear statements on two issues of peripheral interest in this case but of central concern to condominium associations: Whether [Read More...]

As I write this article in late January, I question whether the rains in California will ever subside so that swimming pools may open. However, pools in the Northeast and Florida are sure to open and Californians will resort to courtesy arks (no pets allowed) to transport people to the pool. Unfortunately, attorneys find problems with everything, including swimming pools, and therefore, it is up to the reader to listen to the advice and decide [Read More...]

Comprehensive affordable housing permits issued under Chapter 40B (the state’s anti-snob zoning statute) have always involved a tug-of-war between developers seeking to build the housing and local communities that want to limit or prohibit it. But a recent state Supreme Judicial Court (SJC) decision has significantly shifted the balance in those contests and possibly altered the way developers and communities will approach 40B proposals in the future.  The decision in Zoning Board of Appeals of [Read More...]

Community association rules and regulations are as varied as the communities they govern, but these documents nonetheless seem to share a single guiding philosophy: “Just say no!” No unit shall be used for these purposes…. No drapes shall be hung…. No pets shall be allowed… No vehicles shall park… No, no, no, no, no. It’s like an endless conversation with a two-year-old. This “thou-shalt-not” mentality is partly the fault of the lawyers who drafted the [Read More...]

John Swalm, an attorney in Florida, has defined condominiums as being the Latin derivative for sharing walls with people of lesser intelligence. In this article I will discuss some of the emerging new philosophies relating to dealing with rules and regulations against two legged pests. It appears that new trends are evolving relating to the manner of enforcing rules and regulations. In the past, the traditional philosophy was that all restrictions had to be enforced [Read More...]

Note: When I was a much younger attorney, working on my first condominium, a client I respected told me, “I don’t need a lawyer to tell me why I can’t do something; I need a lawyer to help me find ways to do what I want to do.” That advice has assumed a decidedly negative hue in the shadow of Enron’s shenanigans and Andersen’s shredding. But I interpreted the message then, and still view it [Read More...]

Can we talk? I’m asking you, the condominium owner who thinks your common area fees are too high and so is refusing to pay them. And you, too, the unit owner over in the corner with the Dalmatians you assumed somehow weren’t included in the “no pets” provision of your condominium’s bylaws. I get calls about you and owners like you all the time, from the condominium board members and property managers you are suing, [Read More...]

At the last two Attorneys Committee meetings one of the items which were discussed was the extent to which Boards should, as regards the Common Areas, go beyond maintaining and operating the common areas. The issue discussed was not whether “the law” as enunciated by the Courts prohibited this or that, but whether, assuming a particular thing was within the Board’s authority or arguably within its authority, should a Board defer to the collective will [Read More...]

Most attorneys will tell you that bad cases make bad law – usually, but not always. And sometimes a judicial outcome that appears negative in theory can be quite positive in its effects. A recent decision by the Massachusetts Supreme Judicial Court (SJC) illustrates both points. The fact pattern certainly made New Bedford Housing Authority v. Olan a textbook example of a “bad case.” New Bedford police officers followed a fleeing suspect onto the grounds [Read More...]

Massachusetts is one of only a handful of states that have not recognized an implied warranty of habitability in the purchase of new dwellings. But the state Supreme Judicial Court (SJC) seems poised to change that. The SJC this month will consider two cases, which, combined, raise these key questions: Should purchasers of residential dwellings reasonable assume that they have an implied warranty of habitability, similar to the warranty the courts have extended to tenants [Read More...]

Any landlord who has surveyed the damage created by a hyperactive three-year-old (with unsupervised access to crayons and paints) or who has fielded complaints about the teenager who plays hard rock at 3 a.m., has no doubt considered attaching a “no children allowed” rider to future “apartment for rent” signs. The sentiment is understandable, but the discrimination is illegal. Both federal and state fair housing laws (Title VII of the Civil Rights Act of 1968, [Read More...]

All too, often some accident or casualty occurs, a claim is submitted to the Association’s insurance agent for forwarding to the carrier, and a response is received informing the Board and its Manager that this is not covered, or some obtusely worded exclusion applies. Likewise, all too often these letters go on for pages quoting provisions from the policy which, in all candor, even we lawyers are hard pressed to follow. Considering recent trends in [Read More...]

Fifteen years ago I knew all of the answers. Today, I am not sure that I know anything. A Homeowner’s Association in Margate, Florida is battling with a homeowner who enclosed his porch with screening, blocking another neighbor’s view of the canal. The enclosure was done without obtaining the permission of the Homeowner’s Association or of the neighbor. The answer to this used to be simple. Certainly, you would demand that the owner remove the [Read More...]

One of the more difficult issues facing Boards is dealing with non-unit owners who either fail to abide by the governing documents or who cause damage to the Condominium. This is the case as very few master deeds or by-laws make Unit Owners responsible for the wrongful acts of those at the Condominium at their invitation. Fortunately, among the many salutary provisions of Chapter 400 of the Acts of 1992 is an often overlooked clause [Read More...]

It’s been about eight years since the Massachusetts courts considered whether entities other than attorneys should be allowed too conduct real estate closings. But the court’s thinking on the issue has not changed. Reaffirming a long-standing, and well-entrenched judicial view, a Suffolk Superior Court justice ruled recently that a company providing closing services for lenders was engaged in the unauthorized practice of law. The Massachusetts Conveyancers Association (which has fought this battle successfully before) filed [Read More...]

A recent Massachusetts court decision has given condominium associations a new legal tool – or at least, sharpened an existing tool – for dealing with disputes over liability for unpaid condominium fees. Interpreting Mass. General Laws Chapter 60 Section 77 (governing municipal tax takings) for the first time in a condominium context, the Supreme Judicial Court held in Town of Milford v. James S. Boyd that the town had benefited from the community association’s “continued [Read More...]

Nobody would ever purchase a product which had a 10-year warranty which excluded labor and materials. Or would they? During the 1980’s, there were various problems with alleged improper manufacturing of shingles. The problem related to the shingles having a high degree of fiberglass, as opposed to asphalt. The problems that have manifested themselves is that the shingles have exhibited a greater degree of cracking and/or splitting than other types of shingles. Most, if not [Read More...]

An issue which often arises in the administration of condominiums is how to conduct an election in a simple manner, particularly where it is rare that a quorum is present. Unfortunately most documents require that Board Members be elected by the Owners holding fifty-one percent or more of the interest in the association. They also require there to be fifty percent or more in interest present in person or by proxy to have a quorum. [Read More...]

We typically use this space to discuss court decisions or legal trends. But like everyone else, our thoughts have been directed elsewhere since September 11. The world really did change that day and it continues to change as the political, economic, and emotional aftershocks of that unimaginable and unimagined attack register in ways we are still trying to understand. Economists are debating the long- and short-term impact on consumer confidence and economic growth. A recession [Read More...]

Although insurance policies are arguably the most important contract entered into by community associations, there appears to be no great desire of community associations to actually read the insurance policy. Since the contract is generally not understandable, good reasons exist for community associations and their professionals to avoid the task of actually reading the coverage to determine what is covered and what is excluded. In legal parlance, such contracts are known as “contracts of adhesion”. [Read More...]

Being a board member is, in the best of situations, a difficult and demanding job. A common complaint is that every owner wants, wants, wants, but no one but the board is willing to do. Often board members respond to this constant demand upon their time, energy and patience by focusing on what they believe to be appropriate, ignoring the concerns, opinions or desires of the owners. Let me hasten to note at their juncture [Read More...]

Make it two in a row for property rights advocates. On the heels of the U.S. Supreme Court’s ruling in Palazzolo v. Rhode Island giving a landowner a limited but significant victory in a takings case, a Massachusetts Superior Court has ruled that telecommunications companies do not have the unlimited access they claimed to enter office buildings and multifamily dwellings in order to provide services to tenants. The ruling came in a suit filed by [Read More...]

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