Category: General

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...]

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...]

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