Published on: January 14, 2020
With the beginning of the new year, Ed Allcock became a very busy person. Not that he wasn’t already busy as a managing partner of MEEB and head of its litigation division. But Ed has also assumed two new positions this year, serving simultaneously as president of the New England Chapter of CAI (CAI-NE) and as chair of CAI-National’s College of Community Association Lawyers (CCAL).
Ed credits “circumstances and the luck of the draw” for creating what will be a challenging year for him, to say the least. And he is excited about the challenges and the opportunities these two leadership positions will create.
“It’s pretty cool for New England,” he believes. Heading CCAL “will make me more attuned to things that are going on nationally, and I can bring what I learn about national issues and trends back to the local chapter.”
In both positions, he plans to focus on using education to improve the image of condominiums and increase the influence of industry leaders at the national and local levels.
Education and Influence
When arguing cases in court or advocating for or against legislation in hearings, Ed says, he often finds that the judges and lawmakers dealing with complex condominium issues “have no idea what I’m talking about. They read a lot of news stories about condominium boards fighting with owners, and they don’t hear much about the good things – why people buy into condominiums and why they like living there. And their negative impressions often influence the decisions they make.”
One of his goals at CAI-NE this year will be to encourage judges and legislators to attend CAI-NE educational programs to help them understand “how condominiums operate and why they are important,” and to reverse some of the negative impressions they hold about condominiums and condominium governance.
At CCAL, one of Ed’s priorities will be finding ways to expand the membership. The college is viewed as an “elite” organization that only admits a limited number of exceptionally qualified attorney. And while that creates a favorable image, Ed agrees, it also threatens to turn CCAL into “a dying old man’s club. We need to attract younger attorneys,” who will bring new ideas and different perspectives to the organization, he believes. Expanding the membership will also “enable us to communicate nationally through a broader network of attorneys, and that will increase CCAL’s influence,” he adds.
Broadening the membership base will require revising CCAL’s membership requirements, not abandoning them, Ed emphasizes. The college needs to set high standards for admission, he agrees, “but some of our admission requirements are 20 years old.” The publication requirements are particularly outmoded, he believes. “It is difficult for younger lawyers to publish articles In national legal publications, because they don’t exist any longer. We need to modernize our admission requirements,” Ed says. “We need to evolve with the times.”
One of his major concerns – and a priority for him at both CCAL and CAI-NE – is the lack of consistency in condominium-related court decisions. Variability not only creates uncertainty for condominium boards, managers and the attorneys who advise them, Ed says. It also encourages some association attorneys to pursue actions they shouldn’t initiate. “Bad facts make bad law,” he notes. And some misguided suits can produce negative publicity for condominiums and set unfortunate precedents that could affect condominiums statewide or even nationally.
Among other recent examples, he notes an association “that spent thousands of dollars” trying to enforce a $250 fine, “and ended up getting slammed by the court” for being heavy-handed and unreasonable. The so-called “grapes of wrath” case similarly involved an association’s costly and ultimately unsuccessful effort to prevent an owner from growing grapes on a portion of his property. He used the grapes to make small quantities of wine that were produced elsewhere. But the association argued nonetheless that this owner’s hobby was an unauthorized commercial use.
What constitutes a commercial use is one of the questions that has produced inconsistent outcomes, most notably in disputes over short-term (airbnb-type) rentals in condominium communities. In the last year alone, Ed notes, three courts in different jurisdictions have ruled that the rentals constitute commercial use, while three others have reached the opposite conclusion. “They are all over the place,” he says.
Through CCAL and CAI, Ed says he hopes to find ways to encourage “some level of consistency” in legal decisions on critical associations issues. That won’t be easy, he acknowledges, among other reasons, because state condominium statutes aren’t consistent. “They are all over the place as well.”
Educating Attorneys Too
His focus on education will come into play on two levels: Encouraging CCAL attorneys “to educate and influence their local legislators and judges,” and educating the attorneys themselves to think more carefully about the cases they pursue.
“When we’re discussing case law updates [at CCCAL conferences], it can be a little uncomfortable when we notice that some of our fellows are on the wrong side,” Ed observes. One solution, he suggests: Encouraging attorneys to reach out to CAI’s amicus committee “to get feedback on whether a case they are considering might have national implications. That is a question all condominium attorneys should consider,” he believes, before taking a case to an appellate court.
Ed’s focus on education and influence as priorities for CAI-NE and CCAL reflects what he considers to be one of the most important lessons he’s learned in his 26 years of practicing condominium law: There are different ways to win a court case, and they aren’t limited to filing legal briefs and making courtroom arguments.
“Sometimes you can win by using creative publicity and media” to negotiate an out-of-court agreement, he says. Sometimes you can win by obtaining legislation “to fix a court decision after-the-fact,” and sometimes “you can resolve an issue preemptively” by securing a legislative fix before a decision is made.
The legislative approach doesn’t always work, however. “One experience that still burns me,” Ed says, involved a decision by the New Hampshire Supreme Court broadly interpreting development rights in a condominium. “The court clearly got it wrong,” Ed says, and within six months of the decision, the New Hampshire legislature amended the state condominium statute to close what the court thought was a loophole. “It made me feel better that the legislature agreed the decision was wrong,” Ed says, “but that didn’t do my client any good.”