LEGAL/LEGISLATIVE ALERT FOR JANUARY, 2021

Published on: January 5, 2021

TAX TIFF

A dispute between Massachusetts and New Hampshire might be characterized as “no taxation without habitation.” In response to COVID-imposed work-from home arrangements, the Massachusetts Department of Revenue in October announced a rule specifying that New Hampshire residents who are employed by Massachusetts companies and are now working remotely, must continue to pay Massachusetts income taxes.

This differs from what had been standard practice in many states, including Massachusetts, under which employees were taxed based on where they worked rather than on where their employer was located. Under that theory, New Hampshire residents working from home should not be subject to a state income tax, because New Hampshire doesn’t have one. And, in fact, before COVID, New Hampshire residents working from home for Massachusetts employers were not taxed by the Bay State. The new rule applies only to New Hampshire residents who previously commuted to their Massachusetts jobs but are now working from home.

Federal courts have held previously that states may tax the income of out-of-state residents only if the employees have a significant connection to the taxing state, the taxes are “reasonably related” to services provided by that state, and provided that the tax does not impinge unreasonably on interstate commerce. Massachusetts says its rule meets those conditions; New Hampshire disagrees and is asking the U.S. Supreme Court, which has jurisdiction over disputes between states, to decide the issue. Fourteen states have submitted briefs to the High Court supporting New Hampshire’s request.

“The Massachusetts v. New Hampshire issue is no isolated border skirmish between those states. It raises a fundamental national issue that has been festering for decades,” Edward Zelinsky, a professor at Yeshiva University’s Cardozo Law School in New York City, told the Wall Street Journal. Zelinsky’s interest in the issue is personal as well as academic, the WSJ noted. A tax law specialist, Zelinsky works one or two days a week from his Connecticut home. He has unsuccessfully challenged New York State’s policy, which is to tax the income of out-of-state residents if their remote working arrangements are for the convenience of the employee.

ANOTHER MORATORIUM EXTENSION

The Federal Housing Administration (FHA) has once again extended its COVID-related moratorium on foreclosures and evictions of homeowners with FHA-insured single-family mortgages. The extension, the fourth the FHA has issued this year, will keep these protections, which were to have expired in January, in place through February 28th. While the moratorium is in place, servicers are precluded from initiating or proceeding with foreclosure or eviction proceedings against protected homeowners. “COVID-19 has created hardships for millions of Americans,” FHA Commissioner Dana Wade said in a press statement. “American homeowners should not be forced from their homes while they are seeking help,” she added.
“COVID-19 has created hardships for millions of Americans,” Wade said. “American homeowners should not be forced from their homes while they are seeking help.”

The Federal Housing Finance Agency has also extended the foreclosure and eviction moratorium that applies to borrowers with mortgages purchased by the secondary mortgage giants, Fannie Mae and Freddie Mac. The secondary market giants hold most of the conventional mortgages issued to American homeowners. The FHFA moratorium, which was to have expired at the end of last year will now remain in effect through January,2021. “The extension gives peace of mind to the more than 28 million homeowners with an Enter-rise-backed mortgage,” FHFA Director Mark Calabria said.

The CDC’s (Centers for Disease Control and Prevention) moratorium on the eviction of tenants for non-payment of rent, which was scheduled to expire at the end of last year, was also extended through January in the COVID relief bill Congress approved just before Christmas.

WHAT HOUSING DIP?

The home sales decline analysts have been expecting finally surfaced in November, but the dip in existing home sales was modest, inventories remain strained and home prices continue to stretch affordability. Existing homes sold at an annualized rate of 6.69 million units in November, the National Association of Realtors (NAR) reported, about 2.5 percent below the October pace, but 25.8 percent higher year-over-year. Condominium sales, totaling 710,000 units annualized, were 2.7 percent lower than in October but more than 27 percent higher than the same month a year ago. Despite November’s “marginal step backward,” sales for this year “are already on pace to surpass last year’s levels,” Lawrence Yun, NAR’s chief economist said. “Given the COVID-19 pandemic, it’s amazing that the housing sector [continues to outperform] expectations,” he added.

New home sales did not fare as well, falling more than 11 percent below October’s annual rate of 945,000 units, according to a Census Bureau report. But even with that larger-than-expected decline, sales were still more than 20 percent above the year-ago rate. Analysts attributed the monthly decline to a lack of new homes available for sale rather than a significant reduction in buyer demand.

“Though the market remains strong, inventory remains low and affordability concerns persist as builders grapple with a shortage of lots, labor and building materials,” Chuck Fowke, chairman of the National Association of Home Builders, said in a press statement.

Zillow economist Matthew Speakman thinks the statistics indicate that buyer demand may be easing at least somewhat in the face of the ongoing pandemic and concerns about the economic outlook. “While competition remains elevated,” he told Housing Wire, the decline in new home sales “may have been due at least in part to slowing economic activity and uncertainty brought on by rising coronavirus case volumes across the country.”

NO SNAKES ON THE PLANE!

The Department of Transportation has tightened the rules allowing animals to travel with their owners on planes. Passengers had taken advantage of the previously open-ended rules to bring all kinds of pets – including an ostrich, miniature horses, snakes and large, untrained dogs on board with them, to the dismay and often to the detriment of other passengers. Under the new rule, an animal required for “emotional support” will no longer qualify as a “service animal,” now defined as “a dog that is individually trained to do work or perform tasks for the benefit of a person with a disability.”

The rule allows airlines to impose other restrictions on service animals, among them:

  • Allowing passengers to bring no more than two service animals on board;
  • Require travelers to submit DOT forms detailing the health of the animal, its behavior and the training it has received;
  • Restrict animals based on their size, but not their breed; and
  • Bar animals that behave aggressively on board.

The DOT’s revised rules will be welcomed by airlines and many passengers, but they won’t provide any relief to community associations, which have been struggling with the obligation to waive no-pet rules to allow emotional support animals as well as service animals, both of which may be required accommodations under the Fair Housing Act.

The Department of Housing and Urban Development (HUD) recently revised the accommodation rules to address some association concerns. The revised rule now allows housing providers to request “reliable documentation” that a resident has a disability requiring assistance provided by an emotional support animal. The rule states that “such documentation from the internet is not by itself sufficient to reliably establish that an individual has a non-observable disability or disability-related need for an assistance animal.”

The rule also now distinguishes between “typical” household animals, such as dogs and cats, that might serve as support animals, and “unique animals” that some owners might request. Owners requesting these animals will face what HUD terms “a substantial burden” to demonstrate how the animal uniquely meets a specific disability-related need.

PPP ENCORE

The new coronavirus stimulus package enacted by Congress and (finally) signed by President Trump, includes (in addition to direct stimulus payments and extended unemployment benefits for many Americans) a new round of funding for the Paycheck Protection Program. The $284 billion booster shot will once again fund potentially forgivable loans for small businesses that use the funds to retain employees and pay for essential overhead expenses.

But the PPP funding will come with some changes in the eligibility rules for borrowers and the expenses for which the funding can be used, the Wall Street Journal reported. Borrowers who have already received PPP funding can apply for a second loan, but only if they have no more than 300 employees. Borrowers applying for the first time can have up to 500 worker son their payroll. Companies applying for the second time must also demonstrate that they experienced a 25 percent reduction in gross receipts in the first quarter of 2020 compared to the same period the previous year, a requirement that does not apply to first-time PPP borrowers. Other key changes include:

  • The maximum loan in the second round will be $2 million compared with $10 million in the first round.
  • Eligible expenses that will qualify for loan forgiveness have been expanded to include payments for personal protective equipment, expenditures for operating costs (including software) and repairs for property damage resulting from public disturbances that occurred during some of the civil rights demonstrations last year.
  • The legislation designates a portion of the PPP funding for both first and second time borrowers in low-income areas who have no more than 10 employees and are seeking loans of less than $250,000.
  • The legislation also simplifies the process for documenting eligibility for loan forgiveness.

IN CASE YOU MISSED THIS

A federal judge has temporarily barred HUD from implementing a new “disparate impact” rule that would make it more difficult for plaintiffs to win housing discrimination claims

The homes in which pandemic-stranded owners have been sheltering in place are worth more than they were last year. Homeowner equity increased by $1 trillion in the third quarter, representing an average gain of about $17,000 per owner.

More than 60 percent of the new homes constructed in 2019 were built in community or homeowner’s associations, the U.S. Census Bureau reports.

The number of older homeowners carrying mortgage debt doubled between 1998 and 2019, increasing from 21 percent to 42 percent. The percentage of mortgage-burdened homeowners older than 80 increased from 3 percent to 27 percent during that 20-year period.

Employers have the legal authority to require employees to be vaccinated against COVID, the Equal Employment Opportunity Commission has announced. The agency’s guidance, issued near year-end, says the vaccination requirement does not violate provisions of the Americans with Disabilities Act protecting the privacy of medical information.

LEGAL BRIEFS

SAYING AND MEANING

“Say what you mean and mean what you say” is good advice for anyone. But it is particularly important for the attorneys who draft the governing documents for condominium associations, because the courts almost without exception will conclude that the “plain language” of the documents conveys the meaning the drafters intended to convey. Two decisions by different appellate courts, both dealing with the approval of amendments, illustrate this point.

In Lowe v. Foxhall Community Association, owners in this Washington State association overwhelmingly approved a bylaw amendment preventing non-residents from using the community’s equestrian trails. The association’s board refused to implement the rule, however, because a majority of the 78 affirmative votes had been cast by proxy, contrary to a provision stating that the bylaws could be amended only by vote of “a majority of the association members ”present at a special meeting called for that purpose.

Owners who supported the amendment sued. The trial court agreed with the association that only the votes of owners physically present at the meeting could be counted. The plaintiffs appealed, arguing that because the voting section of the bylaws specifically allowed owners to vote by proxy and allowed proxies to count toward a quorum, owners voting by proxy were technically “present” at the meeting.

Focusing on the plain language of the bylaws and the dictionary definition of “present,” the appeals court held otherwise. Rejecting the plaintiffs’ argument that “present” could mean present in person or by proxy, the court noted that the “usual meaning” of the word was in person. “Language in the voting rights section specifying that owners could cast their votes “in person or by proxy” supports the conclusion that the terms are not synonymous, the court observed, noting: “If the drafters had intended to include proxy votes in votes to amend the bylaws, they could have done so.”

The court also rejected the plaintiffs’ contention that interpreting “present” to mean “in person” would conflict “absurdly” with the provision allowing proxies to count toward a quorum. “The means of establishing a quorum do not prohibit an association form imposing additional procedural safeguards [on] particular votes,” the court said, “especially votes as significant as bylaw amendments.”

Different Wording, Same Conclusion

Dealing with the same question but different wording, a Florida appeals court found that the language in an association’s governing documents did not specifically require in-person votes to amend the bylaws. (Rivercrest Community Association, Inc. v. American Homes 4 Rent Properties One, LLC).

The original declaration specified that owners in each of the neighborhoods into which the community was divided were to select neighborhood representative to cast owner’s votes as the owners directed. The first amended declaration added a provision stating that the bylaws could be amended only by “the affirmative vote or written consent” of owners representing 67 percent of the lots. More than 67 percent of the elected neighborhood representatives voted in favor of an amendment restricting leasing in the community. Supporters of the amendment said the vote was invalid because the amended declaration required owners to vote in person.

The trial court agreed and the association appealed. The key question before the appeals court: “What does the text of the relevant provisions…mean?”

The court noted that two separate provisions must be considered: The voting rights provision and the provision detailing procedures for bylaw amendments. The general voting provision states: “Except as otherwise specified in this declaration or the bylaws, neighborhood representatives shall exercise the vote for each lot [members own].” The amendment provisions says: “Except as otherwise specified….this declaration may be amended only by the affirmative vote or written consent….of owners representing at least 67 percent of the lots…”

The plaintiffs’ argument that in-person votes are required “plucks that subsection out of the amended declaration,” the appeals court said, and ignores “the plain language” of the general voting section, which “plainly and unambiguously provides that [owners’] votes on association matters….are to be exercised by [their] neighborhood representatives.” What that means, the court said is that the vote cast by neighborhood representatives on the disputed amendment “is proper unless something [elsewhere in the declaration or bylaws] specifies otherwise.”

Specified Means Just That

The operative word in that phrase, the court said, is “specifies.” To specify something he court said, is to state it clearly. “Thus, as the Association argues, we should expect to see language that clearly excepts the amendment process from the general rule” calling for owners’ votes to be cast by neighborhood representatives. But the amendment provision “contains no such language,” the court noted. It simply requires “an affirmative vote or written consent” of owners. The provision “says nothing about whether the vote must be cast by each and every individual owner personally or whether neighborhood representatives may cast [owners’ votes]….Simply put,” the court continued, “nothing in the text provides any explicit indication that owners…must personally cast ballots in favor of a proposed amendment….To reach that result, we would have to incorporate such language [into the document] ourselves, an exercise that the law of contracts does not permit us to undertake.”

Plaintiffs had argued that the discrepancy between the wording in the original declaration and in the first amendment to it could be interpreted to mean that drafters intended to require in-person votes for amendments as well as for other issues. That is not the only possible interpretation of the change, the court noted. “But possible interpretations of the reasons…are ultimately beside the point,” the court said. “The language of the amended declaration is unambiguous, and reviewing courts do not consider extrinsic evidence for the purpose of altering or varying the plain meaning of unambiguous contract terms.”

IN QUOTES

“It’s women who are not by choice out of the labor market. It’s kids who are not getting the education they should be getting. It’s small businesses with generations of intellectual capital that is being destroyed, and it’s just workers who have been out of work for a long period of time and losing their connection to the labor force and losing the life that they had.” ─ Fed Chair Jerome Powell, describing the coronavirus impacts that worry him most.


Marcus, Errico, Emmer & Brooks specializes in condo law, representing clients in Massachusetts, Rhode Island, and New Hampshire.