Massachusetts 2009 – 2010 Legislative Update

Published on: April 1, 2010

Over the past several legislative sessions, the number of bills filed affecting condominium associations has steadily increased. While the condominium industry welcomes legislative guidance, many of these proposals are filed to address isolated instances, but if passed, would have an overall negative impact on owners, associations, governing boards, and managers. MEEB attorneys, Tom Moriarty, Doug Troyer, Will Thompson, and Matt Gaines, are members of the CAI Massachusetts Legislative Action Committee (the “LAC”). The LAC is charged with reviewing, tracking and taking a position on all bills impacting community associations in Massachusetts – and the 2009/2010 session has been a busy one for the LAC!

Thus far, during the 2009/2010 session, the LAC has reviewed and taken a position on over thirty bills affecting community associations in Massachusetts. These proposals range from regulating property managers, to new provisions for board meetings and elections, along with other majors changes to the Condominium Act, Chapter 183A.

While a few bills have advanced out of their respective committees, the LAC has successfully worked to defeat the majority of the bills that would have negatively impacted condominium associations.

As previously reported in the MEEB Condominium-Apartment Insider, the biggest accomplishment thus far of the 2009/2010 session was the successful effort to restore the taxing structure of most condominiums to what it was prior to a 2008 change. In addition, the LAC was successful in ensuring, once again, that a proposal to require mediation of construction defect complaints before they can be litigated was sent to a study, effectively killing the measure for this legislative session. Senate Bill 661, if passed, would limit a condominium associations’ ability to pursue a construction defect dispute.

Several bills filed this session sought to make drastic changes to Chapter 183A, including measures pertaining to mandating open meetings for condominium association boards and new provisions related to the election of trustees. While well intended, the LAC opposed these measures and is pleased that they were not acted on favorably by the Housing Committee. The two bills requiring open meetings, H. 1240 and S. 654, would have required boards to conduct all association business in open meetings, with only a few limited exceptions. The concern here is that this would impede the ability of a board to discuss certain confidential matters among themselves, particularly involving pending litigation, unless the association’s attorney is present. With respect to changes in the election process for board members, H. 3461 would require only a plurality of ballots cast in order to elect a board member. Under such a scenario, and lacking any quorum requirement, one could get elected to the board with a very low number of votes, which ultimately would not be in the best interest of the association.

One measure that the LAC supports and anticipates passing this session is H. 1235, An Act Relative to the Determination of Condominium Common Area Interest. This bill seeks to address the issue of assessing fees in associations that have both affordable and market-rate units. The proposal would clarify the definition of “fair value” when determining the percentage interest. In addition, the bill provides for certain elements that may be taken into account such as unit area, construction cost and affordability restrictions. These elements will provide increased predictability and hopefully decreased litigation.

One matter that was reported favorably by the Housing Committee, which the LAC continues to monitor, is a proposal that would require any buyer of a condominium unit to receive a form outlining the rights and responsibilities of a condominium unit owner. While clearly, any measure that will promote the education of unit owners is beneficial to the overall operation of condominium associations, there are some concerns with the language as drafted, and the LAC is working closely with legislative leaders to address these concerns.

As the LAC and MEEB attorneys continues to advocate for and against bills impacting community associations, we are hopeful that the legislative leaders will continue to heed our concerns when provided and seek our counsel when needed. If you have any questions concerning any legislation or would like more information on any bills mentioned in this article please do not hesitate to contact our office.