Condominium Insider – April

– TIP OF THE MONTH –

Massachusetts DEP Regulations 314 CMR 5.10(8)(1) and 314 CMR 5.15(5)(a) require a Privately Owned Wastewater Treatment facility (PWTF) to escrow repair and replacement funds equal to 25% of the cost of the PWTF with an escrow agent.  If your condominium has a privately owned wastewater treatment facility, you need to be aware of this rule in order to remain in compliance with the Massachusetts DEP.

FREE MEEB SEMINAR
Friday, May 11, 2018
9:30 AM – 11:00 AM 
Join us for an enlightening discussion of the roles and responsibilities of being on an Association Board.  As a Board member you are faced with a variety of responsibilities and challenges.   This seminar will explore the primary roles of the Board members including, administration, financial management and physical maintenance issues.   In addition, we will discuss practical tips and strategies to successfully run an association.  This free seminar will be conducted by MEEB’s Janet Aronson and Will Thompson.
This free seminar is being held on
Friday, May 11, 2018
9:30 AM – 11:00 AM
at the offices of
Marcus, Errico, Emmer & Brooks, P.C.
45 Braintree Hill Office Park, Suite 107
Braintree, MA  02184

Refreshments will be served.
Space is limited.
To reserve your seat please email dpepjonovich@meeb.com

WHEN A PROPERTY DAMAGE CLAIM
TURNS INTO AN OWNERSHP ISSUE

A complete understanding of your condominium’s Declaration of Trust, Master Deed, By-Laws, Amendments, and other governing documents is extremely important when living in a condominium.  A review of these documents will dictate the size and boundaries of the condominium’s units among other things.  Recently, a client came to MEEB because his unit was being damaged by a water leak coming from a roof deck owned, through an easement, by another unit owner.

When the case came to MEEB the understanding was that the roof of this particular condominium was divided into three parts; half of the roof belong to a 6th floor owner who was the neighbor of our clients and the other half of the roof was split between our client and a 4th floor unit owner, who gained possession of its portion of the roof top through an easement granted by the Board of Trustees in 1997.  However, a review of this condominium’s governing documents showed that this easement could not be granted by the Board of Trustees.

READ MORE>>

 

THE BASICS OF EMPLOYEE DISCIPLINE AND TERMINATION

Employers are tasked daily with making decisions regarding employee discipline and/or termination. When faced with these decisions, employers should appreciate that their actions may ultimately be reviewed by third parties, including but not limited to arbitrators, judges and/or juries, all of whom will be left to decide whether the employee whom was disciplined and/or terminated was treated fairly. While there is no recognized cause of action in Massachusetts for “wrongful termination,” or “unjust dismissal,” claims for discrimination may still arise when an employee is able to demonstrate they have been treated unfairly or singled out for disparate treatment.

 

When considering what the term “fair,” means in the employment context, several factors must be taken into account, including: 1) whether an employee knew what was expected of him or her; 2) whether those expectations were reasonable; 3) whether the employee was ever informed that he or she was not meeting the employer’s expectations; 4) whether the employee was given an opportunity to correct the situation (or whether the employee’s behavior and/or actions and/or job performance were so egregious and/or outrageous to warrant immediate termination); and 5) did the employer consistently enforce their rules and/or expectations.
READ MORE>>

COURT HOLDS CONDOMINIUMS MAY FILE BANKRUPTCY

Recently, the Bankruptcy Appellate Panel for the First Circuit (which includes Puerto Rico) decided that a condominium association is a “person” eligible to file bankruptcy.  While the court did not permit the bankruptcy to go forward due to fraud, the decision is significant for condominium associations that are saddled with debt.

The court’s reasoning follows:

“[W]e conclude the bankruptcy court committed legal error when it applied a narrow, exclusive interpretation of the term ‘person’ set forth in §101(41) in determining that the Asociación [de Titulares de Condominio Castillo] was not eligible to be a debtor under §109. However, the bankruptcy court also dismissed the petition on an alternative ground — the lack of a legitimate bankruptcy purpose for the filing. …

READ MORE>>

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Condominium Insider – March 2018

– TIP OF THE MONTH –

With freezing temps and burst pipes happening with regularity, it’s a good time to encourage owners to acquire a homeowner’s insurance policy (“HO6 policy”) which would cover their portion of the master policy deductible after a loss.  If your docs do not require owners to obtain HO6 policies, you should consider an insurance resolution to modernize the insurance provisions.  

THE BUSINESS OF SHORT-TERM RENTALS AND

ITS TOLL ON CONDOMINIUM COMMUNITIES

INTRODUCTION

Every day it seems as though an ever increasing number of property owners are seeking to earn extra income by offering their properties for short-term/transient purposes, and the increased popularity of platforms such as AirBnB, VRBO, and HomeAway have made it easier than ever for an property owner to connect with anyone who seeks a place to stay for a night or for several. While this commercial enterprise may seem like a quick and easy way to earn money for the property owner, it is not without issue, particularly when the property that is being used for short-term/transient purposes is a unit located within a condominium building.

While short-term leasing is not an entirely new concept faced by condominium communities, the increased frequency in nightly turn-over is an issue which condominium communities are now attempting to grapple with, especially as condominiums that were established more than ten (10) years ago, likely do not have any express provisions dealing with short-term/transient rentals because the concept of using a condominium unit in the same way that one would expect to use a hotel, likely was not even contemplated at such time.

READ MORE>>

LESSONS FROM THE GODFATHER

FOR CONDO BOARD MEMBERS

Can we learn anything about serving on a condo board from the movie The Godfather?  You wouldn’t think so, but as it turns out, there is some sage advice to be found in Mario Puzo’s classic story.  Let’s take a look at some memorable quotes and what they say about serving on a condo board.

Never tell anybody outside the family what you’re thinking again. – Don Corleone

Board decisions should stay between board members and the property manager.  If a board votes 4 to 1 on a particular issue, the dissenting trustee should not disclose board deliberations to unit owners because he thinks the board made a mistake or that he is the only sane one of the bunch.  Likewise, issues such as collections and requests for reasonable accommodations must be kept solely within the board due to the privacy rights of the affected residents.

Fredo, you’re my older brother, and I love you. But don’t ever take sides with anyone against the family again. Ever. – Michael Corleone

Similar to the above, if a board votes in favor of taking a particular action, those board members who voted against it should not try to rally the community against the majority. The “losing” faction for that particular vote shouldn’t defame the “winning” faction just because the two-sides disagree.  Ultimately the majority rules and all sides must go back to working together again.

READ MORE>>

JOINT EMPLOYER LIABILITY FOR CONDOMINIUM ASSOCIATIONS AND MANAGEMENT COMPANIES

It is often the case that the law can change as frequently as the weather in New England.  Recently, the National Labor Relations Board (“NLRB”), a federal labor law enforcement agency that is charged with enforcing the National Labor Relations Act (“NLRA”), demonstrated this by vacating a decision on joint employer liability that it had made only in December. The change in decision means that it is important for both associations and management companies to review the employment status of not only all of their employees, but also the employment status of those people whom they directly control.

Between 2015 and December 2017, the controlling law on joint employer liability was enunciated in the case of Browning-Ferris Industries, which held that two or more companies are joint employers of a person if they all have the ability to govern the worker’s terms and conditions of employment, meaning that if more than one employer has authority to control things like salary and to direct that person’s work, then they are considered that person’s employer, even if another company also qualifies as an employer of that same person. Importantly, in Browning-Ferris Industries, the NLRB concluded that two companies could be liable under a joint employer theory even if one never exercised action joint control over essential terms and conditions of employment, and that joint employer liability could be imposed based upon the mere existence of “reserved” joint control or based on indirect control that is “limited and routine.”

In December 2017, the NLRB issued its decision in the case of Hy-Brand Industrial Contractors, through which the NLRB overruled the 2015 Browning-Ferris Industries decision, and concluded that a finding of joint employer liability requires proof that: 1) the alleged joint employers have actually exercised joint control over essential employment terms; 2) the control is “direct and immediate;” and 3) the control is not “limited and routine.” The NLRB also announced the Hy-Brand joint employer standard would be applied retroactively to all cases in front of it, as well as all pending cases.

READ MORE>>

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Condominium Insider –

– TIP OF THE MONTH –

Quorum is the minimum number of members or voters required to call a meeting to order.  Board and managers should be familiar with the quorum requirements before the meeting.  Most Massachusetts condominiums have a quorum requirement of 20% to 51% of the beneficial interest.

BIG CHANGES IN NH CONDO LAW
OPPOSED BY INDUSTRY LEADERS

A number of new condominium related bills came before the NH House Commerce and Consumer Affairs Committee on January 25, 2018.  As a member of CAI-NE’s NH Legislative Action Committee, I appeared with other committee members before the legislative committee to oppose these bills as the majority were very bad for associations and board members.  I am proud of the work our committee did to stop these bills at the outset.  We were able to make the legislators understand the practical consequences of these bills and just how negative of an effect the bills would have on all associations.

Personal Liability Against Board Members

Perhaps the most alarming proposed bill sought to impose personal liability upon board members for certain defined acts which included fraud and deceit, but also the failure to comply with certain portions of the Condominium Statute.  Yes, you read that correctly.  As it currently stands, it is hard enough to get unit owners to run for board positions.  Many condos that I represent have unfilled board positions due to owner apathy.  Imposing any type of personal liability upon board members—even for purposeful acts of fraud—will undoubtedly result in less owners being willing to serve on the board.  Why accept any risk of personal liability?  Moreover, laws already exist that would allow an aggrieved owner or condo board to sue a board member who commits and act of fraud or theft.

Changes to Quorum Requirements

The next defeated bill required that, for “a vote that is not a simple majority vote of those present” at a meeting [e.g., a vote to amend the documents or budget vote], a quorum would require “the presence of at least one more unit owner or proxy than the number of votes needed to pass or reject any item on the agenda for the meeting.”

This proposal would have been nothing short of a disaster for condominium associations.  Let’s assume you have a condo of 100 people.  In order to conduct a veto vote on the annual budget—a vote which requires 2/3 of all owners to vote down—68 unit owners would be required for a quorum (67 owners for the 2/3 plus 1).  Such a requirement would make it virtually impossible to pass a budget since a quorum would be so difficult to attain.  Personally, I have never been to a meeting where more than 2/3 of all owners have been present in person or by proxy. That type of attendance happens from time to time, but it is rather rare.

READ MORE>>

SMOKE FREE HOUSING GAINS TRACTION IN MASSACHUSETTS

The state law that made Massachusetts workplaces smoke-free in 2004 is considered an unqualified success.  The public now has the expectation of smoke-free jobs, restaurants, shopping and public transportation, and high compliance rates have resulted in a healthier population and a decrease in the smoking rate to just 14 percent.

While people can go through the workday without being exposed to second-hand smoke, however, a number of condo owners and apartment dwellers face involuntary exposure in their own home due to smoking by neighbors.  Second-hand smoke exposure in multi-unit housing is now the most common complaint called into the Massachusetts Tobacco Cessation and Prevention Program’s hotline.  It is also becoming a frequent source of litigation between condominium owners and condominium boards.

For market-rate apartments, the lease agreement between landlord and tenant can mandate that no smoking take place inside the apartment.  A 2009 marketing survey conducted in Massachusetts found that 81 percent of prospective tenants prefer smoke-free apartments and that 99 percent of landlords who chose to ban smoking in their properties said it was a good decision.  The issue is not as simple in condominiums.  Typically no smoking amendments require anywhere from 51% to 75% unit owner consent and a formal Master Deed Amendment.  No smoking amendments have become more complicated as they now include marijuana, may even address the growing of marijuana, and also deal with e-cigarettes and vaping.

In 2010, the City of Boston surveyed 1,300 public housing residents about banning smoking in apartments, and roughly 90% supported the idea.  In response, the Boston Housing Authority recently announced that when it renews leases, they will include a no-smoking clause. The year-long lease renewal effort was completed in September 2012.

If your condominium is currently not smoke-free, now may be the time to pursue it.  The climate is certainly ripe for the same.  Because of the climate and the demand, we have streamlined a process for no-smoking amendments so that the proposed amendment reads like a legislative ballot question.  We provide options and alternatives, depending on the community, which may include the grandfathering of existing smokers.  MEEB offers a one-time flat fee for no-smoking amendments.

If you would like to explore the process of going smoke-free, please contact Ed Allcock at eallcock@meeb.com or Pat Brady at pbrady@meeb.com.

ED ALLCOCK NAMED CO-CHAIR OF
CAI NATIONAL AMICUS COMMITTEE

MEEB’s Ed Allcock has been named Co-Chair of the CAI National Amicus Committee.  Ed currently is an elected representative of the College of Community Association Lawyers Board of Governors and is also a member of CAI-NE Board of Directors.

As Co-Chair of the CAI National Amicus Committee, Ed will be responsible for overseeing amicus briefs filed by CAI on condominium and homeowner issue across the country.  Amicus briefs are “friend of the court” briefs that allow organizations with an expertise in a certain area of the law to educate a court about the legal issues in a particular case.  The hope is that they will help persuade a court to decide a particular issue.  CAI has been active in filing amicus briefs on hot button issues across the country in recent years.  In fact, CAI submitted an amicus brief on the Cambridge Point case that Ed recently won at the MA Supreme Court, in which the Court held developer anti-litigation provisions to be invalid.

Ed looks forward to the challenge and experience.  He believes that the more involvement he has with condominium and homeowner legal issues and cases on a national level, the more experience, knowledge and expertise he will have in addressing legal issues for Massachusetts, New Hampshire and Rhode Island condominium associations.  Ed’s co-chair is Bob Diamond of ReedSmith.  Bob practices primarily in Virginia and Maryland.

To contact Ed Allcock about an issue you believe is appropriate for the filing of an amicus brief or any other legal issue, please email Ed at eallcock@meeb.com.

THE IMPORTANCE OF MENTORS
Written by Amie DiGiampaolo

At a recent professional networking event, the subject of mentors was a topic of conversation. That got me thinking about my own mentors and how important a part they have played at different stages in my life. The classic definition of a mentor is someone who advises, guides, and counsels you in your professional development. I believe mentors can be much more than that in both our professional and personal lives, and they are essential to both.

In hindsight, my parents were my first mentors and continue to be to this day. I was lucky enough to grow up in a close-knit family. My parents have always been hard workers and passed that ethos on to me and my sisters. My mother never missed one of my sports games, dance recitals, piano lessons, or going over my schoolwork. She taught me selflessness, kindness, giving, and tireless effort which have all proved to be very important pieces of my adult life. My father supported us, kept us happy, safe, and never wanting for anything. My father taught me the meaning of diligence and the importance of always showing up on time and being ready to work. I could not have asked for better role models to mentor me throughout my life.

READ MORE>>

 

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MEEB WINS CASE AT SJC

MEEB WINS CASE AT

MASSACHUSETTS SUPREME COURT: 

DEVELOPER ANTI-LITIGATION RESTRICTIONS HELD TO BE VOID AND VIOLATIVE

OF PUBLIC POLICY

In a case of first impression, the Massachusetts Supreme Judicial Court (SJC) in the case of Trustees of the Cambridge Point Condominium Trust vs. Cambridge Point, LLC, has ruled that condominium developers cannot unreasonably restrict the ability of owners to file suits against them.  In its Decision, dated January 19, 2018, the Court rejected as violative of public policy, the anti-litigation provisions that developers have been routinely inserting into condominium documents for the last 10-15 years in order to make it difficult if not impossible to sue them for construction and other issues.  The typical anti-litigation provision (which was the same one at issue in this case) requires: (1) an 80% unit owner vote prior to suing the developer, (2) the vote must be taken within a narrow 60 day window, (3) a copy of the proposed lawsuit must be circulated within the 60 day window, (4) if the owners vote in favor of suing, the Board must immediately specially assess all the owners the entire estimated cost of the lawsuit (legal fees and costs), and (5) the provision typically can only be amended out of the documents by an 80% vote and/or with developer consent.

The SJC’s holding in this case has far ranging implications as it effectively invalidates similar anti-litigation provisions contained in condominium documents throughout Massachusetts.  If these provisions were enforceable, then condominium associations would have little or no recourse against developers for construction defects and/or other developer misdeeds.

The case was briefed and argued at the Massachusetts Supreme Judicial Court by MEEB Partner, Ed Allcock, who also heads the firm’s litigation department.  Ed has briefed 12 and argued 10 condominium related cases in the Supreme Courts of Massachusetts, New Hampshire and Rhode Island, a record which is only comparable to Tom Brady’s recent string of appearances in championship games.  Ed and the MEEB litigation department continues to be a tireless advocate for condominium associations throughout New England, which is demonstrated by the difficulty of this particular case, wherein the only option was to convince the SJC that a provision written into the condominium documents, which presumably anyone could have read or understood (with the assistance of counsel), was unenforceable and void for public policy reasons.  It is one thing to convince a Court that the law means one thing or another or that the facts are more favorable to one side, but it is another thing entirely to convince a court that a contract is simply unfair or violates public policy and should not be enforced.  However, Ed and the MEEB litigation department routinely use their creativity and knowledge gained through their multi-state condominium law practice to turn hard cases into successful outcomes with far ranging precedential value.  To that end MEEB partners, Stephen Marcus, Richard Brooks and Janet Aronson, provided valuable insight and legal strategy on this issue.

In this particular case, the 80% vote was a practical impossibility because the developer owned and/or controlled 20% the units at the time the lawsuit was filed.  As the SJC noted in its decision, “developers are unlikely to agree to sue themselves.”  The condominium had filed suit seeking redress for in excess of Two Million Dollars ($2,000,000) in construction defects.

The SJC reversed the Middlesex Superior Court’s ruling favoring the developer, concluding that it was “overreaching” and “contrary to public policy” for a developer to impose a provision that “for all practical purposes, makes it extraordinarily difficult or even impossible for the trustees to initiate any litigation against the developers regarding the common areas and facilities of a condominium.”  The public policy concerns cited by the court are the habitability of homes and access to the court system.

When the case got to the appellate level, Ed and the MEEB litigation department did more than just file a brief.  They asked the Supreme Court to take the case as it was a matter of first impression and the Supreme Court agreed.  Additionally, Ed approached the Community Association Institute (CAI) and the Massachusetts Real Estate Bar Association (REBA) to see if they would submit amicus (friend of the court) briefs with the Court, as it was such an important issue for all Massachusetts condominiums and real estate lawyers.  Ultimately CAI and REBA agreed and selected well regarded condominium and real estate lawyers to submit amicus briefs supportive of Ed’s position that the anti-litigation provision was unenforceable.  CAI’s amicus brief was filed by fellow condominium attorneys Ellen Shapiro and Henry Goodman and REBA’s amicus brief was filed by fellow real estate attorneys Diane Rubin, Cailin Burke, Julie Heinzelman, Thomas O. Moriarty and Kim Bielan, all of whom worked tirelessly and brought different perspectives and legal nuances on the issue to the Court.  The support provided in this case by the amicus lawyers was incredibly valuable and appreciated.

The case is Trustees of the Cambridge Point Condominium Trust vs. Cambridge Point, LLC, et als.  For a copy of the Decision [click here].

If you want to discuss this case or any condominium related matter, Ed Allcock can be reached via e-mail at eallcock@meeb.com.

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Condominium Insider –

Our very own Richard Brooks will appear on the silver screen next fall.  Richard was in Tennessee last week on the set of a movie being filmed about his brother, Justin Brooks, and Brian Banks.  Greg Kinnear is playing Justin Brooks in the movie and Aldis Hodge is playing Brian Banks.

Justin Brooks runs the California Innocence Project.  The California Innocence Project devotes its time to exonerate innocent people who are wrongfully convicted.  Justin Brooks and Brian Banks gained some fame a few years ago when 60 Minutes, the View and others featured the story of Brian’s innocence.  Brian was a high school football star when a classmate accused him of rape when he was 17.  He spent 6 years in prison ending his promising NFL career.  After Brian’s release from prison, the female accuser friended him on Facebook.  Brian met with her and she confessed that she had fabricated the story.  In 2012 Justin Brooks and the California Innocence Project were able to exonerate Brian so that he would no longer have to register as a sex offender.  Following his exoneration, Brian sought to resume his football career and signed with the Atlanta Falcons, but unfortunately only played in a few preseason games.

Richard spent a few days on the set and is an extra in the movie, along with his daughter, Samantha.  Justin Brooks has a cameo appearance playing a bartender in one scene.  Richard described it as one of the most exciting experiences of his life.  He is so proud of his brother and cannot wait to see the movie come out in the fall.  The director of the movie, Tom Shadyac, had made movies totaling 2 Billion Dollars in box office sales and is known for directing many Jim Carey movies.  Although Richard doesn’t expect to hang up condominium law in exchange for a Hollywood career, we all know he certainly would if he could.

Richard told everyone at the office when he got back from Tennessee that “he had never been so happy not to be the center of attention while watching his brother shine”.

WE ARE NOW INCLUDING A LEGAL ALERT SECTION TO OUR NEWSLETTER HIGHLIGHTING NEW AND PENDING LAWS, REGULATIONS AND RULINGS THAT COULD IMPACT YOUR ASSOCIATION.

CLICK THE  BUTTON FOR THE MOST CURRENT ALERTS.

 

– TIP OF THE MONTH –

Sometimes less is more.  Volunteer Board Members who dedicate their time and energy to improving their community sometimes have a hard time stepping back and not trying to “solve” a problem.   Board Members should remember that Unit Owners are not tenants, and residents renting have their own landlords to look to for the many day-to-day issues.  Remembering the Board’s main charge is to govern and manage the common areas can lessen the stress on the Board and can help Board Members avoid being drawn into situations that they do not need to be in and which may result in increased liability or expenses for the association.

 CHANGE TO MASSACHUSETTS CONDOMINIUM ACT REQUIRES MEETING MINUTES TO BE MADE AVAILABLE TO UNIT OWNERS VIA E-MAIL

Tucked in to a recently passed supplemental budget bill was a change to Section 10(c) of the Massachusetts Condominium Act that requires minutes of condominium meetings to be made available to unit owners via e-mail, if so requested.  The bill was signed by the Governor on November 3, 2017, and is effective immediately.

The relevant section of the statute is Section 10(c)(3) and now reads as follows:

The organization of unit owners shall keep a complete copy of the following items…the minute book, as maintained by the organization of unit owners, to the extent such minutes are kept, which shall be made available to unit owners through electronic mail upon request.” 

READ MORE>>

MASSACHUSETTS APPEALS COURT REQUIRES 100% UNIT OWNER CONSENT FOR UNIT EXPANSION UPON LIMITED COMMON AREAS

On September 29, 2017, the Massachusetts Appeals Court issued a decision in the case Calvao v. Raspallo, 16-P-1143 (September 29, 2017) that involved a dispute between the unit owners of a two unit condominium over an addition onto one of the units.  One of the unit owners renovated her unit, and included an approximately 111 square foot addition or expansion.  The expansion was constructed upon limited common area designated for her exclusive use.  The other unit owner objected claiming that 100% unit owner consent was required for any unit owner expansion and filed suit seeking to remove the addition.  The expanding unit owner countered that because the expansion was constructed upon limited common area there was no intrusion or interference with the rights of the other unit owner and therefore the only consent necessary was that of the Condominium Trustee (who had been appointed by a Court Order because these two homeowners could not agree on who the Trustee should be).

The Trial Court held that the expansion of the unit upon limited common elements required 100% consent under G.L. c.183A, §5 and ordered the expansion torn down and awarded attorney fees to the other unit owner.

READ MORE>>

TAKEAWAYS FROM NOVEMBER 2ND INSURANCE SEMINAR

On November 2, our own Stephen Marcus and representatives of Rogers & Gray Insurance held an insurance seminar for board members and managers.  If Cher could help us turn back time, I would urge everyone in the industry to attend as the presentation was incredibly helpful to understanding the tricky world of condominium insurance.  What follows are some important takeaways from the seminar.

Co-Insurance Penalties:

I think this term would make more sense if it were called the “Under-Insurance” Penalty.  An example is the best way to understand this concept.  Let’s say your building would cost $1,000,000 to fully rebuild after a catastrophic casualty.  However, you’re only insured for $500,000 upon the advice of your cousin’s old roommate who is now an insurance broker.  Now let’s assume a roof leak results in $50,000 in damage to the building.  Since this building is under-insured by 50%, the insurance company is going to pay out only $25,000 of the $50,000 claim (less the deductible).

The bottom line is that even though the $50,000 claim is well under the $500,000 policy, the insurance company is going to hit you with the co-insurance penalty which, in this example, is 50%.  In the event of a huge loss, the co-insurance penalty would cause tremendous financial problems for the condo trust and all owners, and would almost certainly result in the board, management and agent being sued for the failure to adequately insure.

READ MORE>>

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Repair/Replacement Project Questions? Sign-up for Next Week’s Seminar

DON’T FORGET TO SIGN UP FOR

FREE MEEB SEMINAR

FRIDAY, NOVEMBER 17, 2017
9:30 AM – 11:30 AM

PLANNING FOR A MAJOR REPAIR/REPLACEMENT PROJECT

 Join attorneys John Shaffer and Janet Aronson as they review the practical and strategic approach to undertaking and managing a major repair/replacement project.  This program will focus on the legal issues underlying such projects and practical advice concerning the planning and execution of a significant construction project. Topics will include board authority, contracts, project funding and a variety of other important issues.

This free seminar is being held on
Friday, November 17, 2017
9:30 AM – 11:30 AM
(Registration at 9:00 AM)
at the offices of
Marcus, Errico, Emmer & Brooks, P.C.
45 Braintree Hill Office Park, Suite 107
Braintree, MA  02184

Refreshments will be served.
Space is Limited
To reserve your seat [
click here].

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Condominium Insider ✴

– TIP OF THE MONTH –

Now is the time to address vacant units. In order to comply with the Master Insurance Policy, in units where water cannot be turned off, Trustees need to ensure that vacant units are properly heated at a minimum of 55⁰.  If the heat can be shut off and not cause damage to other units or cause other pipes in the building to freeze, the Trustees need to ensure that the vacant unit is properly winterized, which can include turning off the water, draining water heaters and making sure windows and doors are closed and secured.  A little preventive action now will prevent major headaches later on.

FREE MEEB SEMINAR

FRIDAY, NOVEMBER 17, 2017
9:30 AM – 11:30 AM

PLANNING FOR A MAJOR REPAIR/REPLACEMENT PROJECT

 Join attorneys John Shaffer and Janet Aronson as they review the practical and strategic approach to undertaking and managing a major repair/replacement project.  This program will focus on the legal issues underlying such projects and practical advice concerning the planning and execution of a significant construction project. Topics will include board authority, contracts, project funding and a variety of other important issues.

This free seminar is being held on
Friday, November 17, 2017
9:30 AM – 11:30 AM
(Registration at 9:00 AM)
at the offices of
Marcus, Errico, Emmer & Brooks, P.C.
45 Braintree Hill Office Park, Suite 107
Braintree, MA  02184

Refreshments will be served.
Space is Limited
To reserve your seat [
click here].

MEEB’S ED ALLCOCK ARGUES CONDOMINIUM CASE AT THE MASSACHUSETTS SUPREME JUDICIAL COURT

On October 5, 2017, MEEB’s Ed Allcock appeared before the Massachusetts Supreme Judicial Court to argue that developer inserted provisions in condominium documents that restrict a condominium board’s ability to sue the developer are void and unenforceable because they conflict with the Condominium Act and violate public policy.  The decision in this case (which is expected in 120 days) will have an impact on all Massachusetts condominiums going forward and is being watched closely by real estate lawyers.

The case is Cambridge Point Condominium Trust v. Cambridge Point, LLC, et als.

To view the oral argument [click here].

TRIAL COURT RULES THAT UNIT OWNER CANNOT ASSERT COUNTERCLAIM IN COLLECTION CASE

The MEEB litigation and lien enforcement departments recently obtained a favorable decision for a Condominium Board on a lien enforcement case pending in the Middlesex Superior Court.  In a M.G.L.c.183A, §6, action to enforce a lien on a commercial unit in a mixed use condominium, the Board sought to collect over nine years of unpaid monthly condominium fees, as well as attorney’s fees and costs associated with the enforcement.  In response to the Board’s filing of the lawsuit, the commercial unit owner asserted Counterclaims against the Board, alleging breaches of their fiduciary duties, as well as other reasons for why the commercial unit owner did not have to pay the mounting lien.

The Board promptly filed a Motion to Dismiss.  After oral argument of the Motion to Dismiss, Justice Kern ruled in favor of the Board, dismissing the commercial unit owner’s Counterclaims in a well-received eight page decision.

In her opinion, Justice Kern wrote:  “Allowing a condominium owner to assert a breach of fiduciary duty claim in response to an effort to collect common expenses would impede a condominium association’s ability to collect common expenses promptly, which ‘would threaten the financial integrity of the entire condominium operation.’  Trustees of the Prince Condo. Trust, 412 Mass. at 726.  Accordingly, this court concludes that the defendant cannot assert his counterclaims without first paying his assessed condominium expenses.”

This is yet another decision obtained by MEEB attorneys utilizing and strengthening the doctrine established by the Supreme Judicial Court in 1992 in the Prince case, and again in 1994 by the Massachusetts Appeals Court in Blood v. Edgar, that in order to challenge the validity and lawfulness of condominium common expense assessments, the expenses must first be paid under protest.  This is commonly referred to as the Blood Rule.

For a copy of the Decision [click here].

If you have any questions regarding this article please contact Alex Levine at alevine@meeb.com.

THE AGE OLD QUESTION:  WHY ISN’T THE BUILDING INSPECTOR LIABLE FOR OUR CONSTRUCTION DEFECTS

A frequent question that comes up when representing condominium boards in construction defect cases is whether they can sue the municipality for the building inspector’s approval of all the shoddy work in violation of Massachusetts Building Code.  The answer is no, with one minor exception.  Municipalities are immune from certain types of liability that are listed out in M.G.L. c. 258, §10.  Paragraph (f) of Section 10 shelters municipalities from claims based on the failure to inspect or an inadequate, negligent inspection of any property.

For example, if the common area HVAC exhaust vents were improperly designed, the balcony railings are not up to code, the roofing material was not properly inspected, and the foundational support structures of the building were not even investigated, yet the local building inspector signed off on the building, the Board and the unit owners do not have a claim against the municipality for the building inspector’s omissions.  M.G.L. c. 258, §10(f) would bar any claim for a failure to inspect or a negligent inspection of real property.

In 2014 the Massachusetts Appeal Court determined a municipality could not use M.G.L. c. 258, §10(f), to shield itself from a representation made by a building inspector in Doherty v. Town of Ashland, 86 Mass. App. Ct. 1112.  A building inspector was alleged to have made specific representations to a prospective buyer about the permitted uses of a particular parcel of land under the zoning by-laws, knowing that whether or not the prospective buyer purchased the property in question was contingent upon his representations.  The buyer purchased the property in reliance upon the building inspector’s representations that the intended use for the property was allowed, and when it wasn’t allowed, filed suit.  The Court determined the statutory exemption in §10(f) did not apply because there was never an inspection of the property nor did the inspector’s representations concern aspects of the property that could be inspected, but rather were representations as to the property’s permitted uses under the zoning code.

While the Doherty case’s fact pattern fell outside the §10(f) exemption, there is an exception to §10(f), which is a claim based upon explicit and specific assurances of safety, which is above and beyond a permit, certificate, or report of findings from an investigation, that is made directly to the one injured, and that the injury result in part from a reliance on those assurances.  In the context of a construction defect action, it would be difficult to imagine a scenario in which the building inspector made an explicit representation of safety that was more than just a report of the findings of his or her investigation of the premises.  It would have to be some above-and-beyond explicit representation of safety by a building inspector that was significantly more than a reliance upon that inspector’s investigation.  More likely than not, the representation would be oral, and in that instance memorializing the conversation would be a wise move.

If you have any questions about this article or condominium construction defects, please contact Ed Allcock at eallcock@meeb.com or Alex Levine at alevine@meeb.com.

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