Unit Owner Voting

Question:  

For the annual meeting, there are seven people running for five positions. The management company sent a proxy to all owners and requested that it either be mailed to them or dropped in the mailbox in the building lobby. This mailbox is accessed by current board members and items reviewed. Is this ethical to have those members who are on the ballot, receiving them and reviewing them before the meeting?

Answer:

ballot-box           Unit owner voting at annual or specially held meetings is subject to various rules and regulations.  Chief among the regulations is that a quorum, being a majority of all unit owners, must participate in order to have a binding resolution. Obtaining the quorum is difficult due to unit owner apathy, and to overcome this, the condo documents permit voting by proxy.  But the proxy documentation should be authenticated by either signature of an attesting witness and/or by notarization.  Such proxies should be of a limited duration and may authorize voting on the unit owner’s behalf for any and all matters (i.e. vote on all matters presented) or be restricted to vote on a specific matter only (i.e. vote for candidate X).

The question posited does not disclose whether the completed proxies are general or specific in nature, whether a specific person is designated to vote on behalf of the unit owner, or whether such proxies have been authorized by a unit owner or by a notary public.  Regardless, Associations are active, functioning governing bodies that must be flexible for requirements of its unit owner members to facilitate decision making, such as “dropping off the proxy at the mail box.”   Such drop-off process would be aided by adding ‘Confidential/For Management Only” and delivered in a sealed envelope.  Board elections can be contentious and personal, so Associations would be well advised to designate the management company to act as the independent party to directly oversee election results.

Required Deleading in Condominiums and Rental Properties

What Owners, Landlords, and Property Managers Need to Know

By: Howard S. Goldman, Esq.

While lead-based paint, having been banned in 1978, may seem like a distant memory for most of us, the presence of lead-based paint in older condominiums and apartment buildings poses some very real challenges for landlords and property managers today. The state and federal laws with respect to lead-based paint set up a strict set of rules for residential property owners and managers which must be adhered to closely in order to avoid large fines and other potential legal ramifications.

hazardThe lead-based paint laws (“Lead Laws”) require that lead paint hazards must be remediated in residences built before 1978 if a child under six years old lives there. The process of lead remediation (“deleading”) requires that a certified lead inspector perform an evaluation of the residence and thereafter certain discovered lead paint hazards must be deleaded in accordance with the Lead Laws. The remedy varies depending on the type of surface that is found to contain lead and the concentration of lead on that surface. Not all lead paint requires deleading. In general, surfaces which are impacted, such as window sills and door frames, along with surfaces that can be accessed by a small child must be deleaded only if the lead concentration is higher than 1.0 mg/cm2. Lead hazards on other surfaces, such as metal or those which are impossible to be accessed by children, only need to be made intact so that paint chips and dust do not contaminate the residence— for these no deleading is required.

These requirements pose a variety of problems for property owners and managers. In addition to the requirements of deleading, the Lead Laws also prevent any landlord or property manager from evicting or refusing to rent to a family that has a child under the age of six. This provision was added to the law to prevent housing discrimination. Landlords who are found to be in violation of this provision can be subjected to significant financial penalties. [Read more…]

Wednesday, October 26, 2016 – IREM Seminar

Traps for the Unwary Property Manager

Wednesday, October 26, 2016
8:30 am – 11:30 pm
Register Today  or call 617-436-7565

Location:
The Simon Companies  Office
639 Granite Street
Lower Level Conference Room,
Braintree, MA

SEMINAR DESCRIPTION:

Sponsored by IREM Boston Metropolitan Chapter No. 4 and

The law firm of Goldman & Pease LLC Led by Attorneys Howard S. Goldman and Cameron C. Pease of Goldman & Pease, LLC, this seminar will address common pitfalls that property managers should avoid in managing their properties and suggest helpful ways to avoid and correct these mistakes.

The seminar will draw on recent, real-world Massachusetts cases where landlords or property managers have been held liable or responsible. Attorneys Goldman and Pease will analyze these cases in an interactive format with the seminar participants and discuss what steps the landlord or property manager could have taken to avoid and/or minimize liability.

Moreover, this seminar will help both new and experienced property managers spot key legal issues and protect themselves and their clients. [Read more…]

Saturday, October 8, 2016 – Boston Asian Landlord Association

ESTATE PLANNING FOR THE REAL ESTATE OWNER

 

  1. BASICS OF ESTATE PLANNING

    1. What is estate planning?
    2. Is estate planning for everyone; who needs an estate plan?
    3. When is the right time to begin estate planning and what factors contribute this this decision?

 

  1. MINIMIZING ESTATE TAX LIABILITY

    1. What is the estate tax, what does it tax, and who will pay it?
    2. How do you pass assets to your surviving spouse to minimize tax liability?
    3. What is the significance of the $1,000,000 MA estate tax exemption and the $5,450,000 Federal estate tax exemption?
    4. What is a QTip (qualified terminable interest trust) or marital trust and how can it decrease your tax liability?
    5. How can annual gifts of up to $14,000 to friends and family reduce your tax liability?
    6. What should you consider when thinking about leaving a portion of your estate to charity?
    7. How can you exclude life insurance proceeds from the taxable estate?

[Read more…]

Wednesday, September 28, 2016 – Crowninshield Management Corporation

Presented by: Goldman & Pease LLC

  1. APARTMENT OR CONDOMINIUM SHARING: WHAT YOU NEED TO KNOW ABOUT AIRBNB

  • What are the security risks, nuisances, and property damage that result from engaging an Airbnb rental?
  • What are the best practices for avoiding problems that neighbors and property managers frequently encounter when tenants or condo unit owners use Airbnb.com?

 

  1. INDEPENDENT CONTRACTORS: ARE THEY REALLY INDEPENDENT?

  • When does the law define your independent contractor as an employee?
  • What are the penalties for misclassifying an employee as an independent contractor?

[Read more…]

Goldman & Pease Recognized For 15 Years of Service

Howard Goldman and Cameron Pease were honored at the Newton-Needham Regional Chamber’s Members Appreciation Night held at the Needham Sheraton Hotel. The annual event recognizes Chamber members with significant membership anniversaries. Goldman & Pease were recognized for 15 years of membership and service in the Newton-Needham Regional Chamber.

Award-2016

Estate Planning – Is it for you?

By Howard S. Goldman, Esq.

Some people think that estate planning is only for wealthy individuals subject to large taxes. But minimizing estate tax liability is only one reason for estate planning. Consider these six additional reasons for completing an estate plan:

1. Determining who shall receive a share of your assets;
2. Deciding how and when your beneficiaries shall receive their inheritance;
3. Selecting an executor for your estate and a guardian for your children:
4. Providing for the orderly continuance or sale of your family business;
5. Creating a living trust; and,
6. Planning in case of your permanent disability.

In the absence of a valid executed will, state laws determine who inherits your assets and when they receive them. Further, the Probate Court will appoint a guardian for your children and an administrator for your estate. Accordingly, your wishes will not control disposition of your own estate and your estate may incur unnecessary taxes and administrative costs. [Read more…]

Occupancy Restrictions in Condominiums

familyWhen my wife and I bought our condominium a few years ago we had only one child. Now we have three kids and our condo board says that the bylaws limit the number of people in a unit to two per bedroom. While this is not the ideal situation for our family, we cannot afford to move to a bigger home at this time. My kids are small and they don’t cause any problems. Can the board enforce this bylaw and make us sell our home?

Answer:

You are right to explore all of your rights as a condominium owner with respect to these enforcement issues. This is a complicated question without a clear cut answer.

The condominium board does have the authority to enforce any rules set forth in the condominium documents (ie the Master Deed, Declaration of Trust, Bylaws and Rules and Regulations). Therefore, if the condominium documents include an “occupancy restriction” or a limit on the number of occupants allowed to reside in each bedroom, the board has the authority to enforce it. Legitimate reasons for enacting and enforcing such a restriction are to ensure that the building septic system can handle the needs of all of its residents, and to ensure the building is in compliance with city and state building and sanitary codes. In Massachusetts, for example, 105 MCR 410:400, the state sanitary code, requires 150 square feet of living space for the first occupant and at least 100 square feet for additional occupants. [Read more…]

Choosing An Attorney For Your Association

NE-Condo

 

By Michael Odenthal | New England Condominium

Not every condominium or homeowners’ association is going to run afoul of the law—the happy truth is that litigation and legal trouble are relatively rare occurrences. But even the most upstanding board of trustees in New England must navigate a labyrinth of community association rules in order to best serve its ownership, and the odds are that its trusty group of volunteers will consist of few, if any, qualified legal professionals.

So what to do in order to ensure that an association’s business remains on the up-and-up? Hiring one of the aforementioned legal eagles would be a good start, sure, but how best do you ascertain which attorney or firm is ideal to guide your association right and true?  Turns out, choosing a legal pro isn’t so different from choosing any other kind of service provider your HOA might need—even if the stakes are somewhat higher. [Read more…]

Condominium Unit Rental Restrictions and Bans: Pros, Cons and Considerations

By: Howard S. Goldman, Esq. and Rebecca A. Erlichman, Esq.

The issue of how to handle condominium unit rentals is one that remains relevant to all condominium associations. It is up to the condominium association to protect the interests of all of the unit owners – both those who want to avoid an undue concentration of tenants to protect the character of the community and those who wish to rent out their units.

CondosThere are pros and cons to allowing rentals. Tenants are more likely to abuse common areas and amenities, violate condominium association rules, and be less conscientious caretakers of the units they occupy as compared to homeowners. A large concentration of tenants will significantly change the nature of a condominium community and could potentially lower the market price and affect the ability of owners to refinance. On the other hand, however, certain condominium unit owners value the ability to rent out units as a financial investment and want the flexibility of being able to rent out the unit during a short term geographical relocation.

Whether the condominium association chooses to ban rentals altogether, or allows them, it is clear that the bylaws should containing language pertaining to rentals to clarify the rules and avoid conflict. This article will discuss a number of factors condominium associations should consider with respect to updating its bylaws to address the issue of tenants.

Condominium Associations Have Authority to Implement New Rules on Rentals

In general, condominium associations have broad latitude to create rules and regulations intended to better the community. These broad powers emerge from the basic notion of condominium ownership: in exchange for the benefits of association with one’s neighbors, an owner “must give up a certain degree of freedom of choice which he might otherwise enjoy in separate, privately owned property.” Where use restrictions are placed on unit owners, such measures of control must be contained within the condominium’s master deed or by-laws and not its rules and regulations. Johnson v. Keith, 368 Mass. 316, 320 (1975); M.G.L. 183A § 8(g) (requiring that restrictions on the use of condominium buildings be contained within the master deed); M.G.L. 183A § 11(e) (requiring that use restrictions not detailed in the master deed be contained in the by-laws). See Granby Heights Association, Inc. v. Dean, 38 Mass. App. Ct. 266 (1995) (where a condominium rule against pets was ruled invalid because it was not contained within the by-laws or master deed). [Read more…]