Common Area Assessments Alert

Goldman & Pease advises its Massachusetts clients, particularly condominium associations, boards, and property managers, to pay close attention to a new emergency regulation from the Massachusetts Attorney General’s Office that directly prohibits a condominium association from initiating or threatening to initiate a lawsuit if a unit owner fails to pay condominium common area fees, assessments, fines and/or dues.

The March 27, 2020 Emergency Addendum to the Attorney General’s Regulations (“Regulation”), “Unfair and Deceptive Debt Collection Practices During the State of Emergency caused by COVID-19”, prohibits creditors or debt collectors from “initiat[ing], fil[ing], or threaten[ing] to file any new collection lawsuit” and defines a collection lawsuit as “any legal proceeding, including civil actions, commenced in any court for the purpose of collecting any debt owed.” The Regulation further prohibits creditors or debt collectors from initiating or threatening to initiate “or act upon any legal or equitable remedy for the seizure [or] attachment …. of…property… for the payment of a debt to a creditor.” See Regulation, 940 CMR 35:00. [Read more…]

How the Coronavirus is Impacting Evictions

As the Coronavirus pandemic continues to change the way our society functions, the legislature and the Massachusetts trial courts have enacted numerous orders to address the spread of the Coronavirus. The Commonwealth’s highest court endorsed an Order on April 1, 2020 which declared that only emergency matters will be heard by the Courts until May 4, 2020. The separate divisions of the trial courts (i.e., Superior Court Division, District Court Division, Housing Court Division) are responsible for defining which matters constitute an emergency.

Landlords have been faced with a difficult situation and are fighting to deal with the unknowns related to the temporary changes in eviction law. Here at Goldman & Pease, we offer you the most up-to-date information related to this pandemic and how it impacts landlords.

Housing Court Standing Order

The Chief Justice of the Housing Court issued a Standing Order on March 18, 2020. The Order is currently in effect and addresses which matters the Court will hear while the Order is in place. The Order (as discussed infra) sets forth that until at least April 6, 2020, only emergency matters will be heard by the Court. In compliance with the recent Supreme Judicial Court order, the Housing Court will soon extend the Standing Order through May 4, 2020. [Read more…]

COVID-19: A Message to our clients

As the wide-spread impact of COVID-19 (coronavirus) is evolving, we at Goldman & Pease are taking active measures to protect the well-being of our employees, clients, guests, and the community at large, while also ensuring that we will continue to meet our clients’ legal needs. From remote work, to telecommuting, to online and teleconferences court appearances, we have in place systems to minimize the risk of transmission related to firm business. As a small, close-knit group of litigators and providers of corporate and real estate legal services, we have the advantage of knowing each other’s cases and clients, and regularly consult with each other. In short, we are a team and will continue to act as one to support each other to serve our clients without pause in these uncertain times.

We are monitoring the COVID-19 situation closely and will adhere to recommendations from the WHO, CDC, and other health organizations.

Whatever proactive or preventative measures we implement, Goldman & Pease will remain fully available to you. Your calls and e-mails will be answered, and we will continue to represent our clients with the same responsiveness, expertise, and experience you expect and deserve.

Please do not hesitate to reach out to your attorneys here at Goldman & Pease and if we can be of any assistance. As always, we are here for you.

— Howard Goldman, Cameron Pease, and our entire team at Goldman & Pease

Coronavirus: What Steps Should Condo Associations take?

Community associations are wisely thinking about how to meet daily responsibilities while mitigating the spread of this virus. According to the CDC’s current information, person-to-person spread is occurring between people in close contact (within about 6 feet), through respiratory droplets produced when an infected person coughs or sneezes.  Some spread might be possible before people show symptoms, but this is currently not thought to be the main way the virus spreads.

While there are still unknowns about the virus’s transmission, Goldman & Pease offers our current perspective on how you can take proactive steps to responsibly meet your obligations to residents and owners at this time.

Provide Information to Residents

When communicating to unit owners, we recommend that Boards encourage residents to take their own precautions to limit exposure to the virus or other contagious illnesses such as the flu.  At the end of the day, owners will be most responsible for their health and safety, as most guidance to avoid illness highlight an individual’s responsibility.

[Read more…]

Airbnb Legislative Update: Massachusetts’ New Rules

By: Howard S. Goldman, Esq.* –

Airbnb – you either love it or you hate it. With roughly 1 in 10 U.S. adults using short-term accommodations, their popularity is undeniable. And for the millions who vacation in Massachusetts each year, short-term rental sites offer a wide range of price points in a state notorious for its lack of mid-priced accommodations at premier tourist draws: Boston, Cape Cod, and the Berkshires.

But other populations are decidedly less enamored by the ascent of Airbnb: condominiums, abutters and the hotel industry. At Goldman & Pease we regularly help condominium associations, property managers and management companies faced with refereeing a new breed of disputes.  Additionally, abutters to the roof deck that is rented out for bachelorette gatherings each weekend and the condominium owner sandwiched between two downtown Airbnbs have had lots to complain about. In short, some are winning and some are clearly losing in this new rental accommodation landscape.

Strict Registration Requirements

Massachusetts’ new laws regulating short-term rentals became fully effective on December 1, 2019, and define short-term rentals as accommodations rented out more than 14 days per calendar year at more than $15/day. The new laws require short-term rental owners and intermediaries like Airbnb to register online with the Mass. Department of Revenue by providing proof of residency and adequate insurance through various documentation, paying certain annual licensing fees, getting a business certificate, notifying neighbors and, once an owner has accomplished all that, adding the registration number to on-line intermediary sites such as Airbnb to prove that the accommodations are properly registered.  These registration requirements make Massachusetts the first state in the nation to establish a state-wide registry. [Read more…]

Wednesday, February 12, 2020 – Legal Marijuana Update

Current State

  • 33 states, D.C., Guam, Puerto Rico, and the US Virgin Islands have legalized medical marijuana
  • 11 states and D.C. have legalized recreational use
  • October 2018 Canada legalized marijuana federally, being the first G7 country to do so
  • Mexico’s Supreme Court ruled marijuana prohibition unconstitutional, paving the way for federal
    legalization
  • Recent Pew Poll shows that 67% of Americans think all marijuana use should be legalized, 91% support legalizing medical marijuana
  • Farm Bill signed in 2018 legalizes hemp production in all 50 states.
  • Hemp is made from the cannabis plant, but does not contain THC, the active compound that gets folks high
  • Hemp can be used to produce CBD oil which is used medicinally

In Massachusetts

  • Currently has 33 recreational marijuana dispensaries, more are being
    approved on a rolling basis
  • Patient or caregiver can have 60 day supply of medical marijuana
  • Patients with limited access to dispensary can obtain hardship registration from the Dept of Pub lic Health to cultivate a 60 day supply in their own home
  • Recreational Use: 1oz individually, 10oz in your home
  • Recreational Grow: 6 plants individually, up to 12 plants for 2+ adults
  • Grower can give away up 1oz, but only to adults over 21 years
  • Intersection between Federal vs. State law
  • HUD prohibition in federally assisted properties
  • Owners must deny admission to those illegally using a controlled substance
  • Schedule 1 controlled substance

Risks of Marijuana Use: Landlords and HOAs

  • Property Damage
    Strong skunk-like odors
    Growing requires water, heat, intense light which can lead to mold and fire hazards
    Insurance claims will claim not to cover damage from federally illegal acts
  • Secondhand Smoke
    Harmful toxins, carcinogens, irritants
    Noxious odor for tenants/children
  • Federal implications
    HUD prohibition and Property seizure

 

[download Legal Marijuana Update presentation]

 

Evicting a Problem Tenant

By: Howard S. Goldman and Eric T. Thulin

Most residential landlord/tenant relationships begin and end without any problems or concerns. However, when landlords find themselves dealing with a tenant who continuously violates the terms and conditions of the tenancy, the landlord often feels like they are without recourse. Massachusetts is an extremely tenant-friendly state with a long history of statutes and case precedent which has enhanced the rights of tenants and made it very difficult for landlords to sustain and succeed on eviction actions. To evict a tenant, the landlord must proceed cautiously and carefully to avoid traps for the unwary.

Landlords have numerous reasons why they seek to evict a tenant. Most commonly, it is for unpaid rent. Other evictions are referred to as “cause-based evictions” and they usually are brought for noise violations, unauthorized smoking, or allowing unauthorized occupants. Advances in society and technology have also introduced new issues and complications for landlords such as the legalization of marijuana, invention of electronic cigarettes, and online subletting through websites such as Airbnb. All of these have increased the difficulties that landlords have to deal with and have posed legitimate questions as to what the rights of the landlords are. [Read more…]

New England Condominium – How Will Your Community Be Affected?

Attorney Howard Goldman was quoted extensively in the the New England Condominium article “Legal & Legislative Update 2019 – How Will Your Community Be Affected?

 

By A.J. Sidranksy | New England Condominium

Laws, and the legal decisions that support and enforce them, are constantly evolving and can affect every facet of community life in HOAs, condominiums and co-ops. While law and legal cases can emanate from any of our three levels of government – federal, state or local – most of the developments that affect housing come from the bottom up, with local and state law often defining or redefining what co-op, condo, HOA, and even owners of rental housing may and may not do within the law.

Much of the legislation and case law pertaining to housing derives from the federal Fair Housing Act, which was signed into law by President Lyndon Johnson in 1968 around the time of the civil rights movement. The law exists primarily to protect against race-based discrimination in housing, but it has gone on to represent and promote a much broader range of principles.

Aside from non-discrimination, housing law and legislation also deal with safety, equity, and the ability of local governments to tax real estate owners. This type of legislation and specific case law more than likely originates at the local and state level. Often as a result, individual statutes and cases apply to specific localities. A decision handed down in a New York court may not affect communities in Massachusetts, though a similar case could result in a similar decision in more than one locale. Similarly, a statute may apply to a co-op or condo in one city and not in the neighboring one, resulting in different requirements literally a few miles apart. [Read more…]

Appeals Court Holds Condominium Developer’s Lender Cannot Foreclose on Common Areas

Earlier this month, the Massachusetts Appeals Court held that a bank that loaned money to a condominium developer and gave each unit buyer a partial mortgage discharge upon purchase did not have a remaining mortgage interest in undeveloped common areas of the Condominium. Specifically, in Trustees of the Beechwood Village Condominium Trust vs. USAlliance Federal Credit Union, No. 18-P-89, the Massachusetts Appeals Court stated:

“We conclude that all of the land associated with the condominium development, including the common area, was submitted to the provisions of G.L.c. 183A, the Condominium Act (act or statute), by the master deed, and that the effect of the subsequent mortgage discharges by the relevant lenders upon the sale of each unit was to release the lenders’ mortgage interest in all of the common area . . . .The unit owners became the fee simple owners of all of the common area as tenants in common, including the undeveloped common area.”

For the full text of this important decision, please visit: https://www.mass.gov/files/documents/2019/05/15/18P0089.pdf

Obtained permanent, exclusive, easement against neighboring property.

Our clients’ driveway and garden areas encroached onto their neighbors’ land, leading to a contentious dispute. We filed an adverse possession and prescriptive easement action in the Land Court seeking to assert our clients’ rights to the disputed portions. We further recorded a Notice of Lis Pendens with the Registry of Deeds to encumber the neighbors’ property pending resolution of the matter. The neighbors filed a competing quiet title action in the Land Court seeking to obtain the court’s declaration that they held title to disputed portions in fee simple.

With a long, litigious, courtroom dispute appearing likely, we advised our clients to participate in early mediation. There, in light of our compelling argument that our clients, combined with their predecessors-in-title, had exercised sufficient and non-permissive dominion and control over the disputed portions, for a period in excess twenty years, we were able to negotiate a highly favorable settlement for our clients by which they were granted a permanent and exclusive easement on the disputed portions. Furthermore, there was no cash payout nor land swap to the neighbors, as had initially been proposed.