Massachusetts Local Counsel Available for Businesses, Individuals, and Attorneys

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By Robert Nislick

If you are businessperson with a corporate dispute in Massachusetts but you are headquartered outside of the Bay State, or you own real estate or a rental property in the Commonwealth but live elsewhere, or you are an attorney for a company that has just been sued in Massachusetts, you may need to find and hire local counsel to represent you in Massachusetts.

Attorney Robert Nislick is a Massachusetts lawyer who is admitted to practice in all Massachusetts state courts, and also in the United States District Court for the District of Massachusetts, and also in the United States Bankruptcy Court for the District of Massachusetts.

Over the course of my legal career, I have worked with businesses, individuals, and attorneys located outside of Massachusetts, who have had a need for a lawyer in Massachusetts, including from California, Colorado, Connecticut, Florida, Iowa, Maine, Michigan, Nevada, New Hampshire, New Jersey, New York, Rhode Island, South Carolina, Texas, Utah, Vermont, the United Arab Emirates and the United Kingdom.

Call or e-mail Massachusetts lawyer Robert Nislick when you need to team up with an experienced local Massachusetts attorney to help with a business matter, a real estate dispute or transaction, or a lawsuit.

Fourteen Days Notice to Quit For Nonpayment of Rent in Massachusetts

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By Robert Nislick

You are a Massachusetts landlord. Your tenant is not paying rent. You want to evict him. What can you do to get the eviction process started?

Most landlords know that before you can evict a tenant for nonpayment of rent, the landlord must serve, and the tenant must receive, a fourteen-day notice to quit for nonpayment of rent.

If all you are looking for is a form, then here is a link to a form that is available on the Massachusetts Court System web site:

http://www.mass.gov/courts/docs/lawlib/docs/notice-quit-14.pdf

Here is a link to another form that is available on the Plymouth County Sheriff’s Department web site:

http://www.pcsdma.org/Forms/14%20Day%20Notice%20to%20Quit.pdf

Here is a link to another form that is available on the Suffolk County Sheriff’s Department web site:

http://www.suffolksheriffma.com/14_Day_Notice_To_Quit.pdf

Even though these forms are available to use for free, there is no substitute for having an experienced Massachusetts landlord-tenant lawyer handle the eviction from start to finish. This includes drafting the notice to quit. Some landlords think they can do an eviction on their own, or maybe do the notice to quit themselves, and then hire an attorney to show up at court on the day of trial. I would not recommend that approach.

Even if one of these forms might work, it might be completely inappropriate to use one of them. Although I am providing links to these forms, I am certainly not advising that everyone or anyone use them. Something slightly different or completely different might be necessary based on the specific facts. It may be that your case is a simple nonpayment of rent case, and the service of a 14-day notice to quit would be best. It might not be, however. It is common for landlords to have misconceptions about how to terminate a tenancy and how best to move the ball down the field.

An experienced landlord-tenant attorney may see your case differently. There are various situations in which I may advise proceeding with a 7-day notice to quit, or a 30-day notice to quit, or a 90-day notice to quit, or an immediate termination, or a notice that provides a holdover tenant less than seven days to vacate.

The circumstances might be such that serving any notice to quit would be less than prudent, and an alternative course of action would be better. Additionally, issues of timing in the eviction process are important, and are too numerous to discuss in this article.

Robert Nislick is a Massachusetts landlord-tenant lawyer who practices in Boston Housing Court, Worcester Housing Court, Northeast Housing Court, Southeast Housing Court, Western Housing Court, and the summary process session of the District Court.

Framingham Landlords Must Obtain Inspection and Certification of Rental Units

1024px-Framingham_Memorial_-_Framingham,_MA_-DSC00228By Robert Nislick

Pursuant to the Framingham Health Department’s Rental Unit Certification Regulation, most landlords of residential properties in Framingham are required to apply for and obtain a certificate from the Board of Health before commencing any new tenancy or occupancy in a rental unit.

The regulation is, “intended to protect the public health and general welfare, and the health, safety and well-being of the occupants of rental housing.” (See Regulation, § A).

The landlord has to file an Application for a Dwelling Unit Certificate and pay a non-refundable $75.00 fee, at the Memorial Building, 150 Concord Street, Framingham. The Health Department will then inspect the “rental unit to assure compliance with Minimum Standards of Fitness for Human Habitation, as set forth in the State Sanitary Code, and Housing Standards and regulations, as adopted by the Framingham Board of Health.” (See Regulation, § D).

“The Director of Public Health . . . shall issue a Rental Unit Inspection Certificate for each unit found to be in compliance or, if a rental unit fails to meet the minimum standards . . . shall issue a Housing Inspection Report and an Order to Correct Deficiencies. Said order shall establish the date by which corrections must be completed and shall provide notice that proper permits must be obtained for any work done under the order.” (Regulation, § D).

If an Order to Correct Deficiencies has been issued, the owner may request a re-inspection, and pay a $25.00 re-inspection fee. (See Regulation, § D).

“Upon completion of the required corrections and verification that proper permits have been obtained, a Rental Unit Inspection Certificate shall be issued.” (Regulation, § D).

Landlords in Framingham would be well advised to go through the inspection and certification process before renting their units. The Health Department’s inspection criteria matches with the State Sanitary Code, with which every landlord is obligated to comply. One benefit to landlords is that if the inspector comes out and certifies that the premises are fine, the landlord will have a benchmark in the event that a tenant complains later about bad conditions.

The MetroWest Daily News wrote a good article titled, “New Rules Set for Framingham Landlords”, when this important program was first announced in 2014.

Robert Nislick is a Massachusetts landlord-tenant lawyer who practices regularly in the Framingham District Court, and also in Boston Housing Court, Worcester Housing Court, Northeast Housing Court, Southeast Housing Court, and Western Housing Court.

Landlord and Tenant Issues Related to The Regulation and Taxation of Marijuana Act

By Robert Nislick

On Election Day 2016, Massachusetts voters approved Question 4, and passed The Regulation and Taxation of Marijuana Act. One purpose of the act is to “make marijuana legal for adults 21 years of age or older”. See Act, § 1. The act will take effect on December 15, 2016. See Act, § 12.

The legalization of marijuana will affect Massachusetts landlords and tenants. The portion of the Act dealing with the regulation of the use of marijuana not medically prescribed, states in pertinent part:

“This chapter shall not be construed to:

(1) prevent a person from prohibiting or otherwise regulating the consumption, display, production, processing, manufacture or sale of marijuana and marijuana accessories on or in property the person owns, occupies or manages, except that a lease agreement shall not prohibit a tenant from consuming marijuana by means other than smoking on or in property in which the tenant resides unless failing to do so would cause the landlord to violate a federal law or regulation;

(2) prevent the commonwealth, a subdivision thereof or local government agency from prohibiting or otherwise regulating the possession or consumption of marijuana or marijuana accessories within a building owned, leased or occupied by the commonwealth, a political subdivision of the commonwealth or an agency of the commonwealth or a political subdivision of the commonwealth; . . . .”

Act § 5, G. L. c. 94G, § 2 (d).

Essentially, a landlord can prohibit a tenant from smoking marijuana in the leased premises. The landlord may want to have the tenant sign a “NO-SMOKING ADDENDUM” to the lease, and this will prohibit the tenant and guests from smoking anywhere on the landlord’s property, inside and out. If the tenant violates the provisions of such a no-smoking addendum, the lease may permit the landlord bring a cause eviction after serving a 7-Day Notice to Quit. For additional insight, please read my companion article, “Smoking and Evictions in Massachusetts”.

However, a landlord cannot prohibit a tenant from consuming marijuana by means other than smoking, unless failing to do so would cause the landlord to violate a federal law or regulation. One interesting feature of the new law, which many private landlords will consider unfair, is that it provides the commonwealth and local governments with the ability to prohibit tenants from possessing or consuming marijuana, outright and in all forms, in a building owned by the government, whereas the private landlord can essentially only prohibit smoking.

Additionally, the portion of the Act dealing with personal use of marijuana states in pertinent part:

“[A] person 21 years of age or older shall not be arrested, prosecuted, penalized, sanctioned or disqualified under the laws of the commonwealth in any manner, or denied any right or privilege and shall not be subject to seizure or forfeiture of assets for: . . . (2) within the person’s primary residence, possessing up to 10 ounces of marijuana and any marijuana produced by marijuana plants cultivated on the premises and possessing, cultivating or processing not more than 6 marijuana plants for personal use so long as not more than 12 plants are cultivated on the premises at once;”.

Act § 5, G. L. c. 94G, § 7 (a).

Essentially, a tenant can cultivate twelve marijuana plants in his primary residence. This requires water, electricity, and heat. It is easy to envision how a tenant may be growing his dime bag on the landlord’s dime.

Under the State Sanitary Code, the landlord is obligated to pay for electricity and gas in each dwelling unit unless it is separately metered and there is a written document that provides for payment by the tenant. See 105 Code Mass. Regs. § 410.354. “[A] writing is required when the obligation to provide heat and hot water is transferred to the tenant.” Young v. Patakonis, 24 Mass. App. Ct. 907, 908-909 (1987). Concerning the cost of water, G. L. c. 186, § 22, allows a landlord, under certain circumstances, to bill the tenant for water for his water usage. However, the landlord must satisfy many onerous requirements before qualifying to bill the tenant for his water usage.

With approximately 11,000 summary process cases having been filed in the Boston Housing Court and Worcester Housing Court in 2015, with many thousands more filed in the other divisions of the housing court, and in the district court, it is safe to assume that the new marijuana law will become the subject of litigation between landlords and tenants.

Landlords, property managers, and tenants should seek legal counsel to help them navigate through the haze.

Robert Nislick is a Massachusetts landlord-tenant lawyer who practices in Boston Housing Court, Worcester Housing Court, Northeast Housing Court, Southeast Housing Court, Western Housing Court, and the summary process session of the District Court.

The Surveyor’s Right to Enter Land in Massachusetts

By Robert Nislick

You are a landowner in Massachusetts. Suppose that you are in the midst of a dispute with your neighbor concerning your boundary line. Perhaps your neighbor’s shed encroaches on your property. Maybe you have fenced your neighbor off from his land for more than twenty years, and you are contemplating filing an action to seek title to the land by adverse possession.

In any event, you have decided to hire a professional land surveyor to locate and monument the property boundaries. Quite possibly, the surveyor will need to enter onto your neighbor’s land in order to perform the survey. Your neighbor may not be happy about this. He may allege that the surveyor is trespassing.

Does the surveyor have the right to enter your neighbor’s property? General Laws c. 266, § 120C, states:

“Whenever a land surveyor registered under chapter one hundred and twelve deems it reasonably necessary to enter upon adjoining lands to make surveys of any description included under “Practice of land surveying”, as defined in section eighty-one D of said chapter one hundred and twelve, for any private person, excluding any public authority, public utility or railroad, the land surveyor or his authorized agents or employees may, after reasonable notice, enter upon lands, waters and premises, not including buildings, in the commonwealth, within a reasonable distance from the property line of the land being surveyed, and such entry shall not be deemed a trespass. Nothing in this act shall relieve a land surveyor of liability for damage caused by entry to adjoining property, by himself or his agents or employees.”

G. L. c. 266, § 120C.

Essentially, so long as the landowner, his surveyor, or his lawyer, provides reasonable notice to the neighbor, then the surveyor can enter onto the neighbor’s land, near the property line, and the entry will not be a trespass. If you have received a letter stating that your neighbor’s surveyor needs to enter your land in order to make the survey, it would most likely be prudent to consent to the entry.

In one case involving a dispute over the use of an easement allowing the plaintiffs to traverse certain property of the defendant, utilizing a set of stairs to gain access to a local beach, the plaintiffs sought permission of the defendant to have their surveyor enter the defendant’s property for purposes of determining the feasible location and design for new stairs. When the defendant denied the plaintiffs’ surveyor permission to enter the property, the plaintiffs sought, and the Land Court entered a preliminary injunction which provided the surveyor with reasonable access to the defendant’s land.

In another case, the Land Court ordered that if the surveyor had to enter the boundaries of the defendants’ property in order to complete its field work, the surveyor could do so without hindrance, provided reasonable notice was given in accordance with G. L. c. 266, § 120C, and that violations would subject the parties to sanctions of $250.00 per incident.

Let’s say that you have already had your property surveyed. You staked or placed boundary markers on your land. To your dismay, your neighbor removes the stakes or boundary markers. Such conduct may entitle you to seek injunctive relief and/or money damages based on trespass.

In another case, the Supreme Judicial Court affirmed a permanent injunction which enjoined the defendants from interfering with any registered land surveyor even if the surveyor on the defendants’ property, and also from touching, altering, or interfering with any boundary marker or surveyor’s marker or any object that appears to be such a marker on or within twenty feet of the plaintiff’s property, even if it is on or believed to be on the defendants’ property. See Haufler v. Zotos, 446 Mass. 489, 508 n.35 (2006).

Additionally, under G. L. c. 266, § 94, the destruction of a boundary marker may constitute a criminal act. The statute states in pertinent part:

“Whoever wilfully, intentionally and without right breaks down, injures, removes or destroys a monument erected for the purpose of designating the boundaries of a . . . tract or lot of land, . . . shall be punished by imprisonment for not more than six months or by a fine of not more than two hundred dollars. Any person convicted under the provisions of this section shall, in addition to any imprisonment or fine, make restitution.”

G. L. c. 266, § 94.

If you need an attorney to represent you concerning a boundary line dispute, contact Robert Nislick, a Massachusetts real estate lawyer, and former law clerk at the Land Court, to discuss your rights and remedies. For more information, contact him at (508) 405-1238, or by e-mail.

Obtaining a Variance or Special Permit in Massachusetts

By Robert Nislick

You are a landowner in Massachusetts. You have a project in mind for improving your property. Perhaps you would like to build an addition to your home. For example, Alison wants to bump the front door out so it is a little closer to the street, and build a nice new entryway, closet, and mudroom in that space. Bill wants to build a detached three-car garage behind his house, and add a second floor that will be the perfect man cave.

The homeowners talk to their contractor, get their plans together, and submit a building permit application. The local building commissioner will review the application. Among other things, the building commissioner will look to see whether the project that the homeowners have applied to build complies with the town’s zoning by-laws. He will look to see whether the use applied for is allowed as-of-right. “An as-of-right use refers to a use that is allowed without the need for a special permit, use variance, amendment, waiver, and/or other discretionary approval.” See Framingham Zoning By-Law, Section I.E. at 7. He will also look to see whether the proposed project will comply with the table of dimensional requirements.

If not, then the building commissioner will deny building permit application. “He shall issue no building permit for the construction of any building or structure which would be in violation of any of the provisions of this Bylaw.” See, e.g., Town of Walpole Zoning Bylaws, Section 3.1.A. The building commissioner may also advise the applicant in writing as to the sections of the zoning by-law with which the application and plans are not in compliance. See e.g., Framingham Zoning By-Law, Section VI.G. The building commissioner may tell you that you need a variance or a special permit. See G. L. c. 40A, §§ 9, 10.

At this point, the homeowner or landowner will have to apply to the local zoning board of appeals for zoning relief. It would be worthwhile to retain counsel at this point. Every city and town has its own procedures for applying for a variance or special permit. Detailed instructions can often be found online, and any applicant would be well advised to follow the town’s application procedures carefully. For example, information about how to seek zoning relief in Framingham, Natick, Marlborough, Southborough, and Wellesley, can be found by clicking the links.

“A board of appeals shall have the following powers: . . . (2) To hear and decide applications for special permits upon which the board is empowered to act under said ordinance or by-laws. (3) To hear and decide petitions for variances as set forth in section ten.” G. L. c. 40A, § 14.

The Zoning Act, G. L. c. 40A, sets forth very detailed requirements which are binding on both boards and applicants. For example, the statute covers many complex topics including exemptions, changes to zoning by-laws, pre-existing nonconforming structures and uses, enforcement of zoning regulations, appeals, notice, timing, and judicial review.

Additionally, the statute establishes substantive and procedural requirements governing special permits and variances. There are several different types of special permit, but primarily, G. L. c. 40A, § 9, states in pertinent part: “Zoning ordinances or by-laws shall provide for specific types of uses which shall only be permitted in specified districts upon the issuance of a special permit. Special permits may be issued only for uses which are in harmony with the general purpose and intent of the ordinance or by-law, and shall be subject to general or specific provisions set forth therein; and such permits may also impose conditions, safeguards and limitations on time or use.” See G. L. c. 40A, § 9.

The standard for obtaining a variance is more stringent. In order to obtain a variance, G. L. c. 40A, § 10, requires the applicant to demonstrate that, and the permit granting authority must specifically find that, “owing to circumstances relating to the soil conditions, shape, or topography of such land or structures and especially affecting such land or structures but not affecting generally the zoning district in which it is located, a literal enforcement of the provisions of the ordinance or by-law would involve substantial hardship, financial or otherwise, to the petitioner or appellant, and that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of such ordinance or by-law.” See G. L. c. 40A, § 10.

For non-attorney homeowners who simply want to do something nice to improve their house, it can feel very intimidating to appear before a board to explain the project, and be told that they have to demonstrate how they satisfy the requirements for obtaining a variance. There will often be a disconnect between the board and the applicant. The board is not necessarily trying to give the applicant a hard time. Still, the applicant feels like a deer in the headlights, not understanding the board’s questions or how to answer them to the board’s satisfaction.

Again, it would be wise to hire a lawyer who can walk you through the process, and develop arguments in favor of the zoning relief you need, and present your case to the members of the zoning board. Counsel may also help you to modify your plans so that you can avoid the necessity for obtaining zoning relief, and doing so may prove to be a better course of action under certain circumstances.

If you need an attorney to represent you concerning a zoning matter, contact Robert Nislick, a Massachusetts real estate lawyer, and former law clerk at the Land Court, to discuss your rights and remedies. For more information, contact him at (508) 405-1238, or by e-mail.

Stays of Execution in Massachusetts Landlord and Tenant Cases

By Robert Nislick

You are a Massachusetts landlord and you are trying to evict your tenants. You have already terminated their tenancy, served them with a summons and complaint, entered the case in the Housing Court or District Court, and appeared on the day of trial.

You tried your case and the court found that you are entitled to a judgment and execution for possession, or perhaps you entered into a Summary Process Agreement for Judgment with your tenants, which requires them to vacate by a certain date.

A couple of weeks pass and the tenants still have not moved out. They have no intention of leaving. In fact, the tenants want to stay even longer. The tenants file a Motion to Stay Execution. Essentially, the tenants are asking the court to give them even more time to move.

Do the tenants have any grounds for seeking more time, even though they have already lost their case?

If the eviction was a no-fault eviction, rather than an eviction for nonpayment of rent, then the court can grant the tenant a six-month stay, or if the tenant is handicapped or at least 60 years old, then the court can grant the tenant a twelve-month stay. See G. L. c. 239, § 9.

The tenant must demonstrate that he, “cannot secure suitable premises for himself and his family elsewhere within the city or town in a neighborhood similar to that in which the premises occupied by him are situated; that he has used due and reasonable effort to secure such other premises; that his application is made in good faith and that he will abide by and comply with such terms and provisions as the court may prescribe; or that by reason of other facts such action will be warranted”. See G. L. c. 239, § 10.

How can the landlord oppose the tenant’s efforts?

Let me first digress to say that, in my opinion, a landlord should always hire an attorney to handle the eviction from start to finish. I have heard way too many stories from landlords who thought they could save a few bucks by doing it themselves, only to find that they have made mistakes that cost them time and money. The experienced lawyer can anticipate obstacles that may arise, and also avoid traps for the unwary.

Primarily, the landlord will want to point out that if the eviction was brought for nonpayment of rent, the tenant is not entitled to a stay, as a matter of law. If the eviction was a no-fault eviction, however, the landlord will need to counter the tenant’s arguments that he meets the criteria for a stay.

In any event, if the court grants a stay, G. L. c. 239, § 11, requires essentially that a stay shall be conditioned upon the tenant’s depositing into court for occupation of the premises during the stay the amount he was paying for rent previously, any additional amount the court deems reasonable, and all unpaid rent prior to the stay. The statute also provides that the court to shall pay to the landlord the amounts deposited into court.

Robert Nislick is a Massachusetts landlord-tenant lawyer who practices in Boston Housing Court, Worcester Housing Court, Northeast Housing Court, Southeast Housing Court, Western Housing Court, and the summary process session of the District Court.

Trustees’ Responsibilities and Unit Owners’ Right of Access to Condominium Books and Records in Massachusetts

By Robert Nislick

When a dispute starts to arise between and a unit owner and a board of condominium trustees, the unit owner may ask to review the financial records of the condominium. The unit owner may suspect that the trustees are expending money wastefully or improperly.

What records must the condominium trustees maintain? What rights does the unit owner have to access the books and records of the condominium? How can the condominium trust satisfy its obligations to the unit owner?

Pursuant to G. L. c. 183A, § 10 (c), the organization of unit owners or the condominium’s managing agent shall keep a complete copy of: (1) the master deed, (2) the by-laws, (3) the minute book, to the extent such minutes are kept, and (4) financial records, including and relating to: (i) all receipts and expenditures, invoices and vouchers authorizing payments, receivables, and bank statements, (ii) the replacement reserve fund or any other funds, (iii) audits, reviews, accounting statements, and financial reports relating to the condominium’s finances, (iv) contracts for work to be performed for or services to be provided, and (v) all current insurance policies, or policies which name the organization as insured or obligee. The statute requires that these records be kept in an up-to-date manner within the commonwealth.

Additionally, any unit owner and first mortgagee has a right of reasonable inspection of these records during regular business hours. Access to said records includes the right to photocopy said records at the expense of the person or entity making the request.

If a unit owner requests to inspect the books and records of the condominium, the trustees or the property manager should be willing to set up an appointment for the unit owner to view the records, or photocopy the records and provide them to the unit owner. The association risks getting sued by the unit owner if the trustees fail or refuse to provide reasonable access to these records. Even if it seems like an inconvenience, the condominium association should make every effort to comply with the unit owner’s request in a timely and efficient manner.

About the author: Robert Nislick is a Massachusetts condominium lawyer and former law clerk at the Land Court.   He represents condominium trustees and unit owners. For more information, contact him at (508) 405-1238, or by e-mail.

Land Use Restrictions in Massachusetts

By Robert Nislick

You are a Massachusetts landowner, possibly a homeowner in a residential subdivision. When the developer planned your community, it may have for example, sought to impose a set of building restrictions or restrictive covenants, for the stated purpose of protecting the value, attractiveness and pleasant living quality of the lots within the subdivision.

In particular during the building and marketing phase of the community, the real estate developer may have considered it important to maintain a degree of control over how homebuyers in the neighborhood could use or make changes to their property.

Let’s say you have purchased a home in such a subdivision. Your deed will state the names of the seller and buyer, the consideration paid, and contain a description of the property. Your deed may also contain language that states that the premises are conveyed subject to a certain declaration of building restrictions.   If so, your deed should also provide a reference to the book and page where the document imposing the restrictions is recorded in the registry of deeds.

Anyone who is contemplating buying land subject to a set of restrictions or covenants or easements should review those instruments carefully and also seek the advice of a competent attorney, in order to fully understand what limitations, if any, have been imposed on the use of the property.

Once you own your property, at some point, you may find that a neighbor is doing something on his land that may be in violation of a restriction. You want to compel this neighbor to stop. Or perhaps, someone is accusing you of doing something on your land that may be in violation of the restrictions, and you need to defend against such a claim and ensure your ability to use your property as you see fit.

A restriction on the use of land is a right to compel the person entitled to possession of the land not to use it in specified ways. Labounty v. Vickers, 352 Mass. 337, 347 (1967). Restrictions on land are disfavored and doubts concerning the rights of use of an easement are to be resolved in favor of freedom of land from servitude. Martin v. Simmons Props., LLC, 467 Mass. 1, 9 (2014). Restrictions in a deed are to be strictly construed against the party seeking to enforce those restrictions. Walker v. Gross, 362 Mass. 703, 706 (1972).

Massachusetts cases interpreting the restrictions statutes, G. L. c. 184, §§ 26-30, make it difficult to enforce land use restrictions. Accordingly, great care must be taken to draft them correctly. Under certain circumstances, courts will even refuse to enforce a land use restriction due to lack of precision in drafting, even if the parties’ intent is otherwise clear.

Land use restrictions are distinguishable in part from condominium master deed restrictions, the latter of which are generally construed more liberally in favor of the party seeking enforcement. However, in a recent case, Boston Redevelopment Auth. v. Pham, 88 Mass. App. Ct. 713 (2015), the Appeals Court ruled that a condominium unit owner did not violate an affordable housing restriction which required him to maintain the unit as his principal residence, and which prohibited him from leasing his unit for business or investment purposes, even though he traveled extensively for work, and even though he had brought in a succession of roommates to defray the costs of the unit. The Court applied the rule that where a person’s right to use his or her own property is involved, any ambiguity in an asserted restriction should be construed in favor of the freedom of the property from that restriction. See Johnson v. Keith, 368 Mass. 316, 320 (1975).

If you are involved in a dispute concerning a land use restriction or a condominium restriction, contact Robert Nislick, a Massachusetts real estate lawyer, and former law clerk at the Land Court, to discuss your rights and remedies. For more information, contact him at (508) 405-1238, or by e-mail.

Condominium Restrictions, By-Laws, and Rules and Regulations in Massachusetts

By Robert Nislick

As part of a condominium board’s authority to manage and control the common areas of a condominium, the trustees often adopt by-laws and rules and regulations which govern how the unit owners can use the common areas and their units.

Typical by-laws and rules and regulations cover topics such as parking, pets, personal property, and noise, to name a few.

Unit owners are obligated to comply with the condominium’s by-laws and rules and regulations. “Each unit owner shall comply with the by-laws and with any administrative rules and regulations adopted pursuant thereto, as either of the same may be amended from time to time . . . .” G. L c. 183A, § 4(3).

A board has the authority to enforce the by-laws and rules and regulations by levying fines. “Such corporation, trust or association shall have, among its other powers, the following rights and powers:—(5) To . . . levy reasonable fines for violations of the master deed, trust, by-laws, restrictions, rules or regulations of the organization of unit owners.” G. L c. 183A, § 10 (b) (5).

Additionally, if the trust incurs expenses as a result of the unit owner’s failure to abide by the by-laws and rules and regulations, it can assess that expense against him or her. “If any expense is incurred by the organization of unit owners as a result of the unit owner’s failure to abide by the . . . by-laws, restrictions, rules or regulations, . . . the organization of unit owners may assess that expense exclusively against the unit owner and such assessment shall constitute a lien against that unit . . . and such assessment shall be enforceable as a common expense assessment under this chapter.” G. L c. 183A, § 6 (a) (ii).

Let’s say the board has adopted a certain by-law or rule and regulation, and a unit owner wants to challenge it. The unit owner argues that the by-law or rule is invalid. How will a court review the by-law or rule?

In Johnson v. Keith, 368 Mass. 316 (1975), a condominium unit owner sought a declaration against a board of managers of a condominium that a rule prohibiting the keeping of animals in condominium units or the common areas was not valid and enforceable against her with respect to her dog.

Such a rule was not enforceable against the unit owner in this case because it sought to regulate the unit owner’s conduct in her unit. The Court stated: “[B]y statute administrative rules and regulations may govern the details of the use and operation of common areas and facilities. G. L. c. 183A, Section 11 (d).” Johnson v. Keith, 368 Mass. 316, 319 (1975) (emphasis added). The rule at issue purported “to regulate the keeping of animals not only in common areas but also ‘in any Unit.’ Thus as an administrative rule or regulation [it] undertakes to regulate conduct in individual units without statutory authorization.” Id.

The Johnson Court made a key distinction between by-laws, on the one hand, and rules and regulations, on the other. Although the condominium trustees argued that the rule was or should be treated as a by-law, the Court disagreed, in part because the procedures set forth in the by-laws for adopting by-laws had not been followed.

“[T]he by-laws of the organization of unit owners shall provide . . . for . . . (d) The method of adopting and of amending administrative rules and regulations governing the details of the operation and use of the common areas and facilities.” G. L. c. 183A, § 11 (d).

“[T]he by-laws of the organization of unit owners shall provide . . . for . . . (e) Such restrictions on and requirements respecting the use and maintenance of the units and the use of the common areas and facilities, not set forth in the master deed, as are designed to prevent unreasonable interference with the use of their respective units and of the common areas and facilities by the several unit owners.” G. L. c. 183A, § 11 (e).

The Johnson Court cited both of these statutes, and they should be instructive on the need for a condominium board to follow the by-laws themselves when adopting a new by-law or rule or regulation.

In another case, which also involved a rule concerning the keeping of a pet in a unit, the Court interpreted G. L. c. 183, § 11 (d), as meaning that, “rules and regulations may only apply to common areas of the building and not to individual units.” Trustees of the Beacon on the Charles Condominium Trust v. Adler, Suffolk Superior Court Civil Action No. SUCV2010-00793.

Adler underscores the need to analyze whether by-laws or rules and regulations which purport to restrict conduct within a unit have been unambiguously incorporated into the by-laws, and also that a condominium that seeks to amend its by-laws and rules should follow the proper procedure. The decision notes that: “Mere statements of incorporation of rules and regulations are not sufficiently unambiguous.” That particular condominium’s by-laws required that a by-law amendment required approval of at least a 75% beneficial interest in the trust, and that rules and regulations could be amended by the trustees.

In Noble v. Murphy, 34 Mass. App. Ct. 452 (1993), a condominium trust filed suit against unit owners to compel the removal of two dogs from a unit. An actual by-law, not just a rule, banned all pets from units and common areas. The unit owners counterclaimed and challenged the validity of the pet restriction. The Court ordered the removal of the dogs. In analyzing the by-law, the Noble Court noted that, “the most common standard of review of condominium use restrictions is equitable reasonableness.” See Noble v. Murphy, 34 Mass. App. Ct. 452, 457 (1993).

“[T]he test is reasonableness. If a rule is reasonable the association can adopt it; if not, it cannot. It is not necessary that conduct be so offensive as to constitute a nuisance in order to justify regulation thereof.” Id. The Noble Court highlighted that a condominium has authority to act concerning matters “that are reasonably related to the promotion of the health, happiness and peace of mind of the unit owners.” See id.

In Trustees of Muzzey High Condominium Trust v. Lexington, Middlesex Superior Court Civil Action No. MICV1999-5682 (Neel, J.) (June 6, 2002), a former school building was converted into a 71-unit residential condominium. The first floor of the building was a unit which was operated by the town of Lexington as a senior center. On various occasions, when large numbers of people visited the senior center, there were not enough available parking spaces for the residential unit owners. To deal with this problem, the condominium adopted a rule setting aside parking spots for unit owners only. The Court adopted the reasonableness standard and held that where the “parking rule restricts use of the common area parking lot, not use of units . . . the Trustees did not act outside their authority by enforcing the parking rule without first causing it to be incorporated into the Master Deed or By-laws.” See Trustees of Muzzey High Condominium Trust v. Lexington, Middlesex Superior Court Civil Action No. MICV1999-5682 (Neel, J.) (June 6, 2002).

In Woodvale Condominium Trust v. Scheff, 27 Mass. App. Ct. 530 (1989), a master deed restriction provided that each of the units were intended to be solely for residential dwelling purposes. The condominium trust sought to enjoin unit owners who had been operating a family day care in their unit. Where the master deed specified that units could be used “solely” for residential purposes, the Court stated that the condominium trust was entitled to prevent the operation of a family day care in a residential unit. See Woodvale Condominium Trust v. Scheff, 27 Mass. App. Ct. 530, 535 (1989).

In Franklin v. Spadafora, 388 Mass. 764 (1983), a by-law limiting to two the number of units which may be owned by any one person was not an unreasonable restraint on alienation, and did not deny the unit owner equal protection of the laws or due process of law. The Franklin Court held: “If a by-law amendment serves a legitimate purpose, and if the means the condominium association adopted are rationally related to the achievement of that purpose, the amendment will withstand constitutional challenge.” Franklin v. Spadafora, 388 Mass. 764, 774 (1983). The Court noted that: “Reasonable restrictions concerning use, occupancy, and transfer of condominium units are necessary for the operation and protection of the owners in the condominium concept.” Id. at 772.

In Board of Managers of Old Colony Village Condominium v. Preu, 80 Mass. App. Ct. 728 (2011), held that while rules are reviewed for “equitable reasonableness”, “such regulations are subject to invalidation if they violate a right guaranteed by ‘any fundamental public policy or constitutional provision.’” See Board of Managers of Old Colony Village Condominium v. Preu, 80 Mass. App. Ct. 728, 730 (2011), quoting from Noble, 34 Mass. App. Ct. at 760.

The Preu Court held that the First Amendment to the United States Constitution applies to a claim that a unit owner’s speech and expressive conduct constitutes a violation of “‘the requirements of the master deed, trust, by-laws, restrictions, rules or regulations [of the condominium], or . . . misconduct’ within the meaning of G. L. c. 183A, § 6.” See Preu, 80 Mass. App. Ct. at 728.

In Preu, the unit owner placed dog feces in a common area, placed a fan in a common area, wedged open fire doors that should have been closed, and closed doors that should have been open. The Court determined that this conduct violated various by-laws and rules of the condominium, and constituted misconduct.

Additionally, the unit owner also had posted signs in the trash area regarding the cleanliness of the common areas, and left a note on a neighbor’s door. A superior court judge ruled that these forms of communication were pure speech, conduct that was protected by the First Amendment, and if a condominium by-law were read to prohibit this conduct, it was not “equitably reasonable.”

The Court noted that, “a condominium association does not have as free a hand in restricting the speech of unit owners in the common areas in which those owners share an undivided property interest as another property owner might in dealing with a stranger on his or her property.” See Preu, 80 Mass. App. Ct. at 732.

About the author: Robert Nislick is a Massachusetts condominium lawyer and former law clerk at the Land Court.   He represents condominium trustees and unit owners. For more information, contact him at (508) 405-1238, or by e-mail.