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.

Employee Housing Licenses in Massachusetts

By Robert Nislick

A large residential property, whether a condominium or a rental, may need to provide housing to a building superintendent or custodian. Or sometimes, a business such as a hotel, resort, or a B&B, may need, or be able, to provide on-site housing to staff members and maintenance people.

The ability to house an employee can provide benefits for everyone involved. For the business owner or building owner, it is helpful to have someone who lives on the premises who can be contacted easily to take care of a problem at a moment’s notice. For the employee, he or she may receive good housing in a great location, which may otherwise be impossible to find or afford. For example, housing in the summertime is extremely limited and expensive on Cape Cod, Nantucket and Martha’s Vineyard.

The employer, building owner, condominium trustee, or property manager, will want to structure the manner in which she provides housing to her employee so as to make it as easy as possible to evict the employee, if something unfortunate happens and the employee must be terminated.

Mainly, the employer should not assume the status of a landlord vis-à-vis the employee. The nature of the housing relationship between the employer and the employee should not become one of landlord and tenant. Especially where the employer is providing a benefit to the employee, in the nature of free housing, the employee should not also become a tenant. Instead, the employer can better protect herself if she provides housing as a licensor, and the employee accepts the housing as a licensee. One case has held that generally, occupancy which is subsidiary and necessary to the efficient performance of the employee’s duties does not give rise to a landlord-tenant relation.

About the author: Attorney Robert Nislick is a Massachusetts lawyer with experience in real estate disputes and landlord-tenant matters. Contact him to draft an employee housing license, or for more information.

Specific Performance of Real Estate Contracts

By Robert Nislick

You have been searching endlessly for that perfect new home. After spending countless weekends attending open houses, and hours visiting properties with your broker, you have finally found the right place. You are a solid buyer and you have made a very strong offer.

The seller agrees and accepts your offer. He signs it and his broker sends it back. YES!!! Everything is looking good.

Until, . . . no, . . . wait, . . . what, . . . no, . . . how could this be?

The seller has just changed his mind. Another buyer made a higher offer only twenty minutes after the seller said yes to you. You have learned that your deal is now off.

This is infuriating. You want to buy the property at the agreed upon price. You feel it is wrong for the seller to back out. As a matter of principle, you are willing to fight to buy this property, and you want stand up to the seller’s unvarnished greed.

What can you do? There is a good chance that when you made your offer, you used the Greater Boston Real Estate Board Offer to Purchase Real Estate pre-printed form. The Offer To Purchase describes the property to be sold and the price to be paid. It states further that the parties shall “execute the applicable Standard Form Purchase and Sale Agreement recommended by the Greater Boston Real Estate Board or any form substantially similar thereto, which, when executed, shall be the agreement between the parties hereto.”

It is highly likely that under the bellwether case McCarthy v. Tobin, 429 Mass. 84 (1999), the buyer and seller have a binding contract, and the seller’s acceptance of the buyer’s offer binds the seller to sell and the buyer to buy the property. “If . . . the parties have agreed upon all material terms, it may be inferred that the purpose of a final document which the parties agree to execute is to serve as a polished memorandum of an already binding contract.” McCarthy v. Tobin, 429 Mass. 84, 87 (1999), quoting Goren v. Royal Invs., Inc., 25 Mass. App. Ct. 137, 140 (1987). This means that the execution of a purchase and sale agreement is not necessary to bind the parties, but nevertheless, its execution is required by the offer to purchase. See id. at 88.

An aggrieved buyer may consider filing a complaint which seeks the remedy of specific performance. The buyer essentially asks the court to order the seller to sell the house, condominium unit, or land, at the already agreed upon price. “A judge generally has considerable discretion with respect to granting specific performance, but it is usually granted in disputes involving the conveyance of land. Raynor v. Russell, 353 Mass. 366, 367 (1967), and cases cited. ‘It is well-settled law in this Commonwealth that real property is unique and that money damages will often be inadequate to redress a deprivation of an interest in land.’ Greenfield Country Estates Tenants Ass’n, Inc. v. Deep, 423 Mass. 81, 88 (1996).” McCarthy, 429 Mass. at 89.

The buyer will probably also want to obtain a lis pendens against the seller’s property, and this should have the practical effect of deterring any other potential buyer from purchasing the property.

The aggrieved buyer should recognize that while McCarthy is established law which has been followed consistently by Massachusetts courts, no one’s case is a slam dunk. The seller may have legitimate reasons not to capitulate to the buyer’s demands. For example, the seller may have valid affirmative defenses to a claim for specific performance based on unfair conduct, misrepresentation, or fraud by the buyer. “As to the claim for specific performance, it is axiomatic that one must have behaved equitably in order to obtain equitable remedies.” Galipault v. Wash Rock Invs., 65 Mass. App. Ct. 73, 85 (2005).

Any buyer and any seller in a similar situation should seek the advice of experienced counsel. Based on the particularities of any given situation, I might advise my client to fight, or alternatively to re-negotiate, or simply to fulfill a clear and unambiguous contractual obligation.

Contact Massachusetts Real Estate Lawyer Robert Nislick directly, or ask your broker, or your transactional attorney to contact me to discuss the best options for you.

Condominium Trustees and Property Managers, and Their Maintenance and Repair Obligations Under Massachusetts Law and the State Sanitary Code

By Robert Nislick

It is widely known that management and control of the common areas of a condominium is vested in the organization of unit owners, which acts by and through its trustees. See McEneaney v. Chestnut Hill Realty Corp., 38 Mass. App. Ct. 573, 578 (1995). The term “organization of unit owners” refers to the “corporation, trust or association owned by the unit owners and used by them to manage and regulate the condominium. See Berish v. Bornstein, 437 Mass. 252, 254 n.5 (2002); G. L. c. 183A, § 1.

Condominium trustees do their job well when they are actively attuned to ongoing maintenance and repair needs in the common areas. Additionally, trustees should anticipate future common area maintenance and replacement needs. It is apparent that under the Condominium Act, and under a condominium’s governing documents, the board of trustees is responsible for maintaining and repairing the common areas.

“[T]he by-laws of the organization of unit owners shall provide . . . for . . . (a) The method of providing for the necessary work of maintenance, repair and replacement of the common areas and facilities . . . .” G. L. c. 183A, § 11 (a). “The necessary work of maintenance, repair and replacement of the common areas and facilities shall be carried out as provided in the by-laws. G. L. c. 183A, § 5 (e). “The organization of unit owners shall designate a person or entity who shall oversee the maintenance and repair of the common areas of the condominium.” G. L. c. 183A, § 10 (k).

Most of the time, condominium boards and the property managers they retain do a great job in caring for the condominium. Unfortunately, however, this is not always the case. Whether through shortsightedness, limited resources, hiring bad contractors, or a lack of responsiveness, defects that may occur in common areas sometimes go unaddressed or are inadequately taken care of for too long.

A board’s inattentiveness can cause even greater problems. For example, in one case, leaks developed in a common roof just above a unit owner’s ceiling. The leak led to ceiling cracks and loosening plaster in the plaintiff’s unit, and she requested that repairs be made. Any repairs made were either untimely or inappropriate. The threshold of the door leading from the unit owner’s unit to her deck began rotting and mushrooms started growing. The board and its contractors failed to complete a repair of the problem. Later, hazardous mold in unsafe levels was found in the unit, caused by water infiltration and chronic dampness. The unit owner’s doctor ordered her to vacate due to the presence of mold. The unit owner continued to request repairs of the leaks and chronic dampness, as well as a full remediation of the mold, but no further action had been taken.

After dealing with these problems for around five years, the owner eventually filed suit. Although the Superior Court ruled that the statute of limitations had run, the Appeals Court found that the plaintiff stated claims against the condominium trust for negligence, nuisance, and trespass, and remanded the case to the Superior Court for further proceedings.

No unit owner should have to deal with these problems for such an extended period of time. Unfortunately, if a board refuses to take care of a problem, and it gets to the point where the owner files suit, several more years of expensive and uncertain litigation for both sides may pass, and the unit owner may still see no relief.

If this had been a tenant versus landlord situation, as opposed to a condominium unit owner versus condominium trustees situation, common knowledge suggests that the tenant would have contacted the local board of health to complain that they were living in uninhabitable premises in violation of the State Sanitary Code.

A local board of health, such as Boston Inspectional Services Department, could inspect the common areas of the building and the dwelling unit itself, and issue a correction order to the owner. See 105 Code Mass. Regs. 410.830. The board of health can order that certain problems, depending on their severity, be substantially corrected within 24 hours or up to a period not exceeding 30 days. See 105 Code Mass. Regs. 410.830. One purpose of the State Sanitary Code is to “facilitate the use of legal remedies available to occupants of substandard housing, to assist boards of health in their enforcement of this code and to provide a method of notifying interested parties of violations of conditions which require immediate attention.” See 105 Code Mass. Regs. 400.001.

Moreover, “nothing prevents the courts from using the possibility of criminal sanctions as a means to seek compliance with the Sanitary Code.” Inspectional Services Department v. Hernandez, Boston Housing Court No. 04-CR-00724 (Nasif, J.) (Nov. 1, 2005).

Can a condominium unit owner avail him or herself of the same remedies to enforce the State Sanitary Code that are widely available to a tenant who resides in premises which do not conform with standards of fitness for human habitation? While this may come as a surprise, the answer is yes.

“The remedies set forth herein shall be available to condominium unit owners and tenants in condominium units. Whenever used in this section, the term ‘petitioner’ shall include a condominium unit owner or tenant, the term ‘owner’ shall include a condominium association, . . . and the term “rents” shall include condominium fees.” G. L. c. 111, § 127I, eighth par.

Under the State Sanitary Code: “Dwelling unit shall also mean a condominium unit.” 105 Code Mass. Regs. 410.020.Owner means every person who alone or severally with others: . . . (2) has care, charge or control of any dwelling, dwelling unit, . . . or parcel of land, vacant or otherwise . . . ; or (5) is an officer or trustee of the association of unit owners of a condominium. Each such person is bound to comply with the provisions of these minimum standards as if he were the owner.” 105 Code Mass. Regs. 410.020. “(D) Common Areas. In any dwelling, the owner shall be responsible for maintaining in a clean and sanitary condition free of garbage, rubbish, other filth or causes of sickness that part of the dwelling which is used in common by the occupants and which is not occupied or controlled by one occupant exclusively.” 105 Code Mass. Regs. 410.602.

Additionally, condominium property managers should also recognize their responsibility for complying with the State Sanitary Code. In one case, the Housing Court found that a property manager for a condominium which had substantial violations affecting the common areas was personally responsible for Code compliance. The Court stated:

“[T]he contemporary statutory and regulatory scheme leaves it crystal clear that property managers . . . are responsible for Code compliance in their own right, regardless of [an] agency analysis. This principle is so well understood in housing law that in thousands upon thousands of cases handled by the undersigned judge over twenty years, I have never had it argued to me that a property manager does not bear this responsibility because he is the agent for the owner (or in this case, the Trust) rather than the owner himself.” Concerned Citizens for Springfield, Inc. v. Orgel, Western Housing Court No. 06-CV-0318, slip op. at 4 (Abrashkin, J.) (Dec. 6, 2007).

Accordingly, and consistent with the purpose of the State Sanitary Code, condominium trustees and property managers should fulfill their role with a view towards protecting the health, safety and well-being of the occupants of housing.

About the author: Robert Nislick is a Massachusetts real estate attorney who represents condominium associations and unit owners. Contact him today for more information.

The No Trespass Notice in Massachusetts

By Robert Nislick

Someone is entering on your property without your permission. Maybe he has come into your house, workplace, apartment building, condominium, or store. You have told him to leave. You don’t want him to come back.

This scary person is a trespasser. What can you do to help protect yourself against person who intentionally intruding on your property without permission?

The Massachusetts criminal trespass statute, G. L. c. 266, § 120, allows a property owner to issue a notice to the trespasser forbidding him from entering or remaining on the property. The owner who drafts such a “No Trespass Notice” should have a constable serve it on the trespasser. The owner should also mail a copy of the notice to the local police department.

If a person trespasses after being forbidden to enter or remain there by the person in lawful control over the premises, either directly or by means of a posted notice, then the trespasser can be criminally charged. If convicted, the statute provides for punishment by a fine of up to $100, or by imprisonment of up to 30 days, or both.

Someone who is charged with a count of criminal trespass should consider making a motion at his arraignment or at the pretrial conference to ask the court to decriminalize the charge and treat it as a civil matter, pursuant to G. L. c. 277, § 70C.

It is important to note that this statute does not apply to holdover tenants of residential premises, or a tenant whose right to possess the premises has been terminated by a notice to quit. In those circumstances, the statute is clear that owner or landlord of said premises may recover possession only through summary process.

If someone is trespassing on your property and you need to draft and serve such a notice, or if you have been charged with criminal trespass, contact Robert Nislick, a Massachusetts real estate attorney and defense attorney, today.

Condominium Unit Owners Cannot Alter Common Areas Without Consent

By Robert Nislick

You own a unit in a Massachusetts condominium and serve on your association’s board of trustees. Your board takes seriously its responsibilities to maintain, repair, and protect the condominium property. One day, the board of trustees learns that a unit owner has altered, or will imminently alter, the common areas and facilities of the condominium.

The unit owner has decided to renovate his unit. In so doing, he makes changes to the common areas and facilities. Perhaps he wants a larger living room window. In order to install the new window, he cuts a hole in the building envelope. Perhaps your condominium building is a converted loft. It occurs to the unit owner that maybe he could have higher ceilings. He decides to remove the finished ceiling and joists in order to expose the space above. Perhaps he wants to make renovations within his unit. He applies to Boston Inspectional Services Department Building and Structures Division for a permit. In order to receive the permit, he needs to add fire sprinkler heads and tap into the building’s fire alarm system. Perhaps your condominium consists of townhouses. The unit owner decides that he needs more storage and erects a shed on the condominium grounds.

These are just a few examples of how condominium common elements can be altered or encroached upon by a unit owner. The unit owner’s motivation may be innocent, nefarious, or somewhere in between. His bottom line is that he feels that he can do whatever he wants with his property. He never asked for and never received approval from the condominium trust before taking these actions.

It is well established under Massachusetts law that management and control of the common areas is vested in the organization of unit owners, i.e. the condominium trustees. When a person purchases a condominium unit, although he owns the fee interest in his individual unit, he does not get the right to change, take away from, or encroach upon the common elements.

Under certain circumstances, the trustees may choose to grant a unit owner the right to alter or use common areas, and if that is the case, the trustees may grant an easement, or designate an exclusive-use limited common area. If that is the case, then both the board and the unit owner should make sure to carefully follow the requirements of G. L. c. 183A and the governing documents for the condominium when formalizing such an arrangement. Both the board and the unit owner would be well advised to seek their own counsel to negotiate and draft such any instruments that might be needed.

What should the condominium trustees do when they believe that a unit owner has altered, or may imminently alter, the common areas and facilities without board approval?

It is important for the board to inspect the unit as soon as possible. The master deed should provide the trustees with the right to inspect the unit on reasonable notice. The trustees and the condominium’s property manager will want to take photographs. If the unit owner refuses access, the board may view such a refusal as a failure by the owner to abide by the condominium documents. It may be appropriate to levy a fine against the unit owner until he provides access. If the trustees still cannot access the unit, then the board should probably file a complaint in Superior Court and seek a preliminary injunction which orders the unit owner to provide access to the trustees.

If the trustees discover that the unit owner has altered the common areas, then the trustees should take action to compel the unit owner to restore the premises to their original condition. The trustees are likely justified in taking a firm stance against the unit owner. The board cannot tolerate action by the unit owner which may jeopardize the soundness or safety of the condominium building and its residents. If a unit owner’s construction project places public safety at risk, then the board really has no choice but to act to abate this problem immediately.

Attorney Robert Nislick is a Massachusetts condominium attorney who represents condominium trustees and unit owners. Contact him today for more information.

The Ice Dam Cometh – Ice Dams and the Law in Massachusetts

By Robert Nislick

It seems that no one has been spared as this historic winter continues to wreak havoc on Massachusetts homeowners, business owners, landlords, tenants, condominium trustees, condominium unit owners, and property managers.

Roofs are collapsing under the heavy weight of snow and ice. Problems with insulation and ventilation in our buildings are causing ice dams to form. When the snow and ice melts, water is dripping through our ceilings, and into our homes, stores, offices, and warehouses.

Water infiltration from melting ice dams is causing us to suffer significant property damage. An insurance adjuster quoted in a recent Boston Globe article said that “once it’s leaking, the damage is already done”. He also noted that repair costs can reach into the tens of thousands of dollars.

Tempers are flaring as disputes simmer between landlords and tenants, condominium trustees and unit owners, homeowners and insurance companies. These controversies will certainly spawn litigation as people will not agree on issues such as: who is responsible for fixing property damage; whether the negligence of a builder, condominium board, or landlord caused the property damage; how to prove the damages suffered by a condominium unit owner or a tenant; whether any remedial efforts that were taken were sufficient; whether leaking water caused by melting ice dams impairs the habitability or quiet enjoyment of a dwelling; and whether a contractor did his job satisfactorily, just to name a few.

Ice dams and water infiltration are particularly interesting in the condominium setting. Suppose you live in a townhouse. Ice dams have formed on the roof. Melting is causing leaking in your unit and your property is becoming damaged. You want to call someone to clear the ice dams of the roof. But the roof is common area. A condominium board of trustees has a maintenance and repair obligation concerning common areas. To the extent that the trustees’ failure to clear ice dams and prevent water leaks damages property, the unit owner may be able to assert a successful negligence claim against the condominium trust. There should be no question that the condominium trust should be as responsive as any reasonable homeowner would be in addressing ice dams, arresting water infiltration into units, and compensating unit owners for resulting property damage.

Several Massachusetts cases discuss ice dams. These cases should give the owner, trustee, or property manager some insight into how to respond when someone complains about an ice dam or a resulting water leak.

In one Housing Court case, Gresci v. DiCola, Boston Housing Court No. 96-03706 (Winik, J.) (Oct. 9, 1996), a tenant asserted counterclaims based on bad conditions in her apartment. One January night, the landlord received calls from tenants that water was entering several apartments. The landlord went to the building the next morning. He discovered that an ice dam measuring between 7 and 8 inches of ice had formed on the roof of the building. The next day a roofer came and removed the snow from the roof. The landlord asked the tenant if water had entered her apartment. It had, and the tenant’s carpet was wet. The landlord brought a contractor and an insurance adjuster to the building. The landlord hired a contractor and a roofer to make necessary repairs to the building resulting from the water penetration problems caused by the ice dams. The repairs were completed and there were no more complaints about water penetration.

The Court found that the existence of ice dams did not constitute a material breach of the implied warranty of habitability and did not cause any serious interference with the tenant’s quiet use and enjoyment of the premises. The Court noted that the landlord addressed the tenant’s complaints with reasonable promptness, and accordingly, the landlord did not violate G. L. c. 186, § 14.

In another Housing Court case, Joyston Realty Props., Inc. v. Evans, Boston Housing Court No. 96-01957 (Winik, J.) (Oct. 1, 1996), on one late January day, there was a roof leak which caused water to enter an apartment. The leak was caused by an ice dam which formed on the mansard roof. The tenants notified the landlord. The landlord cleared the gutter, fixed the roof, and repaired the ceiling. The tenants claimed that water leaked into their apartment. The Court found that the tenants never notified the landlord of the leak, and that otherwise the landlord neither knew nor should have known of the problem. The Court found that any damage to the tenants’ apartment was minor and did not interfere with their quiet use and enjoyment of the premises.

In another Housing Court case, 454 Beacon Street, Inc. v. Rahcola, Boston Housing Court No. 94-01592 (Lewis, C-M) (Jun. 1, 1994), the tenants suffered a severe ceiling leak in their living room which was caused by an ice dam. In response to the tenants’ complaints, the landlord removed the ice dam and repaired the roof within a reasonable time. The tenants’ rent withholding defense failed.

In another Housing Court case, Russo v. Brobby, Worcester Housing Court No. 09-SP-1550 (Sullivan, J.) (Jun. 16, 2009), the court found that several conditions, of which ice dams were one, constituted a breach of the implied warranty of habitability, but did not constitute a breach of the covenant of quiet enjoyment.


If you find yourself in such a dispute, contact Robert Nislick, a Massachusetts real estate attorney, today.

 

Assessing and Pressing Your Property Damage Claim

By Robert Nislick

You are a homeowner or a unit owner in a condominium. Life is great.  Until . . . your home suffers property damage from water infiltration. You have done nothing wrong, but through the negligence of someone else, your stuff is ruined. You are out real money and you are mad.

Let’s assume that your insurance policy does not foot the bill for any damages you have suffered. You have a pretty good idea of what or who caused the damage. Hopefully, they will have insurance coverage that you can claim against. Perhaps you already told them what happened, showed them how they were negligent, and you have itemized the damage they caused, but they are just not listening to you. What can you do? Call me. I am a Massachusetts lawyer with experience handling property damage claims for plaintiffs and defendants.

I will try to get you as much recovery as possible and do it in such a way where you are not spending more in attorney’s fees than the value of your claim. The goal is to end up in as good a position as you would have been in if this had never happened. I will probably tell you right off the bat that you will not end up one hundred percent whole. Unfortunately, even though you have done nothing wrong, in this cruel world, there is often some loss which can never fully be compensated. But let’s not dwell on the negative.

Your claim may be big enough that it is worth expending some resources in trying to get some money back. If you are pursuing someone who has liability insurance, their carrier is supposed to investigate your claim, make a determination as to whether their insured is liable, and if so, pay the claim. The minute you sue them, it is safe to assume that they are likely to pay an attorney a minimum of $10,000.00 to defend against your claim. While an insurance company doesn’t want to pay you, likewise, it doesn’t want to pay a lawyer. The defendant’s insurance carrier is analyzing the validity and size of your claim, your likelihood of success, and whether it can smoke you out in a war of attrition. I have the talent and skills to present your claim in the best light.

If you have a good claim, I will work it hard. I want to get you recovery. Contact me today at to discuss your options.