t:(978)496-2090 f:(978)496-2002

The end of the legislative session for the Year 2014 unfortunately did not provide the holiday gift most associations wished for, legislation that would have overturned the case of Drummer Boy Homes Association, Inc. v. Britton and reinstated rolling liens.

This matter will be one of the issues that the CAI Legislative Action Committee faces in the next legislative session. However, Senate Bill 602 was approved by the House of Representatives and signed by Governor Patrick as one of his last acts prior to leaving office.

Senate Bill 602 clarified an ambiguity in Section 5 of M.G.L. c. 183A regarding limited common area grants and easements. The section also adopted an overall negative posting requirement for any amendment required to the Master Deed, Declaration of Trust or Bylaws as it applies to mortgagees holding mortgages on units within a condominium whose consent maybe required. Negative posting is a useful mechanism to address situations where mortgage holder approval of an amendment may be necessary. This provision now states that if the association gives notice to mortgage holders and they do not object within sixty (60) days, then such failure to act will be deemed a consent.

Finally, although a request for further appellate review from the Appeals Court to the Supreme Judicial Court has been made by the condominium association regarding Drummer Boy, action on the appeal is not expected until the first week in February 2015.

We will continue to keep you apprized of all developments with respect to this matter as the session in the Supreme Judicial Court opens a new year.

 

Add a comment
In recent years, interest-only loans earned a reputation as products that contributed to market volatility and the mortgage crisis of 2008.  These days, however, they are becoming more well regarded by economists as lenders began requiring of customers a higher than average credit score (upwards of 720) and a larger than average down payment (over 30%).  Also, the products are being offered mainly to those seeking jumbo loans rather than the average home buyer.  A Wall Street Journal Article forwarded by Attorney Rob Anctil explains in detail and is available here: http://www.wsj.com/articles/interest-only-loans-set-the-bar-high-1420567670 Add a comment
The recent dip in home heating oil prices resulting from the slowing global economy is expected to benefit borrowers.  Long term T-bills also decline under such circumstances and are a bellwether for the mortgage industry, suggesting tentative buyers reexamine their purchase and financing options.  Per the article, Closing Attorney Rick Dunn notes that rates should approach the lows seen in 2012-13.  He forwards this article as illustration:  http://www.cbsnews.com/news/another-upside-to-oils-slide-lower-mortgage-rates/ Add a comment
Wednesday’s seminar featuring real estate developer Dave Guthrie, marketing and sales consultant Tom Skahen and Princeton Properties legal counsel Jeff Brown was well received by attendees.  The audience of 65 people filled the room and consisted of real estate agents, lenders and other industry professionals who provided positive feedback regarding the topics, presentations as well as the noontime meal prepared by staff at the Westford Regency Inn and Conference Center.  Questions and answers were followed by energetic discourse among audience members over lunch.  Perkins & Anctil hopes to see another capacity crowd on April 16th, 2015 when we present a round table discussion on the topics of home financing, purchase and sale agreements, condominiums, homeowner’s insurance, title insurance and home staging. Add a comment
In light of the Canadian Express now arriving in the region, the Perkins & Anctil Real Estate Team would like to offer suggestions to buyers for properties in any of the locations listed in the attached article from the Huffington Post.  We were surprised to see certain of the cities listed as sunny vacation spots but given the subzero temperatures here in New England, might be willing to give any of them a visit.  http://www.huffingtonpost.com/kathleen-peddicord/best-property-markets_b_6424808.html Add a comment
With increasing instability in the jumbo mortgage market, experts are recommending quick action.  The Fed has suggested jumbo rates will go up in 2015 but as of yet, they remain near their lowest in years, prompting the Wall Street Journal to post an article with ideas for smoothing the application process.  Their thoughts include obtaining pre-approval, increasing the down-payment, “scouring the market” for lower rates and fees, as well as a few others.  Closing Attorney Rob Anctil has forwarded this article by way of illustration:  http://www.wsj.com/articles/tips-to-get-the-best-jumbo-rates-1419959688 Add a comment
The building at 99-105 Broad Street now houses upscale condominiums but has served a number of other purposes since its construction c. 1857.  Built for William H. Boardman, a third generation Boston merchant, to house merchandise acquired in overseas trade, the rare pre-Civil War granite and brick edifice with 5 story façade was also home to, among many others, J. Gibson & Son Liquor Distributors, Pray & Hayes Grocers, Richards Publishing Co., Dexter Bros. Paints and Howe & French, Inc., dealers in chemicals, laboratory supplies, waxes and drugs.   It is fortunate to have survived the Great Boston Fire of 1872 which burned 65 acres nearby to the south and west.  The building was recently enlarged to nine stories and is now known as the Broadluxe Condominium, a conversion that took place in 2008.  Several units are currently for sale. Add a comment

Perkins & Anctil is hosting a seminar for those interested in learning about alternative development and community association choices that are becoming more readily available in our region.  Concepts such as seasonal neighborhoods and active adult communities, among others, will be discussed.  Industry professionals are scheduled to present their thoughts at the Westford Regency Inn and Conference Center starting at 9am.  Please note that sign up is required and that Lunch is complimentary.  See below for more information:

Succeed in a Competitive Housing Market!

Hot Trends in Real Estate January 7, 2015

Topics: Seasonal Neighborhoods Active Adult Communities Rental Market

Wed., Jan 7, 2015 9:00 am to 11:30 am Lunch will be served

At: Westford Regency Inn and Conference Center 219 Littleton Road Westford, MA 01886 978-692-8200

THIS EVENT IS PROUDLY SPONSORED BY: Perkins & Anctil PC 6 Lyberty Way, Suite 201 Westford, Massachusetts 01886 www.perkinslawpc.com

Tel:  978-496-2000 Fax: 978-496-2002

Join Our Mailing List! This is Your Chance To:

* Hear from some of the industry's top professionals * Gain knowledge about how these experts differentiate  their product in an aggressive housing market * Understand how you can offer exciting solutions for your clients

Please be our guest and attend this valuable seminar. *  Do you have clients looking for a seasonal resort close to home? *  Do you have clients that are empty nesters seeking to downsize? *  Do you have clients asking, should I buy or rent? Have these questions and more answered by the following industry leaders:

Our Speakers: Seasonal Neighborhoods David Guthrie, President Wescon, Inc. Active Adult Communities Tom Skahen, Founder & Partner, Primetime Communities Princeton Properties Management, Inc. Jeff Brown, General Counsel Princeton Properties Who Should Attend? • Real Estate Brokers and Agents • Lending Professionals • Real Estate Attorneys, Paralegals, and other Industry Professionals

Please register today to reserve your seat at this valuable seminar by contacting ncincotta@perkinslawpc.com or calling Nichole Cincotta at 978-496-2000.

We hope to see you there!

Robert W. Anctil, Esq., ranctil@perkinslawpc.com Fredrick J. Dunn, Esq., fdunn@perkinslawpc.com

COMPLIMENTARY LUNCH SERVED AT 11:30 am

DON'T MISS OUT ON THIS OPPORTUNITY!  

Add a comment
Congress has approved an extension of the Act that, among other things, allows those going through foreclosure or a short sale of real estate to avoid paying federal income tax on forgiven debt.  This is expected to have a stabilizing effect on the housing market.  Closing attorney Rick Dunn welcomes the positive news as a benefit to the real estate industry and a chance to avoid the “Fiscal Cliff”.  Borrowers can read more at http://ceb.com/lawalerts/mfdr.asp Add a comment

Senior Partner Charlie Perkins forwards the article below and reiterates CAI’s concern over FHFA actions protecting Fannie Mae and Freddie Mac and against community associations:

GOVERNMENT AFFAIRS

The Federal Housing Finance Agency (FHFA) released a statement yesterday expressing concern about state statutes that allow community associations to obtain lien priority over first mortgages for unpaid association assessments. By asking a federal court to intervene, FHFA is trying to bail out mortgage servicers that have failed to fulfill basic contractual obligations to Fannie Mae and Freddie Mac.

"Make no mistake, FHFA is bailing out mortgage servicers that lacked the competency to meet basic contractual requirements and follow established rules of civil procedure," said Thomas M. Skiba, CAE, chief executive officer of Community Associations Institute (CAI). "By suing community associations, FHFA is trying to protect Fannie and Freddie at the expense of association homeowners. That's unfair, unconscionable and unacceptable." For years, CAI has joined with federal regulators (as well as Fannie Mae) to call on mortgage servicers to secure and maintain vacant and abandoned properties and meet their financial obligations to community associations and their homeowners. These calls and regulatory directives have been largely ignored with impunity by mortgage servicers.

"In one case, Fannie Mae’s servicers failed to respond to legal service of process and, despite mandatory notification pursuant to Nevada law, failed to appear at a foreclosure auction to protect Fannie Mae's financial interests," Skiba continued. "It says a lot about FHFA priorities that the agency now is suing to recoup Fannie Mae's losses from the pockets of community association homeowners, rather than suing servicers for breach of contract. Someone must stand up for homeowners and that’s what CAI will continue to do."

FHFA is nothing if not strategic, electing to release its statement on the heels of a lawsuit filed by the agency in federal court in Nevada. FHFA is seeking a determination that an HOA's foreclosure sale is invalid and contrary to federal law because it would extinguish Fannie Mae's property rights. However, the right of foreclosure FHFA is seeking to invalidate nationwide is permitted by law in Nevada, 21 other states and the District of Columbia.

FHFA asserts that it is compelled by law to file suit to protect Fannie Mae's and Freddie Mac's rights and to prevent taxpayers from incurring losses. Skiba said the FHFA statement "blatantly ignores" Fannie Mae and Freddie Mac rights under the respective seller/servicing guides that allow these mammoth enterprises to recover losses resulting from the mismanagement of mortgage servicers. Despite a range of available remedies, FHFA has opted to sue to invalidate state priority lien statutes rather than enforcing its rights under contract.

"It's incredulous that a Federal agency would sacrifice the interests of 65 million taxpayers who live in community associations to protect the very banks all American taxpayers spent billions of dollars to bail out during the economy-shattering housing crisis," Skiba said. "And it’s shocking for FHFA to attack state laws that have been in place for more than 100 years of precedent and practice. Fact is, by paying their association assessments and protecting property values, these homeowners protect the value of lenders' assets in associations. Yet, FHFA is enabling the bad behavior of mortgage servicers who don't spend a dime to maintain and protect their own property investments."

CAI will continue to monitor FHFA's hostile actions against the right of community associations to secure priority liens on properties within their boundaries.”

Get more information on the priority lien issue, including a detailed CAI statement and a map of states with priority lien statutes. See the Nevada Supreme Court decision.

With more than 33,000 members dedicated to building better communities, CAI works in partnership with 60 chapters to provide information, education and resources to community associations and the professionals who support them. CAI’s mission is to inspire professionalism, effective leadership and responsible citizenship—ideals reflected in communities that are preferred places to call home. Visit www.caionline.org or call (888) 224-4321.

 

Add a comment
Estimates of more than 500,000 drones filling U.S. skies alone have made some associations consider whether it is time to take action-either limiting the use of drones (remote control unmanned aerial vehicles) or banning them altogether.  Commercial versions are still not permitted as far as the FAA is concerned but approval is expected as soon as next year, a move that will generate interest from businesses and industries some would find surprising, including agriculture, cinema, architecture and others.  This means a unit owner or any of the array of companies doing business with a community association, including repair, delivery or security monitoring among others may be using a drone.  With that will come the possibility (or likelihood) of accidents and grievances by owners.  The December issue of Condo Media Magazine contains an article about the issue that suggests forward thinking, but avoiding rash action.  To read more, go to www.caine.org or write to Charlie Perkins for a copy at cperkins@perkinslawpc.com. Add a comment
For those who already have a mortgage with a low interest rate, it is good news that the economy continues its recovery, although the strides in value and rising interest rates expected to mark the coming year may prevent some from considering a home purchase according to Realtor.com.  However, single family home sales are expected to increase and millennials to create a majority of new households, frequently considered a precursor to home buying.  Other positive trends expected in 2015 have to do with unemployment, housing starts and foreclosures.  Closing Attorney Rick Dunn provides this article for further illustration:  http://realtormag.realtor.org/daily-news/2014/12/05/2015-year-first-time-home-buyer Add a comment

Forwarded by Senior Partner Charlie Perkins from Community Associations Institute Government Affairs:

The 113th Congress has adjourned without extending the Terrorism Risk Insurance Act (TRIA). While legal authority for the TRIA program expires on December 31, 2014, Congress is not set to reconvene until January 6, 2015.

 

“CAI will continue to monitor developments on Capitol Hill and at the White House to ensure the 114th Congress takes up an extension of the TRIA program as a first order of business,” said Dawn M. Bauman, CAI’s Senior Vice President for Government Affairs. “Community associations carrying terrorism insurance coverage should consult their insurance agent to determine if their policy is impacted by Congress’ failure to act.”

 

The TRIA program was established in the wake of the terrorist attacks of September 11, 2001, as insurance carriers withdrew from the terrorism insurance market. The TRIA program is a federal government backstop against terrorism-related property and casualty losses. The program has stabilized the market for terrorism insurance coverage, lowering premiums and increasing coverage availability.

 

CAI’s Bauman said, “As our country tragically knows too well, acts of terrorism are a real and devastating threat. The TRIA program is a proven and effective way for community associations to insure against acts of terror. Our communities require certainty in the terrorism insurance marketplace and TRIA should be extended without further delay.”

 

A 2013 federal government study demonstrated the effectiveness of the TRIA program, noting a consistent decline in terrorism insurance premiums and increased coverage capacity since 2003. Through the TRIA program, the federal government acts as a reinsurer, allowing private insurance companies to determine maximum losses in the event of a certified act of terrorism against the homeland.

 

Add a comment
Those serving in our armed forces had been subject to Congressional protection from foreclosure for a period of one year, a statue that was set to expire in December, 2014.  As of last Friday, they now enjoy an additional 13 months of protection under the Foreclosure Relief and Extension for Servicemembers Act of 2014. Bankruptcy Attorney David Chenelle was pleased to note that the act was passed unanimously by both the House and Senate last week. The act, intended to allow additional time for those returning from active service to recover their financial footing, also restricts the repossession of automobiles and other personal property, a measure that goes an extra step toward honoring military families. Add a comment

Long Sought For Pond in the north part of town has long been a summer gathering place for local residents as well as out-of-towners.  Summer cabins have existed on the lake for over a century but none were organized as a community association until recently.  Built on the site of a former campground, “Summer Village Condominium, A Seasonal Cottage Community” is available for occupancy by owners for ¾ of the year and represents a change in pace and scale from other summering spots.  Smaller buildings, thoughtfully designed exteriors and an emphasis on pedestrian circulation make it family friendly, affordable and community oriented.  Neighbors share fire pits, a clubhouse and recreational facilities, all with views of the lake.  As of August, new units were still going up in the wooded lots that fan out from the pavilion, lodge and beach that form the core of the community.  Visit their website at http://summervillagewestford.com

 

Add a comment
The U.S House of Representative has agreed not to consider mortgage forgiveness as income in connection with a short sale.  This is an extension of the Mortgage Debt Forgiveness Act of 2014 and provides a measure of protection to those owners able to complete a short sale.  See more on the subject at: http://www.housingwire.com/articles/32265-short-sale-tax-break-passes-in-house Add a comment

By Attorney Scott Eriksen

A dog may be one man’s best friend, but to many condominium associations a dog can be a hassle, a nuisance or even a liability.  This is true not just for canines, of course, but for all sorts of furry friends. For this reason, many condominium documents incorporate provisions that restrict, or even prohibit, pets from common areas or units.  Properly drafted and incorporated in the governing documents, pet provisions have been held enforceable by the courts of this Commonwealth. However, there are certain situations where condominiums may be forced to allow pets regardless of what the governing documents state.

 

Many people are familiar with the Fair Housing Amendments Act of 1988 (“FHA”). The FHA makes it unlawful for an association to refuse to make “reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary” to afford a “handicapped” individual equal opportunity to use and enjoy his or her dwelling. 42 U.S.C. § 3604(f)(3)(B). At first glance, the FHA’s application in a pet situation may seem clear.  Individuals who, as a result of a disability, require animal assistance should be permitted reasonable exception to condominium rules. It would be hard to imagine any association that would challenge the right of a blind individual to keep a seeing-eye dog on condominium property.  But what about an individual suffering from anxiety, hypertension, depression or alcoholism? Are these individuals afforded the same rights to “reasonable accommodations” to a condominium’s pet policy?  The short answer is: it’s certainly possible, and associations would be remiss to flatly deny these requests without at least considering the potential implications under the FHA and state law.

 

All associations must be aware that the term “handicap” is not limited to physical disabilities.  “Handicap” is defined under both federal and Massachusetts law to include “a physical or mental impairment which substantially limits one or more of [a] person’s major life activities.” 42 U.S.C. § 3602(h); M.G.L. c. 151B, §1(17).  This broad definition has been held to include the conditions referenced above, as well as numerous other mental and psychological disorders. What this means in many cases is that a “handicap” may not be physically determinable or readily apparent. This can create challenges for condominium boards tasked with evaluating requests for exceptions to an association’s pet policy.

 

Consider the following example: Tom Katz sends a letter to the Board to inform them that he needs a “reasonable accommodation” from the association’s pet prohibition to adopt and keep Hairball, a 15lb Persian cat who has no training as a “service animal.”  In support of his request, Tom indicates that he suffers from anxiety and that Hairball’s company is necessary to treat his condition. Tom also includes a letter from an out-of-state medical provider stating that Hairball is one means, but not the sole means, of treating Tom’s anxiety. The Board, fresh off an enforcement action against another unit owner for pet violations, is seriously opposed to John’s request. They do not believe Tom has met his burden to show Hairball is reasonable or necessary for him to use and enjoy his Unit.  Should they write a polite denial letter to Tom and refer him to the provision of the documents prohibiting cats?

 

The first thing the Board should do when it receives any correspondence which could be construed as a request for a reasonable accommodation is refer it to counsel.  The fact of the matter is that each of these requests and the attendant circumstances will likely be unique and different.  One thing that is clear from the case law regarding FHA and state law discrimination claims is that a “reasonable accommodation” analysis is a malleable analysis – there is no one size fits all.  This means it will be important for an association facing a request to gather as many facts as possible and present them to counsel for proper consideration in light of the law.

 

While the FHA and state discrimination laws can be unyielding in many respects, both federal and state courts have noted that the duty to make a “reasonable accommodation” does not simply spring from the fact that a unit owner wants the accommodation made.  The courts have given some meaning to the “reasonable” component of “reasonable accommodations,” stating in many instances that there must be a nexus between the animal and the disability in order to establish a valid claim under federal law.  In addition, reviewing authorities may also conduct a cost-benefit balancing test taking both the association’s and the requesting individual’s needs into account.  As noted above, however, there is no “bright line” rule for what is “unreasonable.”  In that respect, it is a bit like pornography – the courts just know it when they see it.

 

With this in mind, we turn back to Mr. Katz:  In advising the board on an appropriate course of action we might consider the Massachusetts Superior Court case of Nason v. Stone Hill Realty Ass’n, 5 Mass. L. Rep. 305 (Mass. Super. Ct. 1996).  In Nason, the court held that where an affidavit from a doctor did not indicate that a support animal was the sole means of addressing an owner’s disability, then the unit owner had not demonstrated that an accommodation was “reasonable and necessary.” This ruling was made in connection with a preliminary injunction request, however, and the court went on to note that there could be a basis on a “fully developed record for a finder of fact to determine that keeping the cat is necessary given Nason’s handicap.” “[T]he record before the court fails to clearly demonstrate the nexus between keeping the cat and [the Plaintiff’s] handicap sufficient to warrant the court to intervene at this juncture of the litigation.”

 

In light of the above, Mr. Katz’s board may have some basis for denying his request.  However, the board should be aware that doing so may not be the end of the story.  It is possible that Mr. Katz could claw back with a discrimination claim against the association.  Any given reviewing authority (a court or the Massachusetts Commission Against Discrimination, for example) may have a different perspective on what is “reasonable” and “necessary.”  If such a reviewing authority finds that a requested accommodation is in fact “reasonable,” the association may find itself in a hairy situation.

 

Add a comment
This month’s edition of Condo Media has on its cover an image that promotes discourse among community association members.  The article, entitled “Words of Wisdom: Industry Veterans Share Their Best advice”, contains a response by Charlie Perkins who suggests transparency between board members and owners as a key component of a healthy community.  Surprise, says Perkins, is an aggravating aspect of any controversial decision and is to be avoided by appointing committees and fostering understanding among all involved.  For more information or to see the full article, go to the Condo Media website (http://www.caine.org/MediaMagazine/Default.asp) or email Charlie at cperkins@perkinslawp.com Add a comment
We have posted in the past about ways for first time buyers to make the buying process a bit smoother.  These have included managing expenses prior to the purchase, obtaining professional assistance during the transaction, and how to choose a lender.   Attorney Rick Dunn suggests the following link for more tips:  http://www.fool.com/how-to-invest/personal-finance/credit/2014/12/07/8-critical-steps-for-first-time-home-buyers.aspx. Add a comment
Real estate developer and P&A Client SPL Development Group, LLC has nearly finished the build-out on its project in Salisbury, MA called The Village at Salisbury Square.  With 27 units sold as of December 8, only four remain in the pocket style neighborhood.  As a way of reversing the long-standing trend toward single family homes on large lots, SPL president Steve Paquette has focused on community over cars and shared greenways and walkability over pavement and driveways.  Steve shares with many home buyers a desire to restore a sense of community to neighborhoods that began eroding after WWII.  This is done in large part by orienting facades toward each other and providing shared amenities for residents.  Three house plans of differing sizes and myriad options for finishes and conveniences make the choices for customizing nearly endless.  Energy efficiency in all buildings is also a priority.  P&A Managing Partner Rob Anctil invites people to view the website for more information on the project and on pocket neighborhoods in general:   http://www.thevillageatsalisburysquare.com/index.php Add a comment

Blog Archive

Powered by mod LCA