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

By Attorney Scott Eriksen

 

For many New England community associations, the fall means more than just apple-picking, cool weather and leaf-peeping.  It also means association meeting time, and very often at those meetings you may hear the board, management or legal counsel invoke the wonder of “Robert’s Rules of Order.”  If you are like most people, you may have never heard of Robert and his Rules before, or if you have, perhaps only in passing. While the subject may seem a bit esoteric, rules of parliamentary procedure – of which Robert’s version is perhaps the most well-known and oft-used – are very handy in facilitating an organized, productive meeting.

We will come back to the important points of parliamentary procedure in a minute but first: seriously, who is “Robert” anyway?  Henry Martyn Robert was raised in Ohio, graduated fourth in his class from West Point in 1857 and served in the Corps of Engineers during the Civil War.  Robert’s claim to fame – his Rules of Order – originated here in the Commonwealth while Robert was living in New Bedford.  Legend has it that Robert authored the Rules in response to some difficulty he had leading a church meeting which devolved into chaos over abolitionist concerns.  Determined not to face an angry, Yankee mob unprepared again, Robert penned the first version of his now ubiquitious rules.

So that’s Robert in a nutshell – West Point alum, general, and engineer by training.  A man who sought and created a method to instill order, form and efficiency at meetings.  Now, back to the Rules themselves.  First, a reminder, Robert’s Rules is but one manual of parliamentary procedure.  To say a meeting is going to be run in accordance with Robert’s is to commit to that manual.  Often times it is more accurate to say that a meeting is going be run in accordance with some level of parliamentary procedure.  The level of formality may depend on the nature of the meeting, the size of the group and the participants’ knowledge of formal rules like Robert’s.  However, almost all meetings of owners warrant some level of formality to ensure a timely and effective review of the important matters at hand. So without further ado, our recommendations and pointers on implementing formal procedure at your next meeting:

  1. One Size May Not Fit All: Meeting formality is a sliding scale. Too much can be just as troublesome as not enough, and size matters when it comes to determining how best to proceed. Meetings with fewer participants (board meetings) may be run effectively with less formality, while too little formality at larger meetings may lead to delay, confusion and chaos. Adopt an approach that works for the size of the group involved.
  2. Be Consistent: Once you have settled on an approach to running the meeting, stick with it. Changing tack over the course of a single meeting will only lead to disruption.
  3.  
  4. Know Your Documents: The association’s governing documents are important in determining the application of rules of parliamentary procedure. What constitutes a quorum? What vote is necessary to carry an action? Are proxies allowed? The answers to these questions are typically set forth in association’s governing documents and individuals charged with overseeing a meeting should be familiar with their implications.
  5. The Motion: The motion is the basic building block of conducting formal business at any meeting. Under Robert’s Rules, the motion, made by an authorized member of the body, should be the starting point of virtually all discussions, votes or actions taken at a meeting. Recognized individuals may make a motion by simply stating: “I move to discuss the association’s budget for Halloween decorations…” or “I move that we discuss hiring Sno-Be-Gone to do our plowing this winter…” Most motions require a second in order to proceed. That is, another member of the body will say “I second the motion regarding the Halloween decorations,” or more simply “I second the motion.” Once this has been completed, the subject has been “put in play” and formal action may be taken. That is motion practice simplified to the extreme. Depending on how closely you follow Robert’s Rules, motions can be tricky. Some motions are debatable, while others are not. There are thirteen ranking motions. There are main motions, subsidiary motions, privileged motions, incidental motions, and bring back motions. It’s enough to make one’s head spin. For our purposes, suffice to say that a motion and a second are the “kickoff” of most discussions, actions and votes at meetings.
  6. General Organization of Meetings: For larger groups, an organized structure to a meeting will help move things along and keep everyone on topic. We recommend circulating an agenda in advance of the meeting to serve as a roadmap of what will be covered. The meeting is called to order at the appropriate time by the chair (usually a member of the governing board) or a moderator (perhaps counsel or a professional parliamentarian). A quorum must be established to take formal actions at the meeting. Once this has been completed the substantive topics of the meeting –discussions, votes or otherwise – should proceed in accordance with the agenda.
  7.  
  8. Voting: When a motion is made and seconded, the chair can put certain questions to a vote of the assembly. The question (sticking with the example above, “Whether to increase the budget for Halloween decorations”) is put to the assembly and then subject to debate. The chair or moderator calls upon members of the assembly in turn – giving them “the floor” – to speak for or against the question. All debate should be confined to the question at hand. Once all of the members of the assembly who wish to speak have done so, the question is put to vote. Votes may be conducted by show of hands, voice or ballot. As noted above, the necessary vote depends on the governing documents.
  9.  
  10. Keeping Minutes: Minutes are an important record of all meetings. A member of the governing board or, in some cases, a management agent should be designated to take minutes. The minutes should, at a minimum, include the following information: the type of meeting (annual, special, etc.), the name of the association, the location of the meeting, the date and time the meeting was called to order, whether a quorum was established, descriptions of all motions, actions and votes taken, and the time of adjournment.
  11.  
  12. And Last, But Not Least: After a long night, perhaps the most awaited action of any meeting is adjournment. A motion is made to adjourn, seconded, put to the body and – assuming everyone present has had enough fun – the meeting is closed.
Entire books have been devoted to the subject of parliamentary procedure, and this article is only the proverbial “tip of the iceberg.”  The goal here is to provide a handy (but brief) overview of some important points and tips to help keep meetings in order.  We strongly suggest that those interested in the subject dig deeper, and we would be happy to provide our list of recommended reading on the subject.

Add a comment
Not interested in inner city living or unable to pay $700K for a condo?  Managing partner Rob Anctil points out an article in Boston Agent Magazine that cites a Warren Group study on the proliferation of condominiums in places other than those well known to younger buyers.  Melrose, the tidy suburb to the northwest, has numerous single family residences but few may realize there are increasing numbers of attached dwelling units and the values are rising.  The same is true in Plymouth and elsewhere.  Communities around Boston with industrial or even semi-rural histories are now seeing conversions as well as new condo development much as Cambridge, Somerville and Arlington did in decades past.  The increase in available units and in values for condominiums in interesting communities may suggest them as a home-shopping destination for new buyers.  See the article here: http://bostonagentmagazine.com/condo-hotspots-greater-boston/ Add a comment
Perkins & Anctil’s Lead Bankruptcy Attorney David Chenelle recently received recognition from the United States Bankruptcy Court, District of Massachusetts in the form of a certificate signed by Chief Judge Frank J. Bailey.  The Recognition Award Program seeks to identify those in the legal profession who have improved the availability of or have delivered volunteer legal services in the District of Massachusetts. The Awards recognize those who have served their local communities as well as assisted in the administration of justice in the United States Bankruptcy Court.  David’s commitment to providing “Equal access to justice” and to performing Pro Bono work and in addition to his regular case load have made him a repeat recipient of this honor. Add a comment
The recent J.D. Power U.S. Primary Mortgage Origination Satisfaction Survey suggests this is due to less than thorough transparency on the part of lenders and borrowers. First time buyers report a lack of understanding of the process while lenders find clients can be less than forthcoming regarding their financial situations.  The results can lead to confusion, a borrower ending up with a mismatched product or even abandoning the idea of home-buying.  Closing Attorney Rick Dunn came across this article with some pointers for first time buyers:  http://realtytimes.com/consumeradvice/mortgageadvice1/item/31697-20141121-dont-assume-you-cant-get-a-mortgage-loan Add a comment

Lack of agreement in rulings by the Supreme Court and by one District Court has resulted in some homeowners being relieved of responsibility of paying off second mortgages and not others.  At issue is whether a house that is underwater permits a borrower’s second mortgage to be voided by the bankruptcy court-the junior loan being worthless the vast majority of the time in such cases.  Bankruptcy Attorney David Chenelle recommends the following article for clarification:

http://www.ksl.com/?nid=151&sid=32386819&title=court-to-consider-when-second-mortgage-can-be-void

Add a comment
Federal Home Loan Mortgage Corporation chief economist Frank Nothaft has noted that 30-year fixed rate mortgages dropped below 4% in mid-October, their lowest since 2013.  They remain at 3.99% as of November 21, signaling a strengthened purchase mortgage market.  Closing Attorney Rick Dunn forwards the following link:  http://realtormag.realtor.org/daily-news/2014/11/21/spread-word-mortgage-rates-below-4 for further information. Add a comment

Many people are of the belief that the mortgage crisis that began in 2007 was brought about by underqualified first time buyers defaulting on loans that were too readily available.  Bankruptcy Attorney Dave Chenelle points out a November 14th, 2014 New York Times article by Bethany McLean that states otherwise. Her research indicates the majority of bad loans were a result of cash-out refinances of existing mortgages.  Using the mortgage as a source of credit can be the only way for some to meet their financial needs but the combination of rising home values and falling interest rates will definitely lead to a correction.  People interested in the full article can see it here:

http://www.nytimes.com/2014/11/14/opinion/a-house-is-not-a-credit-card.html?ref=opinion&_r=2

Add a comment
After state and local entities pledged hundreds of millions of dollars in cutbacks to support the city’s re-worked pension plan, U.S. Bankruptcy Judge Steven Rhodes called the agreement a miracle.  While retired workers will accept a reduction in income and benefits, the plan guarantees the checks will continue to come for the rest of their lives.  This is in spite of the fact that the annual income of the fund is less than half of the payout.  An independent fiscal expert named by Judge Rhodes did, however, find the plan feasible but only in light of actuarial practices such as “rolling amortization”.  A debate among those in the risk management industry has ensued.  Bankruptcy Attorney David Chenelle forwarded a link with the full article:  http://dealbook.nytimes.com/2014/11/11/detroit-emerges-from-bankruptcy-pension-risk-still-intact/?emc=edit_dlbkam_20141112&nl=business&nlid=66184561&_r=1 Add a comment
There are so many borrowing options available today, it can be off-putting when it comes time to choose.  Judging by the volume of television and radio advertisements, internet pop-ups and new storefronts seeking a piece of the market, the numbers of borrowers is on the increase.  In order to understand the benefits and drawbacks associated with lenders large and small, old and new, closing attorney Rick Dunn suggests the following article published at Porch.com:  http://porch.com/advice/know-choose-right-mortgage-company/ Add a comment

By: Scott Eriksen, Esq.

We have all heard, and probably used, the “bad apple” idiom at one point in our lives.  You know, the one that goes something like: “All it takes is one bad apple to spoil the bunch.”  There is literal scientific truth to this statement.  A ripening/decaying apple emits ethylene gas, a naturally occurring plant hormone, the release of which will speed up the ripening (molding/decaying) of nearby apples (or other fruit).  That’s useful trivia, but of course most of the time when we hear about “bad apples” it’s in the metaphorical sense of the word.  Still the principle behind the phrase – that one “bad” member of a group can “spoil” the bunch – is a meaningful one, particularly in the community association context.

“Bad” unit owners can make life miserable for their neighbors, as we have discussed many times in the past, but they aren’t the only ones.  A “bad” Board member can be just as troublesome, if not worse than, a misbehaving unit owner.  Board members stand in a fiduciary role – and owe duties of loyalty and care to the association they serve.  When a member of the Board goes “bad,” the consequences are often worse as result of these obligations.  In addition, the Board often has access to confidential information, association funds and also maintains a degree of power over the enforcement of the governing documents.  In this position, the potential for truly “bad” acts – misappropriation of funds, unauthorized and unlawful dissemination of confidential information, selective enforcement of rules and regulations, etc. – is significant.  On top of that, presumably most Board members have been elected by earning the trust and confidence of their neighbors and peers.  A breach of this trust not only creates resentment, it may create liability and expense for the association as well.

So how does one deal with “bad” Board members before they create real problems for the community?  Well, the first step is to identify them.  Throughout this article I’ve had the word “bad” in quotations.  That’s because I was trying to stay with the metaphor but even though to me it sounds juvenile to call a trustee “bad,” – like something my two-year-old daughter might say for lack of a more descriptive or colorful adjective.  Yet the real reason I’ve highlighted the term throughout is because the word “bad” can mean many different things in the Board member context.  A “bad” trustee may be dishonest, self-dealing, reckless, belligerent, oppressive, apathetic, obdurate or any number of other things.  In our experience, we have had the good fortune of dealing with mostly “good” trustees – those who assume the often thankless position with genuine interest, attention and the community’s best interests at heart.  However, we have seen the opposite as well: those who seek to serve for the wrong reasons, or who have abandoned the right reasons somewhere along the way.  Boards must be vigilant for these individuals, as their actions can taint the ownership’s perception of the entire Board, in addition to causing actual problems for the association.

If you have identified a “bad apple” in your bunch, you have to decide how best to deal with him.  Occasionally, an honest conversation – rather than confrontation – behind closed doors about the offensive behavior may help to right the ship.  Depending on the nature of the bad actor’s conduct, however, more drastic measures may be required. Generally, if there is consensus among the other Board members that it is only one of their number who is “bad,” it may be possible (and less disruptive to the community) to seek his or her resignation.  As counsel, we have made demands upon individuals “requesting” their resignations – lest the association explore more aggressive methods to address their “bad” actions.  This can be a face-saving measure for the individual in question, as well as a more economic and expedient route for the association.

If worse comes to worst, however, the association may have to consider formal removal of the “bad” member pursuant to its governing documents.  Most documents – whether trusts or by-laws – provide a mechanism for removing Board members.  The best of these provisions allow for removal “with or without cause.”  Some provisions require a “due process” hearing before the Board or association prior to removal, and many require a vote of the ownership.  If you find yourself in a position where you have to remove a Board member, it is critical to carefully consult the governing documents to ensure that you follow the correct procedure.  Assuming that you do abide by the terms of the documents, the courts of this Commonwealth have generally upheld removals as proper acts.

One final point comes up in the context of small associations: duplex or triplex style condominiums, where there are two or three trustees and obtaining a “majority” can be difficult if not impossible.  In these situations, one “bad” apple is a particular curse – as the lone “good” trustee may find it impossible to properly administer the association.  Fortunately, even in such circumstances as this, there may be a remedy at hand. In the recent case of Hancock v. Chambers, 85 Mass. App. Ct. 1106 (Mass. App. Ct. 2014), the Appeals Court upheld the removal of a duplex condominium owner as a trustee of the association. The governing document in the Hancock case provided that a trustee could be removed either “(a) with or without cause by the vote of the Holders of the majority in interest of the Beneficial Interests, but such removal shall take effect only when approved by vote of a majority of the Trustees then in office, exclusive of the Trustee or Trustees to be removed; or (b) for cause by vote of a majority of the Trustees then in office.”  The trust also provided that “[a]t any meeting of the Trustees, a majority of the Trustees then in office shall constitute a quorum” and that trustees could act “by a majority vote at any meeting at which a quorum is present. In no event shall a majority consist of fewer than two Trustees…”  The defendants in the case argued that the removal of a trustee was improper because it occurred at a meeting without a quorum.

The Appeals Court didn’t bite.  Instead, they ruled that “[b]ecause the trust at issue has only two trustees, literal application of these provisions would render impossible the removal of Chambers as trustee. Neither method of removal under [the trust] would be feasible.  Pure obstinacy would guarantee that the majority of trustees would never reach the required number of two. By refusing to attend a meeting at which the plaintiffs sought her removal, a trustee could ensure her permanent place as a trustee.”  Rejecting this outcome as contrary to “common sense,” the Court concluded that the plaintiffs properly removed Chambers as trustee…” where the plaintiffs, as the owners of one of the duplex units, were “‘the Holders of the majority in interest of the Beneficial Interests’” and one of the plaintiffs was “a majority of the Trustees then in office, exclusive of the Trustee or Trustees to be removed.”  This ruling offers an important tool for individuals who find themselves stuck in a small condominium with a rotter for a co-trustee.  So don’t let “bad apples” spoil your barrel – whether it’s big or small.

 

Add a comment

On Friday, November 14, 2013, Rob Anctil spoke to a group of 48 real estate professionals at a lunch and Learn event at the Northeast Association of Realtors.  Topics ranged from the process of transition from developer control to insurance policies to unit rentals.  A sidelight of the talk was the fact that the residential condominium market is gaining momentum.  This lecture is part of a series of lectures that Perkins & Anctil will be hosting in the months to come.

If you were unable to attend, please click here to download material presented at the lunch and learn series.

Add a comment

Bankruptcy Attorney David Chenelle notes that a Cape Cod real estate developer has filed for Chapter 11 bankruptcy protection.  As reported in the Boston Business Journal by Eric Convey, Stephen G. Powers, Manager of Forestdale Village LLC and developer of the project by the same name in Sandwich, MA was planning a mixed-use development which was to focus on both the 55+ community and military veterans.  Other interesting aspects of the project include its Chapter 40B status and emphasis on accessibility and open space.   More information is available at the links below:

http://www.bizjournals.com/boston/real_estate/2014/11/developer-of-cape-cod-55-plus-community-files-for.html

http://www.capecodbusiness.com/2010/08/mixed-use-village-proposed-in-forestdale/

Add a comment
Federal Housing Finance Agency Director Mel Watt has said in an article in the Charlotte Observer that he would ask the Federal National Mortgage Association (Fannie Mae) and the Federal Home Loan Mortgage Corporation (Freddie Mac) to back loans with smaller down payments.  In exchange for the decrease, however, the agencies may require private mortgage insurance so as to protect the government from defaulting borrowers.  Until such a program is put in place, buyers can approach lenders with Federal Housing Administration (FHA)-backed home loan programs, an alternative that may be nearly as cost-effective as the reduced-down payment plans from Fannie and Freddie.  Closing Attorney Rick Dunn saw this link to an article on the subject:  http://www.charlotteobserver.com/2014/11/07/5299099/fannie-mae-official-details-plan.html#.VGCiMmd0y70 Add a comment
Condominium buyers have a variety of potential priorities in mind when hunting for a new unit, possibly a seaside or mountainside location, an urban setting or a loft situation.  A condominium developer in Denver, CO has added a couple of previously unavailable features to his recent offerings that have attracted buyers from around the country.  Given that the location of the condo is a disused missile silo, it necessarily comes with artificial views to the outside, an extremely stout front door and outstanding insulation.  View the WSJ article here:  http://online.wsj.com/articles/for-sale-renovated-luxury-condo-can-survive-nuclear-attack-1415575922 Add a comment
Senior Partner Charlie Perkins noted an interesting piece in the November issue of Condo Media Magazine.  As a member of the College of Community Association Lawyers, he is an advocate of homeowner associations and condominiums and so was glad to read the positive results of a survey carried out by the Community Associations Institute (CAI) on quality of life issues.  Fully 90% of association residents approved of the way their communities were being run.  The reason most frequently given for the high level of satisfaction was clear communication between owners and board members – a determining factor in all day to day relationships.  To see the entire survey and to read the summary, CAI members can go to www.caionline.org.  Non-members can obtain a copy by visiting P&A or emailing sjohnson@perkinslawpc.com. Add a comment

As some of you may have heard, last Friday the Massachusetts Appeals Court issued its decision in the case of Drummer Boy Homes Association, Inc. v. Britton.  Our firm, together with other industry leaders and the Community Associations Institute ("CAI") of New England, have been keeping a close watch on the developments of this case.  Unfortunately, the Appeals Court's decision is not the decision that we - as community association advocates - had hoped for, and it likely will change the way associations and their advisors should pursue lien enforcement.

 

At issue in Drummer Boy was the so-called "rolling lien" and the current practice of filing multiple lien enforcement actions. The Massachusetts Condominium Act, M.G.L. c. 183A, provides that condominium associations have a limited priority lien - that is, a lien superior to the first mortgage holder - for unpaid common assessments and the costs of collection associated therewith (including attorneys' fees).  This priority lien is limited to a six month period by the statute; however, for the past two decades it has been the regular practice in Massachusetts to protect multiple six month periods by "rolling the lien" and filing successive actions in court.  In most cases, this strategy allowed associations to recover all or nearly all of the regular unpaid assessment amounts pursuant to the statute.  This technique was particularly important to our clients given that the timing of even a "swift" lien enforcement action would leave certain amounts falling outside of the six month protection period.  The Drummer Boy decision runs contrary to the current practice and sets precedent that "rolling the lien" to protect priority amounts will no longer be allowed by the courts of the Commonwealth.

 

There is no doubt that the decision has major implications for associations throughout the state. However, we are advising clients that the sky is not falling.  We have been informed that the parties involved in the Drummer Boy decision will likely seek further appellate review of the Appeals Court decision, and it is possible that the Supreme Judicial Court could reverse the outcome in the case. Further, while the decision will necessarily change current practices, associations are not without viable remedies.  Going forward it will be crucial to pursue lien enforcement without delay in order to avoid any unnecessary loss in the six month priority window.  Also, while the Drummer Boy decision remains the state of the law, associations will likely be forced to avail themselves of the remedy of foreclosure sooner rather than later in order to fully protect their financial interests.  Finally, the decision appears to be limited to concurrent actions, and we do not believe it would prohibit associations from filing subsequent actions to recover unpaid amounts as a priority after a pending first lien enforcement action had been dismissed.

 

Over the next few weeks we anticipate that CAI will be coordinating a seminar to discuss Drummer Boy and its impact in more detail.  In the meantime, should you have any questions about pending cases or future actions, please do not hesitate to contact us.

 

 

Add a comment

By:  Charles A. Perkins, Jr., Esq.

 

A recent case involving a Cooperative Association attempting to evict tenants who failed to comply with the 55 and over requirement has led to the Housing Court in Weston, Massachusetts finding that the Association had no procedures in place to update the verification of the 55 and over occupancy requirement and that the initial qualification process alone was inadequate under the Housing for Older Persons Act (HOPA).

 

By way of background, HOPA requires that every two years an Association must re-verify the information generated by the original survey or other procedures to qualify for the 55 and over exemption.  HOPA on its face requires that any of the following may be used for proof age:

 

  • Driver’s License;
  • Birth Certificate;
  • Passport;
  • Immigration Card;
  • Military identification;
  • Any other official government identification that shows a date of birth; and
  • A document (such as an affidavit, certification in lease or purchase agreement, etc.) signed by any member of the household aged 18 or older asserting that at least one person in the unit is 55 or older. This document does not have to be signed under oath.
 

HOPA also allows an Association to rely on the following if a resident refuses to provide verification of age:

 

  • Government documents such as a local government household census (not the national census) that show that the unit is occupied by a person aged 55 or older;
  • Prior forms, applications or other information verifying the ages of unit occupants;
  • Affidavits from individuals not in the household but who have personal knowledge that an occupant is 55 or older. The affidavit must state how the individuals have personal knowledge of the age of the occupant and be signed under the penalty of perjury.
 

With respect to the two years re-verification requirement, Associations are not required to obtain copies of documents already submitted by occupants for verification purposes, but they must confirm that those residents included in the initial verification continue to occupy the unit.  Associations will meet the 55 and over requirement under HOPA so long as the immediate eighty percent (80%) of the units continue to meet that requirement.

 

In our experience, many Associations although required under the condominium documents themselves and certainly under HOPA, fail to re-certify and should take immediate strides to accomplish the 55 and over certification or re-verification.

 

Any questions regarding this issue can be addressed to Charles A. Perkins, Jr., at cperkins@perkinslawp.com

Add a comment

Closing Attorney Rick Dunn found some interesting strategies for first time homebuyers to prepare for the changes associated with owning a piece of property versus renting. Most deal with retaining solid professional help in the form of an agent, lender and attorney but there are also ideas for getting accustomed to expense increases brought on by higher taxes and maintenance, items for which renters typically are not responsible.

http://blog.century21.com/2014/11/we-asked-you-answered-advice-for-first-time-homeowners/

Add a comment
P&A Managing Partner Rob Anctil, along with Mortgage Network Loan Processor Candace Rosetti, will be speaking at the Northeast Association of Realtors (Perkins & Anctil neighbors at 6 Lyberty Way) on a variety of condominium-related subjects, including financing, negotiating association rules, special assessments and how to compare condo documents and fees.  A link to the event on the N.E.A.R. website can be found by scrolling down the "Events" column.  We hope to see you there... Add a comment
Bankruptcy Attorney David Chenelle came across an article in the Money section of the CNN.com website that relates to his practice area, the economy and the predicament of many recent college graduates. Entitled “Wall Street firm is causing a stir by suggesting that some student loan debt be forgiven for first-time home buyers”, the piece cites statistics about changes in the type of personal debt of young people over a ten year period (Student loans are rapidly catching up to mortgage debt) and the relationship between monthly student loan payments and the amount a recent grad can spend on a house. The webpage with the full story is at: http://money.cnn.com/2014/10/31/news/economy/student-debt-forgiveness-wall-street/index.html?iid=HP_LN Add a comment

Blog Archive

Powered by mod LCA