t:(978)496-2000 f:(978)496-2002

Summary by: Robert W. Anctil, Esq.
On Monday, October 12, 2020, Governor Charlie Baker announced a $171 million package of
programs which will support tenants and landlords facing financial challenges caused by the
COVD-19 pandemic. The main goal is to keep tenants in their homes while also supporting the
ongoing expenses for landlords. The Eviction Diversion Initiative comes in anticipation of, and in
preparation for, the end of the eviction and foreclosure moratorium which expired on October 17,
2020.

 

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COVID-19 has altered our daily routines in many ways. It has also changed the way community associations attend to certain matters such as conducting meetings, campaigning and voting. Necessity has prompted a change in operations, and now Zoom™ meetings, as well as the use of designated proxies and electronic voting are becoming more common. Support for these platforms and alternative operations is growing, as evidenced by a recent decision of the Suffolk Superior Court.
Prior to the pandemic, a condominium in greater Boston chose to utilize electronic voting as an alternative to paper ballots for the election of its board members. Utilizing a link to an online ballot sent by e-mail or a tablet provided in the lobby of the condominium and at the annual meeting itself, this association experienced an unprecedented rate of participation at its annual meeting.

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Senior Partner Charlie Perkins was interested in the paradoxes laid out in a recent CAI blog post. In it, the author points out that, while we are coping with a crippling pandemic and economic recession, we have also seen double digit increases in home sales and mortgage lending. Theories abound as to why this may be but CAI is focused on potential changes to federal mortgage rules resulting from the increase. In one instance, CAI would like to preserve safety regulations that allow lenders to verify a potential borrower’s ability to afford community association fees; and in another, CAI would like to do away with certain Federal Housing Authority-required questionnaires and thereby limit association liability when gathering information. The Community Associations Institute urges FHA and the Consumer Financial Protection Bureau to “partner” with community associations in order to assist residents in keeping their homes. To read the entire blog post, click over to: https://advocacy.caionline.org/

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Her biographical blurb is as follows: “I bring 20 years of experience in Debt Collection and Creditor’s Rights. Prior to joining Perkins & Anctil, I worked for the top 3 Debt Collection Law Firms in Massachusetts working litigation matters for the States of  Nebraska, Iowa, New Hampshire, Vermont, Rhode Island, and Massachusetts. I hold a Paralegal Certificate from the University of Massachusetts (Lowell).  I am a Notary Public and I am proficient in the Spanish language. I am the spouse of a United States Air Force Veteran and I live in Westminster with my husband Chris, my daughter Sofia and my son Daniel. In my spare time, I love to travel and spend time with my family, friends and my Lab named Moose.”

Welcome Maria!

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 As businesses and communities transition into phased re-openings, we know that our community associations and manager clients will have many questions surrounding what to do with amenities this season.  While nobody wants unhappy residents, boards and property managers must be mindful of the best interest of the community as a whole.  Further, those communities that do wish to open amenities such as pools, recreational facilities and clubhouses this season will need to be familiar with a host of applicable regulations and guidelines with which they must comply.
 
Join our partner Scott Eriksen this Thursday, June 18th from 2:00p.m.- 3:30p.m. for a CAI webinar about re-opening in the State of New Hampshire.  Registration is required and is available at the following website:
https://www.caine.org/nh-navigating-webinars-registration-page-6-4-20/
 
As always, we look forward to assisting you and hope you can attend this timely webinar.

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His induction into the New England Chapter of the CAI Hall of Fame came during the annual dinner and awards banquet earlier this year. While being noted for his membership on the Massachusetts Legislative Action Committee as well as for his authorship of multiple amicus briefs and frequent speaking appearances, his selection was based on his longevity in the field and his service on the prestigious College of Community Association Lawyers among other honors through the years. His legal peers have noted that he is less a business competitor and more of a model for the industry in terms of his conduct, leadership, commitment and above all, a belief in CAI’s principal goal of improving life in community associations. The article is in the June issue of Condo Media available here:

https://www.nxtbook.com/nxtbooks/mcneill/condomedia_202006/index.php#/p/38

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Chief Title Examiner Christina T. Geaney has forwarded the Land Court’s recent document entitled “Interim Procedures for the Remote Processing of Subsequent Cases & Condominium Documents” in response to a request by Perkins and Anctil to review a Master Deed amendment.  In it, she indicates the court’s efforts to address only emergency business at this time and that remote processing of condominium documents will be “Available on a very limited basis….”  We have uploaded the entire document to our website and it can be accessed by clicking "Articles" in the "Publications" section of our website.   

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The emergency regulation by MA Attorney General, Maura Healy, putting a 90-day moratorium on certain debt collections has been overturned, in part by USDC Federal Judge, D.J. Stearns, who stated in his Opinion that the measure violates the First Amendment rights of collection agencies without adding meaningful protections for consumers.

As a result of this decision, community associations and their property managers can now resume their pre COVID-19 business practices of sending out letters to their community members that are in default reminding them to pay their monthly condominium fees/costs and indicating that if delinquencies are not resolved, the account will be turned over to legal for lien enforcement action. As we all know, the payment of monthly condominium payments is the life blood that allows all associations the ability to continue to provide critical maintenance and services to all of its members. This is welcome news that will allow associations the ability to continue to enforce its rights for payments from all of its community members.

We will continue to monitor developments in this area in light of the COVID-19 pandemic and report to our clients on important changes.

If you would like to read the USDC Judge’s Decision and Order, click here.

pdfDebt Collection Moratorium Reversal of Decision.pdf 

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Senior Partner Charlie Perkins would like to share an article about what to expect in the aftermath of the Covid-19 Epidemic. It was created by the Community Associations Institute:  

CONDOMINIUM AND HOMEOWNERS ASSOCIATIONS EXPECT SPIKE IN ASSESSMENT DELINQUENCIES AS A RESULT OF COVID-19
 New report published by Community Associations Institute forecasts financial impact of pandemic. 

The vast majority of community association board members express confidence in their current budget, but half expect their assessment delinquencies to increase going forward, according to a survey conducted by Community Associations Institute (CAI). CAI fielded the "Community Associations & COVID-19 Impact" survey of more than 600 community association volunteers across the country to gauge the early financial effect of the pandemic on homeowners associations, condominium communities, and housing cooperatives.

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On Monday, April 27th Massachusetts Governor Charlie Baker signed into law a measure allowing for virtual notarization of documents to address challenges related to COVID-19. The Act allows for a notary appointed pursuant to M.G.L. c. 222 who is an attorney or under the direct supervision of an attorney to be able to conduct business virtually, ensuring their safety during the state of emergency from the COVID-19 pandemic. A copy of the Act can be found at the following link:

https://malegislature.gov/Bills/191/S2645

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On Monday, Governor Baker signed into law a bill to implement a moratorium on evictions and foreclosures throughout Massachusetts during the COVID-19 emergency. The moratorium halts all “non-essential” residential evictions for a period of 120 days or 45 days after the State of Emergency has been lifted, whichever occurs first. This action will drastically impact many of our client’s rights to send notices to quit or to advance summary process (eviction) proceedings.

The law broadly defines “non-essential” evictions as any eviction initiated for any of the following reasons: (1) eviction for non-payment of rent; (2) eviction resulting from a foreclosure; and (3) eviction for a cause that does not include or involve: (a) criminal activity that impacts health and safety; or (b) lease violations that impact health and safety. The moratorium prevents a landlord from terminating a tenancy, sending a notice to quit, and/or requesting or demanding that a tenant vacate the premises for any non-essential evictions. The moratorium further prevents the courts from accepting the filing of an eviction complaint, entering a default judgment for a landlord, issuing an execution for possession or even scheduling a court event or hearing.

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Also referred to by the FBI as “House Stealing”, the concept involves nefarious operators impersonating a property owner and either refinancing or re-selling a property they do not own, then departing with the proceeds. This was brought to our attention by our insurance sales colleague David Roberts who monitors financial news outlets for risks to his clients. He sends along this link with more information: https://www.kiplinger.com/article/real-estate/T048-C050-S002-how-to-protect-your-home-from-deed-theft.html

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Managing Partner Rob Anctil would like to alert clients and readers of this recently enacted government program to aid small business.

The CARES Act, federal legislation implemented to address the impacts of the spread of the COVID-19 pandemic, was signed into law on Friday, March 27, 2020. This relief package amounts to approximately $2 trillion dollars and provides a wide range of financial relief to not only individuals, but also to small and large businesses, hospitals, and state and municipal governments. We believe that many of our clients may be able to avail themselves of various funding sources.

Paycheck Protection Program

Perhaps the most significant aspect of the CARES Act's small business relief programs is the Paycheck Protection Program (PPP).

PPP provides up to $349 billion for small businesses. Under PPP, any business with 500 or fewer employees is eligible to receive "forgivable loans" through the Small Business Administration program. Some larger businesses are also eligible, as are independent contractors, sole proprietorships, and self-employed individuals.

PPP is intended to help businesses maintain their payroll between now and the end of June, 2020. In addition, PPP is intended to support small businesses so they may meet other ongoing obligations (such as rent, mortgage payments, utility costs and other fixed expenses through the end of June, 2020).

The most unique and advantageous feature of the program is that PPP funds received by small businesses which are used for the near-term fixed costs or payroll as discussed above will not need to be paid back. PPP will be administered under the Small Business Administration's Section 7(a) lending program but these loans will be forgiven, i.e., converted into grants, if spent on covered expenses during the period now and the end of June, 2020. A comprehensive summary of the PPP can be found here:

https://bit.ly/39nZzY8 .  

The key aspects of the PPP are as follows:

  • Eligible applicants may borrow up to 250% of their average monthly payroll expenses, up to a total of $10 million. As such, if your monthly payroll was $50,000, you would be eligible for a loan in the amount of $125,000.
  • The loan is forgivable 8 weeks after the funds are disbursed. The purpose of PPP is to help retain your employees at their current base pay. If the employer retains the employees, the entirety of the loan will be forgiven. If the employers release some employees, the forgiveness will be reduced by the percent decrease in the number of employees.
  • The application period will be from this week up to June 30, 2020. Please note that we encourage our clients to apply as soon as possible.
  • Recipient businesses can choose which 8 weeks they want to count towards the covered period, which can begin retroactively as early as February 15, 2020. According to the text of the CARES Act, for the borrowed funds to be forgiven, the period during which the funds may be expended on eligible expenses extends to 8 weeks from when the loan is originated. Accordingly, for businesses applying for a PPP loan just prior to the June 30, 2020 application deadline, for example, that expenditure period could be as late as the end of August 2020.
  • The loan forgiveness for payroll and fixed expenses occurs at the end of the 8-week period after the business has taken out the loan.
  • PPP funds used for other business-related expenses, like inventory, will not be forgiven.
  • There will be no personal guarantees or collateral required to obtain the funds.

Who will lend PPP funds?

PPP loans will be administered by banks under the SBA's Section 7(a) program. Many of the banks that we work with frequently are finalizing their PPP procedures. Please contact us and we will make recommendations for SBA lenders.

Summary

While we all remain concerned about the future, the CARES Act should prove to be a great tool for our clients. Please do not hesitate to contact us if you have any questions about the CARES Act and its potential legal implications, or any other COVID-19 matters that may be impacting your business.

The following are helpful links from the US Chamber of Commerce concerning the Act:

https://www.uschamber.com/sites/default/files/023595_comm_corona_virus_smallbiz_loan_final_revised.pdf  

https://www.uschamber.com/co/start/strategy/cares-act-small-business-guide 

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Managing Partner Rob Anctil would like people to know the Massachusetts Real Estate Bar Association has determined conveyancing attorneys and their staff are essential personnel. He forwards this communication from REBA:


Yesterday, Governor Baker issued an Emergency Executive Order, COVID-19 Order No. 13, requiring all workplaces, except for those defined as essential services, to cease operation from noon on Tuesday, March 24th until noon on Tuesday, April 7th, and to prohibit gatherings of more than 10 people. Those businesses that are essential are encouraged to continue operations.


With the Order came an extensive list of businesses deemed essential. Although not expressly mentioned, REBA believes that transactional real estate lawyers provide essential services as defined by the Order. Under the Financial Services section of the Order, workers identified as essential include those who "are needed to maintain systems for processing financial transactions and services (e.g., payment, clearing, and settlement; wholesale funding; insurance services; and capital market activities)." Also included are "Professional services (such as legal and accounting services)..., when necessary to assist in compliance with legally-mandated activities and critical sector services or where failure to provide such services during the time of the order would result in in significant prejudice."


The services provided by real estate lawyers are necessary for the completion of financial transactions and to assist clients in complying with their legal obligations. Moreover, if real estate lawyers are unavailable to represent their clients, prejudice would undoubtedly result in a myriad of ways, including, among other things, forfeiting the purchase, sale or refinance of a home, losing a favorable interest rate, and not accessing necessary funds.
Under these circumstances, REBA believes transactional real estate lawyers are essential workers and should be permitted to continue operations so long as they practice safe social distancing measures.

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The following was written by various P&A team members:

Dear Clients, Business Associates & Friends,

As the COVID-19 public health emergency continues to create widespread and considerable challenges for individuals, communities and businesses worldwide, we wanted to share with you our thoughts and what we hope will be helpful information specific to our industry.

We have built a successful firm by providing the greatest level of customer service possible, and it is our hope to continue to provide the same expeditious and diligent service and attention during these difficult times. Obviously, the health of our team, clients and friends is foremost in our minds, and we intend to actively monitor bulletins and notices from all federal, state and local authorities relative to best practices for dealing with the virus. Nevertheless, we are confident that, regardless of the directives aimed at limiting the spread of the virus, we will meet our clients’ needs by utilizing our technological resources to communicate and deliver work product with appropriate distance, even in the event of the interruption of personal interaction.

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As the United States continues to see an increase in COVID-19 (Coronavirus Disease 2019) cases, many of our manager, board member and community association clients have inquired how their communities can prepare for and safeguard against the virus. While it still appears as of this writing that the risk for most Americans remains low, we appreciate the concerns that many of our clients are, or may be, forced to consider in light of the spread of this disease.

We strongly recommend that all individuals concerned about the spread of the virus and its health implications should monitor federal, state and municipal bulletins (in particular, we have been directing clients to the United States Centers for Disease Control and Prevention webpage, which provides daily updates: https://www.cdc.gov/coronavirus/2019-ncov/index.html) for accurate and up-to-date information about COVID-19. At this point, little is known for sure about the virus, and people should avoid acting rashly or impulsively. Nevertheless, it behooves communities to hope for the best but plan for the worst, and associations and managers may wish to consider adopting plans or policies for reacting to outbreaks such as this.

At this stage, the best and most consistent advice from health professionals remains simple: people should wash hands thoroughly, use alcohol-based sanitizer, clean potentially infected surfaces, minimize physical contact and stay home/inside if one is feeling ill. At the community association level, we suggest that board members and managers consider adding hand sanitizer stations in common areas, increasing the frequency and intensity of common-area cleaning visits, postponing meetings or social events in common areas, and preparing to close common facilities (particularly gyms, clubhouses, etc.) if the situation warrants.

We will continue to monitor this situation and to coordinate with our industry partners to develop best practices and policies. While we hope to see an end to the threat of COVID-19 soon, its impact highlights the importance of considering plans for similar events in the future. If you have any specific questions or concerns, please feel free to contact Charlie Perkins or Scott Eriksen at 978-496-2000.

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Our Senior Partner Charlie Perkins has forwarded some information about Massachusetts' new Distracted Driving Law and its particulars.  They are as follows:

DRIVERS WHO ARE 18 AND OVER…………………………..
**Can only use electronic devices and mobile phones in hands-free mode and are
only permitted to touch devices to activate hands-free mode.
**Not permitted to hold or support any electronic device/phone.
**Cannot touch phone except to activate the hands-free mode and can only enable
when the device is installed or properly mounted to the windshield, dashboard, or
center console in a manner that does not impede the operation of the motor vehicle.
**Not allowed to touch device for texting, emailing, apps, video, or internet use.
**Activation of GPS navigation is permitted when the device is installed or properly mounted.
**Handheld use is allowed only if the vehicle is both stationary and not located in a public travel lane, but is not allowed at red lights or stop signs.
**Voice to text and communication to electronic devices is legal only when the device is properly mounted; use of headphone (one ear) is permitted.
DRIVERS WHO ARE UNDER 18………………………
** Are not allowed to use ANY electronic devices. All phone use is illegal, including use in hands-free mode.

PENALITIES FOR VIOLATING THE HANDS-FREE LAW……
1ST Offense………..$100 fine
` 2nd Offense………..$250 fine, plus mandatory completion of a distracted driving educational
program
3rd and subsequent offense…….$500 fine, plus insurance surcharge and mandatory completion of a distracted driving educational program


OPERATORS MAY USE A CELL PHONE TO CALL 911 TO REPORT AN EMERGENCY. IF POSSIBLE, SAFELY PULL OVER AND STOP BEFORE CALLING 911.

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Senior Partner Charlie Perkins has written a newsletter article on the subject and would like to share it here:  

Over this coming year, Perkins & Anctil, P.C., will be sharing a series of educational articles to assist our clients in the day to day operations of their associations. This article is the first in a series which will focus on all aspects of planning, preparing and hosting an Annual Meeting.

1. MEETING PREPARATION

a. Prior to the actual meeting, review the meeting package to make sure it includes all enclosures and was prepared in accordance with the documents. Verify the time and place required for the meeting along with the meeting notice requirement.

b. Make sure the proxies comply with the provisions of the documents. If directed proxies are being utilized, review the condominium documents to confirm their use is permitted pursuant to the documents.

c. A list of unit owners should be updated and current. If possible, utilize a software program (such as Excel) to calculate the number of unit owners in attendance or represented by proxy and confirm the establishment of a quorum.

d. Only unit owners and the holder of a valid proxy and/or a Power of Attorney are permitted to attend the meeting. Other individuals may not be permitted to attend the meeting without the consent of the voting body.

e. Although this seems obvious, make sure the meeting location is set-up in advance with adequate seating and accommodations for people with physical limitations. Make sure all audio-visual equipment is set-up in advance and working properly.

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The following article was written by Community Associations Insitute's Dawn Bauman, CAE on Jan 29, 2020:

The U.S. Department of Housing and Urban Development (HUD) released guidance yesterday for individuals requesting an accommodation for an assistance animal and housing providers responding to these requests under the Fair Housing Act (FHA).
According to HUD, FHA complaints concerning denial of reasonable accommodations and disability access comprise almost 60% of all FHA complaints and those involving requests for reasonable accommodations for assistance animals are significantly increasing. These complaints are one of the most common that HUD receives.

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Perkins and Anctil is proud to announce that the Massachusetts Supreme Judicial Court has appointed David R. Chenelle, Esq., Chair of the Clients' Security Board, effective January 27, 2020. Mr. Chenelle is the Director of Condominium Lien Enforcement and Bankruptcy departments at the firm of Perkins & Anctil, P.C. located in Westford, Massachusetts. Mr. Chenelle is a graduate of the Massachusetts School of Law, and has been in practice since 1995. In his earlier professional career, he spent 14 years in the manufacturing industry as an engineer and manager for various defense contractors. During this time has also earned his MBA degree.

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