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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.


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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.

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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:



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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 This email address is being protected from spambots. You need JavaScript enabled to view it.. 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.



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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 This email address is being protected from spambots. You need JavaScript enabled to view it.

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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.


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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

By Kimberly Alley, Esq.


It happens. Your employee leaves to join a competitor.  But you have rights under restrictive covenants of the employee’s non-compete, non-solicitation or confidentiality agreements.  Should you let the new boss know?  More importantly, if you do - will your “cease and desist” efforts come back to haunt you?


According to a recent Massachusetts’ Superior Court decision, your communications warning the new company of the potential for litigation may not be used against you. These warning letters may constitute a protected (and therefore, inadmissible) communication pursuant to the “litigation privilege.”


The “litigation privilege” is a legal protection traditionally afforded to attorneys for their communications made during the course of representation. This privilege provides protection that shields an attorney from civil liability to non-clients for communications made in the course of good faith litigation.  The litigation privilege is often asserted in defense of defamation claims against an attorney for statements made during the course of litigation.


This privilege, however, does not just apply to attorneys’ communications or defamation cases. In August 2014, a Middlesex Superior Court judge found that the litigation privilege protected an employer’s cease and desist communication in an employment dispute.  In Pegasystems, Inc. v. Manning, the Court recognized that “[t]he litigation privileged applies not only to statements by attorneys but also to ‘communications by a party’ as long as the other conditions of the privilege are present.”


In Pegasystems, an employee brought suit against his past employer after it sent a cease and desist letter to the employee and his new employer.  The letter claimed that the employee misappropriated a customer list and solicited former co-workers in violation of restrictive covenants in the employment agreements.  As a result, the employee was terminated from his new employment due to concerns about potential litigation.  He sued the former employer for tortious interference with business relations, misrepresentation and violations of c. 93A.  The court dismissed the claims because the litigation privilege prevented liability for the cease and desist communications.


The key to obtaining the protection afforded by the litigation privilege is to ensure that cease and desist statements are made in the context of litigation. Therefore, it is essential that such communications appropriately reflect serious contemplation of litigation to assure application of the privilege.


When prepared properly as a privileged document, the cease and desist letter can be an effective tool for avoiding litigation costs by prompting settlement discussions before litigation ensues.  A carefully crafted cease and desist letter drafted by an attorney will save you both the headache and cost of future litigation.


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Real Estate Attorney Rick Dunn follows the mortgage market closely, and found the attached article interesting. While the upward trend in the frequency of homeowners seeking to refinance ended late last year, he is now seeing another (smaller) increase in this area.  The uptick was called a refinance “Boomlet” by a blogger at AOL.com.

See the post here: http://realestate.aol.com/blog/2014/10/30/30-year-mortgage-rate-rises-to-just-below-4/


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Condominium unit owners, board members, and community association representatives from across the Commonwealth gathered at the Radisson Hotel in Chelmsford to hear six experts discuss issues facing our community association clients. The experts included a property management professional, two condominium attorneys, an insurance executive, an engineer and a certified public accountant. Questions spanned the realm of the practical and the unique, voicing concerns such as:

Can we prohibit smoking in the common areas?

What amounts can we collect in connection with unpaid assessments?

What is the status of the “super” priority lien in Massachusetts?

How should we enforce our documents?

How do we best deal with unit owner disputes?

Does an association need to have a certificate of election for the trustees recorded?

Can fines be treated as condominium fees pursuant to the “super” lien statute?

Can you prevent unit owners from utilizing the common areas if they have not paid their condo fees?

Board members appeared to benefit not only from the experts, but also from sharing their experiences with each other. An additional benefit for the P&A Staff was the opportunity to interact socially with a number of familiar faces as well as new participants - many of whom commented on the value of the program.

Of course, the real highlight of the event was when, first thing in the morning, Attorney Charlie Perkins led the P&A Team and the audience in a performance of his song “C.C.A.I.”, a parody of the Village People song “Y.M.C.A”. It set the tone for an upbeat and productive program.

P.S. For answers to the above questions or any other related issues, please do not hesitate to email Attorney Eriksen at This email address is being protected from spambots. You need JavaScript enabled to view it.

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We welcome Michelle who began as our receptionist (a job now performed by Nichole Cincotta) and quickly moved over to the Pre-Litigation section of the Lien Enforcement Team where she is teaming up with Amanda Luciano, a 5 year veteran at the position. Michelle has a great deal of experience in Real Estate Law and related tasks.  She lives in Westford with her husband Tom. Add a comment

It was five years ago today that we moved from the fabulous old brick mill building in North Chelmsford to our fabulous new space in Westford. After a two year search for office space to purchase, Managing Partner Rob Anctil decided on the upper floor of the 35,000sf industrial building at 6 Lyberty Way – the former home of Whistler Radar Detectors.

Paralegal Amanda Luciano recalls working until 11pm the night before the move, packing boxes and keeping the movers on track, not to mention taking a final exam in the middle of the day (of course she graduated with a 4.0 GPA). Pia Anctil, acting as General Contractor, finished the build-out from R&D space to the office in 90 days (!).  She remembered that first morning the conference room had only a folding table covered by a table cloth while employees worked at their computers without benefit of a desk.  Lying on the floor while typing seemed to be the preferred method of getting the work out.  That was on Friday morning but by Monday, the furniture was in place and the seamless transition was complete.  Pia extends thanks to the architects at Udelsman Associates in Hollis, NH and the builders at Focus Construction in New Ipswich, NH for their fine efforts.

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Nichole Cincotta is Perkins & Anctil’s new receptionist and legal support to Attorney Alley.  She grew up in Dracut, MA where she learned to dance competitively, a pursuit that provided opportunities for her to travel internationally.  Her administrative and customer relations experience allows her to smoothly assist clients by directing them to the appropriate staff and/or attorney.  She has the enthusiasm, initiative and ability to anticipate clients’ needs that make her a welcome addition to the Perkins & Anctil Team.  Nichole is a graduate of the UMass Lowell with a B.A. in Criminal Justice and minors in Psychology and Legal Studies. 



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We congratulate our clients and friends - Rich Cooper and Chris Ferris - on their recent acquisition of the property at 128 Main Street, Groton, the former location of the historic Groton Inn. The Groton Inn was constructed in 1678 and was thought to be one of the longest continuously operated inns in the United States. The list of people who left their names on the Groton Inn’s register includes Presidents Ulysses S. Grant, Grover Cleveland, Theodore Roosevelt and William Howard Taft. Andrew Carnegie and Paul Revere also stayed at the historic property.  Groton residents and neighbors were extremely dismayed to learn that the building burned in 2011.

However, Chris and Rich have approvals to construct a modern iteration of the inn, paying homage to the form, scale, materials, siting and other aspects of the historic property. Guest rooms and a restaurant will occupy the main building and an array of detached guest houses will be built toward the rear of the property.

For more information about the history of the Groton Inn, email P&A and we will forward a PDF containing the National Register of Historic Places nomination written by a local historian in 1976.

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This month’s edition of New England Condominium contains a piece by Attorney Scott Eriksen.  In it he answers a reader’s question about how to deal with an unknown unit owner suspected of purposely running a faucet in order to increase the association’s water bill.  While the motivation for such malicious behavior is a mystery, Attorney Eriksen provides a number of strategies for discovering the unit owner and dealing with the problem.  Click here for his answer. Add a comment

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