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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
Trial attorney Kim Alley’s competitive streak extends well beyond the courtroom.  Last weekend, Kim successfully completed her first road race – the 13.1 mile Bay State Half Marathon in Lowell.  Kim finished the race which loops twice from the Tsongas Arena along the Merrimack River to the Rourke Bridge and back in 1 hour and 56 minutes, beating her 2 hour goal by 4 minutes.  Kim finished in the top 24% of women out of the 1641 total competitors.    Not bad for a first race!  That could be because Kim received her training pointers from her sister, a semi-professional athlete and trainer in Colorado, who mistakenly believed Kim was training for a full marathon.  The extra training helped Kim to finish strong and even has her thinking of attempting a full marathon for her next race. Add a comment
The staff of Perkins & Anctil are excited to announce that Cindy Napoli has joined our firm as the Paralegal Secretary to Senior Partner Charlie Perkins and Bankruptcy and Collections Department Head David Chenelle.  Cindy lives in Littleton and has been acquainted with Managing Partner Rob Anctil for many years.  Cindy graduated from Mt. Ida College with an A.S. in Paralegal Studies and has over 25 years experience.  Her personality, education, and extensive knowledge make her a valuable part of our team. Welcome, Cindy! Add a comment
He is a four-month-old mixture of black Labrador retriever and some other unknown breeds who came to Managing Partner Rob Anctil and his family from Arkansas. Rob’s wife Pia contracted with an organization called Paws and Claws Rescue of Hot Springs, AR to deliver Stratton to Connecticut where they were introduced to their new family member (originally named Howard).  Stratton works with Pia in the office every day and will celebrate his first birthday next July 4th.  Visit the rescue organization at pawsandclawsrescue.org. Add a comment

Perkins & Anctil, P.C., wishes to remind its client and business contacts that The New England Condo & Apartment Management Expo will be held at the Seaport World Trade Center – Exhibit Hall at 200 Seaport Boulevard, Boston, MA on Tuesday May 21, 2013 from 10:00 am – 4:30 pm.

If you have attended in the past, then you are aware that this is a unique opportunity to meet with over one hundred vendors of all types that specialize in serving the condominium industry.  Further, seminars and other opportunities to obtain information make the day a premier educational opportunity for all attendees. We hope to see you there!

Visit event page here

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In order to stay afloat financially, Patriot Coal Corporation files for Chapter 11 Bankruptcy, which includes a plan to cut a significant amount of retiree benefits for the employees of the company.

"(Reuters) - Patriot Coal Corp has asked a court to terminate about $1.6 billion in retiree health benefits for thousands of its unionized U.S. mine workers as part of its plan to survive Chapter 11 bankruptcy, a court filing showed.

Patriot said United Mine Workers of America's (UMWA's) labor costs are not competitive with other coal producers that operate 'under more flexible work rules and a significantly lower labor cost structure.'"

(Read full article)

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Americans without health insurance are fittingly burdened with the highest medical bills; however, these patients comprise an overall population of people who already struggle financially, and who ultimately are unable to pay off their medical debts sans coverage.

Uninsured American Get Hit With Biggest Hospital Bills

"By the time Astra Augustus left Virtua Memorial Hospital in New Jersey after the last of four surgeries, she’d run up about $255,000 in bills.

At first, Augustus said, she thought she was lucky. Virtua gave her a charity discount, to $30,530. Then she got statements from the doctors who treated her in the hospital, adding $18,000. “I didn’t know who to pay first,” Augustus said..."

(Read article)

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In the unfortunate case of Kensington Place Owners Assn., Inc. v. Thomas, A Georgia Appeals Court finds that a homeowners' association is ultimately not responsible for a child's fatality, which occurs on the property of the condominium.  While the circumstances surrounding the case are undoubtedly tragic, the association clearly presents several merit-worthy arguments.

Risks and Liabilities: A Georgia appeals court ruled that a homeowners association was not liable for fatal injuries suffered by a child who pushed a dead tree over in the subdivision common area. 

Tenita Thomas lived in Kensington Place subdivision with her 13-year-old son, Christopher Baxter. On April 10, 2008, while Baxter and his friends were playing in the subdivision’s wooded common area, they came upon a dead tree. The three boys alternated pushing the tree and watching the others push it. One of the boys recorded their actions on his cell phone camera.

(Read more)

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