What’s New at GSL

Real Estate Radio Boston In Studio 05/20/2017

  • Featured in the video is GSL Principal Ellen Shapiro during her most recent WBZ Real Estate Radio Boston segment in which she is taped in studio talking about condoization, from when it’s appropriate to who should be involved. Watch as Ellen shares examples for condominium owners and associations. GSL appears frequently as expert contributors on WBZ’s Real Estate Radio Boston with hosts Rick Scherer & Ali Alavi. Hear GSL’s point of view in this segment of Real Estate Radio Boston!

 

  • For information about our future airings, please stay tuned for updates via email, Facebook, and Twitter.

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GSL In Studio with Real Estate Radio Boston!

  • Featured in the video are GSL Principals Ellen Shapiro and Henry Goodman during their most recent WBZ Real Estate Radio Boston segment in which the two are taped in studio talking about condominium restrictions. What restrictions are reasonable and which ones go too far. Watch as Ellen and Henry share examples for condominium owners and associations. GSL appears frequently as expert contributors on WBZ’s Real Estate Radio Boston with hosts Rick Scherer & Ali Alavi. Hear GSL’s point of view in this segment of Real Estate Radio Boston!

 

  • For information about our future airings, please stay tuned for updates via email, Facebook, and Twitter.

Thanks for Listening!

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In Studio – Real Estate Radio Boston – February 4, 2017

  • Featured in the video are GSL Principals Ellen Shapiro and Henry Goodman during their most recent WBZ Real Estate Radio Boston segment in which the two are taped in studio talking about new Department of Housing & Urban Development regulations defining quid pro quo (“this for that”) harassment and hostile living environment which are applicable to housing under both the Federal and State laws against discrimination. Watch as Ellen and Henry share examples for condominium owners and associations. GSL appears frequently as expert contributors on WBZ’s Real Estate Radio Boston with hosts Rick Scherer & Ali Alavi. Hear GSL’s point of view in this segment of Real Estate Radio Boston!

 

  • For information about our future airings, please stay tuned for updates via email, Facebook, and Twitter.

Thanks for Listening!

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Winning at “He Said, She Said”

Winning at “He Said, She Said”

By Pam Jonah, Esq.

Winning at “He Said, She Said”

Recently I was reminded of the importance of documenting events and conversations. This reminder came about in connection with our office’s representation of a Condominium Association and its agent the property management company against a discrimination claim filed by a Unit Owner with the Massachusetts Commission Against Discrimination, commonly referred to as the MCAD. While this involved a discrimination claim, the lesson can translate into almost every situation involving the Board, Managers and Unit Owners.

The facts were as follows: The Unit Owner filed a Complaint for discrimination against the property management company and the Board of Trustees for failing to provide a reasonable accommodation, waive a no pet rule and allow the Unit Owner to maintain a service dog in his Unit. The Complaint among other things stated that the Unit Owner required a service dog and had verbally let the on-site manager know this. He also claimed he made “attempts to contact the President of the Board to discuss the presence of his service dog,” along with several attempts to discuss the matter with management, but that all of his “attempts” were ignored.
The entire matter came about because other Unit Owners were complaining of excessive barking coming from his Unit. After the Board wrote him a letter informing him that he was in violation of the Condominium By-Laws, the Unit Owner filed his Complaint with the MCAD.

Upon first glance the Complaint as written sounded troublesome for our clients. The agencies and Courts enforcing the Fair Housing Act (the “Act”) [42 U.S.C. 3601] and M.G.L. c. 151 B have stated that at a minimum the Condominium association and the Management Company have to engage in an interactive process with the Unit Owner when faced with a request for a reasonable accommodation. Therefore, ignoring this Unit Owner’s attempts to discuss the matter as alleged would violate the both Federal and State law.

Fortunately, this was not the end of the matter. After investigating the matter with our clients we learned that the matter was not quite as straightforward as was presented in the Complaint. In fact, our client provided us with copies of voluminous documentation concerning the events leading up to the Complaint. While these notes, emails and letters to the Unit Owner were in fact all one-sided as the Unit Owner never responded to them, the documentation laid out a completely different set of circumstances.

The documentation taken as a whole showed that the Unit was occupied by a tenant, and not the Unit Owner. Furthermore, the tenant when responding to the noise complaints when she answered the door after the on-site property manager went to the Unit and knocked, never mentioned the need for a service dog. Additionally, many emails to the Unit Owner talked about the “tenant’s dog,” and its barking. There was no evidence or mention of a request for reasonable accommodation by anyone.

Using this documentation our office successfully argued that, had the Unit Owner’s complaints been valid, common sense would dictate that all of these notes, emails and other correspondence to the Unit Owner would not have gone unrebutted. In fact, the Unit Owner did not produce one piece of documentary evidence to support his side of the story.

While the law does not require a Unit Owner to put his/her request for reasonable accommodation in writing, by documenting all communications in the situation concerning the dog and by showing bona fide attempts to address the dog with the Unit Owner we were able to overcome the classic “he said, she said,” scenario and the Complaint was ultimately dismissed by a finding of lack of probable cause.

While we know that Boards and Managers have more to do than write down all their actions in regard to reported conflicts and complaints, documents can frequently save the day. Although Lady Justice is blind, documents can serve to tip her scales in favor of the association.

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RERB In Studio – 12-10-2016

  • Featured in the video are GSL Principals Ellen Shapiro and Henry Goodman during their most recent WBZ Real Estate Radio Boston segment in which the two discuss the challenges many boards face when proper checks and balances are not in place and disreputable people take advantage. Listen as Ellen and Henry share several recent examples that could be a cause for concern for condominium owners and associations. GSL appears frequently as expert contributors on WBZ’s Real Estate Radio Boston with hosts Rick Scherer & Ali Alavi. Hear GSL’s point of view in this segment of Real Estate Radio Boston!
    • For information about our future airings, please stay tuned for updates via email, Facebook, and Twitter.

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    GSL Alert – Ruling from NH Supreme Court

    Ruling from NH Supreme Court on Termination of Common Area Privileges and Services.

    New Hampshire Housing Finance Authority v. Pinewood Estates Condominium Association.

    In a decision issued today (9/20/16) the NH Supreme Court reversed and remanded a Superior Court ruling that pursuant to a Condominium Declaration the purchaser at foreclosure (the first mortgagee) was responsible to pay pre and post foreclosure condominium assessments before common area services have to be restored. In this case, a unit owner in Pinewood was delinquent on common assessments. Pinewood notified the unit owner and first mortgagee, New Hampshire Housing Finance Authority (“NHHF”), of the delinquency. The delinquent amounts were not paid and Pinewood terminated common area services, which included water and sewer. Subsequently NHHF foreclosed on the unit and purchased at the foreclosure sale. Following the foreclosure, Pinewood notified NHHF of the outstanding pre and post foreclosure common assessments. NHHF paid the post foreclosure assessment, refused to pay the pre foreclosure assessments and filed a declaratory judgment action in the Superior Court. NHHF sought a declaration that it took title to the unit free and clear of any junior encumbrances, namely the delinquent common assessments, and that Pinewood had no authority to terminate common area services.

    The Court examined the interplay of the provisions of the Condominium Act governing termination of services (RSA 356-B46 IX) and unpaid assessments (RSA 356-B46 I). The statute says that the association’s lien is junior to, among other things, a first mortgage, except for a limited 6 month priority. In this case, Pinewood did not establish a priority lien. The Court concluded that NHHF’s foreclosure extinguished or wiped out the pre foreclosure common assessments on the unit and NHHF took title to the unit free and clear. The Court further concluded that since those pre foreclosure amounts were extinguished and all post foreclosure amounts were paid, that Pinewood had no authority to terminate services.

    Link to the case:  NH Supreme Court Opinion 09/20/2016

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    Hostile Housing & Harassment Oh My!

    GSL ALERT!

    HUD RELEASES NEW RULES AND REGULATIONS UPDATING STANDARDS TO BE APPLIED IN INVESTIGATIONS OF CLAIMS FOR HARASSMENT AND HOSTILE HOUSING ENVIRONMENTS

    While both the federal and state laws have long prohibited harassment in housing because of race, color, religion, sex, national origin, disability, and familial status, until now there have been no formal standards for assessing claims of harassment under the Federal Fair Housing Act.

    Recognizing the need for such standards to use in investigations and adjudication of claims of discrimination based on harassment and hostile environments, the Department of Housing and Urban Development, commonly referred to as “HUD,” on September 14, 2016 released new Rules and Regulations to be applied both in administrative hearings and in cases filed in the State and Federal Courts. These Rules and Regulations will go into effect on October 14, 2016.

    It is worth mentioning that both federal law and the state law, in Massachusetts M.G.L. c. 151B had already imposed certain responsibilities on community associations to take action when the Board had been informed of a potential hostile environment allegedly being created by one Unit Owner against another, or a group of Unit Owners, who would be considered to be a protected class.

    In fact in a recent matter before the Massachusetts Commission Against Discrimination (the “MCAD”) in which this office successfully represented the Board, the hearing investigator cited the following as the standard to be applied in determining whether a Board created or unjustly allowed a hostile environment to exist.

    “In order for the Complainants to establish a prima facie case of discriminatory
    harassment in housing, Complainants must show that: (1) they are members of a protected
    class; (2) they were subjected to unwelcome verbal or physical conduct related to their
    protected class; (3) the harassment was sufficiently severe or pervasive to interfere with
    Complainants’ use or enjoyment of their home; and (4) the harassment was either carried
    out by the landlord, owner, property manager, or their agent/employee, or Respondent
    knew or should have known of the harassment and failed to take prompt remedial action.”
    Note, that within the condominium context the laws are clear that the governing Board is deemed to be “the owner.”

    With the recent release of the Rules and Regulations by HUD, a more formalized and expanded system of determining when liability will be imposed has been created.

    Briefly, the Rule specifies how HUD will treat complaints of quid pro quo (“this for that”) harassment and hostile environment harassment going forward.

    The four key components of the Rule are as follows:

    • There is now a formal definition of “quid pro quo harassment” and “hostile environment harassment.”
    • There are now formalized standards that will be used in both State Agencies (in Massachusetts the MCAD) and in both state and federal Courts;
    • The Rule includes illustrations of situations that will be considered to be allowing a hostile environment to exists; and
    • The Rule identifies when a housing provider, including community associations may be held responsible for actions by third parties in allowing harassment or hostile environment harassment to exist.

    At a minimum the Rules impose liability when a condominium board knew or should have known of the discriminatory conduct of a third party (i.e. Unit Owner) and failed to take prompt action to correct it when the Board had the power to correct and end a discriminatory housing practice, either under the law or pursuant to its governing condominium documents.

    The Rules also state that investigators and courts should look at the totality of the circumstances and apply the “reasonable person standard.” Under the Rules the standard is “Whether unwelcome conduct is sufficiently severe or pervasive as to create a hostile environment is evaluated from the perspective of a reasonable person in the aggrieved person’s position.”

    As stated earlier while the liability under the both state and federal law already existed for Boards it will be interesting to see how these new formalized standards are applied by the administrative agencies and the courts.

    If anything, the new Rules serve as a reminder that when in doubt about a situation described as harassment or creation of a hostile housing environment that has been reported to the Board, Boards would be advised to quickly contact their legal representative for guidance.

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    GSL Alert – CAI Federal Government Advocacy

    U.S. HOUSE OF REPRESENTATIVES PASSES BILL REGARDING HAM RADIO ANTENNAS AND TOWERS IN COMMUNITY ASSOCIATIONS

    On Monday, September 12, the U.S. House of Representatives approved H.R. 1301. H.R. 1301 is the amended Amateur Radio Parity Act of 2016 that contains language adopted from a CAI compromise proposal. The Senate still needs to approve the legislation if H.R. 1301 is to be signed into law.

    Initially, Community Associations Institute opposed H.R. 1301, because it contained language preempting association regulations on HAM radio use and severely curtailed association input on the use and placement of amateur radio antennas.

    rooftop_hamWorking on behalf of its member associations, CAI’s Federal Legislative Action Committee worked with members of congress to incorporate several key changes to H.R. 1301, making it more acceptable to associations and owners alike. The adopted changes include:

    • Prior consent of the association is required by HAM radio operators to install outdoor antennas
    • Antennas will be prohibited on common property, and
    • Associations will be allowed to establish written rules concerning outdoor HAM radio antennas.

    The recently approved H.R. 1301 legislation permits community associations to create and enact reasonable written rules concerning the installation and use of HAM radio antennas. These rules must permit the installation of an effective antenna, but may restrict HAM antennas to height, location, and aesthetic standards.

    At this point, the Senate has not indicated when they would take up the amended version of H.R. 1301. If it does not become law in 2016, the bill would need to restart the legislative process in 2017. As always, we will keep you posted on any updates!

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    In Studio – RERB Summer Edition!

  • Featured in the video are GSL Principals Ellen Shapiro and Henry Goodman during their most recent WBZ Real Estate Radio Boston segment in which the two discuss condominium safety and the challenges facing new board members elected to condominium associations. Safety concerns are a hot topic on Real Estate Radio Boston and on this show, Ellen and Henry discuss the increasing concerns associations have with safety issues as well as the things new board members need to be aware of as they agree to their new responsibility. GSL appears frequently as expert contributors on WBZ’s Real Estate Radio Boston with hosts Rick Scherer & Ali Alavi. Hear GSL’s point of view in this segment of Real Estate Radio Boston!
    • For information about our future airings, please stay tuned for updates via email, Facebook, and Twitter.

    Thanks for Listening!

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    ALERT: Two New Bills Signed Amending the New Hampshire Condominium Act

    ALERT TO NEW HAMPSHIRE CONDOMINIUM ASSOCIATIONS AND MANAGERS

    New Hampshire State House. Concord, New Hampshire, USA

    New Hampshire State House. Concord, New Hampshire, USA

    Governor Maggie Hassan has just signed two new bills amending the New Hampshire Condominium Act (RSA 356:B) The first is House Bill 1307, which states in pertinent part, that “any amendment to the condominium instruments requiring approval of mortgagees on units may be satisfied by the recording of an affidavit by the president of the association that written request for such approval was sent to the last known address of any mortgagee and that the mortgagee failed to respond within 60 days.” HB1307 will take effect on 8/23/16 (60 days after passage). GSL really is pleased with this piece of the legislation. In the current world of mortgages being assigned, transferred, bundled and securitized, it is difficult to track down the current mortgage holders, let alone, get a timely response. This is a practical solution to one of the hurdles Associations face when amending their governing documents.

    The second, House Bill 353, contains numerous amendments to the New Hampshire Condominium Act. The bill includes changes to the contents of an association’s by-laws, unit owner meetings, notices to unit owners, qualifications and duties of board members and their agents, adoption of budgets, and removal of officers. HB353 will take effect on 8/1/16. In the event of a conflict between the declaration or bylaws, the provisions of RSA 356:B shall control. Boards will need to closely examine their governing condominium documents, and plan for the necessary document amendments and changes to its operating procedures.

    If you have questions please direct them to Rick Casavant at casavant@goshlaw.com or if you would like to discuss more of the specifics or assistance with drafting any amendments, please feel free to contact our New Hampshire office at (603)-232-9292.

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