Brower v. Burns
“Do something!!!” are words frequently heard by the Board or management when a unit owner complains about a leak coming into his or her unit from another unit. But what duty does a Board really have when a problem arises with a unit Owner’s failure to maintain elements within his own unit? Superior Court Justice William C. Barrett addressed this issue recently in his opinion in Brower v. Burns, et al., on a Condominium Association’s Motion for Summary Judgment. Among the questions presented to the Court was what duty, if any, does a Board of Trustees of the Condominium Association have to maintain or repair elements within a unit that the Unit Owner has the responsibility to maintain, but is not maintaining. In Brower, Justice Barrett held the Board had no duty to affirmatively repair, or require a Unit Owner to repair, defective elements within the Unit that the Unit Owner has the responsibility to maintain.
The Brower case involved a not uncommon dispute between two Unit Owners over a water leak. The Unit owned by the Plaintiff – Brower – was directly underneath the Unit owned by the Defendant – Burns. The alleged leaks spanned a course of close to seven years before the filing of the lawsuit. Brower sued Burns and the Board of Trustees of the Condominium Association. The gist of the complaint against the Board was that the Board was negligent in upholding its duty to require the Unit Owner with the leak to permanently correct the leak. The Board asserted in its Summary Judgment Motion that it had no such duty to require a Unit Owner to maintain their Unit. The Court agreed.
The analysis centered on the section of the condominium documents that discusses and is titled “Maintenance and Repair of Units.” The section stated that a Unit Owner has a duty to maintain their Unit and the utility fixtures within and serving the Unit. The section further provided that the Board had the right to require a Unit Owner to maintain their Unit, including the utility fixtures within each Unit, when a hazardous condition exists and the Unit Owner has failed to make the repairs on his or her own.
Justice Barrett analyzed this part of the condominium documents that granted the Board the right to require the Unit Owner to correct the defective condition, and concluded that while the Board had the right, it did not have the duty to force Burns to correct the leak. The Court stated: “Section 5.2 gives the Board the right to force a unit owner to correct a hazardous condition in the interior of his/her unit or to enter and fix the hazard itself at the unit owner’s expense, but it does not require that the Board do so.” The Court further stated the “Board is not responsible for the repair and maintenance of individual privately owned units within the Condominium; it is responsible for the care and upkeep of the Condominium’s common areas.”
Therefore, the Court concluded that while the Board could have acted, it had no duty to force Burns to fix the leak. Therefore, the Board had no duty to Brower that was somehow breached by the Board’s inaction. As such, Brower’s negligence claim against the Board failed, and was dismissed on Summary Judgment.
A copy of the Brower v. Burns, et al., MICV2015-06084 Summary Judgment Decision can be found here. For more information on this or any other related issue, contact Attorney Alex W. Levine at email@example.com.Read More
GSL Principals Ellen Shapiro and Frank Lombardi are attending the Community Associations Institute Law Seminar in Palm Springs, CA this week. The three-day event provides an excellent opportunity for community association attorneys across the nation to learn about and discuss emerging trends and legislative issues important to the practice of community association law. This year, GSL attorney Frank Lombardi will be presenting his perspectives on “A Day in the Life of a Community Association Lawyer.”
For more information on the annual event or to speak to Ellen Shapiro or Frank Lombardi about the latest trends and issues facing community associations, please email Ellen at firstname.lastname@example.org or Frank at email@example.com.Read More
An Antidote for Poison
A decision has come down today from our MA Supreme Judicial Court which provides another significant victory for condominiums. For some time, developers of condominiums have included provisions in their condominium documents that make it almost impossible for associations to bring suits against for construction defects against the developer. As a prerequisite to instituting litigation for construction defects these provisions, usually referred to as “poison pill provisions” require, that the Board obtain a vote of 80% or 90% of the beneficial interest. Today, in deciding Trustees of the Cambridge Point Condominium Trust vs. Cambridge Point, LLC, the Supreme Judicial Court, holding that that such a provision is void as against public policy, stated “that it is overreaching for a developer to impose a condition precedent that, for all practical purposes, makes it extraordinarily difficult or even impossible for the trustees to initiate any litigation against the developers regarding the common areas and facilities of a condominium. “
GSL partners Henry Goodman and Ellen Shapiro were honored to be permitted to file an Amicus Curiae (friend of the Court) brief on behalf of Community Associations Institute of New England in this case which was originally filed by our fellow CAI member and colleague Edmund Allcock who represented the Plaintiff.
A link to the case is found at: https://www.mass.gov/files/documents/2018/01/19/12327.pdf As always, if you wish to discuss this case or any condominium matter, do not hesitate to reach out to Henry at firstname.lastname@example.org or Ellen at email@example.com.Read More
Make Your Donation Count!
As millions begin to return to their homes, apartments and condominiums and realize the devastation before them, many will turn to charities and support organizations to get them back on their feet. Join with GSL in making sure your donations reach those in need.
Please donate to the charity of your choice or consider using these organizations to find charities that have demonstrated a significant portion of donations reach those in need:
GSL is Offering FREE ADMISSION to CAI-NE’s 2017 Exposition
As a Proud Diamond Sponsor of CAI-NE, Goodman, Shapiro & Lombardi, LLC is pleased to offer free admission to friends and clients of the firm
If you are planning to attend this year’s Community Association Institute New England Chapter’s 2017 Annual Condo Conference & Exposition this October, GSL is pleased to offer you registration free of charge. The event will be held this year at:
One Burlington Mall Road
Burlington, MA 01803
Saturday, October 21, 2017 from 8:00 AM to 3:00 PM
For more information and to register for the event,
Be sure to enter the Promo Code: GSLPASS for your free registration.
Don’t forget to stop by and see us at Booth #19. We look forward to seeing you there!Read More
PEERING INTO THE HAZE OF MEDICAL MARIJUANA
By Henry A. Goodman and Ellen A. Shapiro
As a result of reading and discussing two recent cases, one from Rhode Island and the other from Massachusetts, it occurred to us that condominium Boards need to educate themselves to the nuances of medical marijuana use not only by occupants but association vendors and service providers as well. Typically we are advising Boards about making reasonable accommodations as to the use of medical marijuana by unit owners and occupants. However, the issue can arise in other ways arising out of other people on the common area of the condominium. Think about the contractor doing a siding job and whose worker used medical marijuana off site? What if the Board reports to a vendor that the vendor’s employee appears to be under the influence of marijuana but the employer does not come to that conclusion? What about a lifeguard at the association’s pool? Does the Board need to make accommodations in those instances? Some guidance may be found in Callaghan v. Darlington Fabrics Corporation and the Moore Company (the “RI” case) a Rhode Island Superior Court decision, and in Barbuto v. Advantage Sales (the “MA” case) a Massachusetts Supreme Judicial Court decision. Both cases deal with an individual’s right to sue for employment discrimination based on possession of a medical marijuana card and use of marijuana while not on the job. Of interest (at least to us) is that the courts in both states, in analyzing their statutes and the similar legal issues in these cases, decided that there is a private right on the part of an individual to make a discrimination claim but for two different reasons. While it appears that these cases discuss employment discrimination arising out the use of medical marijuana it is not a long reach to see how they might be applied to potential problems in condominiums.
The RI case addresses the implication and applicability of the Rhode Island “Hawkins-Slater Act” permitting the use of medical marijuana. In Callaghan, the Plaintiff Callaghan had applied for an internship at a corporation which required drug testing as a condition pf employment. The woman disclosed that she had a medical marijuana card, was a current user of marijuana and would not pass the drug test. She also stated that she would not use it while working.
Rhode Island has a medical marijuana act, The Hawkins-Slater Act, which at Section 21-28.6-4(d), specifically states that ”no school, employer, or landlord may refuse to enroll, employ, lease to, or otherwise penalize, a person solely for his or her status as a cardholder.” In Callaghan, the Defendant did not hire Ms. Callaghan after she voluntarily disclosed to them that she had a medical marijuana card and would not pass a pre-employment drug screening test. She then sued under the Hawkins-Slater Act, seeking a declaration that “the failure to hire a prospective employee based on his or her status as a medical marijuana card holder and user [was] a violation of the” Hawkins-Slater Act, whether the failure to hire her was a violation of the Rhode Island Civil Rights Act (“RICRA”) and whether a violation of the Hawkins Slater Act constituted employment discrimination.
The Defendant argued that the Hawkins-Slater Act did not give an individual the right to sue, i.e. a private cause of action. The Court spent a great deal of time in discussing this but, at the end of its detailed analysis, concluded that the Act did in fact do so. Therefore, an individual who had been denied employment in violation of that section of the Act (as had happened in this case) would have no way to seek redress for the violation unless there was a private cause of action. Having resolved that issue the Court went on to discuss the defenses raised by the Defendant as to its actual violations of the Act.
Without going into each and every defense asserted by the Defendants, certain of them are interesting. Among the defenses was that Callaghan was rejected from employment not because she was a medical marijuana user but that the Act only afforded protection to cardholders, that the Act undermined an employer’s right to hire “at will employees”, that employment is neither a right nor a privilege which was being denied as a result of the possession of a medical marijuana card (the denial of which is prohibited under another section of the Act) and that if the Court ruled in favor of the Plaintiff employers would have to accommodate employees who arrived at work under the influence of medical marijuana ingested outside of their employment but which could impact their ability to use dangerous equipment or otherwise impact workplace safety. The Court made short shrift of these defenses and, as to the latter pointed out that the Act at Sec.21-28.607(a)(1) did not “permit [a]ny person to undertake any task under the influence of marijuana, when doing so would constitute negligence or professional malpractice.” The most important analysis undertaken by the Court was to determine the effect of the law if it was unenforceable because it did not provide for a private right to sue. The Court said that proper legal construction would be to make certain a law was passed that had some effect. Therefore, they inferred a right to sue even if not spelled out.
Compare this to the MA case which said that while the marijuana law passed by the voters had no private right of suit, one would not be inferred because there was a right to sue for discrimination in Chapter 151B, the anti-discrimination law. As a private remedy was provided although in a different statute the employee also could prevail on an employment discrimination claim based on possession of a medical marijuana card and use of medical marijuana outside of the work place.
It is also noteworthy that both Courts neatly sidestepped the employer’s argument that the Defendants’ actions in using drug drugs that were illegal under Federal law did not constitute a violation of the Rhode Island Civil Rights of Disabilities Act (“RICRPDA”) or Massachusetts Anti-Discrimination Law which prohibit discrimination in employment based on disability. The Rhode Island Defendant relied on the RICRPDA definition of “qualified individual” which precludes individual using illegal drugs from being deemed a “qualified individual” afforded protection against discrimination in employment. In a “gotcha” moment the Court in Callaghan said that RICRA does not include the term “qualified individual” and therefore someone using medical marijuana could make a claim for employment discrimination based on the violation of the Hawkins-Slater Act.
The Court in the MA case in stating that the Plaintiff was “handicapped” under the statutory definition glossed over the “qualified” issue and noted that in 1970,when the Federal act was passed, Congress had stated there was “no currently accepted medical use in the United States. “ Fast forward to 2017 when the Supreme Judicial Court in Barbuto compared that statement to the fact that over ninety (90%) percent of the states have some sort of medical marijuana law and that medical marijuana is therapeutic. The Court went on to say that merely “because it is illegal under federal law does not make it per se unreasonable as an accommodation”. (As an aside, Boards may wish to take note of this pronouncement which may come back to haunt them if they try to rely on federal law to prohibit smoking medical marijuana than make reasonable accommodations for unit occupants who do so.)
Given that there is currently no reliable test to determine “impairment” while under the influence of marijuana, how is an employer, whether a vendor or Board, going to determine if the employee’s performance of the task would be “negligent” or would any effort to fire that employee be met with a claim of violation of the Hawkins-Slater Act or G.L.c. 151B. Of course, the determination may be different depending on the type of work being performed. Both decisions make it clear that the mere possession of a medical marijuana card and use of medical marijuana off site prior to coming to work will not be sufficient to disqualify or terminate an employee from a job. While the RI case said that an employer need not make any accommodations to the work place, the MA case came at it from a different angle. In Barbuto the Court held that a request for an accommodation at the workplace may be made and considered if it “facially reasonable.” (The MA case was decided under the MA anti-discrimination statute which requires reasonable accommodations to be made for handicapped persons. The possessor of a medical marijuana card is a “handicapped person”) And of equal if not greater importance, do these cases indicate the beginning of a judicial trend in RI and MA to ignore federal law whenever a marijuana issue of any type arises and not just on these facts?
The takeaway from these decisions is that regardless of what state you are in, there are questions that will need to be asked and judgments made based on the facts of each situation. If you have any doubts or questions as to the applications of these judicial decisions to your set of facts feel free to contact us.
The full decisions can be read by clicking on the links below:
 Whether or not this accommodation may, upon presentation of evidence, may be determined to be hardship to the employer and thus unreasonable has not been decided.Read More
Last Thursday, July 27th, CAI-NE held a first of its kind, GSL sponsored, Business Partners Essentials course for condominium and home owner association professionals. The event was led by Ellen A. Shapiro, Esq., a principal in the law firm of Goodman, Shapiro & Lombardi, LLC (GSL) and member of the Business Partners Council of the Community Associations Institute (CAI) and Pam Bowman, a regional manager and marketing director of Prime Touch of Simsbury, CT.
Claudette Carini, CAI-NE’s Chapter Executive Director said the inaugural class “went very well and everyone commented on how informative it was” and thanked Ellen Shapiro for GSL’s “generous sponsorship” of the event. Students who attended and graduated from the class earned CAI’s Educated Business Partners distinction, nationally recognized by thousands of companies supporting common-interest communities.
For Immediate Release
Howes Promoted To Partner: Major Changes Announced At Goodman, Shapiro & Lombardi
Dedham, MA — The law firm of Goodman, Shapiro & Lombardi, LLC (GSL) announced that Mary-Joy Howes, Esq. has been named a partner of the firm. Her primary focus will continue to be on general condominium representation, including lien enforcement and requests for reasonable accommodations. She will remain headquartered at the firm’s Lincoln, RI office, where she manages an expansive condominium lien enforcement department.
Ellen A. Shapiro, Esq., a principal at GSL, announced that two senior-level attorneys also will be joining the firm. Craig Rourke, Esq. brings extensive experience in construction defect litigation and insurance defense coverage. The second attorney was not named due to current commitments but Shapiro added, “the firm is welcoming an attorney, who brings extensive legal expertise in condominium litigation.” Both replace Frederick C. Casavant and Pamela Jonah.
Additionally, she said, “We are excited that the Honorable Cheryl Jacques, who served in the Massachusetts legislature prior to being appointed Judge of the Industrial Accident Board, will be ‘Of Counsel’ to GSL.”
Howes was admitted to practice in Rhode Island in 2005 and later in the U.S. District Court, District of Rhode Island. She earned her J.D. from Roger Williams University after completing her bachelor’s degree in English from Providence College, magna cum laude. Howes has been an associate at GSL for nearly eight years. She is active with the New England Chapter of the Community Association Institute (CAI) and is a member of CAI’s Emerging Leader’s Network, and CAI Rhode Island’s Legislative Action Committee.
Howes is a frequent speaker at CAI events and a contributor to Condo Media magazine, for which she writes a monthly column that addresses issues in the Rhode Island condominium community, along with Frank A. Lombardi, a principal and manager of GSL’s RI office. Both attorneys secured a significant victory for condominium associations at the Rhode Island Supreme Court in the case of Twenty Eleven, LLC v. Botelho, in which the Court confirmed that a condominium association has a priority lien capable of extinguishing a first mortgage.
For the official press release – please CLICK HERERead More
Condo Sales Are Red Hot This Summer!
Single family home sales in Massachusetts, Rhode Island, and New Hampshire are on the rise once again this year. Record sales have driven the Massachusetts condominium market up 9% over last year’s figures! The median sale price in MA has been on the rise for 15 straight years, now over $360,000.
In New Hampshire, condo unit sales have increased by 17% since last year. So far, 2017 has reached record highs for sales in the condo industry, creating a very strong market for the summer.
The home values in Rhode Island followed a similar trend, rising by nearly 7% in the last year. This is expected to continue to rise by almost another 2% by year’s end. In the condominium market, sales rose for the fourth consecutive year. The number of closings reached 199 in May, an increase of 12.4 percent from the prior year. The median price was up 2.6 percent to $205,000. Here, too, listings have fallen. The number of active listings was 861 last month, compared to 923 in May 2016.
- 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!
- The show aired on Saturday, May 20th, 2017 from 8-9 p.m. on WBZ A.M. 1030 Real Estate Radio, with hosts Rick Scherer & Ali Alavi.
- For information about our future airings, please stay tuned for updates via email, Facebook, and Twitter.
Thanks for Listening!Read More