Page 14 - New England Condominium October 2020

14 NEW ENGLAND CONDOMINIUM -OCTOBER 2020 NEWENGLANDCONDO.COM Write to New England Condominium and we’ll pub- lish your question, along with a response from one of our attor- ney advisors. Questions may be edited for taste, length and clar- ity. Send your questions to: patgale@yrinc.com. Q&A Flynn Law Group 185 Devonshire St., Suite 401 • Boston, MA 02110 617-988-0633 “Quality Representation at Reasonable Rates - $150/Hr.” Contact Attorney Frank Flynn Frank@flynnlaw-ne.com www.flynnlaw-ne.com ATTORNEYS See Our Display Ad on Page 12 Condominium and Real Estate Law Phone: (781) 817-4900 Direct: (781) 817-4603 Fax: (781) 817-4910 We may be dressed up, but we aren’t afraid to get our hands dirty. www.lawmtm.com See Our Display Ad on Back Cover Disclaimer: The answers provided in this Q&A column are of a general nature and cannot substitute for professional advice regarding your specific circumstances. Always seek the advice of competent legal counsel or other qualified profes- sionals with any questions you may have regard- ing technical or legal issues. Merrill & McGeary 100 State Street, Suite 200 Boston, MA 02109 617-523-1760 • Fax 617-523-4893 Contact: Mike Merrill, Esq. mmerrill@merrillmcgeary.com ACCOUNTANTS David A. Levy, CPA, P.C. Certified Public Accountants 20 Freeman Place Needham, MA 02492 Tel: (617) 566-3645 (866) 842-0108 Fax: (866) 681-2377 www.DALCPAPC.net DAL CPA Please submit Pulse items to Pat Gale at patgale@yrinc.com Accounting • Auditing • Taxes • Consulting Worcester 67 Millbrook Street 508-797-5200 Grafton 80 Worcester Street 508-839-0020 Holden 795 Main Street 508-829-5544 M Love Associates, & LLC Certified Public Accountants Serving Condominium Associations mlove 2.25 x 2.5 condo association color 9.19.2017.indd 1 9/19/17 12:59 PM her own? Opinions are pretty consistent across the board. Unless the condominium is an over- 55 community that specifically requires at least one occupant and legal owner to be over 55 years old, adult children can live there. Furthermore, unless there are spe- cific provisions in the governing documents, minor children are free to live there as well, with or without the owner present. The as- sociation cannot prevent you from leasing your unit to someone with minor children. The only provision afforded the association if it’s unhappy with your choice of a tenant is to enact its right of first refusal, which we will return to shortly. Renovations and Remodeling Like most other issues, condominium boards have limited authority to control what you can do relative to remodeling and renovations in your unit. Objectively though, residents should approach this area with common sense. Owners should keep in mind that while they may be eminent in their own domain, what they do may affect their neighbors’ domain as well. It’s best to check with the managing agent and the as- sociation before undertaking major work. “For limited visibility common areas, you can do what you want,” says Van Duyne. “Renovations may require plans, licenses, and other approvals,” both from the con- dominium association and other local au- thorities. “They can dictate it.” Another area of control which may be more common in Nevada than elsewhere is in landscaping in horizontal communities—meaning asso- ciations made up of low-rise or single-level units where the unit may have exterior en- trance and exit. These communities will of- ten dictate what the plantings and rock beds placed outside units may contain. If it’s in the governing documents, the owners must go along with the plan. Sales, and the Right of First Refusal The greatest benefit to condominium ownership over other forms of community ownership structures (such as co-ops, for ex- ample) is that owners can buy and sell their units without the permission of the associa- tion’s board. “That’s the reason people like condos,” says Koplowitz. The association board does have the right of first refusal, though. In the event the board is unhappy with or has objections to the buyer, the gov- erning documents of most condominiums will provide that the association can buy the unit at the same price the prospective pur- chaser would have paid, making the seller whole. This rule also applies to leasing of units. Ultimately, as Magill outlines, rules lim- iting the rights of owners to the benefit of the association must pass several tests. “En- abling language in the declaration of con- dominium is crucial. Rule enforceability is determined by analysis of various factors en- shrined in case law. The board must have au- thority to promulgate rules and regulations regarding the use of the property, \[but\] the rule or restriction cannot conflict with any of the rights or privileges contained or inferable from the declaration. The rule or restriction must be rationally designed to accomplish a legitimate association objective. The process undertaken to adopt or create the restriction must comply with procedural requirements. And the rule cannot conflict with laws of higher priority such as fair housing laws, telecommunications laws, etc.” What Can You Do About It? There are plenty of options for owners when they fear their board has overstepped. “You’ve got the governing docs,” says one at- torney, “and the master deed and bylaws, and rules and regulations and resolutions. You’ve also got state law. What’s the best way to deal with it? Obviously, you have to communicate the issue. That should always be in writing. An unhappy unit owner can also attend a meeting and address the problem there, yet always put things in writing to create a re- cord. Sometimes though, simply bringing the matter to the attention of management will help to resolve it. An audience with the board might also be necessary to point out in the documents where what they’re doing isn’t permitted.” Shapiro offers some evergreen, universal advice. “Board members should remember that their positions on the board are only as secure as the votes that got them there,” she says. Unit owners can always resort to their ultimate remedy and figuratively say, ‘Off with their heads!’ by voting them out of of- fice. n A J Sidransky is a staff writer for New Eng- land Condominium and a published novelist. CONDOMINIUM... continued from page 13 of dollars retrofitting their unit to seal it off or at least reduce the smoke migra- tion or purchase a sophisticated (transla- tion: it must work) smoke filtration sys- tem. Or, if they refuse, the offended unit owner from upstairs can spend the same amount either retrofitting their own unit, or engage private legal counsel to insti- tute legal proceedings to stop the smok- ing. Either way, due to the costs on both sides, and ultimately due to the Feds, states, and the condo association staying on the sidelines as well, it would be best if the parties came to an accommodation amongst themselves. “If the questioner — the above-unit owner — does intend on moving, when a potential buyer directly asks whether you have had any incidents with neighbors regarding smoke, either regular, menthol, or the funky cannabis kind, you should answer truthfully and accurately to the best of your knowledge, or you might face exposure, however tenuously, to a claim for intentional or negligent misrepresen- tation. And certainly you are legally obli- gated to answer truthfully and accurately to the best of your knowledge, any writ- ten questions posed on questionnaires. In our opinion, at least in Rhode Island, there is no formal obligation to affirma- tively disclose the funky smoking issue at hand if not specifically asked. Note that we are not aware of any such questions on disclosure or inspection forms. But, as we typically say, just because you don’t have to disclose given the doctrine of caveat emptor (buyer beware), doesn’t necessar- ily mean that you shouldn’t voluntarily disclose, given the doctrine of do unto others (a/k/a the Golden Rule).” Q&A continued from page 5 need for window treatments. “I am incredibly proud to have co-de- veloped Bower. It is truly where the pebble drops for smart growth, transit-oriented and sustainable living in Boston. Bower is named for a beautiful place and industrious bird that makes a magnificent nest—and that is ex- actly what we’ve done with these buildings,” said co-developer and president of Meredith Management, John Rosenthal. Knollmeyer Completes Pine Street Project Knollmeyer Building Corp. based in Wilmington, Massachusetts, recently com- pleted construction of the Permanent Resi- dents Unit at Pine Street Inn in Boston. The project was constructed during the COV- ID-19 pandemic without incident, according to a company press statement. The designer was Narrow Gate Architecture, and Saman- tha Lamb was the project manager for Knoll- meyer. Founded in 1969, Pine Street Inn provides a comprehensive range of services to nearly 2,000 homeless men and women each day. n PULSE continued from page 4 See Our Display Ad on Page 11