Page 1 - New England Condominium June 2021
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June 2021                  NEWENGLANDCONDO.COM  koff tells   New England Condominium   that a similar bill is being pro-  posed in the Garden State. Senate Bill 3649 would adjust the statute   of limitations on damage claims for construction defects in a condo-  minium, cooperative, or other planned community development to   begin running at the time of the transition from developer control,   instead of at substantial completion of the project.  205 Lexington Avenue, NY, NY 10016 • CHANGE SERVICE REQUESTED  THE CONDO, HOA & CO-OP RESOURCE  CONDOMINIUM  NEW ENGLAND  Laws vs. Bylaws  Understanding the   Similarities & Differences  BY A. J. SIDRANSKY  Working With Your   Legal Counsel  The Attorney/Board    Relationship  BY A. J. SIDRANSKY  As the nation starts to regain a semblance of normalcy with COVID-19 vaccinations on   the rise and restrictions beginning to ease, legislative dockets have filled with bills and propos-  als that have ramifications for the co-op, condo, and HOA sector. Here are some of the biggies   that boards, managers, and residents should be aware of, no matter where your particular   community is located.  Construction Defect Claims  Matthew Gaines, attorney with Braintree, Massachusetts-based law firm Marcus, Errico,   Emmer, and Brooks, P.C. and co-chair of the Community Associations Institute’s New Eng-  land Chapter’s (CAI-NE’s) Legislative Action Committee, explains that January began the   legislative session for Massachusetts’ two-year legislative cycle; all bills have been filed and   referred to their respective committee, awaiting hearings that will take place in the upcoming   year or so.   With respect to condominiums, he says, “One of the more interesting ones is House Bill   1501, ‘An act relative to construction defect claims by condominium owners,’”—a bill being   proposed by CAI-NE’s Legislative Action Committee. Gaines explains that Massachusetts has   a statute of limitations for defect claims against a developer, giving unit owners a certain num-  ber of years to sue for any construction problems. However, what ends up happening is that   the statute of limitations expires either before completion of the project—especially if it is one   that is phased out over many years—or before the developer has ceded control of the board,   leaving no remedy for unit owners who suffer original construction defects.   “So this bill would kind of deal with that problem,” says Gaines, “and basically says that, for   condominiums, the statute of limitations doesn’t even start to run until the developer does, in   fact, turn over control \[of the board\] to the unit owners—that will hopefully enable unit own-  ers, if there is a problem, to be able to recover something from the developer for that problem.”  Attorney David Ramsey of the Morristown, New Jersey office of law firm Becker & Polia-  Co-op and condo living is subject to lots   of rules—some of which come directly from   state laws, some from the building or associ-  ation’s own bylaws, and some from its house   rules. Every state has statutes that govern the   operation of residential communities; every   community also has its own set of govern-  ing documents, which are almost universally   subject to those state laws—and sometimes   go even further than state regulations in de-  lineating what owners and shareholders can   and can’t do on the property.   These various laws, bylaws, and rules gov-  ern everything from pet ownership to leas-  ing and subletting of individual units, and   even to who may reside in an apartment. But   can a community’s rules conflict with state   statutes? And what happens if they do?  Governing Documents  “As a rule, the law wins; the bylaws lose,”   says Richard Brooks, a partner with Marcus,   Errico, Emmer, & Brooks, a law firm located   in Braintree, Massachusetts.  “You can’t make   your own rules \[that\] stand in opposition to   state laws.  It’s like states’ laws versus federal   laws; the federal statute rules. There’s a peck-  ing order.”   “Many condos have provisions about   pets or pot smoking in your unit,” explains   Brooks. “They are in the bylaws passed by   the  community.  But  you  have  other  laws,   like federal laws that say you can only smoke   marijuana for medical purposes. That has to   be permitted, despite the bylaw prohibition.   The same concept governs emotional sup-  port animals. Federal and state laws say you   must permit them, even if you have a no-pet   policy.”  According to Dennis Greenstein, a part-  ner with Seyfarth Shaw, a national law firm   with offices in Boston, “The governing docu-  ments of cooperative corporations—which   For many, the function and relation-  ship between the board of directors of a   co-op or condominium community and   their attorney  is  more  or  less  opaque.   Who does the attorney represent? Indi-  vidual owners or shareholders can’t con-  tact the community’s counsel for legal   advice; if they need  counsel, they  must   find one outside the community’s legal   arrangements. So the community’s attor-  ney isn’t there as a resource for residents.   How  about  the  board  members?  Tech-  nically, the  answer is no  there as  well.   While board members  certainly may   interact with the corporation or associa-  tion attorney for community business,   they cannot and should not approach the   community’s counsel for personal legal   advice. It’s the corporation or association   that the community’s counsel represents.    He or she is there to protect the integ-  rity and interests of the community as a   whole and functioning entity.  Defining the Client  “The building’s attorneys are hired   with the approval of the board, purely   to advise the board and its managing   agent regarding day to day matters and   with the interests of the corporation or   association as whole in mind,” says Mark   Hakim, an attorney with Schwartz Slad-  kus Reich Greenberg & Atlas  in New   York City.  “Attorneys for the building   do not represent the board or the indi-  vidual  residents.    The  board  members   are generally voted into office and man-  age the building with authority derived   from the governing documents (e.g.,   the bylaws, lease, etc.) and applicable   statutes. When requested, we advise on   a myriad of matters, from day-to-day   matters such as sales, leasing, house rule   and other enforcement, to disputes, to   negotiating contracts for management,   repairs, alterations, telecommunications,   etc. to attending to litigation and other   similar matters, to attendance at annual   and other meetings. That’s by no means   continued on page 8   continued on page 9   Legal & Legislative Roundup  Looking at the Past Year in Law  BY DARCEY GERSTEIN  continued on page 8


































































































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