massachusetts condominium law

$1.85 Million Verdict Upheld Against Demoulas In-Law In Back Bay Condo Squeeze Out

by Rich Vetstein on January 8, 2015

in Condominium Law, Massachusetts Real Estate Law, Real Estate Litigation

One of Largest Verdicts In A Condominium Dispute

In a David vs. Goliath case pitting a Demoulas family heir against an elderly Brandeis professor over a tony Back Bay townhouse, the Appeals Court has let stand a $1.85 Million jury verdict — one of the largest awards in a private condominium governance dispute. The case is also one of the first to successfully employ the Massachusetts Civil Rights Act in a private real estate dispute. With interest and an award attorneys fees of $1.9 Million, the judgment will swell close to $4 Million — providing a cautionary tale to condominium trustees who abuse their power for ulterior purposes. The case is Kettenbach v. Wodinsky, Mass. Appeals Court (Jan. 6, 2015), embedded below.

A Classic David vs. Goliath Tale

In 1996, Michael and Frances (Demoulas) Kettenbach bought a unit in the 5 unit townhouse located at 303 Commonwealth Avenue in the Back Bay. (Frances is the sister of Arthur T. Demoulas who was recently reinstated as CEO of Market Basket after a publicized family fight). With the goal to acquire all of the units and convert the building to a grand single family Back Bay residence, Kettenbach purchased three more units, leaving only the top floor unit owned by Jerome and Bernadette Wodinsky. The Wodinskys, who had owned their the fourth floor unit for over 30 years, didn’t want to sell.

According to the court’s ruling, Kettenbach enlisted Gary Crossen, a former prominent Boston attorney who was the Demoulas family’s trial lawyer in their epic family litigation in the 1990’s. When the Wodinsky’s made it clear they were not selling, Kettenbach and Crossen began to put the proverbial “squeeze” on them. Armed with the controlling interest in the condominium association, they summoned state inspectors to condemn the building elevator, leaving the 82 year old Wodinsky, who suffers emphysema, to make the daily climb up 86 stairs to his fourth floor unit. Instead of repairing the elevator, Kettenbach voted to replace it at a $275,000 price tag. When the roof leaked, rather than repair it, Kettenbach insisted on installing a new one – even though it was only 10 years old. He also completely replaced the building’s heating system and did a massive overhaul of the electrical system. The result was a $1 million special assessment, 20% of which Kettenbach attempted to impose on Wodinskys. Kettenbach also hired a private investigator who showed up at Mrs. Wodinsky’s workplace and threatened her with bankruptcy.

Staggering Jury Verdict

Not backing down, the Wodinskys sued, asserting claims under the little used Massachusetts Civil Rights Act, abuse of process, civil conspiracy, and the Consumer Protection Act, Chapter 93A. They won an early victory when a trial judge issued an injunction forcing Kettenbach to fix the elevator. The case went to trial in 2011 over 19 days, and the jury returned a whopping $1.85 Million verdict in the Wodinsky’s favor. Although the trial judge vacated the judgment on the Chapter 93A count, which would have given the Wodinsky’s triple damages, he left the judgment intact on all other claims. Both parties appealed.

Jury Verdict Upheld on Appeal

On appeal, Appeals Court Justice William Meade upheld the entire jury verdict and judgment, and awarded the Wodinsky’s their appellate attorneys’ fees and costs, which will balloon the judgment against Kettenbach to well over $4 Million and change. The justice held that there was ample evidence that:

Kettenbach and Crossen coerced, intimidated, and threatened the Wodinskys in an effort to force them out of their home. This evidence includes: the Kettenbachs’ active attempts to condemn and decommission the building’s only elevator; the excessive period of time during which the elevator was unusable, which forced the elderly Wodinskys to walk up and down four flights of stairs; Crossen and the Kettenbachs’ manipulation of the board’s voting process to the Wodinskys’ detriment; the Kettenbachs’ demand that the Wodinskys pay twenty percent of expensive, unneeded projects that were not lawfully voted upon by the board; the Kettenbachs’ instituting litigation against the Wodinskys to collect such payments while simultaneously forgiving the assessments of another owner who agreed to sell her unit; and the Kettenbachs’ hiring of a private investigator to visit Bernadette at her work place for the specific purpose of threatening the Wodinskys with bankruptcy.

Since a member of the Demoulas family is involved, you can bet that this case isn’t over yet, and that he will try to get the Supreme Judicial Court to hear this case. And he might be successful as this is a huge jury verdict and, as mentioned earlier, one of the largest involving the Massachusetts Civil Rights Act.

Expansion of Condominium Trustee Liability?

Although this was a particularly unique and egregious case, this ruling could be used to expand liability against condominium trustees to for state civil rights violations arising out of contentious governance and assessment disputes. I’m not so sure that the Mass. Civil Rights Act is the appropriate vehicle to address this sort of private claim, because I don’t see how it invokes traditional constitutional rights which the Act was intended to protect. The SJC will have to sort this out but if they don’t take this case, this ruling will be the law of the land. Either way, I will bet that we haven’t heard the end of this dispute.

Kettenbach v. Wodinsky

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Appeals Court Puts Brakes On Condominium Rolling Super Lien Practice

by Rich Vetstein on November 22, 2014

in Condominium Law, Liens, Real Estate Litigation, Title Defects

Update 3/30/16: SJC Reverses Appeals Court, Allowing Rolling Lien Procedure

Ruling Hurts Condominium Associations’ Collection Efforts

The Massachusetts Condominium Act gives condominium associations the ability to file a “super-lien” for unpaid monthly condominium fees, six months of which is given priority over a first mortgage against the unit. The super-lien has proven to be a very effective method for condominiums to collect delinquent fees because lenders will often pay off the super-priority amount so as not to affect their mortgage priority.

But what happens when a unit owner owes more than six month’s worth of condo fees? In that situation, innovative condominium attorneys have developed a practice of filing multiple lien lawsuits to create a “rolling” lien for successive 6 month periods. Unfortunately for condominium associations, the Appeals Court recently put the kibosh on this practice in the case of Drummer Boy Homes Association v. Britton (Nov. 7, 2014).

Rolling Lien Practice

In the Drummer Boy case, the unit owner withheld payment of condo fees in a dispute with the condominium trustees over parking rights and fines. (Note, this is a big “no-no” as the law provides that a disgruntled unit owner must pay fees under protest). The condominium lawyers filed three separate and successive lawsuits asserting a super-lien over 18 months worth of unpaid fees. The lawsuits were all consolidated. A district court judge ruled, however, that the association had a super-priority lien over only the first 6 months before the first lawsuit, not the 18 months’ worth claimed.

Court: Super-lien Limited To 6 Months Of Fees

On appeal, the Appeals Court likewise held that the association’s super-lien only covered the initial 6 month period, not the 18 month period claimed. The Court reasoned that the Mass. Condominium Act was modeled after the Uniform Condominium Act which clearly provided that the maximum amount of a super-priority lien was 6 months worth of fees, and that this was a fair balance between the interests of lenders and condominium associations. Of course, the condominium association is free to collect all of the outstanding fees from the unit owner and sell the unit at auction, but the first mortgage will have priority over all of the fees except for 6 months plus attorneys’ fees, so it’s essentially a Pyrrhic victory.

As the condominium attorneys over at Perkins|Ancil are saying, this ruling may be appealed to the SJC and going forward 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. Failing that, condominium associations will have to lobby the Legislature for a change in the super-priority lien amount over above the 6 month cap. This remains a case to watch!

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Serenity Now…Crafting Condominium Documents For Lasting Peace and Harmony

by Rich Vetstein on August 18, 2013

in Condominium Law, Fannie Mae, Massachusetts Real Estate Law

Special Considerations For Drafting Two and Three Family Massachusetts Condominium Conversions Documents

Avid readers of this Blog know that I’m a huge Seinfeld fan. One of my favorite episodes is the “Serenity Now” episode where Kramer went a little nutty after being tormented by neighborhood kids, muttering “serenity now, serenity now” outside his toilet papered apartment.

Serenity is a good topic when it comes to condominiums. Condominium living can often bring out the worst in people. I’ve written about the infamous case where a disgruntled unit owner dropped bags of dog poop labeled with the name of the condo board president in hallways and gave the “bird” to condo trustees. There are others, too many to mention here, where dysfunctional trustees have brought condominiums to financial ruin and chaos.

Despite this discordance, condominium conversions of two and three multifamily homes in and around Boston, Cambridge and Somerville continue to be a popular way to cash in on the hot real estate market. A lot of these homes are owned and occupied by extended families, some of whom stay in the new condominium, and some who leave for greener pastures. Smaller condominiums, however, can be a recipe for disaster without careful planning and drafting of the legal documents which govern them. I’m going to outline some important considerations in drafting Massachusetts condominium conversion documents which will put into practice the saying that “an ounce of prevention is worth a pound of cure.”

The Master Deed

The Master Deed is where it all starts. Condominiums are a “creature of statute.” That is, they are a special legal form of property ownership enabled only through a special law called the Massachusetts Condominium Act, General Laws Chapter 183A. The owner of the property must “submit” the property into the condominium regime through the recording with the registry of deeds of a master deed.

The Master Deed sets forth what is part of the units and what is part of the shared “common areas.” Units are typically defined as all of the interior space from the lower surface of finished ceilings, surface plaster of walls and the sub-floor in, while common area consists of the innards behind the walls and buildings, the roof, most common HVAC/plumbing/heating systems, yards, and exterior of the home, among other things.

The use of “limited common areas” or “exclusive use areas” are especially useful in two and three family condominiums. Limited common areas are technically common area space but reserved for the exclusive use of the unit owner which it serves. Examples include private decks, porches, roof decks, parking spaces, and storage areas. The drafter can be flexible and provide that limited common areas must be repaired by either the condo association or the unit owner.

The master deed will often impose restrictions upon the use of units or rights of first refusal for the trustees or other unit owners. Care must be taken here to ensure that the units remain marketable while also protecting the serenity of unit owners. Rights of first refusal are discouraged these days.

Declaration of Trust and By-Laws

The second component of creating a condominium is the Declaration of Trust, also referred to as the By-Laws. The declaration of trust creates the condominium trust association and a board of trustees which govern the condominium.

For smaller condominiums between 2 and 5 units, the key is crafting the provisions so as to prevent dead-locking on major decisions. I almost always provide for super-majority voting on all major issues. For 2 unit conversions, I recommend unanimous voting on all major issues. And for all condos I use a mandatory arbitration clause to mediate any deadlocks.

In the case of non-payment of condo fees, which can be financial disaster for two and three unit condos, I provide for the right of the paying unit owners to be granted authority and power to start condo lien proceedings against the non-payor and recover attorneys’ fees and costs.

The declaration of trust should also contain all of the unique rules and regulations of the condominium. Important note: If these are not attached and recorded with the declaration of trust, they are not binding on unit owners. Rules should be drafted in consultation with the owners and can cover anything from satellite dishes, pets, smoking, signs, preserving architectural integrity, noise, quiet hours, parties, trash, etc.

The declaration of trust should also have standard Fannie Mae/Freddie Mac provisions which will ensure that future buyers can obtain conventional financing on their units.

Annual Budget, Condo Fees and Real Estate Taxes

The condominium should have a written annual budget and monthly condo fees established. A separate condominium bank account should also be set up with checks, deposit slips, etc. For small projects, the budget can be rather simple, encompassing the master insurance premium, water/sewer, landscaping, maintenance, and a small capital reserve fund. The monthly condo fee is calculated as the annual budget divided by the number of units divided by 12.

With respect to real estate taxes on a condo conversion, the building will continue to be assesses as a single dwelling until the tax assessor catches up to the conversion. A tax letter agreement should be prepared so that real estate taxes are prorated and properly assessed and paid by each unit owner after the conversion until each unit becomes separately assessed.

Also don’t forget that in the City of Boston, a “Trager” excise tax of $500 per unit starting with the second unit will be assessed on all new conversions. The master deed must have a “Trager” stamp before being accepted for recording.

Unit Floor Plans and Site Plan

All new condominium conversions must have prepared unit floor plans, and in Boston, a surveyed site plan. Unit floor plans will detail each unit’s gross living area, and delineate common areas, limited common areas, exclusive use spaces, and units.

How Much Does All This Cost?

Even for two unit conversions, the cost is a fair amount. Legal fees range from $2,500 – $5,000 and upwards, depending on the complexity of the project and the attorney. Recording fees and Boston excise taxes run over $1,000 and upwards. Architect and survey fees range from $2,500 and upwards. And you always get what you pay for, so keep that in mind!

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Richard D. Vetstein, Esq. is a seasoned Massachusetts condominium conversion attorney. Please contact him at [email protected] or by phone at 508-620-5352.

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Lowell Mill Condominium Developer Hit With $300,000 Plus Judgment In Construction Defect Case

by Rich Vetstein on December 14, 2012

in Condominium Law, Construction Law, Massachusetts Real Estate Law, Real Estate Litigation, Safety

Case Law Report: Wyman v. Ayer Properties, LLC (Massachusetts Appeals Court, December 12, 2012).

Condo Construction Defect Claims Now Easier To Bring

In an important opinion which will make it easier for condominium associations to seek redress for faulty or defective construction, the Appeals Court has entered a $300,000 plus judgment against a Lowell based real estate developer. A link to the opinion can be found here.

Ayer Properties rehabilitated a vacant mill building on Market Street in Lowell, converting it into condominiums in the mid 2000’s. After the units were sold out, the new board of trustees discovered several aspects of faulty construction, including defective windows, deteriorating exterior brick masonry façade, and a leaky roof. At the end of an 11-day jury-waived trial, a Superior Court trial judge awarded compensatory damages of $140,000, but eliminated well over $100,000 of the association’s claimed damages based on a legal defense called the economic loss doctrine.

The economic loss doctrine provides that a claimant must suffer some sort of property damage or personal injury in a negligent construction claim before being able to recover compensatory damages. The strict application of the economic loss doctrine in condominium construction defects can be quite harsh, often eviscerating thousands of dollars in damages simply because of the peculiarity of condominium ownership – the legal division and separation between common element property and individual unit owner property.

Justice Mitchell Sikora of the Appeals Court used some much-needed common sense and dispensed with the economic loss doctrine in the condominium construction defect setting:

We therefore hold that a condominium unit owners’ association may recover damages in tort from a responsible builder-vendor for negligent design or construction of common area property in circumstances in which damages are reasonably determinable, in which the association would otherwise lack a remedy, and in which the association acts within the time allowed by the applicable statute of limitations or statute of repose.

The impact of this decision will make it less difficult for condominium associations and trustees to sue and recover all damages against developers for construction defects. We could also see an increase in construction defect claims over faulty construction in the future.

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Richard D. Vetstein, Esq. is an experienced condominium and construction litigation attorney. Please contact him at 508-620-5352 or [email protected].

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Crazy Trustees, No Pet Rules & Leaky Roofs: Things To Consider When Buying A Massachusetts Condominium Unit

by Rich Vetstein on April 9, 2011

in Condominium Law, Massachusetts Real Estate Law

Buying a Massachusetts condominium unit is VERY different from buying a single family home. A lot of buyers don’t appreciate the difference, unfortunately, until they have lived in the condominium for a short time. From crazy condo trustees (remember the Del Boca Vista episode from Seinfeld?), pet rules and controversies, to leaky roofs — due diligence is critical before you buy a Massachusetts condominium.

Condominium: Special Type of Legal Ownership

From a legal perspective, a condominium is a special type of real estate ownership. When you purchase a condominium unit, you get complete legal title to the unit itself and an “undivided” interest in the common areas of the condominium project which is really everything other than the units. Common areas typically include the land underlying the project, the exterior walls, roof, elevator, building entrances and exits, lobby, interior stairways, swimming pools, recreational facilities and halls.

Common Areas & Financial Management

Each individual unit owner is responsible for everything within the walls of their unit, while the condominium association and its board of trustees are responsible for all the common areas and facilities. This is a critical part of a condominium. You are buying into the entire project as much as you are the unit, and your decision will impact your daily living and your ability to re-sell.

The management and maintenance of the condominium common areas are funded by the collection of monthly condo fees. The condo fees are used to pay for things like master insurance, property management, landscaping, water/sewer, snow plowing, pool cleaning, roof repairs, etc. Well run condominiums will also allocate a percentage of condo fees to a capital reserve fund to pay for expensive one-time capital repairs, usually leaky roofs, old boilers and big ticket items of that nature.

To borrow from a famous phrase, not all condominiums are created equally. Some condominiums are very well run; some are quite poorly run and underfunded. Buyers interested in purchasing a condominium unit must do their homework: not only about the condition of the individual unit they are interested in purchasing, but on the financial health and governance of the condominium as a whole.

Condominium finances also have a significant impact on whether your unit will qualify for certain loan programs. Please read my post, 10 Questions To Ask Before Buying A Massachusetts Condominium for more info on that topic.

Crazy Trustees

Condominium associations are usually run by a board of trustees ranging from 2 to 5 persons. Unfortunately it’s difficult to ascertain whether these individuals are sane and competent. What you can do as a buyer is request the last 3 years of condominium minutes to see what’s been going on with the condo. You should also request the budget for the last 3 years and have the trustees fill out a condominium questionnaire with detailed questions about the financial management. If no minutes are available, that’s a red flag of poor management. Watch out for larger condominiums that are self-managed, that is, not run by a professional management company. Managing a larger condominium is challenging work and a full time job.

No Pet Rules

Another critical part of a buyer’s due diligence is to review the condominium documents, the by-laws, rules and regulations. Here is an example of condo rules I found online from the Liberty Estates Condo in Uxbridge.

One of the most contentious rules in condominium governance is pets. Condominiums can legally regulate pets. They can prohibit them entirely, allow them, or adopt reasonable regulations to control them. Take the Liberty Estates pet rules:

If your dog has been known to get into trouble, this rule may pose a problem. Better to know ahead of time is my point.

Other important rules cover whether you can smoke, rent out the unit, decorations, paint colors, quiet hours, storage, parking, grills, decks, and signs.

And for fun, here’s that Seinfeld condo clip.

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Richard D. Vetstein, Esq. is an experienced Massachusetts Real Estate Condominium Real Estate Attorney. For further information you can contact him at [email protected].

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New FHA Condominium Guidelines: Financially Sound Projects = Better Investments

by Rich Vetstein on December 9, 2009

in Condominium Law, FHA, Massachusetts Real Estate Law, Mortgages, Realtors

I’m getting pretty tired of all the condominium developers and realtors out there claiming and clamoring that the new FHA condominium guidelines which went into effect this week are the next coming of the Apocalypse. The fact remains that the new guidelines will ensure that condominiums are financially sound and well-run, and that’s good news for everyone: lenders, consumers, buyers, unit owners and realtors alike.

David Fletcher, a Florida real estate broker and former developer who has survived every recession since the 1970’s, gets it. In an article in Realty Times yesterday, he outlines 10 benefits of the new rules, especially from a sales and marketing perspective:

More buyers will enter the market because they can afford the lower down payment.
No single investor can purchase more than 10% of the units, so the idea of a controlled association by one or two investors is no longer a threat.
More inventory will offer wider choices tending to keep prices in check, as “FHA approved’ condominiums come on line.
More real estate agents will be willing to show condominiums to their buyers, because the lender who provides the mortgage will have to approve not only the condo documents, but the condo association’s budget, reserve account and its fidelity insurance policy.
New construction developers have the guidelines needed to create urgency in their pricing strategies, which is key to building and maintaining momentum.
Commercial lenders will have a more comfortable level with developers. While the 50% presale requirement may look obtrusive, it is actually a benefit to the developer, because it will create urgency for buyers to purchase.
Established associations that have dragged their feet to get their finances in order, now have a valid value-based reason to become “FHA Approved.”
Real estate agents will show FHA approved condominiums with confidence in the association’s finances, not just because the down payment is low.
Forward thinking lenders will hustle to become a “an approved lender’ in resale and new communities alike
Knowing the property already has approved lenders will make competition for listings tighter and will attract more buyers and more prospects to the listing.

David believes — and I agree with him — that “FHA Approved” will become one of the most sought after seals of approvals for condominiums in 2010 and beyond. Let’s hope that all the realtors, lenders, and condominium developers out there realize the benefits that can be gained from obtaining FHA approved status.

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FHA Condominium Lending Rules Go Into Effect Today: Today’s Hurt Is Tomorrow’s Gain

by Rich Vetstein on December 7, 2009

in Condominium Law, FHA, Massachusetts Real Estate Law

Today, the controversial Federal Housing Administration (FHA) condominium mortgage rules go into effect. I’ve written about them extensively on this blog here. The new FHA rules, in summary, require that condominiums undergo a much more rigorous financial review prior to being accepted into FHA mortgage programs. Sort of like a cardiac stress test for condominiums.

I was interviewed this morning by Associated Press real estate reporter Alan Zibel about the impact of the changes. I said that despite the short term hurt on lenders and the extensive underwriting required, I believe they are a good thing for consumers and condominium buyers because they require condominiums to get their financial collective acts together. Mr. Zibel graciously quoted me in the article:

While the rules could be tough for builders, they will protect consumers because lenders will be forced to be more careful about which projects they fund, said Richard Vetstein, a real estate lawyer in Framingham, Mass. “On the whole, it’s a good thing,” he said. “Financially sound condominiums make better investments.”

Here’s a direct link to the AP story as reprinted in the Los Angeles Times.

The AP article also touched on the difficulty new condominium developers face with the tougher rules. A Utah condo developer, who shelved a 300 unit project in favor of free standing homes, characterized the new rules as a “debacle.” But the FHA already watered down the new rules from those previously proposed, so builders could be dealing with far worse. On the whole, I think the rules are fair, balanced, and unfortunately necessary in light of the condominium meltdown in states such as Florida and California.

Today’s hurt is tomorrow’s gain….

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Final (Hopefully!) Revised FHA Condominium Lending Guidelines Issued

by Rich Vetstein on November 21, 2009

in Condominium Law, Fannie Mae, FHA, HUD, Massachusetts Real Estate Law, Mortgages

After several revisions and delays, the Federal Housing Administration (FHA) has finally issued major changes to its revised guidelines on mortgage insurance requirements for condominium projects. FHA first proposed the revisions back in June (under Mortgagee Letter 2009-19). The new guidelines are effective December 7, 2009; however, some of the requirements are phased in through January 31, 2010.

There has been a considerable amount of controversy involving HUD/FHA’s proposed requirements for obtaining FHA mortgage insurance for condominiums. The newest guideline revisions are in response to the strong reaction from condominium associations and mortgage industry representatives who saw many of the FHA requirements as counter-productive and burdensome to condominium associations and owners.

The latest guidelines are described in two separate HUD/FHA documents:

Mortgagee Letter 2009-46B (the revised guidelines for FHA approval of residential condominium projects)
Mortgagee Letter 2009-46A (temporary guidance for condominium approvals).

Under the Temporary Guidance:

The “Spot Loan” approval process will continue through February 1, 2010, after which it will be replaced by the new Direct Endorsement Lender Review & Approval Process (DELRAP); and
The 30% cap on FHA loans per condo project will be expanded to 50% until December 31, 2010. Concentrations may be increased to 100% if certain additional conditions are met. After January 1, 2011, the cap reverts back to 30%.

The highlights of the New Guidelines are as follows:

Condominium project approval is not required for condominiums comprised of single-family totally detached dwellings (no shared garages or any other attached buildings).
Until December 31, 2010, at least 30% pre-sale level must be reached before any FHA mortgage can be granted on any unit. After 12/31/10, 50% pre-sale level must be reached.
50% owner occupancy rate for the entire project.
No more than 15% of unit owners can be delinquent (over 30 days late) on their condominium fees.
Capital reserve funding: The reserve study requirement has been eliminated, along with the requirement of at least 60% of the fully funded reserves. The new requirement requires merely that at least 10% of the association’s annual budget be set aside for reserves.
Budget review: Lenders must review the condominium budget to determine that the budget is adequate and: (i) includes allocations/line items to ensure sufficient funds are available to maintain and preserve all amenities and features unique to the condominium project; (ii) provides for the funding of replacement reserves for capital expenditures and deferred maintenance in an account representing at least 10% of the budget; and (iii) provides adequate funding for insurance coverage and deductibles.
No more than 25% of space allocated to commercial use.
No more than 10% of units held by a single investor.
The 1-year waiting period for conversion condominiums is eliminated.
Unit owners must obtain individual HO-6 insurance policies if the master policy doesn’t cover unit interiors.
Fidelity insurance must be obtained for 20+ unit projects.
Re-certification required every 2 years.

Transition Strategy:

FHA will move all currently approved condominium projects to the new approval list and FHA Connection database.
Projects that received approval prior to October 1, 2008, will require recertification on or before December 7, 2009.
Projects that received approval between October 1, 2008 and December 7, 2009, will be “grandfathered” and will have to follow the new guidelines’ recertification process (recertification required every two years).

Analysis:

Although the condominium association and mortgage lobby were successful in watering down some the more onerous requirements, the new revised guidelines will still represent a major change in how lenders underwrite condominium mortgages. Lenders will have to perform much more extensive due diligence on condominium projects than before.

The new guidelines will also force existing condominium associations to really get their acts together, especially with their unpaid condominium fees, budgets, insurance and capital reserve accounts. FHA mortgage programs are becoming the first choice for first time home buyers, and condominium units are particularly suitable for first timers. I have already seen situations where condominium trustees feel no obligation to comply with FHA (and Fannie Mae) guidelines in connection with a proposal sale of a unit, and it is not a good situation. Condominium trustees and association can certainly open themselves up to liability if they don’t cooperate and maintain the marketability of the units which they govern. Trustees owe unit owners a fiduciary obligation to get their associations in compliance with all new FHA/FNMA guidelines, in my opinion.

For condominium associations, the Community Associations Institute has published this helpful “Head’s Up” and FAQ.

As always, contact Richard Vetstein with any questions.

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A Quick Question & Answer Session On Massachusetts Condominium Law And Liability Issues

by Rich Vetstein on October 28, 2009

in Condominium Law, Landlord Tenant Law, Massachusetts Real Estate Law, Rental Housing

Rona Fischman, a buyer’s agent and co-author of Boston.com’s Real Estate Now Blog asked me to answer a couple of questions regarding condominiums on her Boston.com blog which I’ve reprinted here:

Is an individual unit owner liable if someone gets hurt in the condominium’s common areas?

The answer is most likely not. This is good lead in to the concept of “common areas.” When someone buys a condominium unit, they also obtain an undivided share of the condominium’s common areas and facilities. Common areas typically include obvious things such as building entrances and exits, lobbies, interior stairways, pools and workout rooms. They also include not so obvious areas such as the space between adjoining units, telecommunication wires, and the roof. As outlined in the “master deed,” each unit owner “owns” an undivided share (expressed as a percentage) of all the common areas. But the condominium association has responsibility over managing and maintaining the common areas. Recognizing that unit owners have very little control over common areas, the Massachusetts Condominium Act provides that only the condominium association can be sued for claims related to common areas. The condominium association should have a master liability insurance policy in place in case anyone gets injured on common area property. If however, the claim is so substantial that all common funds, property and insurance proceeds have been exhausted to pay the claim, individual unit owners could be held liable for the balance due, if any, but only up to their respective percentage interest in the condominium. Now, if your unit has a private deck or porch (which is not a common area) with a faulty railing, you could be held responsible if someone fell. For all these reasons, unit owners should absolutely obtain an “HO-6” policy for their own liability and an umbrella policy on top of that.

I own a condominium unit and rent it out to students. Am I responsible for my tenant’s noise and disturbance problems?

The answer is yes. While a precise response would depend on the provisions of the condominium’s bylaws, typically, a unit owner is responsible for the actions of tenants. Most often, a condominium’s bylaws and house rules are binding on unit owners, resident family members and tenants. If a tenant violates a house rule — by making excessive noise — the unit owner is responsible for all consequences. The condominium association can require the unit owner to evict the tenant; if the unit owner fails or refuses, the condominium association may be able to take separate legal action against the owner and levy stiff fines. If the bylaws provide, the unit owner may be responsible for reimbursing the condo for legal fees and other expenses incurred in connection with his tenant’s eviction. Disgruntled unit owners can also pursue “nuisance” claims against unit owners who rent to noisy tenants. This is a tricky issue with an absentee unit owner who cannot verify the nature of the complaints. Surely, however, renting to noisy tenants will earn you no favors with your fellow unit owners.

Condominium Living 101

My advice to folks considering purchasing a condominium is to recognize that you are buying into a rather unique form of ownership and community. You will be giving up certain rights taken for granted in single family dwelling life — the right to absolute silence, privacy, and control over all aspects of the property — in exchange for perhaps more amenities, convenience, less maintenance, and better location and price. In some cases, you will also be entering into the uniquely democratic (or in some condos, totalitarian) form of governance, rife with politics, fighting and name-calling–think that Seinfeld episode down at the Del Boca Vista Condos. But seriously, the majority of condominiums are well run. But before you buy, it’s imperative that you and your real estate attorney thoroughly review the condominium documents and budget to ensure you’re not buying into a Seinfeld-esque nightmare.

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The Catch-22 Impact Of New Fannie Mae (FNMA) Condominium Lending Regulations

by Rich Vetstein on July 1, 2009

in Condominium Law, Fannie Mae, Massachusetts Real Estate Law, Mortgage Crisis, Mortgages

Recent Fannie Mae (FNMA) condominium lending regulations are beginning to live up to the hype as having an onerous impact on condominium sales and project development. The changes, made in January 2009, were part of an effort by mortgage giants Fannie Mae and Freddie Mac to limit risky lending in a segment of the housing market particularly hard hit by foreclosures in recent years.

Here is a brief overview of the Fannie Mae condo guideline changes:

For new construction and newly converted condominium developments, 70% of the units must be pre-sold (closed or under contract). This guideline is being increased from 51%. This is the real Catch-22. Fannie Mae won’t approve condominium mortgages unless 70% of the units are sold, but a developer cannot sell 70% of the units without buyers being able to obtain conventional Fannie Mae compliant mortgages. Buyers who run into problems here are being forced to get loans from small local banks who hold their own mortgages and are not bound by the FNMA guidelines.
No more than 15% of condominium units within a single project can be more than 30 days delinquent on condo fees. This is an existing guideline that is now being applied to new condominium projects. The requirement was also changed from being 15% of the total fee payments to 15% of total units.
Fidelity insurance will be required for condominiums with 20 or more units, ensuring that homeowner association funds are protected. Presently, this requirement applies to new projects and is now being extended to include established condominiums.
Borrowers must now obtain an HO-6 condominium unit owners insurance policy unless the condominium master policy provides interior unit coverage; coverage may not be less than 20% of the assessed value. A condominium owners policy, known as an HO-6 policy, typically covers personal property, personal liability, and the physical unit from the studs and in. Many policies also include special assessment coverage or the option to include a special assessment coverage rider. Click here for a more extensive post on HO-6 policies.
No more than 10% of a project can be owned by a single entity. Apparently, this was to keep the so-called “vulture buyers” from taking over project.
No more than 20% of a project can consist of non-residential space. The new guidelines therefore severely impact most mixed commercial-residential use projects, a highly popular development scheme.
The condominium/homeowners association must have at least 10% of its budgeted income designated in a capital reserve fund for replacement reserves and adequate funds budgeted for the insurance deductible. Many older condominium associations keep woefully inadequate reserves and operating budgets, so they are non-compliant.
No pending litigation involving the structural soundness, safety or habitability of the condominium project. Fannie Mae underwriters will reject financing if the condominium association is involved in litigation over the construction of the project. I’ve written about this more extensively here. Borrowers may ask for a waiver if they can establish adequate insurance coverage for the litigation or otherwise little or no risk of loss to the association.
Fannie Mae and Freddie Mac have also boosted fees on mortgages for condominium units. Buyers without a minimum 25% down payment have to pay closing-cost fees equal to 0.75% of their loan, regardless of their credit score, under new rules that took effect in April. Fannie Mae has said it will drop that fee in August for cooperative apartments and detached condos.

According to a Fannie Mae, the guidelines can be modified for condominium projects on a case-by-case basis. Therefore, these guidelines may not apply to all condo projects.

Click here for the guidelines.

What’s the impact of the changes?

Certainly, the revised guidelines are negatively affecting condominium buyers’ ability to obtain conventional loans for either a new or established condominium if the project does not conform. Most notably, the changes are dramatically affecting new developments, especially in hard hit areas such as Florida and California.

Fannie Mae has already approved a number of projects. Click here for the full list of FNMA approved projects.

Through discussions with some fellow Massachusetts real estate professionals, the impact here in the Bay State is not as bad as some of the harder hit states, but it’s proving to be a major thorn in many transactions. Real estate attorneys on both sides of the table are working hard to get existing condominium developments in compliance with the new regulations.

Rep. Barney Frank (D-Mass.), who ironically spent the last year lambasting Fannie Mae for its questionable lending practices, is now calling for Fannie Mae to relax these guidelines. We’ll see what happens in D.C., and keep you posted on any changes coming down the pipeline.