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MARCUS, ERRICO, EMMER & BROOKS, P.C. Representing Over 3,000 Condominium Associations...One Association at a Time
Massachusetts - New Hampshire - Rhode Island |
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Condominium-Apartment Insider |
March 2010
Issue 10 | |
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MASSACHUSETTS APPEALS COURT TAKES FIRST STEP IN ERODING DEFENSES IN SNOW AND ICE PREMISES LIABILITY
The Massachusetts Appeals Court has issued a significant decision in what appears to be a looming shift in Massachusetts law regarding the duty of a condominium association or landowner to keep the common areas and premises free from defective conditions. The long-standing rule in Massachusetts has been that although an association is responsible for using reasonable care in maintaining the common areas, an individual has an equal duty to use reasonable care when on the premises. If an open and obvious defective condition existed (i.e., a sheet of ice across the walkway, a broken stair, a pothole) the individual had a duty to avoid those conditions. The failure of an individual to avoid an open and obvious condition was grounds for the dismissal (many times at the pre-trial stage) of an injured party's case even where the condominium association failed to use reasonable care in maintaining the premises. The decision in Soederberg virtually eliminates the likelihood of a pre-trial dismissal and places a far heavier burden on the landowner.
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BANK LOAN? RESERVES? SPECIAL ASSESSMENT? COMMUNITY ASSOCIATIONS SHOULD CONSIDER THEIR OPTIONS
A decade ago, most condominium associations would not have considered applying for a bank loan, and a good thing - because they would have been hard-pressed to find a bank willing to make one. Today, associations will find that banks are not only willing to lend them money, but anxious to do so.
From the lender's perspective, the loan collateral (common area fees) and the priority "super lien," (ensuring the association's ability to collect those fees) make association loans as close to risk-free as any loan could be. Bankers will tell you that making loans on which the loss rate historically has been virtually nil is close to a no-brainer. "In 30 years of originating these loans," one area banker told me, "I've never had to write one off."
The decision-making for community associations will be a bit more complicated as they weigh the pros and cons of using bank loans, special assessments or reserves to meet their financing needs. There are two schools of thought on this. Some industry experts say associations should make reserves the first choice and special assessments the second for financing major capital projects, turning to bank loans only for unanticipated or emergency expenditures they can't finance otherwise. Others suggest precisely the opposite: Use loans for planned repair and replacement projects and rely on reserves (or assessments) for emergencies.
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TIME TO GET THE LEAD OUT
Planning to renovate, repair, or repaint any property you manage or to hire someone else to do it? If so, read on. Effective April 1, 2010, the EPA has enacted strict new guidelines which must be followed when any work will potentially disturb lead paint in a property. Generally, the new law will require management companies to hire companies that have a "certified renovator" supervising the work or, if the work is done by your own staff, to have staff members become certified renovators if they are to oversee the work. The following article is intended to provide an overview of the new regulations to assist property managers in understanding its mandates.
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Marcus, Errico, Emmer & Brooks, P.C. 45 Braintree Hill Office Park, Suite 107 Braintree, Massachusetts 02184 781·843·5000 / www.meeb.com | |
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