Category Archives: Condominium

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Condominium,

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Massachusetts Condominiums Should have Websites–It outta be the Law

Condominium, , ,

Condominiums in Boston, Massachusetts and surrounding towns come in all shapes and sizes. There are a plethora of 2 and 3 Unit condominiums, former personal properties where the owner usually lived in one of the apartments, and rented out the other apartments to family or third parties. These “Mom and Pop” building are NOT the subject of this post.

What I am addressing is Condominiums with four or more Units. These Units were either built as Condominiums, or have been converted from apartment buildings to condominiums. Some of these larger units are self-managed, but the great majority are managed by professional managers. These managers do not make things easy for the Unit Owners. There is almost always a charge for move-ins and move-outs and there is a charge for a 6(d) certificate, so-called, which indicates that there are no unpaid common area charges for a Unit which is being sold.

Condominium Documents, when available, are unsigned, and amendments thereto are not furnished. Floor plans are not readily available, especially now since Massachusetts condominium law has been amended so as not to require the recording of a certified floor plan at the  first-time sale of a Unit.

So, at least in Massachusetts condominiums, the law should be changed so that Condominiums with four or more Units, should be required to maintain a Website, which contains, at a minimum the following items:

     1. Floor Plans of each Unit

     2. A complete set of  recorded Condominium Documents, and amendments, with Registry information included.

     3. A form of a 6(d) Certificate which requires only “fill-ins” for completion.

     4. The names of the current, of record, Trustees.

     5. The name, telpehone, and email address of the individual who needs to be contacted to fill out Condominium Questionnaires as required by lender.

I would also suggest that Unit Owners have restricted access to minutes of the Trustees, so that Unit Owners can be kept up to date on proposed assessments and other matters affecting the Unit Owners. These can be distributed to prospective Buyers at the Sellers’ discretion, but I know that I always ask for them when I am representing a Massachusetts condominium Buyer, and they are often extremely helpful.

The cost to set up a webpage continues to go down. The need for an effective vehicle for Unit Owner and realtor communication is real. I would be interested in hearing your response to this initiative. In my mind as a Massachusetts title attorney with over 40 years of experience, this change in the Massachusetts condominium law is way overdue.

Shut Out by the Restrictive FNMA/FNMLC Condo Financings Rules–Another Option you Can explore

Condominium, ,

In the course of representing a developer of a 6 Unit Condominium in Boston, I may have uncovered some information that can be helpful to the ActiveRain community. There is a lender out there who will make FNMA type loans (not portfolio) on projects which the lender, itself, certifies to its own satisfaction. This lender does its own “due diligence” and decides whether the project is acceptable.  There are some conditions (of course), the most important of which is that the certification must be while the project is in a “pre-sale” mode.

That means that this lender will not certify older, existing condominiums where the owner-occupancy standards are not met, only newly marketed units. Nonetheless, having a financing source for the many still unsold projects which are really not “saleable” may be worth your while to explore.

For obvious reasons, I prefer not to broadcast the lender in question. If any of my New England readers want to get more details, contact me at etopkins@topbev.com. I am glad to give out the referral; I just am not authorized to broadcast it.

Elliott Topkins

www.topkinsandbevans.com

The Deadly Double Dip–Things for Unhappy Condominium Unit Owners to Think About before suing their Association

Condominium, Litigation/Disputes, ,

The case made perfect sense. The Condominium Trustees were acting capriciously, and without any regard for my client’s well-being. There had been a water main break which has damaged my client’s unit, and he was aware of a substantial payment from the insurance company which provided the common area insurance. My client wanted to repair the damage to his unit, and he wanted a portion of the insurance proceeds to do this repair. 

So we wrote a few nasty letter, which were ignored. Then, we sat down with the client and discussed litigation. We gave the client a budget and a timetable. They were reasonable, and we  got clearance to proceed. We filed a lawsuit, and then we got hit with the BOMB. The Trustees hired a very expensive law firm to defend their position. The law firm required a substantial retainer, far more than our firm quoted for representing the client throughout the entire litigation, including a trial if necessary. By the rules of the Condominium, my client was required to advance his share of the retainer to the Trustee’s law firm. If this sounds like “Oz” to you, you can imagine my client’s reaction.

The case has since settled, with a result that my client could live with. In fact, my client received a substantial percentage of the advanced retainer back when the matter settled. That made things more palatable to my client.

There are some lessons to be learned from this set of circumstances, which I want to pass along to each of you:

     1. Review the Condominium Documents carefully before you Purchase. Look to see if there is an arbitration provision for disputes. Arbitration is becoming more common in newer documents, and some Lenders are insisting on arbitration provisions, especially for smaller Condominiums.

     2. Pursue all non-litigation avenues before deciding to start litigation.  Without arbitration. litigation is a lonely path for a single unit owner, and often more expensive than a unit owner can anticipate. Try to find a sympathetic person on the Condominium Board of Trustees, who can bring about a non-litigation based solution. It is worth the effort.

     3. If your Condominium Documents do not provide for arbitration, try to get them amended.  Amending Condominium Documents is generally expensive, mainly because the consent of Lenders will need to be obtained. Lenders favor arbitration. Therefore, the normal Lender will be receptive to the type of change which institutes arbitration. It is definiotely worth pursuing.

Many Condominiums are poorly managed, with the least capable people serving as Trustees. That being the case, it is imperative that the Condominium Documents be adapted, as much as possible, to permit free speech by unit owners and a non-confiscatory way to settle disputes. “Double dipping” really hurts, and it is not fair.

The Collection of Unpaid Common Area Fees–A Success Story with Legs

Condominium, ,

Recently, a client of mine contacted me with a problem. He was the sole Trustee of a six unit condominium in Massachusetts, where I practice as a title attorney with over 40 years of experience. It seems that one Unit Owner had not paid common area fees for more than a year (believe it or not) and the Condominium was starting to feel the effects of the delinquency.

After chastising my client for waiting so long to get in touch with me, I went to work. Initially i sent a demand to the Unit Owner. As expected, this was ignored. My next course of action was a title search to determine the name of the Unit Owner’s mortgage lender. Once this was determined, I notified the lender of the large delinquency, including penalties, late fees and my fees, again to no avail. Finally, i pulled the trigger with the “silver bullet”–a complaint against the Unit Owner with notice that a foreclosure sale would soon take place to obtain funds to liquidate the outstanding indebtedness.

In Massachusetts, as well as most other jurisdictions, the amount owed for common area fees, when properly handled, constitutes a “super lien”, ahead even of the first mortgage. When the lender was notified of the fact that our law firm was taking the “super lien” step, they contacted me, asked how much the total outstanding indebtedness was and sent us a check for the total amount due, plus attorneys fees.

There are some great results which were realized by this exercise:

     1. The Condominium got every penny that was due.

     2. The Condominium did not have to pay our law firm any fees for services. These were paid by the lender, as part of their steps to remove the “super lien”.

     3. In future Questionnaires from othr lenders, the Condominium does not have to indicate a large receivable from a delinquent Unit Owner. Such disclosure often impeads getting a Condominium cleared for future mortgage loans.

There are some holes here, too. If the Unit Owner continues not to pay, future actions will need to be commenced. That will leave the Condominium with a 60 day or so shortfall on common area fees. On balance, however, the Condominium’s financial position has been much enhanced by the actions we have taken, and I would urge any of you who have this type of problem in buildings you manage, or are attempting to complete sales transactions, to contact knowledgeable counsel immediately to get the Condominium on this sure-fire collection course.

Difficult Condominium Trustees and Officers–The Enemy Down the Hall

Condominium, , , ,

Recently. I have experienced difficulty in dealing with Condominium “management”, so-called, with respect to matters which involve my clients. I am a Massachusetts title and real estate attorney, and in the course of my representing both Buyers, Sellers and current  Unit Owners of condominiums in Massachusetts, I have experienced an array of frustrations, including the following:
     1. Answering Lender Questionnaires.

Getting the condominium officials to respond to the Lender’s Questionnaire, so that a mortgage loan can be processed in connection with a sale. Recent underwriting restrictions have made the answers to the Questionnaire more important than ever. Most condominiums are not involved in litigation, or disputes with Unit Owners. The Lender needs to know these things, and the Questionnaire is the vehicle. Many times I have experienced situations where the Trustees just can’t get around to providing answers. There is no urgency for them, and they take theri sweet time.

     2.Disputes between the Trustees and a Unit Owner

These can range from permitting a Unit Owner to fix his or her Unit after a natural or other disaster to approving a request to do structural work to personal “vendettas” between neighbors. Most older documents do not have Arbitration provisions. In that situation, the affected Unit Owner often must initial litigation to rectify a perceived wrong. The irony of this type of situation is that once a litigation is begun, the affected Unit Owner  must pay not only his or her own legal fee, but a percentage share of the legal fee incurred by the Condominium Trustees to defend. As a practical matter, this unfairly inhibits the ability of a Unit Owner to protect his or her rights.

     3. Arbitrary or Capricious Trustees or Officers

There is not much that can be done with a person who wants to say “no” to every suggestion, even down to the need for the Trustees to have frequent meetings and keep minutes of meeting. If the difficult Trustee doesn’t like you. or doesn’t like anyone, you have a major problem, and the expense and stress of going to Court to have a Trustee removed is huge.
     4. Charges for Items that should be Free.

 Why is it really fair for a condominium to charge $150 for a Certificate that there are no Common Area liens on a Unit which is being sold? Why should a selling Owner be charged $200 for a “move-out” fee? Where is the justice in any of this, but, as most of you know, it happens, and it can chill transactions.

There are solutions to these problems, but they are not easy to effect, especially with the requirement that Mortgagees need to be involved in Master Deed amendments. These are some solutions which I would recommend, however, and they should improve the situation materially:

     1. Pay Trustees a decent stipend for serving. I would suggest forgiving two or three monthly common area fees for Trustees. That would encourage more people to become Trustees and eliminate the “Trustee for Life” people who have nothing better to do than frustrate the realistic requests of Sellers, Buyers and Unit Owners.

     2. Amend the Declaration of Trust to permit arbitration of disputes, with the losing party required to pay not only its fees and costs, but the fees and costs of the winning party. This approach would force more attention on reasonable compromises.

     3. Set term limits for management companies and Condominium officials. Change management companies every three years. Only permit Trustees to serve for two (2) terms. This will make it possible for new ideas and new approaches. it will, in effect, end “tyranny”  by the current regime.

Please let me know your ideas on this!!! I am quite willing to spearhead an offensive to change things in Condominium operations. Such changes are way, way overdue.

New Condominiums–More TRAPS for the unwary

Condominium, , , ,

It is starting to happen again. Just like it did in the late 1980’s and early 1990’s. Condominiums are in financial trouble, I have previously written a Featured Post about delinquent condominium Unit Owners and what Trustees MUST do to collect common area fees from them.

A similar, but potentially much more serious, situation obtains with the Condominium developer. As most of you probably know, as soon as the Master Deed is recorded, each Unit in the recorded document must start paying common area fees. There is some question whether each Unit needs to contribute the required amounts to the reserve account. That varies from state to state. Let’s just stick with the fee for each Unit for operations.

The law is that the developer must pay condominium common area fees for his unsold Units. I am afraid that this requirement is “more honored in its breach than in its observance”, as the Bard would say. Cash flow is generally tight for new developers, and they perhaps cannot afford to pay. They can deliver a Certificate at the closing, indicating that the common areas fees are paid with respect to the Unit which is being purchased. It may well be a different story for the unsold Units.

My suggestion in this area is that the real estate professionals representing the BUYER need to be militant. Place a provision in the Purchase and Sale Agreement or Rider where the SELLER makes an affirmative statement that the common area fees for all Units owned by the SELLER are current. Require the SELLER to demonstrate that fact at the closing by bringing a Condominium Bank Statement which  proves that payment has been made.

Once the SELLER understands that there will be no closing without everything being current, there will be a great incentive to make matters right. The numbers can really “explode” unless some approach is taken to require the developer to keep up the monthly payments. It is not a pleasant situation for a new BUYER to walk into a situation where there are financial problems at day one. All of us need to work hard to try to prevent this.

If you are looking for suggested P & S language for these situations, please contact me at etopkins@topbev.com. I am a Massachusetts real estate attorney, but I am reasonably confident that the language I have developed will hold up in other jurisdictions, as well.

“Kiddie” Condos–They make more sense than ever in this Market

Condominium, Marketing / Communication, , , ,

I have written about “kids at school” in prior posts. With more kids at college and grad school (grad school, especially grad school, because jobs our of college are becoming so scarce), there are some strategies we can suggest for “kiddie” condos which may produce some sales for realtors, mortgage originators and real estate attorneys (my defined group “The Resource Triangle”.

These are my thoughts:

      1. Price of Condominiums are lower than they have been. Certain areas of Boston have held up better than others; in general the market is soft, especially in the $200,000 to $400,000 range.

      2. Rental prices are increasing because people have to live somewhere, and they are not buying as rapidly as they did. The rental population is on the increase, as well.

      3. There are some distinct tax strategies which make a parent’s purchasing a condominium for his or her child during the time that the child is a student:

          a. After tax benefits, the actual cost may be lower than rental.

          b. At some point in time, the parent can make the child the owner of the Unit, thus entitling the child to take advantage of the $250,000 exclusion when the Unit is sold. In Boston (and other cities, I am assuming), owners who live at the premises are also entitled to favorable real estate tax treatment.

          c. If we are at the bottomo of the real estate cycle, or close to the bottom, the appreciation in the Unit can be passed on to the child, rather than the parent. That becomes a handy way to handle estate planning transfer for the parent.

          d. In Boston, I am aware of several Lenders who have developed “Kiddie” Condo programs. Wainwright Bank, a Lender for whom I do a lot of work and an ActiveRain member, has such a program.

If your customers need any further advice about Kiddie condos, have them contact me directly. I have completed at least fifty (50) of thes e deals in the past three years, all of which have worked to the Parent’s advantage.