Blog Archive

Tuesday, November 21, 2017

Landlord/Tenant Law: Traps for New Lawyers and their Clients (Video)



REBA's Residential Landlord/Tenant and New Lawyers Sections discuss various landlord/tenant topics which cause problems for new lawyers and their clients.  Some of the topics to be covered are leases vs. tenancies at will, tenant screening, security deposits and other up-front charges, issues with notices to quit, rent escrow, agreements for judgment and injunctions.

Ken Krems and Emil Ward, co-chairs of the Residential Landlord/Tenant Section, lead the discussion. 

Thursday, November 16, 2017

MY COUSIN VINNIE PERFORMS BACKGROUND CHECKS


I took my cousin Vinnie, the suburban real estate attorney, to a Celtics game recently. He always has a hard time reaching a
decision on where to eat before a game. The North End has too many options, and Vinnie seems to have an opinion about each of them. He arrived too late to snag a seat at the marble topped bar at my favorite oyster place, so we walked down Salem Street until he finally found a restaurant worthy of his patronage. He had pappardelle pasta with ground veal, beef and pork tomato rag├╣. He said it was delicious. 

As we started our usual exchange of war stories, I told Vinnie the story about a proposed P&S came across my desk for an expensive new home in an exclusive neighborhood, and I recognized the name of the buyer; and it was not just because he was a member of a prominent local family. I called my builder client and told him that the same buyer had attempted to buy fancy houses from two of my other builder clients during the past few years, but at each closing when it came time for the buyer to deliver a bank check, all we received was a story about how the family wealth was tied up in an off-shore trust account and it would take a week to deliver all of the funds. One of my builder clients had given the keys to the buyer before we were told the off-shore-trust-fund story, and our construction foreman had to rush to the house to change the locks before the moving van arrived. True story.

Vinnie told me to watch out for cell tower lease assignment agreements that essentially convey all rights in the cell towers and the land they are constructed upon in perpetuity. “There are a lot of cell tower lease acquisition companies out there, and some of them disguise the conveyance of the land rights in the boilerplate of the assignment. Sometimes the property owners don’t discover that they sold their land until 20 years later.” I thanked him for the tip while negotiating a littleneck from its shell in my cioppino stew.

Vinnie continued: “Paulie, after a few mishaps I am now performing ‘internet-checks’ from time to time regarding parties on the other side of most deals. For years I have been correcting title references and seller information when preparing or reviewing P&S agreements provided by sellers. And, more and more recently I have come across sellers who forgot that they had conveyed the property into a trust, or forgot that they conveyed out a sliver of their land 10 years ago. But recently I typed the name of a builder/seller into the registry web site and like a slot machine out rolled nothing but pages and pages of  ‘execution, execution, attachment, execution, attachment, attachment, attachment…’ I now use internet searches on a regular basis.”

Without taking a bite, Vinnie continued with an even better story. “I had a client that was about to partner with a new guy on a nice commercial project. I had a few conversations with him and I was troubled that he didn’t seem to follow my explanation of pre-existing non-conforming structures. The guy claimed to be a big time developer, but I got a funny feeling about him. I typed his name into Google™ and all kinds of interesting stories tumbled out. I found old newspaper stories about drug charges, charges of shoddy construction and a bankruptcy. I then typed his name into the Registry of Deeds website and found numerous executions and foreclosures. I then called my client and asked if he knew about the guy’s sorted past, and he did not. I thought it was odd that it took an old guy like me to know how to effectively use the Internet!”

“Crazy” was all I could say. But, in the future I am going to take Vinnie’s counsel and perform more background checks.


A columnist for REBA News former REBA president, Paul Alphen currently serves on the association’s executive committee and co-chairs the long-range planning committee.  He is a partner in the Westford firm of Alphen & Santos, P.C. and concentrates in residential and commercial real estate development, land use regulation, administrative law, real estate transactional practice and title examination .As entertaining as he finds the practice of law, Paul enjoys numerous hobbies, including messing around with his power boats and fulfilling his bucket list of visiting every Major League ballpark.  Paul can be contacted at palphen@alphensantos.com

Wednesday, November 15, 2017

REBA Paralegal Section and Massachusetts Paralegal Association CD 101: Understanding & Completing the Consumer Disclosure





REBA's Paralegal Section and the Massachusetts Paralegal Association for a seminar designed for new paralegals and others in the industry who want a basic understanding of the Closing Disclosure.

Our guest speaker will be Jennifer Gavaletz of The Law Office of Jennifer Gavaletz, a firm which specializes in real estate conveyancing and mortgage lending services, representing buyers, sellers, refinancers, and lenders in all their real estate and mortgage transactions.  An expert in preparing the Closing Disclosure, Jennifer was a Real Estate Paralegal for 11 years before becoming an attorney.  She will provide an overview on:
  • Differences between Lender Requirements - Read your Instructions;
  • Accuracy in completing CD; and
  • Accounting, Balancing, Verifying


Tuesday, November 14, 2017

Discovery Due Diligence Leads to Favorable Decision in Land Court


Cases in which the court must determine whether use of a property is consistent with an alleged preexisting, nonconforming use are “often heavily fact-dependent.”  Nevertheless, when the undisputed facts clearly indicate a failure to satisfy at least one of the prongs of the so-called Powers test, the court may determine the question as a matter of law.  In a recent case that our office litigated in the Land Court, HAYR, LLC v. Nigosian, No. 15 MISC 000103 (HPS), No. 15 MISC 000242 (HPS), 2017 WL 3426681 (Mass. Land Ct. Aug. 9, 2017) (Speicher, J.), this was the precise issue before the Court.  In its detailed analysis, the Land Court ultimately held that the Defendants, Dominic Murgo and PJM Family Enterprises LLC (collectively “PJM”), had “failed to indicate that any evidence will be forthcoming at trial tending to show that their present nonconforming use is not a change or substantial extension of the use protected under G.L. c. 40A, § 6.

The Plaintiff, HAYR, LLC (“HAYR”), is undertaking a development of a large residential subdivision in the Town of Millbury, which is located directly to the south of Worcester.  HAYR’s property is not located far from Route 20 in Worcester, and the property immediately adjacent to its northwesterly property boundary, which is owned by PJM, has frontage on Route 20.  While PJM’s property is nearly 6 acres in size, it is only the front portion that is located in Worcester; the rear portion, consisting of approximately three acres and lacking street frontage, is located in Millbury’s Suburban IV Zoning District.  PJM was using the property to store approximately 40 live-floor trailers, which it employs to haul municipal solid waste.  As HAYR utilized its neighboring property, it began to experience harms associated with significant truck noise and odors.

Experiencing impacts from PJM’s use of its property, HAYR investigated to determine whether the use thereof was lawful.  HAYR’s research revealed that use of the property as a trucking terminal was not permissible in Millbury’s Suburban IV Zoning District and sought zoning relief.  Millbury’s Zoning Enforcement Officer responded to the request, issuing a cease and desist order to PJM.  PJM subsequently appealed the cease and desist order to the Board of Appeals who rendered two decisions – first, a decision purporting to grant a variance to authorize the ongoing use of the PJM property as a trucking terminal; and second, a corrected decision purporting to overturn the cease and desist order and finding that the use of the property as a truck terminal had existed since the mid-1970s, was preexisting, nonconforming, and could be continued as a matter of right.  HAYR appealed both Board of Appeals decisions to the Land Court.

As a preliminary matter, HAYR sought to identify the effective date of the zoning bylaw that rendered PJM’s use of its property lawfully preexisting, nonconforming.  The Board of Appeals had apparently acted upon the belief that the relevant date was April 1981.  In conducting discovery, HAYR obtained all the zoning amendments and zoning maps relevant to the Suburban IV District from Millbury.  Those documents revealed that, since the initial adoption of the town’s zoning bylaw in 1957, the use of PJM’s property as a trucking terminal and/or as a contractor’s yard had never been permissible in the Suburban IV District.  This meant that, in order for PJM to establish that its use was preexisting, nonconforming, it would need to trace its use back to the mid-1950s, rather than the mid-1970s.  

After identifying the effective date of the applicable zoning bylaw, HAYR moved for summary judgment on the basis that, on the undisputed facts in the record, PJM would be unable to satisfy its burden at trial to satisfy the Powers test.  Powers sets forth the standard for determining whether a preexisting, nonconforming use is consistent with the use being undertaken on a property prior to a change in zoning and, therefore, may continue.  “A change that is so substantial either in degree or physical expansion so as to constitute, in effect, a different use, will be determined to be ‘different in kind’ in its effect on the neighborhood, and therefore not entitled to § 6 protection,”

Viewing the summary judgment record in the light most favorable to PJM, the non-moving party, the Court performed an analysis to determine whether PJM’s use was consistent with an apparent gasoline filling service use that had been undertaken on the Worcester portion of the PJM property in the mid-1950s.

First, the Court analyzed whether there was a difference in the quality, character, and degree of the use.  As part of its inquiry, the Court noted that “an expansion of the physical area in which a use takes place will typically fail to meet these criteria”.  In performing its analysis, the Court (and the parties) relied heavily upon stipulated aerial photographs of the subject property.  Such aerials, which dated back to 1938, clearly and indisputably demonstrated a significant expansion and change in the use of the property from the mid-1950s to present day.  As noted by the Court in is decision, the extent of clearing as of 1957 had seen “a pronounced physical expansion” to the present day, necessitating “a finding of change or substantial extension of the degree of use as a matter of law.” (emphasis added)

Second, the Court determined that the current use of the property by PJM did not reflect the nature and purpose of its prior use.  HAYR contended that, when zoning was adopted in Millbury in 1957, the site was not used as a truck terminal, construction materials storage yard, or anything remotely similar.  While PJM countered this contention, it relied upon an unverified report.  Further, the Court concluded that, even if it had considered the report, PJM would have fared no better.  “A small filling station is no more a cognizable predecessor to a large truck terminal for § 6 purposes than a tailor shop doing some cleaning of clothes is to a large dry cleaning plant.”

Accordingly, in light of the foregoing determinations, the Court found and ruled that “the defendants’ current use of the entire Locus as a truck terminal for forty live-floor trailers that transport municipal waste, and storage of other construction vehicles and construction materials, is different in purpose and nature from a use of the property as a gasoline filling station on a small portion of the Locus.  Furthermore, the exponential physical expansion of the area occupied would render the current use different in kind in any event.”

While this decision is consistent with previous cases discussing the inquiry to be undertaken to determine whether there has been an unlawful change to a preexisting, nonconforming use, it nonetheless sheds light on the importance of using the tools available in discovery to assist in streamlining a case.  Although it was not HAYR’s burden to establish that PJM’s use of its property was no longer protected as a preexisting, nonconforming use (instead, it is the party claiming protected status as a preexisting, nonconforming use that must prove grandfathering protection, HAYR nonetheless undertook discovery on this issue to identify whether PJM would be able to satisfy its burden.  This investigation revealed that the presumed effective date of the zoning bylaw differed substantially from the actual effective date, and PJM had produced no evidence that would enable it to establish a consistent use dating back to the mid-1950s.  It also enabled HAYR to identify the significance of the aerial photographs and the role that they ultimately played in a favorable decision.

Kim Bielan is an associate in the litigation and zoning and land use departments of the Braintree-based firm of Moriarty, Troyer & Malloy, LLC.  She represents a variety of clients, including condominium associations, developers, and individual homeowners. Kim’s practice focuses primarily on real estate litigation, with an emphasis on zoning and land use matters. She also represents clients on a variety of real estate permitting matters and frequently appears before municipal boards to permit projects and to represent the interests of abutters and neighborhood groups; she can be contacted by email at kbielan@lawmtm.com.


Thursday, October 26, 2017

As the Transit Oriented Development World Turns…


“The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.”
                                                                         William Arthur Ward

Sometimes, reality can get a little daunting if one is not sufficiently careful. Witness two recent presentations touching upon the present
state of rail transportation, particularly commuter rail, and Transit Oriented Development (“TOD”) development opportunities associated with our commuter rail system.

The first, as reported in Commonwealth magazine, was a gathering of eight experts from around the country and the world that had been convened by Congressman Seth Molson and assembled by the Urban Land Institute to spend an intensive week “gathering information on the North South Rail Link and the region’s transportation infrastructure.” Kudos to the Massachusetts Competitive Partnership for funding this study.

Part of the discussion focused on the state of TOD at commuter rail locations. As reported by Commonwealth, Robert Ravelli, a director at Contemporary Solutions in London, was quoted as saying the panel members saw the “commuter rail system as an untapped resource… a lost opportunity.” He urged close examination of TOD possibilities at all commuter rail stations, many of which, in the words of the Commonwealth article, “are just rudimentary stations with big parking lots next to them.”

On the other hand, one week later at a Regional Real Estate Development Leadership Council meeting of the Greater Boston Chamber of Commerce, a Mass DOT/MBTA presentation noted past successes, current projects and future potential for just the kind of development called for by the ULI Study group. In a candid assessment examining both successes and failures, development projects on publicly owned land were examined in some detail. A number of these developments included the transformation of either commuter rail or end of the line park and ride facilities, including Arbor Point at Woodland station in Newton, the Carruth at Ashmont Station, Forest Hills, Mattapan High Speed Rail, Beverly Depot, and Greenbush station. Those developments run the gamut from completed to proceeding apace to struggling, but still chugging along.

How can both the (relatively) optimistic picture offered by MassDOT and the critique of the ULI study both ring true?

Three factors are worth remembering. 

First, the universe is a pretty big place. The MBTA alone has more than 300 rapid transit, commuter rail, and bus rapid transit stations. Within a half-mile radius of these stations, you will find 25% of the region’s housing and 37% of the region’s jobs, all on about 5% of the region’s total land area. Regional transit authorities add further to the number of potential TOD locations. There is plenty of room within that universe for MassDOT to report its hard won successes and for others to clamor for more to be done.


While it is the belief here that within the soulless cracked asphalt of every “park-and-ride” lot, there beats the heart of a “live and ride” community yearning to breathe free, that is not going to happen overnight. But it does have to happen.

Second, every opportunity a developer envisions at a commuter rail stop brings an operational challenge with it. Operational issues, much like an offensive line in football, really only get the attention they truly deserve during periods of failure (real or perceived).

Construction, however, is by nature a disruptive event, and commuting habits are just that, habits. A disruption to the anticipated availability of parking due to construction brings with it the potential to raise the ire (and change the habits) of an (unquestionably) impacted ridership. And unlike, for example, escalator maintenance, construction period impacts have an extremely extended duration. It is therefore not surprising that many of the TOD successes to date have occurred at locations were there was in fact a surplus of parking.

Third, the MBTA is in fact frequently in competition with its neighbors. Typically, though not always, park-and-ride facilities are in a premier location with respect to the transit location; however, adjacent parcels in private hands nonetheless represent advantageous development opportunities, ones that come: (1) without the public procurement obligations and (2) blissfully removed from operational concerns. 

And, for good measure, you can add in the customary challenges any development encounters in the entitlement process in Massachusetts. For example, the “friendly Chapter 40B” process that resulted in Arbor Point at Woodland Station came at the end of a ten year development effort.
What would help?

Greater planning resources for both the MBTA and host communities alike would be useful in site prioritization and co-ordination of the interests of competing properties, particularly in exploring potential temporary or “swing space” parking solutions.

While the attributes of our Comprehensive Permit Law (including its robust potential as a redevelopment tool), are routinely applauded in this space, TOD locations would benefit most from a thoughtful planning process and planning-based zoning amendments thereafter, including but not limited to Chapter 40R Overlay Districts.

Despite all of its challenges, interest in TOD continues unabated. In many respects, TOD is riding a third great transit wave.  The first wave arrived upon the electrification of previously horse drawn streetcars and the resulting proliferation of streetcar suburbs; the second sizzled during the war years of the 1940s (representing the transportation equivalent of ‘the last days of disco” before the onset of suburban supremacy), and now the third wave continues to build as the combined result of animus against further development of green fields and exasperation with the congested state of the nation’s highways.

TOD’s future? As a Commonwealth, we are in it for the long haul. Let’s adjust the sails and continue forward.  

“The Housing Watch” is a regular column from Bob Ruzzo,  senior counsel in the Boston office of Holland & Knight LLP.  He possesses a wealth of public, quasi-public and private sector experience in affordable housing, transportation, real estate, transit-oriented development, public private partnerships, land use planning and environmental impact analysis. Bob is also a former general counsel of both the Massachusetts Turnpike Authority and the Massachusetts Housing Finance Agency; he also served as chief real estate officer for the turnpike and as deputy director of MassHousing.”  Bob can be contacted by email at robert.ruzzo@hklaw.com.


Tuesday, October 24, 2017

Vinnie Appreciates the Finer Point of Title Exams


My cousin Vinnie, the suburban real estate attorney, joined the gang in the Man Cave for a recent Patriots’ game. He brought some
terrible beer, suitable for his own personal consumption; which was fine because nobody else wanted to drink it. I am sure the smoked brisket made the beer taste better, because smoked meat makes everything better. After the victory, Vinnie hung around with the die-hard football fans to watch “Red Zone” and eat cookies. Only then did he start regaling us with stories from his small town practice.

“Paulie, I don’t know if you have noticed, but it seems to me that our brothers and sisters of the bar have upped their standards when it comes to reviewing title exams. I have been very pleased to see more requests that sellers need to obtain confirmatory discharges, or need to record missing trusts and cure deed descriptions. Until a few years ago, it was as if we were expected to accept anything, including discharges from the first cousin of a mortgage holder, but now that things have settled down, it seems that there is more attention to detail and a greater expectation of precision.”


I told Vinnie that I had notice the same trend, and I told him about a deed that came across my desk last week from the assignee of an assignee of a foreclosing entity, with one of those crazy long names with a “certificate series number” signed via POA, and the POA may have provided authority to execute and deliver deeds, but for some reason the drafter of the POA did not know how to type the words “and execute and deliver deeds”. 

Vinnie declined an offer for a taste of some Eagle Rare bourbon and held on to his crappy beer. “It’s a conundrum.” Vinnie continued. “If three owners ago a trustee’s certificate was not perfect, and all the trustees died, but the title was buttressed with attorney’s affidavits, certificates of appointments and acceptance, a new certificate plus the passage of ten years, I suppose you can complain that the title is not perfect, but somewhere you have to apply a reasonableness standard. On the other hand, if the parties are alive and available to sign corrective documents, I will usually insist that we obtain and record corrective documents; and I usually end up drafting all the corrective documents and confirmatory deeds.”

Vinnie continued: “And, the other thing that is happening is that subdivisions that sat dormant since the Great Recession are coming back to life. But unfortunately the land owners are attempting to sell expensive lots only to discover that the septic regulations have changed, or the wetlands have migrated, or Orders of Conditions have lapsed. On more than one occasion I have seen land owners attempt to sell pricey lots, but in the course of my title exam I found conditions of approval that were long forgotten by the seller/developer, including lapsed special permits, and missing easements or restrictions that still require review by learned town counsel. Talk about delays to the closing!”


My buddy Chip told us to stop talking shop, and pay attention to the games. He had a point. There would be plenty of time to contemplate the fine details of a 2” thick title exam on Monday morning.

A columnist for REBA News former REBA president, Paul Alphen currently serves on the association’s executive committee and co-chairs the long-range planning committee. He is a partner in the Westford firm of Alphen & Santos, P.C. and concentrates in residential and commercial real estate development, land use regulation, administrative law, real estate transactional practice and title examination .As entertaining as he finds the practice of law, Paul enjoys numerous hobbies, including messing around with his power boats and fulfilling his bucket list of visiting every Major League ballpark. Paul can be contacted at palphen@alphensantos.com

Monday, October 23, 2017

Accommodating Reasonable Accommodations for Service and Emotional Support Animals


One of the trending issues for condominium associations is receiving and making determinations on reasonable
accommodations for service and emotional support animals in condominiums with no pet policies.  A proliferation of websites removes many obstacles for unit owners desiring to obtain a doctor’s note or seeking to “register” their emotional support animals.  The ease with which such documentation can be obtained presents significant challenges for condominium associations in determining whether a reasonable accommodation is appropriately granted, and condominium law practitioners may be faced with difficult questions relative to same.  This issue is complicated by the fact that condominium associations face legal action for violation of fair housing laws if they fail to accommodate a legitimate request. 

This article examines a recent decision of the U.S. District Court, District of Massachusetts and sets forth recommendations on how to proceed in handling requests for reasonable accommodations.

In Giardiello v. Marcus, Errico, Emmer & Brooks, P.C., No. 16-12637-JCB, 2017 WL 3610478 (D. Mass. Aug. 18, 2017) the Court was required to determine whether the allegations in a unit owner’s Complaint against a condominium association were sufficient to state a claim for violations of the Fair Housing Act (“FHA”).  Plaintiff Bruno Giardiello (“Bruno Sr.”) owns a unit at the Candlelight Park Condominiums, a 33-unit condominium in Malden, Massachusetts.  The claims in the lawsuit arise out of a request for reasonable accommodation for Bruno Sr.’s son, Bruno Schneider (“Bruno Jr.”).  Bruno Jr. had been residing in Florida, but was intending to move to his father’s unit in Massachusetts.  He suffers from post-traumatic stress syndrome (“PTSD”) and has a service dog, Kyla.  Because the Condominium has a no pet policy, a reasonable accommodation for Kyla was necessary.   

According to the allegations in the Complaint, Bruno Sr. attempted to initiate a dialogue with the Board of Trustees (“Board”) of the Candlelight Park Condominium Trust, the organization of unit owners of the Condominium, in October 2015 concerning Bruno Jr.’s intention to move into the unit and the necessity for a reasonable accommodation for Kyla.  The Board had no established procedure for submission of a reasonable accommodation request and failed to timely respond to Bruno Sr.’s requests for a period of months.  In January 2016, with no other place to stay, Bruno Jr. moved into the unit with Kyla.  During this time, and subsequent thereto, Bruno Sr. made repeated efforts to communicate with the Board concerning the need for a reasonable accommodation.  Eventually the Board retained counsel, who requested that a Certification Form be completed by Bruno Jr.’s doctor and returned to the Board.  The letter also contained language to the effect that if the dog was not removed within ten (10) days, it must be permanently removed, or the unit would be assessed daily fines.

Due to Bruno Jr.’s difficulty in making an appointment with a medical provider because it was flu season, it took some time for him to meet with a doctor.  In the interim, the Board sent more letters and continued to assess fines and threaten legal action.  Bruno Jr. obtained a letter from the Cambridge Health Alliance, which stated that Bruno Jr. had a dog to assist his psychiatric treatment plan.  Upon receipt, the Board again delivered the Certification Form to Bruno Jr. and request that it be completed by a doctor.  Bruno Jr. subsequently met with a second doctor who, according to the allegations in the Complaint, remarked that the nature and scope of the Certification Form crossed the line of the HIPAA privacy laws.  Bruno Jr. insisted that the form be completed.  Upon submission to the Board, the reasonable accommodation was granted.

In determining that Bruno Sr. and Bruno Jr. had sufficiently stated a claim against the Board for violations of the FHA, the Court cited the following elements:

[A] plaintiff must show that (1) he is disabled within the meaning of the FHA; (2) the defendants knew or should reasonably have known of his disability; (3) he requested a particular accommodation that is both reasonable and necessary to allow him an equal opportunity to use and enjoy the housing in question; and (4) the defendants refused to make the requested accommodation.

In considering whether the plaintiffs had alleged facts sufficient to satisfy each of these elements, it made certain observations about the facts giving rise to the Complaint.  The Court noted that housing providers, such as condominium associations, have an obligation to provide “prompt” responses to reasonable accommodation requests.  Notwithstanding this obligation, condominium associations are entitled to seek information from an allegedly disabled person to determine whether the person is disabled and whether the accommodation is necessary.  The Court noted that, in most cases, medical records or detailed information about an individual’s medical disability will be unnecessary.  In addition, the Court stated that, in the circumstances of the particular case, no temporary exemption or waiver had been granted by the Board while it explored whether a reasonable accommodation was appropriate.  On the basis of the foregoing, the Court found that Bruno Sr. and Bruno Jr. had sufficiently stated a claim for violations of the FHA.

The issues presented in this case are typical of those challenges facing condominium associations (and their counsel) when a reasonable accommodation request is sought – boards must balance competing interests while ensuring compliance with fair housing laws.  The case offers insight into how courts may treat these issues in the future, and offers observations from which best practices may be gleaned.  When an association receives a request for a reasonable accommodation for a service or emotional support animal, counsel should advise the association to keep the following in mind:

§  Service animals and emotional support animals are not the same under the law.  Under the Americans with Disabilities Act, a service animal is a dog that has been individually trained to do work or perform tasks for an individual with a disability.  The tasks performed by the dog must be related to the person’s disability.  An emotional support animal, by contrast, may not be a dog (cats and other types of companion animals may be classified as comfort animals) and is not trained to perform a task or service.  Despite these differences, both service animals and emotional support animals are not pets (and, thus, not subject to a condominium’s no pet policy) and are both entitled to reasonable accommodation.

§  A reasonable accommodation is a change in the rules, policies, practices and procedures, or services, or a physical modification of a building, for a person with a disability so that the person will have an equal opportunity to use and enjoy the common area.  Reasonable accommodations need not be provided if the person requesting the accommodation poses a direct threat to the health or safety of others, or if doing so would present an undue financial or administrative burden.

§  Requests for emotional support animals are typically tied to unseen disabilities, such as PTSD.  Condominium associations should seriously consider every request for reasonable accommodation and take the time to consider whether an accommodation is required in the particular circumstance.  Board members must put preconceived biases aside and objectively consider whether the standard for a reasonable accommodation has been satisfied.

§  Requests for reasonable accommodation must be handled on a case-by-case basis.  An across-the-board breed prohibition is not defensible.

§  Prompt response to requests for reasonable accommodations is important, and a failure to engage in dialogue with the party requesting the accommodation may constitute a violation of anti-discrimination laws in and of itself.  The Board should establish a formal procedure for how to address requests for reasonable accommodations and adhere to this procedure when considering such requests.  The procedure should be uniform and explain that the association may require documentation, seek additional information, and may propose alternatives to the accommodation requested.

§  While it may be permissible to have a uniform certification form, the condominium association should ensure that none of the information requested would be in violation of patient privacy laws.  In addition, in the event that the requested information is submitted in a different form, such as a letter, the association should consider the reasonable accommodation on the basis of the information provided.  In other words, the board should not be tied to the form, but rather to the substance, of the information before it.

§  The Giardiello case also suggests that it may be best practice to grant a waiver or a temporary exemption while the board examines the request for reasonable accommodation.  During such period, the condominium association should work diligently toward resolution of the matter, should not impose fines, and should not threaten removal of the animal until the board had reached a final determination of whether a reasonable accommodation is appropriate.

§  Requests for reasonable accommodation may be traps for the unwary, particularly in light of medical privacy laws and the requirements of the FHA and Massachusetts anti-discrimination laws.  You can offer your association clients significant assistance in handling requests for reasonable accommodation.

The key takeaway is that condominium associations should be diligent in responding to reasonable accommodation requests.  Often times, such requests may be appropriately granted so that all unit owners can continue to live in perfect harmony (until the next issue arises…).

Kim Bielan is an associate in the litigation and zoning and land use departments at Moriarty Troyer & Malloy LLC. She represents a variety of clients, including condominium associations, developers, and individual homeowners. Kim’s practice focuses primarily on real estate litigation, with an emphasis on zoning and land use matters. She can be contacted by email at kbielan@lawmtm.com.