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How Condominium Trusts and Property Managers Can Respond to Extra-Judicial Pressure Campaigns

Stephen W. Wiseman

Condominium governance is designed to function within a defined legal and procedural framework. Trustees adopt and enforce rules

pursuant to the master deed and bylaws, property managers carry out day-to-day operations, and disputes are typically resolved through internal processes or, if necessary, through the courts. In certain situations, however, a unit owner may pursue pressure campaigns outside that system, whether through public reviews, direct outreach to fellow owners, social media posts, and even organized protests, in an effort to force the board to capitulate to their demands.

While unit owners unquestionably have rights to express concerns and advocate for change, extra-judicial tactics can destabilize condominium communities, damage reputations, and disrupt operations. Condominium trusts and property managers must respond to such conduct carefully, lawfully, and strategically. An overreaction can inflame tensions or create liability, but a passive response can embolden misconduct and undermine governance. The purpose of this article is to provide a blueprint for any board or management company dealing with these types of situations.

Before responding to such actions, it is important for the board to conduct a careful review of the condominium’s governing documents. It may be that the unit owner’s conduct violates the provisions of the condominium’s governing documents, and therefore the board may be within its rights to issue fines or other violations to the offending unit owner. If the condominium’s governing documents are not sufficient to cover these types of circumstances, the board should consider adopting additional rules and regulations that permit the board to curtail such activity, at least where it occurs on condominium property. For example, conduct such as harassment of unit owners, disruptive behavior in common areas, and interference with condominium operations should be expressly prohibited. That way, in the event these types of situations arise down the road, the board will be well equipped to address them expeditiously.

At the same time, boards must also carefully distinguish between protected speech and conduct that crosses legal boundaries. The First Amendment protects many forms of expression, including criticism of management. Whether certain conduct indeed constitutes a violation depends on the circumstances. Merely posting online, contacting fellow unit owners, or even protesting may be considered protected expression. However, certain conduct may cross the line into valid claims, such as defamation, harassment, intimidation, or violations of the rules and regulations of the condominium. Whether the conduct constitutes a violation may depend on a nuanced analysis of the conduct, and it may be necessary to consult with counsel to make a determination as to whether it is a violation or protected conduct.

If a unit owner contacts other unit owners directly, it is likely appropriate for the board to respond, particularly when the communication contains false or incomplete statements or is otherwise inflammatory. In such circumstances, silence from the board can allow the one-sided narrative to take hold. However, any such response should be measured and factual, to avoid further inflaming the situation. The response should include a factual, accurate explanation of the issues and describe the steps the board is taking to address those issues. Transparency and professionalism are essential to ensuring the board retains credibility within the community.

If a unit owner’s conduct escalates beyond routine criticism, the condominium trust should consider contacting an attorney. Counsel can assist with evaluating whether the conduct is a violation of the condominium documents and, if so, formulate an appropriate response, such as a cease and desist letter. Early legal guidance can also help prevent unnecessary escalation of the conflict. If attempts to resolve the situation peacefully are unsuccessful, the next step may be to seek court relief, whether through a temporary restraining order, preliminary injunction, or otherwise. The board should carefully consider whether it is worth the time, money, and stress of proceeding with litigation, and likely only do so as a last resort.

To help avoid the potential for litigation, boards should also consider implementing alternative dispute resolution provisions into their condominium documents, such as procedures for unit owners to file internal grievances, meetings with the trustees, mediation, and/or arbitration. In addition to helping boards stay out of court, when residents believe their concerns will be heard through established channels, they may be less inclined to resort to public pressure tactics. Counsel can assist with drafting those provisions and incorporating them into the condominium’s governing documents.

As with all circumstances, trustees must guard against retaliatory conduct, such as selective rule enforcement or punitive fines unsupported by the governing documents against the offending unit owner. Selective enforcement can expose the condominium to counterclaims, so enforcement must be even-handed, documented, and consistent with established policies. The best response to a pressure campaign may be steady, professional governance. Boards should also keep meticulous records, refrain from personalizing the conflict, and focus on fiduciary duties to the entire ownership. In many cases, extreme tactics ultimately undermine the credibility of the person employing them. A disciplined board that communicates clearly and acts within its legal authority will often prevail in the court of public opinion.

Conclusion

Extra-judicial pressure campaigns present real, unique challenges for condominium trusts and property managers. Whether through negative online reviews, direct outreach to fellow owners, or even organized protests, such tactics can strain relationships and disrupt governance. The appropriate response is likely neither capitulation nor aggression. Instead, boards should ground themselves in statutory authority under Massachusetts General Laws Chapter 183A and authority under the governing documents of the condominium, communicate transparently, and enforce governing documents consistently.

When conduct crosses into harassment, trespass, or actionable wrongdoing, the association should contact an attorney early in the process. Ultimately, court intervention, such as a temporary restraining order or preliminary injunction, may be appropriate. However, proactive governance tools, such as mediation procedures and clear communication policies, can reduce the likelihood of escalation in the first place. Thoughtful legal guidance, combined with measured leadership, can preserve both the rule of law and the stability of the community.

An Associate in the litigation and real estate practice groups of the Quincy law firm of Moriarty Bielan & Gamache LLC,  Steve handles a variety of real estate related matters, including title clearing, adverse possession, condominium disputes, commercial and residential leases, landlord-tenant disputes, conveyancing, and probate matters.  He can be contacted at swiseman@mbgllc.com.

Increased Registry Scrutiny of Notary Acknowledgments: What Property Managers and Condominium Boards Should Know

 Troy Tanzer

Condominium associations regularly record trustee certificates, certificates of election, amendments, and other instruments with the registry of deeds reflecting board action of

record and to comply with governance requirements under M.G.L. c. 183A. For many years, acknowledgment clauses were reviewed primarily for facial completeness. So long as the certificate appeared filled out and signed, documents were generally accepted for recording.

We are now seeing stricter enforcement at certain registries, resulting in rejection of documents based solely on technical deficiencies in the notary acknowledgment. The Southern Essex District Registry’s recent policy update offers a clear example of this broader shift in enforcement standards.

This development does not reflect a recent statutory change, but rather a shift in how closely registries are reviewing acknowledgment compliance.

The Southern Essex Notarization Policy: The Southern Essex District Registry of Deeds has issued a formal Notarization Policy Update stating: “To help combat the rise in property fraud, the Southern Essex Registry of Deeds will reject all recordings that have incomplete or incorrect notarizations.”

The notice expressly applies to both recorded and registered land. Additionally, it identifies improper notary certificates, missing or inconsistent signatures, seal deficiencies, and improperly made corrections as common grounds for rejection. The notice further explains that incomplete or inappropriate acknowledgment certificates frequently prompt rejection and that corrections must be lined out, rewritten, and initialed and dated.

While these standards have long existed under Massachusetts law, registries are now reviewing acknowledgment clauses with greater technical precision. This heightened scrutiny appears to be part of broader efforts by registries to combat property fraud and ensure clarity in recorded instruments. In recent years, registries have implemented additional review procedures designed to confirm that recorded documents clearly identify the appearing party and strictly comply with acknowledgment requirements. Although these measures are intended to protect property owners and preserve the integrity of the recording system, they also result in closer technical review of routine condominium filings.

 

What Is Causing Document Rejections: Recent rejections have focused on acknowledgment clauses that do not expressly identify the individual whose acknowledgment is being taken, fail to state the form of satisfactory evidence relied upon by the notary, contain incomplete venue or commission information, or include edits that are not properly initialed and dated.

Many condominium documents historically used standardized acknowledgment language that did not always specify the identification relied upon or expressly name the appearing party within the body of the certificate. Under current enforcement practices in certain counties, those forms may no longer be accepted.

The result is that routine documents, even those that have been recorded in prior years without issue, may now be rejected.

Why This Matters to Boards and Property Managers: For property managers, this shift has practical implications. Trustee certificates are often recorded promptly following annual meetings to reflect newly elected trustees. If rejected, the document must be re-executed and re-notarized. That may require coordinating again with volunteer trustees and a notary, sometimes weeks after the meeting occurred.

If a lender or title insurance company is awaiting confirmation of a recorded certificate for a closing or refinancing, a rejection can cause delay. Where documents were executed months earlier, re-execution may be required if the acknowledgment language does not satisfy current registry standards.

Although the Southern Essex notice is one example of this enforcement trend, managers should anticipate that similar review standards may be applied more rigorously in other counties as well.

What Managers Should Do

 

·       Ensure that acknowledgment language specifically names the signer and reflects the capacity in which the individual is signing, such as trustee of the condominium trust.

·       Confirm that the acknowledgment states the form of satisfactory evidence relied upon by the notary, whether a driver’s license, personal knowledge, or a credible witness.

·       Review the notary block for completeness before submission, including venue, date, signature, printed name, and commission expiration.

·       Avoid informal edits to the acknowledgment. If corrections are necessary, they must be properly lined out, rewritten, and initialed and dated by the notary.

·       Allow additional time for recording, particularly after annual meetings or when documentation is needed for a time-sensitive transaction.

Conclusion: The acknowledgment standards themselves have not materially changed. What has changed is enforcement. Registries are applying, or are likely to begin applying, a more exacting review of notarizations. Property managers and condominium boards should anticipate closer scrutiny and ensure that recordable documents are fully compliant at the time of execution in order to avoid unnecessary delay and administrative burden.

A member of REBA’s Condominium Law Section, Troy Tanzer is an associate in the real estate and litigation department of the Quincy-based law firm of Moriarty, Bielan & Gamache LLC.  Troy can be contacted at ttanzer@mbgllc.com

Snow and Ice Issues for Condominium Association Boards

 William F. Thompson

The Problem:  An owner sent the board a letter complaining about the association’s snow-removal contractor.  He says the contractor waits too long before beginning to

plow and doesn’t do an adequate job of clearing the snow and treating the ice.  The letter says the owner is putting the board on notice that if anyone slips and falls, the association will be sued for negligence.  This is the only complaint about snow removal the board has received.  How should the Board respond?

The Solution: A timely question, given the amount of snow we’ve had and continue to have in New England this winter.  The board shouldn’t immediately fire your contractor, but shouldn’t ignore the complaint either.  As a first step, it should assess the contractor’s performance after a snow event, which it should be doing anyway.  Is there any cause for the owner’s concern?  Does the contractor comply with the terms of your contract, which should specify: The expected response time, how much snowfall requires removal, the equipment and de-icing materials to be used, the areas to be plowed and where the snow will be deposited, among other details.

Even if the contractor does everything the contract requires, a resident or visitor who slips and falls might still sue the association for negligence.  If so, a court will consider not just whether the contractor has done what the contract requires, but whether the association’s requirements were reasonable – that is, would they reasonably be expected to reduce the risk of slip and fall injuries. 

Reasonableness, like beauty, is in the eye of the beholder – it is subjective.  It is also a legal standard for determining negligence established by the SJC in a 2010 decision, Papadopoulos v. Target Corporation. Neither that decision nor the many that have followed it have specified what snow-clearing measures would be deemed “reasonable.” But they have provided enough guidance to suggest that common sense and an adherence to “best practices” are probably your best guides.

Courts considering negligence claims will consider whether the association’s response was reasonable given the circumstances, recognizing that different conditions will require a different response. If the snowfall ends at noon, waiting until the next day before beginning to plow probably would not be deemed reasonable; waiting for a blizzard to subside probably would be.

 If a heavy snowfall is expected to begin after midnight on a weekday, having a snow removal crew ready to respond before people leave for work in the morning would be reasonable.  Waiting until the day before this storm before trying to find a snow removal company, on the other hand, would likely put the association on the wrong side of a negligence claim. 

Courts will consider not just what the association did or didn’t do, but what it knew or reasonably should have known.  If an owner slips in an isolated and rarely utilized area that has never been plowed in the past, the association will have a strong argument – not necessarily a winning one, but a strong one – that there was no reasonable expectation that the area would be plowed this time.  But if five people have complained about an icy area in the parking lot and the board hasn’t responded, the resident who slips and falls in that area will have a good chance of winning a negligence claim. 

There are no actions the board can take, no prayers it can recite, that will prevent the association from being sued. But there are some measures that will reduce its liability risks.

Adopt a snow resolution delineating clearly where the association’s snow removal responsibilities begin and end.   The association is clearly responsible for common areas, but the responsibility for limited common areas – balconies, decks, patios and sometimes walkways and stairways that are used exclusively by individual owners -- isn’t always clear.  A snow resolution, which boards typically have the authority to enact without owner approval, can specify that the owners who use these areas are responsible for clearing snow and ice from them.

Snow resolutions won’t completely eliminate liability risks and they won’t prevent owners who are injured themselves or who are sued by others from suing the association.  But they will make it more difficult for plaintiffs to win a negligence claim against the association when the board can demonstrate that the owners themselves were negligent.

Keep a log describing the association’s response to a snow event.  The log should note the contractors the board called (or the response time required under an existing contract) and when the contractor arrived.  The board should also require contractors to maintain their own logs noting when they provided service to your community, how many times the snow plows went through, how much sand or salt and de-icing chemicals they applied and where they applied it.   There is no such thing as too much detail when you are trying to demonstrate that the measures taken by the association and its contractor were “reasonable.”

Keep a separate log recording all complaints about snow removal or post-snow ground conditions and how the board responded to them.  This log can help board members rebut allegations that they knew or should have known about a slip-and-fall hazard.

Adopt a rule requiring owners to park their cars in areas that won’t impede snow-clearing efforts.  Enforce the rule consistently and document the enforcement efforts.

Require the snow removal contractor to indemnify the association for damages resulting from anything the contractor does or fails to do.  Ideally, the indemnification should also cover the attorneys’ fees and legal costs the association incurs in a law suit.

Require the snow removal contractor to have “adequate” commercial general liability insurance.” The experts suggest a minimum of $1 million to $2 million, plus an umbrella policy providing additional protection above that.  The board should also insist that the contractor’s policy name the association as an “additional insured.” This would allow the board to file a claim directly against the contractor’s insurance policy, possibly avoiding a claim against the association’s master policy.

Monitor the contractor’s work to make sure snow removal crews are doing what they are required to do.  Also, inspect walkways and roadways to identify unsafe conditions, respond to them and document your response.  As long as ‘reasonable care’ remains a subjective standard, associations should try to make sure their efforts are more than reasonable.

Will is a partner in the Braintree-based law firm of Marcus Errico Emmer & Brooks, PC and concentrates his practice on general condominium law as well as rule and lien enforcement. Will can be contacted by email at wthompson@meeb.com.