Tuesday, June 22, 2021

Massachusetts Employers – It’s Time to Update Your Employee Handbooks

 Robert P. Rudolph

Every employer is well advised to have a written employee handbook consisting of a written compilation of rules, standards and

policies governing the management of the employer’s human resources. Employers should carefully consider their business, legal, employee relations and general objectives for creating an employee handbook, and then treat it as a living document, conducting an annual review and update. An employee handbook should be put in writing, communicated to all employees, applied consistently and be easy to read.

Within the previous five (5) years Massachusetts has enacted a litany of new employment related legislation, including, but not limited to: (i) leave to address domestic violence, G.L. c. 149, § 52E ; (ii) earned sick time, G.L. c. 149, § 148C; (iii) the expansion of maternity leave to include gender neutral parental leave, G.L. c. 149, § 105D; (iv) the equal pay law, G.L. c. 149, § 105A; (v) paid family and medical leave, G.L. c. 175M; and (vi) the pregnant workers fairness act, G.L. c. 151B, §4. If your employee handbook has not been updated recently, it likely does not have policies on some or all of these laws.

This year will continue to present unprecedented challenges as employers continue to deal with remote work and the impact of the COVID-19 pandemic. As employers navigate these uncertain times, it is even more critical to have a well-written employee handbook as the foundation of the employer/employee relationship. If your employee handbook does not have policies on all of the following, then it is time for an update: 

  • ·  Equal employment opportunities
  • · Anti-harassment and discrimination (Massachusetts law requires employers with six or more employees to adopt a written policy against sexual harassment)
  • ·        Reasonable accommodation
  • ·        Federal Family and Medical Leave Act
  • ·        MA Small Necessities Leave
  • ·        MA Paid Family and Medical Leave
  • ·        MA Parental Leave
  • ·        MA Earned Sick Time
  • ·        MA Domestic Violence Leave
  • ·     Concerted activities under section 7 of the National Labor    Relations Act
  • ·        Nursing mothers
  • ·        Rules of conduct and discipline
  • ·        Attendance
  • ·        Benefits and compensation, including vacations, holidays and sick time
  • ·        Drug testing
  • ·        Criminal background checks
  • ·        Termination
  • ·        Bulletin boards
  • ·        Non-solicitation
  • ·        Technology
  • ·        Social media

Additionally, employers should distribute a COVID-19 addendum to their employee handbook effective until vaccines have been widely distributed and regular work practices are resumed. Employers should consider including amended policies on leave, vacation, travel, remote work/teleworking and emergency contingency plans. For example, an employer may implement temporary policies on how remote work is to be conducted, evaluated and shared; expectations on the hours and times an employee is expected to be available; how hourly employees are to record and report hours in order to comply with the Fair Labor Standards Act; what an employee should do if exposed to COVID-19; expectations for safety outside of the workplace; policy on business travel; when travel plans should be reported and to who; or the employer’s quarantine requirements after an employee has traveled out of state, whether for business or pleasure.    

An employee handbook must match practice and is useless if not enforced. Managers and supervisors should be trained on the policies in the handbook and be prepared to enforce them. For employers with operations in more than one state, the employer should provide employees with state-specific employee handbooks. Employers should consider having different handbooks for different groups of employees (i.e., restaurant managers v. floor staff, construction office v. field staff, etc.). 

Unfortunately, we often see employment related litigation and find that the company’s employee handbook was poorly written, frequently adapted from a generic internet download, former company, or a friend. Different laws apply to different size employers, and an employee handbook needs to incorporate both federal and state specific laws. Employers should collaborate with experienced legal counsel when drafting their handbook and use an organized system to distribute the employee handbook, obtain signed acknowledgment of receipt forms from employees and maintain those forms in case they ever need to be relied upon.  

Bobby Rudolph represents individuals and businesses in complex commercial litigation matters. His cases involve issues related to business, employment, real estate and construction. Bobby is a trusted advisor on pre-litigation issues, regularly appears in court and has successfully resolved a range of matters through alternative dispute resolution. He can be contacted at rrudoph@rflawyers.com.

Thursday, June 3, 2021

Appeals Court Moots Condo Parking Allocation

David Rogers

A copy of the Allera v. Huntington Wood Condo. Trust, 99 Mass. App. Ct. 1118, 2021 WL 1289844 (2021) (Rule 23.0) Decision can be found by clicking on this link.

Parking spaces are valuable commodities at condominiums and, as

such, they are often the source of controversy among unit owners.  Last month, the Appeals Court issued a decision underscoring the importance of a board’s abiding by the explicit language of the condominium documents when dealing with these commodities – even where the board clearly has the right to assign parking spaces.

The Appeals Court – in Allera v. Huntington Wood Condo. Trust, 2021 WL 1289844 (April 7, 2021) – found that the trial court improperly dismissed a unit owner’s claim that a parking program instituted by a condominium association was not fair and equitable, as required by the condominium’s bylaws.  The case involves a condominium board’s attempt to implement a parking program that would provide unit owners, who did not have attached garages with corresponding driveways, with licenses to use common area spaces closer to their respective buildings. 

Located in Peabody, the Huntington Wood Condominium consists of 255 units in fifty-one buildings, all of which are townhouse-style homes.  Some units – such as Mr. Allera’s – have attached garages with a driveway or parking area in front of that garage.  Other units have detached garage bays, which hold one vehicle and may only be used by the unit owners.  The condominium also has common area off-street parking spaces, which are the focus of the lawsuit.

In the spring of 2018, the board – in response to complaints from unit owners who were frustrated with their inability to park in close proximity to their units – implemented a parking program that allowed residents without driveway parking available in front of their garages to reserve a parking space for $200 per year.  This program allowed residents who did not have their own assigned driveway parking spaces to obtain either a monthly or annual license to use a designated space in the condominium’s common areas.

A unit owner, Brian Allera, took exception to the parking program – contending that it was not an equitable solution to addressing the parking problems at the condominium.  Apparently of particular concern to Mr. Allera, who owned a unit with an attached garage, was the fact that the parking program assigned four of the six parking spaces in front of his building to individual unit owners – thus leaving fewer available spaces for the use of Mr. Allera and his guests.

Mr. Allera raised three arguments in challenging the parking program.  First, he contended that the program “divided the common areas and affected changes to the intended use of the common areas” in violation of G.L. c. 183A, § 5(b), which provides in pertinent part that “[e]ach unit owner shall be entitled to an undivided interest in the common areas and facilities in the percentage set forth in the master deed.”

The Appeals Court noted that it had already considered and rejected this same argument in Sewall-Marshall Condominium Ass’n. v. 131 Sewell Ave. Condominium Ass’n., 89 Mass. App. Ct. 130 (2016).  In that case, the Appeals Court found that a parking agreement was a valid contract reflecting the condominium board’s powers to deal with the common areas under G.L. c. 183A, § 10.  The parties in that case were two condominium associations situated on abutting parcels in Brookline, near Coolidge Corner.  When both condominiums were controlled by the same developers, they entered into a written agreement whereby twenty percent of the parking spaces would be reserved for the smaller association, and eighty percent would be reserved for the larger association.  After 20 years, the larger association notified the smaller one that it would no longer honor the agreement.  The larger association contended that the agreement (i) was invalid as an unrecorded easement, and (ii) altered the percentage of the unit owner’s interest in the common areas, in violation of G.L. c. 183A, § 5(b).  The Court found that the parking agreement did not create an easement because it did not create a property interest appurtenant to land.  More importantly (with regard to the Huntington Wood case), the Court also found that the parking agreement did not alter the larger association’s unit owners’ percentage interest in the condominium’s common areas such that unanimous consent was required under G.L. c. 183A, § 5(b).  The Court reasoned that the parking agreement did not grant exclusive use of the common areas to any unit owner.  The Court concluded that “[r]ather than creating an easement or altering interests in the condominium’s common areas, the parking agreement was instead simply an exercise of the boards’ powers under G.L. c. 183A, § 10(b)(1)…‘to lease, manage, and otherwise deal with…[the] common areas.’”

In his second argument, Mr. Allera contended that the board was required to obtain the permission of adjoining owners pursuant to G.L. c. 183A, § 5(b)(2)(ii), which provides in pertinent part as follows:

The organization of unit owners, acting by and through its governing body, shall have the power and authority, as attorney in fact on behalf of all unit owners from time to time owning units in the condominium, except as provided in this subsection, to…[g]rant or designate for any unit owner the right to use, whether exclusively or in common with other unit owners, any limited common area and facility, whether or not provided for in the master deed, upon such terms as deemed appropriate by the governing body of the organization of unit owners; provided, however, that consent has been obtained from (a) all owners and first mortgagees of units shown on the recorded condominium plans as immediately adjoining the limited common area or facility so designated and (b) 51 per cent of the number of all mortgagees holding first mortgages on units within the condominium who have given notice of their desire to be notified thereof as provided in subsection (5) of section 4.

The Appeals Court similarly found this argument to be unavailing, finding that the parking program did not offer a permanent grant of rights, but rather offers a time-limited license to use a designated area.  Furthermore, the Appeals Court noted that nothing in the condominium act prohibits the specific provisions contained within the bylaws of the Huntington Wood Condominium.  Specifically, the condominium’s bylaws provide as follows:

Subject to the rights of the Grantor pursuant to the Master Deed, the Trustees may from time to time assign additional parking spaces to particular Unit Owners.  Such additional parking spaces shall be so assigned for such periods and for such monthly parking charges as the Trustees may in their discretion determine, all such charges to constitute Common Funds upon receipt by the Trust.  All such designations and assignments shall be made on a fair and equitable basis, taking into account the reasonable needs of particular unit owners.

The Appeals Court ultimately found merit to Mr. Allera’s third argument that the parking program was not fair and equitable, as prescribed by the bylaw provision referenced above.  The Court reasoned that – at least for the purposes of a motion to dismiss – there were material facts at issue as to whether the parking program met the required “fair and equitable” standard.  The Court wondered, for example, whether it was fair and equitable for the parking spaces to be licensed to only those unit owners who did not have driveways or garages.  The board contended that the purpose of the program was to “create equity among the [u]nit [o]wners and to afford owners with a bay area parking space a similar parking option as [u]nit [o]wners with a driveway and garage attached to their [u]nit.”  The Court questioned this reasoning – noting that the unit owners with driveways and garages likely paid a premium for those features.  Would it be “fair and equitable” to now provide other unit owners, who presumably paid less for their units, a similar parking option for $200 per year?  The Court concluded that – given such questions of material fact as to whether the parking program was fair and equitable – the trial court’s dismissal of Mr. Allera’s lawsuit was inappropriate.

The case has now been remanded and the board now faces protracted litigation in the trial court.  Despite possessing the clear authority to assign parking spaces and its apparently well-intentioned effort to address complaints from the unit owners about parking – the Huntington Wood board wound up ensnared in a lawsuit.  This case serves as yet another reminder to condominium boards that no good deed goes unpunished.

Any decision by a condominium board that concerns the distribution of parking spaces is likely to be closely scrutinized by the community’s homeowners.  Accordingly, boards are well advised to seek the advice of experienced condominium lawyers when considering the implementation of a parking program – such as the one at issue in the Huntington Wood case.  A more well-crafted parking program (perhaps one that includes a lottery or application process) would be far more likely to be found “fair and equitable” than a program that imposes a blanket exclusion on an entire class of unit owners.

This article was originally at https://www.lawmtm.com/condo-association-parking-laws.html on May 26, 2021.

A member of REBA’s Condominium Law and Practice Section and an associate at Moriarty Troyer & Malloy LLC, Dave Rogers has been specializing in complex civil litigation at both the trial and appellate level for more than 16 years. He has extensive experience in the area of construction litigation. Dave’s practice is focused on construction, real estate, and condominium matters. His clients include condominium associations, real estate developers, general contractors, subcontractors, and individuals. Dave’s email is drogers@lawmtm.com.

Friday, May 28, 2021

The ACLU May be Coming for You

 Ellen Shapiro and Anthony Gallino

In a recent MEEB newsletter, Attorney Anthony Gallino discussed a case out of Hampshire County Superior Court, Jess v. Summer Hill Estates Condominium Trust, et. Al.  The case concerned free speech

issues in condominiums relative to the rights of residents to post signs. The case never went to trial and was abandoned after the condominium entered an agreement for judgement. Nevertheless, there is an important lesson to be learned from the case.

We have consistently advised our association clients, whether condominiums, homeowners associations or cooperatives, that in promulgating rules, care should be given to ensure they are (among other things) gender-neutral, age neutral (except for qualified over 55 communities) and content neutral. The Jess case serves as a reminder of the importance of “content neutral” rules when they are viewed through the lens of the First Amendment.  Content neutral rules are those that merely regulate the way in which the speech may occur such as the time, place or manner. A content neutral rule never regulates the subject matter of the speech and does not operate (even unintentionally) to regulate the speech.

We have been notified by a few clients that they have recently received demand letters from the ACLU relative to their current rules. It is no surprise that the rules being scrutinized concern signage.  We are still in the early stages of drafting responses to these letters but we want to alert our clients that it appears the ACLU, having prevailed in the Jess case, is now focusing its attention free speech issues in community associations.

We want to be clear here. We know that these associations which received letters from the ACLU passed these rules with the best of intentions. A clear reading of the rules at issue shows the underlying desire to maintain the architectural integrity of the condominiums’ appearance and were a legitimate exercise of the board’s rule-making power and its obligation to manage the common areas.

Notwithstanding these intentions, the ACLU is challenging the rules on grounds that they violate the constitutional right to free speech. While we cannot comment on these situations now, we can however urge all community association to take another look at their rules and even their governing documents to determine that they are “content neutral.”

A partner in the Braintree firm of Marcus Errico Emmer Brooks, P.C., Ellen Shapiro has more than 25 years of experience in condominium and community association law.  She can be contacted by email at eshapiro@meeb.com.

Anthony Gallino is an associate at Marcus, Errico Emmer Brooks, P.C.  He focuses his practice on real estate, condominium, and contract litigation. Prior to joining the firm, he was part of the Accelerator Practice Clinic at Suffolk University Law School. There he represented indigent tenants in landlord/tenant disputes/eviction cases. Anthony can be emailed at agallino@meeb.com.

Superior Court weighs in on Question of First Impression under G.L. c. 183A § 8(f)

 Ryan R. Severance

A summary judgment decision in a Suffolk Superior Court case, recently reduced to judgment, has addressed a question of first

impression regarding the state of construction necessary to support the recording of plans showing the layout, location and dimension of the units for purposes of compliance with G.L. c. 183A § 8(f).


While the Trial Court’s decision does not constitute binding precedent, the significance of the decision cannot be overstated.


In the matter of The 1850 Condominium Trust v. Allied Residences, LLC, Suffolk Superior Court Civil Action No. 1884 CV 01594, the question presented was what, precisely, does G.L c.183A § 8(f) require in connection with the recording of the floor plans. The Defendant’s’ lawyers were confronted with a claim that the floor plans accompanying a phasing amendment were invalid under G.L. c. 183A § 8(f) because; (1) they omitted a verification, under oath, from a registered architect, professional engineer or land surveyor, and (2) the construction of the common area was not substantially complete at the time the phasing amendment was recorded.


G.L. c. 183A § 8(f) provides, as follows:


The master deed shall be recorded in the registry of deeds or the land registration office where the real estate is located and shall contain the following particulars:


(f) A set of the floor plans of the building or buildings, showing the layout, location, unit numbers and dimensions of the units, stating the name of the building or that it has not a name, and bearing the verified statement of a registered architect, registered professional engineer, or registered land surveyor, certifying that the plans fully and accurately depict the layout, location, unit number and dimensions of the units as built.


While §8(f) refers to the master deed, it has long been recognized that such requirement applies to phasing amendments submitting additional units to condominium status.


In response to the claim that the subject plan lacked a verification under oath, the Defendant argued, in reliance on certain plan recording requirements of the registry of deeds, and G.L. c. 112 § 60F which controls an architect’s use of her seal, that the only verification required by G.L. c. 183A § 8(f) is the preparer’s signature and professional seal. In addition, the Defendant pointed out that the form of verification demanded by the Plaintiff was, in fact, missing from the floor plans recorded with the master deed, which plans the Plaintiff relied upon to sustain its very existence as a duly constituted condominium organization of unit owners. Confronted with the Defendant’s arguments, and no doubt recognizing that if its position in that regard were accepted the association would cease to exist, the Plaintiff disavowed such claims, and the claim was effectively dismissed.


In its summary judgment decision, the Trial Court rejected the Plaintiff’s claim that construction of the common area has to be substantially completed in order to record a plan compliant with G.L. c. 183A § 8(f). In connection with its decision, the Trial Court rejected each of the Plaintiff’s arguments addressing several with specific detail. The Trial Court did, however, acknowledge that there is no case that explicitly answered the questions presented, noting that cases addressing the issue had done so indirectly and inconsistently. In order to answer the question presented, the Court turned to ordinary principles of statutory interpretation concluding that the use of the term “as built” in Section 8(f) does not require “post-construction” plans, or a plan showing a building that is “substantially complete.” The Trial Court’s analysis is clear, concise, and self-explanatory and, for that reason, it is quoted at length herein below.


In its analysis the Court first observed as follows:


First, as Allied points out, if Section 8(f) required plans showing a building that is substantially complete, then including a requirement that plans show “the layout, location ... and dimensions of the units” would be meaningless, because those elements would necessarily be included in plans showing a building that is substantially complete. “We seek to avoid a construction which would make statutory language meaningless.” Commonwealth v. Maher, 408 Mass. 34, 37 (1990).


The Trial Court went on to find:


Second, Allied argues persuasively that, if the Legislature had meant construction to be “substantially complete” for purposes of Section 8(f), it would have said so explicitly, as it has in several other statutes. See G.L. c. 260, §2B (actions arising from improvements to real property must be brought no more than six years after “substantial completion of the improvement”); G.L. c. 254, §2A (requiring a notice of substantial completion in order to assert a mechanic’s lien); G.L. c. 30, §39G (requiring certification of “substantial completion” in public works projects); G.L. c. 149, §29F (same, for private construction projects). The Court should “not read into [Section 8(f)] a provision which the Legislature did not see fit to put there.” In re Adoption of Daisy, 460 Mass. 72, 76 (2011).


In refusing to accept the Plaintiff’s position on summary judgment the Trial Court also stated,


Conversely, the Trust’s contentions as to why Section 8(f) should be interpreted as requiring plans reflecting construction that is substantially complete are not persuasive.


The Court noted:


The Trust primarily argues that interpreting Section 8(f) as not requiring a building to be substantially complete would permit a developer to “build a house of cards,” in order to meet phasing deadlines, “and then knock it all down,” thus rendering those deadlines, which are meant to protect the rights of unit owners, meaningless. However, as Allied points out, the recording of a Section 8(f) plan fixes the layout, location and dimensions of the units within the structure containing the units. The Trust does not point to any part of G.L. c. 183A, or anything else, from which a declarant would derive authority, after recording Section 8(f) plans, to change the location, layout and dimensions of the units as shown on the plans.


The Court found, in addition, as follows,


Moreover, as Allied also points out, once a building is submitted to condominium status, a declarant no longer owns or controls the common areas of the building (excepting any phasing rights that have been reserved) and therefore cannot “knock it all down.” The Trust’s concern is therefore speculative and cannot serve as a basis for interpreting Section 8(f) so strictly.


Additionally, the Trial Court considered and disagreed with the Plaintiff’s argument that § 8(f)’s reference to “as-built” requires post-construction plans, as follows:


The Trust also refers to certain industry publications which define “as built drawings” as drawings that show how a building has actually been constructed. However, these publications speak to how the term “as built” is defined generally, rather than how it is defined in Section 8(f), specifically. Moreover, these publications are inconsistent. As Allied points out, the Mass. Conveyancers’ Handbook, §17.5 (4th Ed), referring to condominiums specifically, states that a unit “need not be completed, or even substantially completed in the customary architect’s term” at the time it is submitted under G.L. c. 183A.


Finally, the Court held that the Plaintiff’s reliance on the Appeals Court decision in DiBiase Corp. v. Jacobowitz, 43 Mass. App. Ct. 361 was misplaced as DiBiase “does not answer the question of what stage of “being” an edifice must be in to enable the developer to submit as-built plan under § 8(f) other than to require that there be an edifice in being.


While the Trial Court’s decision does not constitute binding precedent, the significance of the decision cannot be overstated. Had the Plaintiff’s position been adopted, it would have called into question the title to virtually every unit added by phasing amendment in the Commonwealth as it would have become impossible for any buyer, conveyancer or title insurer to determine whether a recorded plan showing the layout, location and dimensions of the units as built was compliant with G.L. c. 183A § 8(f). In that regard, the owner of every unit in a phased condominium, and the industry in general, avoided a substantial adverse consequence in connection with the Trial Court’s decision to reject the position advanced by the Plaintiff in the case.


An associate in the Boston and Braintree based firm of Moriarty, Troyer and Malloy LLC, Ryan’s practice has included a focus on the general representation of condominium associations, including condominium document interpretation, drafting, enforcement, and collections. Ryan can be contacted by email at rseverance@lawmtm.com.

REBA News President’s Message

Neil D. Golden

In the last 15 months, we have collectively confronted a once-in-a-lifetime event, a worldwide pandemic affecting everyone. 

Depending on your age, we have experienced many tragic events in our lifetimes, but none personally have touched us as COVID-19, which brought out the best in us.  We lost friends and relatives, and saw so many others afflicted. Our lives were turned upside down.  We could not see loved ones; we worked in isolation from home; and we were denied the many normal life activities we took for granted. 

But we were so resilient!

I am proud of our work at REBA helping our members overcome the myriad of challenges that COVID has presented.  The REBA leadership, together with the staff, immediately mobilized to ensure that the Association’s mission continued unabated.  We like to say we are nimble, acting swiftly when circumstances dictate.

Within days, we had a COVID resource page on our web site.  We met remotely as a leadership group and sub-groups, confronting unprecedented challenges.  From guidance on lawyers as essential workers, to leadership on virtual notarizations, to purchase and sale and lease provisions addressing COVID-related issues, to updates from the registries of deeds and on Land Court orders…  REBA led the way.  Many of you had record-breaking months, as real estate lawyers and its many disciplines flourished, while many other professions and businesses faltered.

REBA’s webinars exceeded our expectations, both in content and record-breaking attendance.  We did not miss a single board meeting or meeting of our Standards and Forms Committee.  Led by Jutta Deeney, we adopted standards, forms and our new residential purchase and sales form rider. 

We are also fighting new battles as out-of-state businesses work to undo the REBA v. NREIS decision, by forcing on us a remote notarization law benefiting no one, except those companies promoting it.

Looking ahead, what will the new normal be? 

No one knows, but we are optimistically planning a traditional, day-long, in-person Annual Meeting and Conference in November and a Sesquicentennial Year in 2022.  But whatever challenges lie ahead, I know that we will continue to be the preeminent specialty bar association in Massachusetts.