Congratulations to Attorney Scott Carman who was recently appointed to serve as a member of the City of Medford's Board of Appeals. Scott joins Partner David Jackowitz (Zoning Board of Appeals of Natick) in becoming the second attorney in the firm to serve in this capacity for their local governments.
Article by Ken Krems in Bay State Apartment Owner Publication, 3rd Quarter, 2015
Supreme Court rules that disparate impact claims can be brought under the Fair Housing Act.
Article by Christina P. O'Neill in Bay State Apartment Owner publication
Updates from the Shaevel & Krems Real Estate Management team
On August 8, 2014, Governor Patrick signed what has been called a “sweeping new law” for construction project owners, contractors and subcontractors. Most importantly, the law sets a limit on the amount of “retainage” a project owner can withhold from contractors and subcontractors.
Real Estate Development Team Advisory
"Spot zoning" occurs when a particular lot of land is singled out for a different treatment under a city's zoning restrictions than that accorded to the larger zoned area. A parcel is invalidly "rezoned" for a different land use than is otherwise permitted when it is done for the sole purpose of financially benefiting the owner, and not for any legitimate public purpose.
Earlier this month, the Land Court considered whether impermissible spot zoning occurred when the Town of Swampscott attempted to rezone a parcel, owned by the town itself, to accommodate a multistory, 41-unit apartment complex in an area otherwise designated for single-family residences only. The town expected to sell the parcel to a private developer.
Labor and Employment Update
A non-compete agreement typically seeks to restrict an employee’s ability to leave one company and join a competitor for a specified amount of time after leaving. They are common in the tech industry, and large tech firms typically oppose any legislative attempts to limit their use. Others suggest that these agreements unduly restrict the workforce and restrain startup companies.
Last week, the Joint Committee on Labor and Workforce Development hosted dozens to testify for and against limitations on non-compete agreements. Among those testifying was Governor Deval Patrick’s Secretary of Housing and Economic Development, Gregory Bialecki. Governor Patrick has consistently indicated his support for increased regulation of these agreements, and Secretary Bialecki stated that the administration seeks outright elimination of the enforceability of non-compete agreements in Massachusetts.
This past summer, in Koontz v. St. Johns River Management District, the United States Supreme Court handed a significant victory to real estate developers across the country, when it announced that it is unconstitutional under the Takings Clause for municipalities to impose "extortionate" conditions for the granting of development permits.
The last clause of the Fifth Amendment, know as the Takings Clause, requires that "just compensation" be paid if the government takes private property for public use. Typically, this clause is invoked when the government, under the power of eminent domain, literally takes land from private owners and provides just compensation for doing so. In this case, the Supreme Court expanded the scenarios in which a landowner can readily make a claim against the government for an unconstitutional taking.
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You manage a building with a no-pet policy. A resident walks into your office and proclaims that she needs to have a companion animal, a big Siberian Husky, right now. Your inclination is to tell her no way, because you don't allow any pets, and certainly not a big dog. What should you do?
Recently, there have been many more requests from residents and applicants for service animals. In the past, these primarily involved seeing-eye dogs, but now there are numerous requests for emotional support or comfort animals, which are primarily dogs or cats, but can also be other animals such as birds, monkeys or iguanas.
Various studies have demonstrated that emotional support animals can assist in the treatment of physical and mental illness. They can help decrease depression, stress and anxiety. An increasing number of hospitals now allow pets on their floors to comfort patients.
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It's time for the annual apartment inspection, so you open the door and go in. Only then do you realize you have just entered the twilight zone.
You look around and can't believe what you see. To the right, floor-to-ceiling stacks of papers, magazines and books. To the left, enormous piles upon piles of clothes and bags. You step further into the living room and can now see the door to one of the bedrooms, but realize the room is completely inaccessible because of the mountains of stuff. You peek into the bathroom -- the tub is full of clothes and papers. The kitchen stove is covered with open food, magazines and boxes. There is evidence of roaches and mice all around. The apartment is a disaster.
The resident is a hoarder.
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Article by Kenneth Krems for the Bay State Apartment Owner publication
In 2008, there were very few smoke-free portions of apartment buildings in Massachusetts, though there was a growing interest. I wrote in the first quarter 2008 Bay State Apartment Owner, that it might be the wave of the future. Much has happened with smoke-free housing over the last few years, and it seems that this will, indeed, be the wave of the future.
Since early 2008, a number of new, luxury, completely smoke-free buildings have opened, such as 75 SL in Medford and Archstone Avenir in Boston. These are buildings where the resident is not only prohibited form smoking in the common areas, but the residents and residents' visitors are also prohibited from smoking in the apartments.
The Boston Housing Authority announced this year that within the next few years it hopes to make all of its developments smoke-free. Its first smoke-free development, Washington-Beech, is now open. The Boston Public Health Commission is embarking on an ambitious program to encourage landlords to make their buildings smoke-free. We will be hearing more about this in the coming months.
Article by Kenneth Krems for Bay State Apartment Owner publication
Over the last few years, much has been written about secondhand smoke. A report by the surgeon general of the United States in 2006 declared that "even small amounts of secondhand smoke exposure can be harmful to people's health." Since that report was published, there have been an increasing number of newspaper and magazine articles written about the potentially harmful effects of secondhand smoke.
There are currently many smoke-free office buildings, public buildings, hotels, restaurants, and bars. As the public becomes more knowledgeable about the effects of secondhand smoke, there should be an increased demand for completely smoke-free housing: housing where smoking is banned inside the apartments as well as in the common areas.
Real Estate Development Team Advisory
Some of you may be familiar with the concept of "adverse possession" in Massachusetts and the similar concept of easements by prescription. In order to establish an easement by prescription in Massachusetts, a plaintiff must present evidence that the use of the property has been (1) open and notorious, (2) adverse, (3) continuous and uninterrupted and (4) for the period of at least twenty (20) years. Ryan v. Stavros, 348 Mass. 251, 261 (1964); Tucker v. Poch, 321 Mass. 323 (1947); Brown v. Sneider, 9 Mass. App.Ct. 329 (1980). In the usual case, a plaintiff will argue that he or she has established the right to use a portion of the property of another by making use of a strip of land for driving, bicycle riding or walking across property owner by another person.
In one of our recent cases, the facts were slightly more unique. Our client owns vacant land north of Boston. An adjoining landowner and his family ("the claimant") sought and obtained permission from our client to use our client's land for certain purposes, including the taking of hay from our client's property and then selling that hay for profit. In exchange, the claimant maintained our client's property and helped out with odds and ends from time to time. This relationship began in the 1950s and continued into the 21st Century.
Real Estate Development Team Advisory
In Massachusetts, where many cities and towns are densely populated, one of the most common complaints of abutters to new development is concern about potential loss of view. The reality is that almost every proposed development has a negative impact on some abutter's view; but under Massachusetts law, before a lawsuit will be considered by the courts, abutters must prove that they have "standing." That is, abutters must show specific facts that establish a violation of a legal right and an injury special and different from that of the general public. In order to establish standing in a lawsuit related to the diminishment of a view, abutters must either show that views are protected in the zoning bylaw or they must set forth some other violation of a legal interest, such as the decrease in the value of the abutter's property.
Two recent Massachusetts court cases have dealt with this difficult issue of the loss of view and the right to sue.
Article by Kenneth Krems for New England Affordable Housing Management Association publication
You have a few vacancies, so it is time to see who is at the top of your waiting list. The first applicant is a man with some history of drug addiction. You are uneasy about accepting him as a tenant. You want to protect your site from drug users, but you vaguely remember that drug addicts have some protection under the law. What should you do?
Under the American with Disabilities Act and other statutes, it is illegal to refuse to rent to an applicant based upon the handicapped status of the applicant. In general, substance abusers are protected from discrimination by the statues, so you cannot refuse to rent an apartment to someone simply because he has a history of using drugs.
Article by Kenneth Krems for New England Affordable Housing Management Association publication
You are sitting at your favorite restaurant celebrating. It was a long, hard battle, but after several months you finally had your summary process trial. Yesterday, the judge's decision arrived. You won! It was a great victory. Now you were certain that this horrible, problem tenant would be gone in a few days.
The you get a call from your office. A notice was just delivered saying that your tenant, never one to give up easily, had appealed the decision. What did this mean? How long would the tenant be allowed to stay?
Since most eviction cases are settled prior to trial, and only some of those which go to trial are appealed, many managers don't have a good idea of what happens if a case is appealed. The specific appeal procedures vary from state to state, but the rules in Massachusetts are illustrative of the issues involved in appeals in any state in New England.
Article by Kenneth Krems for Massachusetts Bar Association Property Law, Section News
The duties of landlords and the rights of tenants in handicapped discrimination law are defined by a complex mixture of state and federal law. Each of the applicable laws, however, is based upon the premise of equal opportunity in housing for the disabled. Equal opportunity is achieved by offering qualified disabled persons reasonable accommodations to account for their disability. Massachusetts courts have been applying the reasonable accommodation standard in decisions, which are beginning to define the contours of the law with regard to handicapped discrimination in housing.
In one case, a landlord brought a summary process complaint in Boston Housing Court against a tenant alleging that the tenant was disturbing the quiet enjoyment of the other tenants by playing loud music and carousing during the night. The defendant answered that the landlord had violated the Federal Rehabilitation Act of 1973 by failing to offer a reasonable accommodation. The Rehabilitation Act was operative because the landlord was the recipient of federal funds.
Article by Kenneth Krems for New England Affordable Housing Management Association publication
As you sleep, this is your nightmare: illegal activity is occurring on your property. You know about it, but do nothing to stop it. Then, as a result of the criminal activity, a person is killed on the property. A jury renders a huge verdict against you.
Could this actually happen? It certainly could, and it did in the Sherman Griffiths case. In May 1997, the Massachusetts Supreme Judicial Court decided the appeal of the Griffiths case, and in so doing clarified the scope of a landlord's liability for criminal acts on the property.
In the case, a Dorchester apartment was being used for drug dealing, but the landlord took no steps to evict the tenant or even to report the telltale activity to the police. The landlord ignored these obvious signs of criminal activity at the apartment: there was heavy foot traffic; the tenant had minimal furniture and did not heat the apartment; almost every time the landlord came to collect the rent, a different man would give it to him; and the tenant installed his own new door to the apartment with two peepholes, the lower one being large enough to pass small packages through.
Article by Kenneth Krems for New England Assisted Housing Management Association publication
Section 504, The ADA. What do these laws mean? How do they impact a landlord's obligation to the tenants? These are questions landlords have struggled with for the last few years, and these questions are still difficult to answer. As more cases are decided, however, there are more guidelines for landlords to follow. Several of the most recent cases have been decided in favor of landlords.
One case which emphasized the need for reasonable accommodation was decided by the Massachusetts Supreme Judicial Court in 1991. In that case, a 77-year-old female tenant suffered from a mental disability which caused her to hear voices. In response, she would hit the walls of her apartment with a broom or stick and throw objects at the walls. This activity did relatively minor damage to the unit and did not substantially interfere with the quiet enjoyment of other tenants. The Court held that the landlord could not evict the tenant, but had to accommodate her by giving her further opportunities to obtain counseling to help her control the behavior.