Condo Media - August 2013 - 46

LEGISLATIVE UPDATE

Plenty of Action
Energy Reporting, Priority Liens, and the Occasional Surprise Keep LACs Busy
Massachusetts

The top legislative news for this quarter
is Boston’s new energy ordinance,
requiring commercial and residential
buildings, including condominiums, to
begin tracking their energy consumption and reporting it to the city. The
theory is that making building owners
and residents aware of their energy
consumption will encourage them to
implement conservation measures and
to pressure their commercial and residential occupants to do so as well.
But the city ordinance is ﬂawed in
several respects, according to Matthew Gaines, an associate in Marcus,
Errico, Emmer & Brooks and chair
of the Massachusetts Legislative Action Committee (LAC). Buildings
that rank below the 75th percentile
in energy usage will be required to
undertake a more formal energy audit,
he notes, but the ordinance doesn’t
require any additional action, such as
updating existing systems, nor does
it impose any penalties on buildings
that fail to meet minimum standards.
So it’s not clear how much impact the
measure will have, if any, on consumption patterns, Gaines says.
The impact on condominiums is even
less clear. As originally proposed, the
measure would have required all condominium owners to report their usage
individually to the association, which in
turn would have been required to collect and deliver that information to the
city — an undertaking that Gaines says
would have been both costly for communities (resulting in higher common
area fees for owners) and virtually impossible for associations to implement.
“It is hard enough to persuade owners
to give you their mailing address, let
46

Condo Media • August 2013

alone report their utility bills every
month,” Gaines notes.
At the LAC’s urging, the bill was
amended to make reporting voluntary
for owners and to eliminate any penalty for failing to do so. Associations
are still required to report whatever
information they receive from owners
to the city, which will estimate aggregate usage based on proxy data from
other buildings, making the results
inaccurate and incomplete, which,
Gaines notes, “defeats the purpose” of
collecting the data in the first place.
But the reporting requirements are
taking effect, beginning in 2015 for
condominium communities with 50
units or more or space totaling 50,000
square feet or more. Implementation
is delayed until 2017 for small condominiums with between 35 and 49
units or between 35,000 and 50,000
square feet. An earlier draft included
smaller communities with as few as
25 units or 25,000 square feet, but
the LAC persuaded lawmakers to
increase the threshold for the reporting requirement. “Ideally, we wanted
them to exempt residential dwellings
altogether,” Gaines says, “but we at
least won this small victory.”
At the state level, the LAC is tracking 54 measures, 39 of which are refiles from last year. Many on that list
are perennials, filed repeatedly and left
to die without moving out of committee. “We’re hoping they meet the
same fate this year,” Gaines says, the
most likely prospect, he suggests, for
most of them.
The legislative docket includes
two new bills that have attracted the
committee’s attention. One promotes
the use of electric vehicles, requiring

owners of any “improved or enclosed
property” used as off-street parking,
which would include condominium
parking areas, to designate at least one
space per hundred exclusively for electric vehicles. Although the law specifies that the spaces must be equipped
with an electric charging station, it
does not require associations to pay
for the equipment. But the measure is
still problematic for common interest ownership communities, Gaines
says. “What happens in a community
in which all 150 parking spaces are
deeded to owners, [with no additional]
guest parking? Does that association
have to rip up a green area to comply?”
And what happens, he asks, if two
people have electric cars and want to
use the one designated space?
The committee is opposing the measure, which Gaines likens to the “rightto-dry” statutes requiring associations
to allow owners to install clotheslines
on their property — “well-intended,”
but ill-suited for common interest ownership communities.
That description also applies to
another bill filed for the first time
this year requiring property owners
to install window guards within units
and “on all applicable windows” in the
common areas of multi-family dwellings if residents who have children
request them. As written, the measure
would not only require condominium
owners who rent their units to install
guards if tenants request them, it
would require the association to install
window guards on all the landings
leading up to that unit.
The committee hasn’t opposed
this measure, but “we are watching it
closely,” Gaines says, and if it seems to be
Condo Media - August 2013

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