Condo Media - August 2017 - 27

The legislation targets the current practice, in which developers include
land designated for future phases as common area in the first phase. Because
common area is not taxable, the developer avoids paying taxes on the
undeveloped parcels.
LAC has proposed-one modifying the
timeline for construction defect suits,
the other prohibiting developers from
inserting "poison pill" provisions in
condominium documents limiting the
ability of associations to sue them. The
Legislature had not yet acted on either
measure as of Condo Media's press time.
More than half of the pending bills
are perennial measures that are refiled
every year. "They never go anywhere,"
Mass-LAC Chair Matthew Gaines, Esq.,
a partner in Marcus, Errico, Emmer
& Brooks, P.C., noted. "But we have to
keep an eye on them."
Three measures with more potential
to advance are getting closer attention.
The oft-filed "Clothesline Bill," allowing
condo owners to install that equipment,
is back again this year, improved over
past versions with some amendments
the LAC has sought, but still not quite
where it needs to be to win the committee's support.
Unlike prior versions, which simply
prohibited association rules barring
clotheslines, the current measure
specifies that associations can impose
reasonable restrictions on where they
are located. The LAC wants additional
language stating that associations can
prohibit the installations where they
are not feasible-for example, in downtown high rises, where, Gaines noted,
"there is simply no place to put them."
The committee is also following with
interest a measure that would allow the
local board of health to fine residents
who smoke in a condominium, if it determines that the second-hand smoke
"endangers or materially impairs the
health or safety" of residents in surrounding units. Local officials could
also require smoking residents to seal
their units (to prevent the migration
of smoke to neighboring units) or to
refrain from smoking entirely.

The legislation is unclear on several
points, Gaines said, among them:
n Whether it would apply to existing

condominiums or only to those created in the future; and

n Whether enforcement could actually

make a condominium smoke-free.
That doesn't appear to be the case,
Gaines said, because the board of
health would act only if neighbors
complain about the second-hand
smoke and health inspectors deem it
to be a problem.

"We're going to watch the legislation," Gaines said, "and we may propose
some changes to clarify it."
The LAC is also watching, with
some concern, a bill that would allow
municipalities to tax a condominium
developer's right to build future units in
a phased development. The legislation
targets the current practice, in which
developers include land designated for
future phases as common area in the
first phase. Because common area is not
taxable, the developer avoids paying
taxes on the undeveloped parcels.
"We understand the concern" that
prompted the legislation, Gaines said.
"Municipalities are losing tax revenue."
But the proposed solution is problematic. "Municipalities aren't taxing real
property," Gaines explained. "They are
taxing thin air-the developer's right to
build more units." And that tax liability
might discourage other developers from
coming in to complete future phases if
the original developer is unable to do
so. If the developer goes bankrupt after
completing additional units, it appears
that the unpaid taxes would attach to
those units and become the obligation
of owners who purchase them, which
"doesn't seem fair," Gaines said.

The LAC has opposed the legislation
for those reasons. Local assessors who
are lobbying for the legislation "understand our concerns" Gaines observed,
and are working on language to address
the problems.
Another measure that has attracted
the LAC's attention would make it illegal for owners to misrepresent that a
pet is a qualified "service dog," when it
does not meet those requirements. The
proposed legislation references service
dogs as defined by the Americans
with Disabilities Act, which applies to
restaurants and other public accommodations, but not to condominiums.
It is the Fair Housing Act that allows
condominium owners to insist on
"reasonable accommodations" for
physical or emotional disabilities, allowing them to have service or therapy
animals in buildings that otherwise
prohibit pets.
Gaines says the legislation is "a great
first step" toward addressing complaints that many condo owners abuse
the Fair Housing accommodation process to circumvent pet restrictions. But
the measure would have to be redrafted
to apply to condominium communities.
Even with that redrafting, the legislation would be hard to enforce, Gaines
acknowledged. But it is possible that
the proposed penalty for violations (30
hours of community service at an organization serving individuals with disabilities and a fine of up to $500) would make
people "deal more honestly" with service
animal requests "and think twice about
fudging their claim to need one."

n NENA GROSKIND IS PRESIDENT
OF ECONTENTPLUS, PROVIDING
EDITORIAL CONTENT FOR
WEBSITES, PRINT AND ELECTRONIC
NEWSLETTERS, AND MAGAZINES.

August 2017

Condo Media - August 2017

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