Condo Media - January 2024 - 35

The Recording Process
MASSACHUSETTS
Pursuant to Section 8(i) of the
Massachusetts Condominium Statute
(M.G.L. c. 183A), " changes in the
trustees or members of the managing
board...shall be stated in a certificate
signed and acknowledged by at least
one trustee or member " of the board.
In most sets of bylaws, you will see
provisions requiring the recording
of a certificate in order for an elected
individual to become a member of the
board. In other words, a trustee is not
a trustee until the certificate is duly
recorded with the Registry. Therefore,
typically after each annual election,
a certificate will be created with the
new composition of the board, and that
certificate, once executed in front of
a notary, will get recorded. The newly
composed board will then be legally
authorized to do the condo's business.
Section 8(i) further provides that
" persons may rely in good faith upon
the...most recently recorded certificate
or vote as to the names of the trustees
or members of the managing board. "
Thus, by recording a trustee certificate
in Massachusetts, you are not only
informing the world that these stated
individuals are the trustees, but you
are also providing the added benefit
that whoever views the certificate can
rely on the certificate as being accurate
without further inquiry. To put this in
a practical context, a vendor can know
that if the certificate says that Joan,
Sally, and Joe are the board members,
that vendor can be assured that a contract
signed by two of those three
(a majority) will bind the condo.
Section 8(i) also notes that the
certificate can state the official address
of the condominium, which is typically
the address of the professional management
company hired by the board.
By stating the name and address of the
management company on the trustee
certificate, trustees can avoid receiving
legal notices directly; instead, those
will go to management.
NEW HAMPSHIRE
In New Hampshire, there is no
equivalent to the Massachusetts
Section 8(i) requirement, which
requires the recording of a trustee
certificate. Since there is no affirmative
legal requirement to record a
certificate, New Hampshire clients
very rarely record certificates. But
when a condo loan is sought, the
lender will always want a certificate
recorded so that the lender can be
sure that the individuals signing the
loan documents are duly authorized
to do so. After all, banks are not going
to lend out their funds without
dotting all their I's and crossing all
their T's.
Even though New Hampshire does
not require the recording of a trustee
certificate, it is a low-cost way to
ensure that the public knows who is
responsible for managing the condominium
and can avoid a situation
where a rogue board attempts to take
over the existing board following a
disputed election or other similar
circumstances. While rare, these
situations do certainly happen. The
bottom line is that there is no downside
to recording a trustee certificate.
RHODE ISLAND
Last but not least, in Rhode Island, trustee certificates are required, but only for
unincorporated associations. Condominiums can be created solely as a creature of
statute under RIGL s. 34-36.1, but a developer may also choose to incorporate the
condominium through the Secretary of State's office. What that means is that the
condo is also essentially a corporate entity in addition to being a separate legal
entity under the condo statute. Since the directors of a corporate entity must
make annual filings with the Secretary of State's office to state the names and
addresses of the executive board members, it would seem that the Rhode Island
legislature found a trustee certificate to be unnecessarily duplicative. Therefore,
if your Rhode Island condo is not incorporated - if it exists solely as a separate
legal entity under the condo statute - RIGL s. 34-36.1-3.01 requires the board
to record a certificate " evidencing the names of the executive board members
and mailing address for the association, " which gets recorded in the town land
records. Like in Massachusetts, this would be done annually whenever the board
composition changes.
n DEAN T. LENNON, ESQ., IS A PARTNER IN THE FIRM OF
MARCUS, ERRICO, EMMER & BROOKS, P.C.
January 2024 CONDOMEDIA 35
Condo Media - January 2024

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