Condo Media - August 2010 - 16

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provisions of the Act. On the downside, the decision may open the door for possible future developer mischief, however, it seems unlikely that a court would allow the decision to be stretched to such bounds. In any event, there are still certain provisions of the Condominium Act that specifically state they cannot be waived by agreement. As noted above, Section 5(c) seemingly provides that and it would still be possible if that issue were actually presented to a court in the future, the decision in Scully would be entirely different. Section 6(c) (addressing priority liens) also seems to prohibit waiver. Section 12(d) also provides that bylaws may not contain provisions inconsistent with the rights afforded by the Act. The decision, while recognizing the enabling nature of c. 183A, ignores the separate and well-settled consumer

protection function which c. 183A was designed to perform. The inherent imbalance of bargaining positions between a condominium declarant engaged in the business of developing, marketing and selling condominium units and group of purchasers in a newly formed, and perhaps partially constructed project, is readily apparent. Therefore, whether or not the ultimate outcome of the case finding that this specific agreement was enforceable is desirable, the basis of the court’s decision is concerning. As you read this article you might wonder what, if any, impact this decision will have on your association — unfortunately, the answer is not a simple one, but a review of your association’s documents should provide some clarity. In particular, we would look for inconsistent provisions not only within the documents themselves, but also

with c. 183A. Also, a review following a developer transition in order to fix any inconsistencies would be extremely beneficial so as to avoid problems in the future. Finally, in light of this decision, it is perhaps most important to closely review other documents or agreements recorded at the time of the original master deed by the developer to look for provisions that circumvent those contained in c. 183A. While the impacts of the decision remain to be seen, it appears that despite decades of jurisprudence moving in the opposite direction, the court’s reasoning has breathed new life into the old adage buyer beware. CM Matthew W. Gaines, Esq. is with the law firm of Marcus, Errico, Emmer & Brooks PC, and a member of the Massachusetts Legislative Action Committee (MALAC).

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Condo Media - August 2010

Table of Contents for the Digital Edition of Condo Media - August 2010