Condo Media - January 2016 - 30

TREAD WITH CAUTION
The apparent game-changer in
Massachusetts was Old Colony Village
Condominium vs. Preu, in which a
state appeals court ruled for the first
time that constitutional protections
restricting limits on expression might
apply in condominium communities.
This decision raised eyebrows
(and blood pressures) because
Massachusetts courts have
traditionally held that while federal,
state, and local governmental entities
must protect the constitutional rights
of citizens, non-governmental entities
have no such obligation. Preu departed
from that conventional thinking by
holding that seeking a court order to
enforce a condominium rule, which the
association did in this case, constitutes
a "state action" that could trigger
constitutional protections.
The initial read was the court had
blown a large hole in the governing
authority of association boards, but a
closer analysis yielded a more measured
and considerably less apocalyptic view
for some attorneys. Thomas Moriarty,
Esq., a partner in Marcus, Errico,
Emmer & Brooks, P.C., who represented
the association in Preu, is one of them.
A CONSTITUTIONAL TEST
The court didn't rule the board's actions
were unconstitutional, he emphasizes.
It ruled that a board's actions might in
some cases have to pass a constitutional
test. The decision didn't specify exactly

what that test would be, Moriarty says.
But Massachusetts courts considering free speech questions in the past
have concluded, without finding that
constitutional protections applied, that
board actions must be "reasonable" and
reasonably related to the purposes of
the association.
"If you look at Preu in connection
with those past decisions, you come up
with a reasonableness test," he says.
"That's the lowest level of constitutional
scrutiny, and that's the test we applied
before Preu."
A case decided since Preu (Fox
Meadow Condominium Trust vs. Mara
Feld) confirms his view that fundamentally nothing has changed. The plaintiff
in this case complained a laundry list of
common association rules-restrictions
on pets, parking, window displays, and
the operation of a home business-
violated his constitutional rights. But
the appeals court found all of these
restrictions were related to the board's
obligation "to [prevent] interference
with the other owners' use of shared
common areas, or the maintenance of
the condominium development exclusively for residential use." And there
was no evidence, the court said, the
restrictions impinged illegally on the
plaintiff 's constitutional rights.
While acknowledging condominium
restrictions are subject to constitutional scrutiny under Preu, the court
also pointed out the state condo-

minium statute permits the imposition
of reasonable restrictions on the use of
units "and persons who contemplate
acquisition of a condominium unit
may choose whether to buy into those
restrictions."
In Moriarty's view, this decision and
its strong restatement of the principle
that people who purchase condominiums agree voluntarily to accept the restrictions communities impose "eliminates any doubt about whether Preu
expanded constitutional protections or
added another arrow to the quivers of
objecting owners. It did not."
Ellen Shapiro, Esq., a partner in
Goodman, Shapiro & Lombardi, LLC,
is less sanguine. What's most disturbing and potentially most significant
about Preu, she believes, is the court's
refusal to grant the association's request for an order requiring an owner
to communicate with the management company only in writing. Even
though the court agreed the owner's
actions were offensive and disruptive,
it still found the order barring direct
contact to be an unacceptable prior
restraint on free speech. Her read:
Being reasonable may not be enough
to ensure the enforceability of a condominium rule.
"It is my hope that rules governing
the type of speech that tends to
raise hackles, if drawn carefully and
narrowly with a clear explanation of
their purpose, may be enforceable," she
says. But even with that assumption,
Shapiro still finds Preu and its
implications "a little disturbing."

"Just because a board
can legally prohibit
something doesn't
mean it's a good idea."

INFREQUENT CHALLENGES
Moving beyond the courtroom, how do
free speech conﬂicts typically unfold
within condominium communities?
Rarely, according to the managers we
queried, who reported that consensus
view with some relief.
"It hasn't reared its ugly head very
often," says Hugh Shaffer, PCAM,
on-site manager at Harbor Towers in
Downtown Boston.
Ditto for Scott Wolf, CMCA, AMS,
PCAM, owner of Greater Boston Proper-

-Thomas Moriarty, Esq.,
Partner at Marcus, Errico,
Emmer & Brooks, P.C

30

CONDOMEDIA
Condo Media - January 2016

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