Condo Media - March 2017 - 36

Legislative Update
The LAC expects to see all three
measures again in the new legislative
session, along with a measure regulating short-term rentals, which "didn't get
much traction this year," Gaines says,
"but we expect it to return full force,
and we'll be actively watching it."
There are also some indications that a
manager licensing proposal may surface
this year, Gaines notes, and the LAC, he
says, will be discussing that as well.
The committee will also be proposing
a measure prohibiting "poison pill"
or "anti-litigation" provisions that
developers are increasingly inserting
in condominium documents to limit
the ability of associations to sue them.
Typical language requires at least 80
percent of owners to approve litigation
and often requires boards to disclose
estimated litigation costs and the likelihood of prevailing in the action.
"We think these requirements are
patently unfair and contrary to public
policy," Gaines says. The provisions also
conﬂict with the state condominium
statute, which, he notes, "clearly authorizes boards to undertake litigation and
says nothing about requiring 80 percent
of the owners to approve it."
A Massachusetts Superior Court
decision upholding anti-litigation provisions "spurred interest in filing the bill,"
Gaines says. If current law allows the
provisions, "we want to change the law."

RHODE ISLAND
The Rhode Island LAC has been preoccupied with battling a measure that
would subject condominium association disputes to non-binding mandatory
arbitration. The requirement "is a
non-starter for us," LAC Chair Frank
Lombardi says, noting three primary
objections:
n The association can enact its own arbi-

tration standards if it wants to resolve
disputes in that way. Making arbitration
mandatory, whether the association
wants it or not, "isn't fair," he says.

n Because either side can appeal the arbi-

trator's decision, the legislation doesn't
avoid litigation; it simply requires arbitration first, adding another step and
increasing the cost of resolving disputes.

n The party who appeals the arbitrator's

decision would have to seek a declaratory judgment in Superior Court, and
the legislation specifically requires a
jury trial. "But you can't have a jury
trial for a declaratory judgment," Lombardi notes. "It's not possible to follow
the procedure the legislation requires."

The legislation was defeated in committee last year, and the LAC has asked
the bill's sponsor not to resubmit it this
year. But if the bill is refiled, Lombardi
says, "we will battle it again."
One item that will definitely be on
the LAC's legislative agenda this year
is a measure that would eliminate the
requirement that at least 80 percent
of owners approve grants of limited
common elements, allowing individual
owners to add features to their property
(fences, decks, etc.) or extend existing
ones into common areas.

The LAC is supporting the bill, which
would allow boards to approve these
requests, as long as the owners directly
affected-primarily the immediate
neighbors-don't object. The current
80 percent-plus requirement makes it
virtually impossible to win approval for
requests that don't at all impede owners' access to or use of common areas,
Lombardi says. But the measure has
encountered stiff opposition in the past
from lawmakers who think condominium owners should be able to control the
use of common areas. Asked what the
LAC can do to change the outcome this
year, Lombardi says, laughing, "We're
going to try to get more people to support us."
NEW HAMPSHIRE
The LAC spent most of last year trying
to inﬂuence the sweeping overhaul of the
state's condominium statute; it's going to
spend at least part of this year trying to
amend parts of it. Most of the changes the
committee is proposing involve clarifying
details and correcting apparent errors or
oversights. Those changes include:
n Language stating that board members

owe a fiduciary obligation "to unit
owners." The fiduciary obligation
should be to the association, Gary
Daddario, a partner in Winer &
Bennett, LLC and chair of the New
Hampshire LAC, says. A fiduciary
obligation, requiring boards to act in
the best interests of individual owners,
might prevent boards from initiating
collection actions against owners who
become delinquent, or fining those
who violate association rules. "We
think this was just a drafting error,"
Daddario says, "and we're hoping no
one will oppose this change."

Legalizing recreational use of marijuana raises a number of
questions for condominium associations, which boards, managers,
and association attorneys are just beginning to consider.
36

CONDOMEDIA
Condo Media - March 2017

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