Condo Media - April 2018 - 49

use of the provision for claims against
the developer, the court left it otherwise
intact. It rejected the trustees' claim that
a bylaw requiring unit owner consent
before the trustees may litigate violates
the condominium statute. Pointing to
the statute's requirements for unit owner
approval for improvements and repairs
after catastrophic casualty losses, the
court noted that the act does not give
boards "unbridled authority." The court
also refused to "infer that, because act
requires unit owner consent for some
management decisions, the Legislature
intended to prohibit any bylaw requiring
unit owner consent for other management decisions."
The most significant effect may then
be that the decision allows the heavy
burdens of this provision to continue to
be applied in other contexts. Although
the original dispute and the court's decision focused on the enforceability of the
provision in the context of construction
and design defect claims against the
developer, the provision's reach is much
broader. Its requirements apply to all
litigation by condominium trustees
except enforcement and collection cases
brought against unit owners.
Any board subject to a like bylaw
provision contemplating suing anyone
other than a unit owner must confront
the provision's requirements. Suits
for breach of contract or negligence
against landscapers, painters, and other
contractors, as well as management
companies, suits against trespassing
abutters, even malpractice suits against
lawyers, must all be pre-approved and
specially assessed in condominiums
where the bylaw provision exists.
And woe be upon a board that spends
significant money pursuing a claim in
litigation without complying with the
provision, only to find its complaint
dismissed and its funds wasted.
Arguably, there is a benefit in giving
unit owners the power to prevent their
association boards from initiating
expensive litigation. But the question
remains whether this control will make
it more difficult to manage condomini-

ums, depriving condominium boards
of a tool (weapon) enjoyed by other
property owners who can bring, or even
just threaten suit when necessary in their
discretion. Is this a valid check on the
power of these mini-governments or an
overly restrictive set of handcuffs?
We have also likely not heard the last
of the developers on this. The court
pointedly based its decision on the
specifics of the situation before it. In
doing so, it did not indicate whether a
slightly revised form of the same bylaw
would have passed public policy muster.
By its limited reach, the decision almost
invites developers to revise the restriction's requirements so the bylaw would
not effectively prohibit construction
defect claims, but still make them difficult to pursue.
Would a 75 percent requirement (the
same as that used for improvements
and casualty repairs) be acceptable,
especially if any developer-owned or

controlled units are precluded from voting? The limitations of such a fact-based
decision, and the almost endless capacity
of creative lawyers to plot ways through a
legal minefield, just about guarantee such
tinkering and future litigation.
The way forward may be to go back--to
the statute. In their argument before
the court, the trustees pointed to the
condominium statutes in other states
where limitations on provisions like this
are laid out. The court's invitation for
further tinkering is then, perhaps, surmounted only by its implied invitation to
the condominium community to seek the
final resolution of the questions raised by
the decision not in further litigation, but
from the Legislature.
n SAMUEL B. MOSKOWITZ, ESQ., IS A
SHAREHOLDER WITH THE LAW FIRM OF
DAVIS, MALM & D'AGOSTINE, P.C.

WE'LL
RESTORE
YOUR FACADE
(and every other element of your
condominium's exterior envelope)

STATEWIDE RM
A preferred general contractor & restoration specialist since 1996
Kieran Fitzgibbon, President
617-686-3302 | kfitzgibbon@statewiderm.com | statewiderm.com
April 2018

49
Condo Media - April 2018

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