Condo Media - June 2021 - 35

THE DECISION
Despite this outcome, the 10 Porter
Street case may have limited reach
into other cases. This case was a prime
example of an old adage for lawyers:
" Bad facts make bad law. " The battles
between the association and these
particular unit owners were, according
to the court's recounting of the history,
numerous and lengthy. The association
continued to assess daily fines against
the unit owners during the entire
period of time that the collection cases
were pending. To further complicate
the situation, the association continued to do so " even after the trustees
had promised the judge that they
would do nothing to alter the status
quo while the summary judgement motions were pending. " Id., at 5. Further
still, the late fees appeared to have
been assessed in inconsistent ways
and in inconsistent amounts, without
any clear explanation as to the reason.
All together, these circumstances
resulted in a scenario where the association was seeking approximately
$60,000 in fines and late fees from
each of the two defendants. Fines
and late fees constituted " roughly
two-thirds of the judgement " being
sought. Id. Clearly the court in this
case had a hard time stomaching the
idea of awarding judgements in excess
of $60,000 based on amounts that
were strictly beyond the scope of the
association's budgeted costs.
THE TAKEAWAY
In essence, the court merely hesitated
to award the association what it viewed
as " free money, free money, free money! " However, this hesitation was born
out of the specific facts in the case and
the court specifically referenced " the
unique circumstances of this case. "
In fact, the repetitive reference to " the
unique circumstances " demonstrates
that the court took specific issue with
the association's conduct and the
proportion of the judgement that was
made up of fines and late fees in this
case, as opposed to creating new legal
standard generally. Notwithstanding
the fact that Section 10(b) states that

" [t]he expenses incurred in and proceeds accruing from " an association's
right and power to levy fines and late
fees " shall be common expenses and
common profits, " courts will generally
view fines and late fees as being a different animal from " normal " common
expense assessments. The lesson of
the case is that associations should be
careful about the length of time that
they continue to assess fines, particularly where the levying of the fines is
itself the subject of litigation. Again,
however, this case involved a very
unique, somewhat extreme set of circumstances in the assessment of fines
and late fees, making this case readily
distinguishable from the vast majority
of collection cases involving these
types of charges. It is also worth noting
that, for the most part, the 10 Porter
Street court upheld and followed the
tenets of the Prince and Blood cases, it
just carved out a small exception that
those tenets may not apply to unnecessarily high fines and late fees.

A FUTURE QUESTION
While it did not seem to be addressed
by the 10 Porter Street court, the
Massachusetts Condominium Act
explicitly speaks to the types of assessments that may be levied as common
expenses. Section 6(1)(ii) states that
associations may
" assess any fees, attorneys' fees, charges, late charges, fines, costs of collection and enforcement, court costs,
and interest charged pursuant to this
chapter... and such assessment... shall
be enforceable as common expense
assessments under this chapter. "
Thus, it appears that an association,
in a future case, could still argue that
statutory law allows for late and
fines to be collected as common
expense assessments.
n JUSTIN MAGSARILI, ESQ.
IS AN ASSOCIATE WITH THE
LAW FIRM OF MARCUS, ERRICO,
EMMER & BROOKS, P.C.

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June 2021 CONDOMEDIA

Condo Media - June 2021

Table of Contents for the Digital Edition of Condo Media - June 2021