Supreme Judicial Court Issues Decision Strengthening Rights of Condominium Associations in Condo Fee Collection Actions

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The Massachusetts Supreme Judicial Court has just issued a decision that will serve to strengthen the already favorable statutory scheme that allows condominium associations to Appeals Courtobtain priority liens in condo fee collection cases. The decision in Drummer Boy Homes Association, Inc. vs. Britton, SJC-11969, decided March 29, 2016, relies heavily on the Court’s interpretation of the Legislature’s intent in the condominium statute, Massachusetts General Laws chapter 183. According to the SJC, that intent was to provide condo associations with the necessary tools to ensure that condo fees are recovered so that associations can maintain properties and prevent community blight.

The dispute in Drummer Boy centers on the nature of the priority lien provided by Massachusetts G.L. c. 183 s. 6. That statute allows condo associations to file an action and obtain a priority lien for the prior six months of unpaid condo fees. The priority lien takes precedence over most others on title, including mortgages. Since the statute only provides this lien priority for the prior six months of dues, the common practice was for condo associations to file successive actions every six months to obtain priority liens for continuing unpaid dues.

In Drummer Boy, the Defendant challenged the condo fee’s right under the statute to bring these successive actions. Although the Massachusetts Appeals Court agreed with the Defendant, the Supreme Judicial Court overturned the Appeals Court and decided that a condominium association may file successive actions to create priority liens for continuing unpaid dues after the first six months.

The Drummer Boy decision means that condominium associations continue to retain powerful tools to collect unpaid dues, including the power to obtain priority liens on the unit for all unpaid dues.  The Drummer Boy decision also affirmed the condominium association’s rights to obtain all legal fees expended in collecting condominium fees. Condominium associations facing members who fail to pay dues should not hesitate to contact an attorney to seek collection of unpaid dues.

Recent Department of Industrial Accidents Decision Highlights Delays in System and Underscores Advantages of Settlement

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Decisions in Workers Compensation cases, per state law, are supposed to be issued by the judge within 28 days of the hearing. Despite this clear rule outlined in Massachusetts General Laws c. 152 s. 11, however, judges in the Department of Industrial Accidents, which is responsible for hearing workers compensation cases, often do not issue their decisions for six months to a year following the hearing.

In a recent case just decided by the Department of Industrial Accidents, In Re: Albert Mancini, the judge took over three years to issue his decision. For most people, waiting three years post-hearing, while benefits are dwindling or unavailable, is just not practical. While both parties in the Mancini case complained about the delay in issuing the decision, the statute provided no remedy to either party for the delay. While the Department acknowledged the problems created by the delay, such acknowledgment was little comfort to the parties who waited three years for a decision on the merits of the case.

While parties often want their day in court, often times a settlement is the more practical means of resolving workers compensation and personal injury matters. Even if a party is successful at trial, the other party can appeal and further delay a ruling. Though a settlement may be less gratifying than a judge’s or jury’s award, a settlement typically means immediate compensation for the injured party and a timely resolution to the case.

Wearables on Trial: How Fitbit, Apple Watch, Google Glass, and Cell Phones let the law track everything you do

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fitbit-dashboard-odopod__704x0Social media, and the concept of posting where you are and what you are doing to your friends and followers, has been with us for over a decade. Predictably, it took the law some time to catch up, but today lawyers attend conferences where talks are being held about how litigators can mine information from the rich area of a person’s social media space. I recently worked on a case in which a company’s key defense was that they had no responsibility for the commercial garage where an accident happened – essentially an “it wasn’t us, it was them” defense. The key witness for the defendant claimed his company did not build the garage, only to be impeached by the Facebook posts, complete with pictures, in which he bragged about the great job his company did building it.

But getting information from Facebook, Twitter, and other social media web sites is old news. The coming wave in electronic discovery will be getting information from wearables – that Fitbit around your wrist, that Apple watch you’ve got your eye on, and those Google glasses you’re wearing. While these devices promise new innovations in how we live our lives, they also provide ways for prosecutors, plaintiffs, and judges to get information on where you’ve been and what you did while you were there.

Although this concept is actually not that new, society is just starting to catch up to the implications. In the Aaron Hernandez case, police were able to follow digital footprints he left in the wake of his alleged murder. The electronic evidence on different cell phones in that case has been central evidence in that case, and was recently the subject of motions to suppress. However, the most poignant lesson from this case is that police were able to track Hernandez’s movements not just from information in the cell phone like texts or calls made. Rather, the simple fact that Hernandez was carrying a cell phone, and the phone was turned on, allowed police to contact various cell phone towers in the area, obtain logs, and triangulate Hernandez’s location after the fact. That means police did not need to monitor the suspect in real time. They could go back, after the suspect committed the crime, and investigate where he was and what he did just by looking at an electronic footprint left by the digital device he was carrying.

Wearables like Fitbit and Google Glass will offer far more evidence than just location. Consider that Fitbit uses a 3-axis accelerometer to gather data about your movement. This data can be used to extrapolate how many steps you took in a day, distance traveled, calories burned, and even how you slept. Combine that data with a time stamp, and maybe even location tracking from that cell phone you carried around all day, and suddenly you have left enough digital clues for an investigator to discover whether you walked or ran from the scene of the crime, whether you got into a car, and where and when you slept that night. With Google Glass, investigators just might get real time photos or video of the events. In the criminal context, that kind of information can help put a criminal behind bars. In the civil context, well, imagine a divorce proceeding in which your ex can get information on not just where you spent the night, but whether you were actually sleeping.

For individuals, the privacy implications can be staggering. Privacy laws have certainly not kept pace with these types of advances in technology. For lawyers, this area opens new avenues of discovery, but also new ways in which we must advise and protect our clients. Employers are just now beginning to discover the utility of social media policies for employees. It might already be time to update those policies to consider the implications of wearables and the potential exposure they might bring. But certainly, for judges, legislators, and executives, it’s time to take notice and take steps to deal with this brave new world.