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Rory J. Gill

Rory Gill’s Answers

9 total

  • What is the proper organization of a condo board of trustees in Massachusetts

    We had some non paying members take over our units because there was more non paying members than paying members. we have 12 units. They threw the president of the association out who hired an attorney to collect their fees and then fired the atto...

    Rory’s Answer

    I echo the previous answer. The possible consequences of deliberate mismanagement are really obvious. So, as an owner, you have two possible courses of action - one political and one legal.

    The political solution, replacing the trustees, would be the best solution in the long-term. It would allow responsible trustees to manage the budget, rules, maintenance, and fee collections. How exactly this is done varies by condo. Look at your condominium's Declaration of Trust for more information about your building's procedures.

    The legal solution could offer you some interim relief. While I want go into too many details, the derivative lawsuit option mentioned above may work. To do this, you first demand that the board of trustees take action - collect overdue fees. If they refuse to do so (or fail to do anything), you can sue on behalf of the condominium trust to collect. This can be done if you can show that the decision not to collect is clearly outside the reasonable discretion and judgment of the trustees.

    Good luck with the condo reform efforts. Take a look at some of my condo management and condo law blog posts (link below).

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  • I live in a condo and the deck needs to be replaced. The association wants to pass deck ownership onto the owners. Recourse?

    The deck is 25 years old and is 7 feet off ground. Engineering reports (5 years ago) stated the deck needed to be replaced and won't pass inspection. Last summer the deck was pulling from the house. They repaired it but it's still not safe. Th...

    Rory’s Answer

    I agree, largely, with Attorney Callahan. A modification to the definition of private and common spaces requires an amendment to your Master Deed. The terms of the Master Deed itself dictate how amendments are made. In most cases, though, a supermajority of owners (2/3 or 3/4) is required to make the change.

    If the supermajority support exists to make the deck ownership changes, the procedural requirements have been met by the association. However, you're not out of luck.

    Generally, if an amendment makes a change to your unit's dimensions (and it sounds like the deck change would), your consent is required. There are other types of changes that would also require your individual consent (changes in percent ownership share, anything that will impact your mortgage financing, etc.).

    So, I would first take a close look at your Master Deed to understand your condo association's procedure. Then, see if there's a strong argument of why your individual consent would be required.

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  • How can my title company compel a second mortgage holder to respond to certified request to discharge a second Mortgage?

    Ibanez ruling clouded my title and the large bank who held the original second mortgage has not responded to any of 3 requests my title company's lawyer has sent by certified mail over the last 10 weeks. The second mortgage holder must provide a d...

    Rory’s Answer

    I would be interested to learn some more details - especially as to why the title insurer's attorney has not attempted a "Discharge by Affidavit," under Mass. General Laws ch. 183, Sections 54 or 55.

    Depending on the facts, that attorney could be correct to wait for a traditional discharge. However, there is an alternate way to discharge mortgages if the lender is non-responsive.

    If the lender does not respond to a discharge with 30 days of receipt by certified mail, as required, the borrower (or the borrower's attorney), can start the process of discharge by affidavit. The borrower's attorney would then send another certified notice, demanding action within 15 days. If there is none, the borrower's attorney can file a discharge. That attorney's discharge, however, will need detailed evidence showing that the underlying debt has been resolved.

    A traditional discharge is certainly simpler and neater. If that cannot be obtained or compelled, you may have another option

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  • Is it legal for MA residential condominium unit owners to not be allowed to install their own washers and dryers?

    This is a mixed-use two-building residential/business units complex with 9 or10 residential units occupying the second floors. The business units occupy the ground floors and one basement. No laundry facilities are provided on the property for res...

    Rory’s Answer

    The condo association, through its trustees, has the right to prohibit in-unit laundry installations. To legally ban them, however, the rule must have been properly adopted and communicated to the unit owners. If the rule is found in the recorded condo documents, it is most likely valid.

    It doesn't end there, though. In order to enforce the rule, the association cannot "waive" it. That means, a condo association must enforce rules consistently, evenly, and fairly. If the association has a history of allowing (or simply not enforcing restrictions against) laundry in other units, it may no longer be able to enforce the rule. To show that there was inconsistent or uneven enforcement, you'll need to gather evidence that the association knew or should have known about the other laundry installations.

    There are a few venues/ways to make this argument. First and most simply, you could argue your case to the trustee and hope he concedes your right. Second, you could proactively sue in court for a declaratory judgment. Lastly, you could wait to be sued by the association and defend yourself (though this can be really risky).

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  • Can my landlord evict me cause she wants to move in

    my original landlord passed away and the place i rent was left to his wife. She told us we wouldnt have to move but asked for me to put all the bils into my name, so i did so. she jsut came and told me that we have to move so she can move in when ...

    Rory’s Answer

    It depends.

    If you have a lease, you have the right to stay until the lease expires. Whatever the lease says (within reason) rules.

    If you are a tenant-at-will or renting on a month-to-month basis (meaning that there's no set end date for the lease), she likely can force you to move. It takes some time, but she can. See if you can agree with the new landlord on a reasonable date to move out.

    If that's acceptable, you can probably handle that on your own. If you really want to fight an eviction (which may or may not be a good idea), that's when you should retain an attorney.

    I hope this is helpful. Good luck.

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  • Early termination of lease, landlord is not responding in writing, what can I do?

    The landlord and I have mutually agreed to terminate the rental lease early on the phone . The landlord has found a new tenant to occupy the apartment and has not suffered any financial damage. I am concerned that without having a written statemen...

    Rory’s Answer

    To answer your question, I need to make an assumption - that you have a written lease with this landlord and that it contains standard provisions. Most leases, by their own terms, require all changes - including early terminations - to be in writing. So, I would try to get a written confirmation from the landlord.

    Without a written agreement to let you off the hook, you risk owing the landlord for rent during any vacancies, the costs of finding a new tenant (usually a broker fee), and any other documented losses. Some leases add or substitute an early termination penalty.

    If the landlord truly won't suffer any financial damage, you're likely fine. I would, however, try to get written confirmation just in case he has problems with the new tenant. If they change their mind, bounce the deposit check(s), or turn out to be clearly unacceptable, you risk owing the landlord for the unanticipated vacancy.

    Ask him again to confirm the agreement in writing. Make it easy for him by drafting the letter yourself, so he only needs to sign. Also, explain (if it's the truth) that you need the letter in order to comfortably proceed with your next financial obligation.

    Good luck.

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  • Are the proceeds of the sale of my home protected from a creditors lien under the Homestead Act?

    I am currently in the process of selling my home (co-owed with my sister). On 11/10/11 I filed a Declaration of Homestead (disabled). On 5/7/12, a lien was placed on my property as a result of a Judgement (credit card debt) against me. From eve...

    Rory’s Answer

    • Selected as best answer

    You are correct. If you sell the property, up to $500,000 of proceeds will be sheltered by the Declaration of Homestead until you buy a new residence or one year passes. The specific law that applies is Massachusetts General Laws chapter 188, section 11(a)(1), available online at

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  • Can my landlord remove my personal property and throwing them away without telling me, and while I'm not home?

    I had Christmas lights ( all white ) on the top of the ceiling of my porch. When I got home from work today, the lights were gone and I found them in the garbage. He also took my "Beware of Dog" sigh and threw that away too. All happened within th...

    Rory’s Answer

    From what you've said here, your landlord did violate some fairly basic landlord-tenant laws. Depending on how exactly this happened, I see a series of possible violations - trespass, interference with your "right to quiet enjoyment" of your property, theft, and maybe others. The severity of his wrongdoing depends on:
    - whether he had to enter your home to take down the lights
    - whether he had permission to enter the premises
    - whether the lights were in a common area (if it's a multifamily)
    - whether a third person or entity is also involved (for example, a condo association)

    I hope this is helpful. If this is his normal behavior, you may want to do something about it. If he's otherwise a decent landlord, you may just want to keep this incident in your back pocket in case there's another dispute later on.

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  • I hired a roofer who put a dumpster on my property, the roofer was paid in full. The dumpster co wants to put a lien on prop.

    My receipt says price includes dumpster and weight included in price. Can dumpster people put a lien on my house? Why not put lien on the roofer?

    Rory’s Answer

    From the information you've provided, it looks like the dumpster company can place a mechanic's lien on the property. Subcontractors - like the dumpster company - can place mechanic's liens on property just like a contractor could who was directly hired by you.

    The catch for the subcontractors is that they must notify you (the owner) of the lien BEFORE they furnish the materials or provide the labor secured by the lien. N.H. Rev. Stat. Ann. § 447:5. That notice must include the amount secured by the lien, and the subcontractor must provide a detailed accounting of the balance owed. If the dumpster company moved to secure the lien before offering services, their mechanic's lien is most likely secured and legitimate.

    If you are worried about the possible mechanic's lien from the dumpster company, you should negotiate some more with the roofing company. First, investigate the roofers' financial reputation and verify that they're bonded and insured. A better reputation means that they're less likely to leave you holding the bag, owing the dumpster company the money. Second, try asking the roofers to pay the dumpster company up front. The roofers are most likely securing their legitimate interests against the dumpster company by paying later. Still, you don't want to get involved with any dispute between the two companies regardless of whose fault it is.

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