Chamber Event at Habitat for Humanity ReStore

Attorney Brenner Webb attended the Nashua Chamber of Commerce Networking Event on May 28th held at the Habitat for Humanity ReStore at 352 Amherst Street in Nashua.

The event culminated with the dedication of a new box truck, thanks in large part to the generosity of the Jarril family, and was unveiled with the help of Steve Thomas, the former host of “This Old House.”

To learn more about Habitat for Humanity and their ReStore in Nashua, go to their website at: http://www.nashuahabitat.org/restore

“JULY 1 PROHIBITION OF USING CELL PHONES WHILE DRIVING”

Effective on July 1st of 2015 New Hampshire RSA 265:79-c will go into effect. This law prohibits the use of cell phones and other electronic devices while driving. As of July 1st, it will be a violation to use a cell phone to make a call with three notable exceptions. Those are:

• While making a 911 emergency call;
• To use one hand to make or receive a non-cellular two-way radio call; or,
• To use a hands-free electronic device integrated into a motor vehicle.

There are special enhanced penalties for drivers who are 18 years of age or younger. These drivers may not use any device at any time except for making a 911 emergency call. These drivers will also be subject to a license suspension or revocation under RSA 263:14 III.

The penalties for violation of the prohibition include a $100 for a first offense, a $250 for a second offense, and a $500 for any subsequent offense within the 24 month period. All of these fines will, of course, be subject to a 24% penalty assessment.

The law is in response to several high profile cases where individuals hurt others or themselves due to inattention while texting or talking on a cell phone. All of us have experienced the distracted driver who is all over the road. When we finally make it past them, we often see that they are talking on their cell phone. This bill promotes public safety and gives notice to the driving citizenry that full attention to what you are doing is necessary while driving a vehicle.

We in New Hampshire take our civil liberties very seriously and are generally opposed to laws that tell us how to behave. “You can’t Legislate responsibility” is the war cry of many a New Hampshire Legislator. In some cases, however, it becomes necessary to establish rules that will establish order in everyday life to eliminate chaos. This is one such law. The intrusion into individual liberties is slight while the focus on the protection of safety is justified.

The real effect of the law over time will be driver’s use of integrated hands free phone systems within their cars. Most cars made after 2008 have the integrated systems at least available. There may also be a market for installing such blue tooth systems within a car to allow the drivers to make telephone calls while still complying with the law. We are all going to have to change our behavior and the time to do so is upon us.

By Kent Barker

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Seasons Change, Feelings Change…How About the Rules?

Kudos if you caught the Expose song reference in the title. I’m actually not sure how it spilled out of my head. It is, however, appropriate for this writing. Over the years, I’ve seen that certain issues at associations claim popularity in a cyclical fashion. Recently, I had occasion to discuss “rules” several times.

Taking a brief step back, one may wonder why a board would invest time and effort making or enforcing rules. First, it is a part of the board’s fiduciary responsibilities in operating the condominium. Some set of rules is also necessary to secure the consistency of the architectural appearance as well as the rights and obligations associated with residency in the community. These are among the benefits that owners expect to receive when electing to join a condominium association.

My philosophy on making rules is that rules should be created to address situations that are reasonably expected to occur. In essence, provide the guidance that people will need in order to live at the association. Unnecessary rules tend to lead away from the association’s goal of community harmony and to invite precisely what boards wish to avoid, namely disputes over what constitutes acceptable conduct. Certain “general” rules are applicable at most, if not all, associations. For example, rules pertaining to taking care of units, being courteous to others, avoiding misuse or damage of common areas, etc. For more “particular” rules, review the association’s layout and amenities (e.g. separate, townhouse or “garden style” units, decks, pool, clubhouse) and style a set of rules as necessary to cover the situations that are expected to occur on the property.

When making rules, two primary areas of concern pertain to the authority for the rule and the substance of the rule. I created acronyms to cover the crucial points. In terms of authority, you want to “CAST” a rule. The explanation is as follows: “C” is condominium document authorization (do the documents provide authority to regulate this issue); “A” is administrative in nature (boards make administrative rules while those substantively impacting ownership rights are made via amendment to the condominium documents); “S” is statutory authorization (does applicable law allow for this type of rule); and “T” is trustee approval (ultimately the board must formally vote to adopt the rule).

In terms of substance, you want the rule to be in “FORCE”. This acronym plays out as follows: “F” is fair (rule applies equally to all segments of the community); “O” is observed (circulate and publish rules, distribute them and record them if possible); “R” is reasonable (a reasonable rule will invite compliance while unreasonable rules invite challenge); “C” is clear (clear rules invite compliance while vague rules invite confusion); and “E” is evenly-applied (enforcement of the rule is undertaken consistently).

For enforcement of rules, it is helpful to consider two main procedural components. I refer to these as the “in-house” process and the “legal” process. The in-house process begins at the association. Board members may either observe a violation or receive a complaint regarding one. The board should conduct some amount of investigation to ascertain the circumstances. If it is determined that a violation did, in fact, occur, then the board should issue a warning (or fine depending on the association’s policy). If an owner seeks an opportunity to be heard on a violation, it is recommended that the board provide such an opportunity. In doing so, the board may learn important additional information about the matter. It also avoids a later argument, if the dispute continues, that the board refused to allow the accused to communicate. After hearing from the owner, the board should place the final decision on the matter in writing. Yes, this does create a record. However, a record of a decision made on an appropriate basis may be used to counter any future allegations that the board’s decision was rendered on an improper basis.

If a unit owner refuses to remedy a violation or commits new/multiple violations, the association may reasonably begin the “legal” process. Once referred to legal counsel, the process is relatively straightforward. At the board’s discretion, a “warning” letter may issue. The next step, in terms of severity, is the issuance of a “cease and desist” letter. This letter cites the problematic conduct, evidence of it and the applicable restrictions that the misconduct violates. This letter also describes the consequences for failure to comply. If the cease and desist notice does not resolve the issue, the association may institute litigation. Relief sought in the litigation could be both injunctive (order regarding behavior) and financial (award of expenses and legal fees).

The appropriate time for changing rules at an association is a subjective decision. From time-to-time, like the state or federal law, the association rules will become outdated. Changes in societal norms may require updating of rules, while changes in the value of the dollar may require updates to the fine structure. Another opportune time for rule change is upon a change in circumstances at the association. Examples include the addition or removal of amenities or a transfer of responsibilities through events such as adoption of limited common area agreements.

Properly managed, rules can be a positive part of the association experience. Boards can responsibly satisfy their roles with respect to rules through consistent efforts and appropriate use of legal counsel.

By Gary M. Daddario

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Conservation Measures: Assisting the Granite State with Going Green

As a condominium practitioner representing associations in both MA and NH, I often find it interesting to compare differences in the laws of the Commonwealth and the Granite State. While I believe that most would readily lean towards NH as the state with the edge on natural resources and beauty, in terms of their respective condominium statutes MA has a provision that takes an edge in the “green” department. Accordingly, the New Hampshire legislature could serve the conservation efforts of the state by lifting a provision of the Massachusetts Condominium Statute and adding it to the New Hampshire Condominium Act.

In particular, M.G.L. c. 183A, §6(a)(ii) provides that “the organization of unit owners may assess to each owner the direct cost of any energy conservation device installed in a unit, not already separately metered for water and utilities, including but not limited to the installation of separate water meters, low-flow toilets and showerheads, faucet aerators, windows and storm windows….” As is apparent from the plain language of the statute, this provision provides a powerful means of associations making significant conservation efforts. Separate water meters, low-flow toilets and showerheads and faucet aerators could significantly reduce water usage in units. Quality windows and storm windows could significantly improve a unit’s efficiency and thereby reduce the amount of heating resources necessary to maintain an appropriate temperature during the winter. Afforded the same authority with respect to such matters, the governing boards of New Hampshire’s associations could take steps to ensure the conservation of water and heating utilities.

Other common forms of conservation could also provide associations with significant reductions in utilities. For example, energy efficient bulbs hold the potential to save sizable amounts of electricity at associations. Many associations have common area lighting. For some, such lighting may exist in large quantities around exterior grounds. For others, such lighting may appear along the hallways of multiple floors of buildings containing “garden” style units. Due to the volume of bulbs used by many associations, the switch to energy efficient bulbs would likely have a large impact. Associations might even tangentially benefit from this change by saving on maintenance and replacement bulb charges since many energy efficient bulbs claim to require bulb replacement on a much less frequent basis than traditional bulbs.

While conservation efforts are laudable, association boards contemplating such measures should exercise caution. The introduction of new components to the condominium (e.g. solar panels, rainwater runoff collection system, etc.) could require a formal approval process including a vote of the community. It is recommended that boards share ideas in this regard with legal counsel in a proactive manner. This will allow the association’s attorney the opportunity to advise the board on how to properly implement new components.

Sidebar- Legislative Update

A quick New Hampshire legislative update- HB 1115 passed and was signed by the Governor. Effective January 1, 2015, this provision clarifies that a unit owner’s Homestead Declaration does not protect against an association’s lien for unpaid condominium assessments.
By Gary M. Daddario

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Millyard Triathlon

Kent Barker participated in the Millyard Bike, Paddle, and Run Triathlon on May 3, 2015. The event was organized by the Nashua Law Firm of Cullen and Collimore to promote the use and stewardship of the Mines Falls Park and Facility in Downtown Nashua. The weather was beautiful and it is hoped the event will become an annual occurrence.