Why anti-SLAPP is a live issue in condominium disputes

Massachusetts has one of the broader anti-SLAPP statutes in the country, and §59H is attractive to a defendant because it front-loads the fight: a successful special motion ends the case early and carries a fee award.

Condominium disputes generate petitioning activity constantly. Owners complain to building departments, boards of health, the Architectural Access Board, MCAD, the Attorney General's office and the Division of Insurance. Boards, for their part, report owners to code enforcement. Almost every serious association dispute has a regulatory complaint somewhere in it.

If a regulatory complaint immunised the complainant from any related suit, associations would lose the ability to enforce their documents against anyone who had first filed with an agency. Cash Energy says that is not the law — but it says so through a test that cuts both ways, and it is easy to over-read.

The line the decision actually draws

The question is not whether petitioning is in the case. It is whether the claim has a substantial basis in something else.

So the analysis for a board considering suit runs like this:

• A claim built on the conduct itself — the unpermitted work, the bypassed approval process, the covenant breach — survives, because the underlying conduct is independent of any complaint the owner filed.
• A claim built on the filing of the complaint does not. Suing an owner for defamation over statements in a regulatory complaint, or for the costs of responding to it, is the fact pattern §59H exists to stop.

The practical instruction: plead the conduct, not the complaint. A complaint that recites the owner's agency filing as the grievance has handed the owner the motion.

The elevator problem underneath

It is worth noticing what this dispute was actually about, because the procedural holding sits on top of a substantive problem that many Massachusetts associations have.

Second-floor owners in an older building want an elevator. The master deed requires owner approval for a common-area alteration of that scale — typically a supermajority, and under c. 183A §18 a 75 percent vote before the cost can be assessed to everyone. Owners who cannot assemble that vote have limited options, and one of them is to ask a regulator whether accessibility law requires what the association will not approve.

That route now sits alongside a second recent development. In Geezil v. White Cliffs Condominium Four Association, decided in November 2024, the Appeals Court held that an association is not an “owner” for purposes of the cost-shifting proviso in c. 151B §4(7A) and therefore need not pay for a disabled owner's modification — while still being required to permit it.

Between them, the two decisions describe a narrow corridor: the association need not fund accessibility work, may enforce its approval process against owners who go around it, and must still permit a reasonable modification the owner pays for. Whether an elevator can be an owner-funded modification in a building of any size is the practical question, and it is not one either decision answers.

Operationally

• Answer accessibility requests on their merits, promptly and in writing. An association that engages with the request is far less likely to face the regulator at all.
• Keep the approval process clean. The association's position in Cash Energy rests on the master deed having a process the owners bypassed. A board that applies its process inconsistently has a weaker claim and a stronger anti-SLAPP problem.
• Have counsel draft any complaint against an owner who has filed with an agency. The pleading choices determine whether the special motion succeeds, and the fee exposure runs against the association.

What to watch next

The merits of the underlying case, which the anti-SLAPP ruling only cleared the way for. Whether a Massachusetts condominium board can be required through the Architectural Access Board to permit an elevator its owners voted against is a question with real consequences for the state's older housing stock, and it is still open.