“Let the Sunshine In: Ending Secrecy in Common Interest Communities in Massachusetts and Other States”, was just published in the Spring 2026 issue of the American Bar Association’s peer-reviewed REAL PROPERTY, TRUST AND ESTATE LAW JOURNAL arguing that the Massachusetts Condominium Act should require open public meetings rules like they have in states like Connecticut (which abides secret meetings by failing to enforce those laws). Excerpts below.
Secrecy in many condominium/HOA communities facilitates a profitable business model by protecting developers, property managers, and association boards from embarrassment, angry owners, and legal liability for mistakes and misdeeds. But secrecy can also preclude the owners from having an informed voice in managing their communities, electing responsible community leaders, and preventing serious safety hazards like Champlain Towers. This Article argues that the “Sunshine Laws”—namely the Open Meeting and Public Records Acts that broadly apply to public governing bodies—should also extend to at least some condominium and HOA communities because they are quasi-public bodies that effectively operate as “mini governments.” (page 25 of issue)
Yet, because CICs were historically regarded as creatures of contract and not the legislature, they were not treated as “public bodies” subject to the Open Meeting Laws or the Public Records Acts.12 This oversight enabled CICs to institute closed board meetings, restrict owner access to non-confidential records, and implement other questionable owner secrecy practices. But such practices arguably exceed the legitimate, traditionally-recognized scope of an association’s governing powers because they do not come within the “touch and concern the land” test for covenants that run with the land, nor do they qualify as equitable servitudes because these secrecy practices are also usually kept secret. (page 29)
A leading advocate for CIC owner rights said in a 2008 law review article: “If society’s intention in setting up associations is to encourage the formation of undemocratic Gulags ruled by unaccountable boards and for the enrichment of those who profit from owner ignorance or impotency—we have succeeded completely.” (page 30)
Today, approximately half of all U.S. jurisdictions, including every New England state except Massachusetts and Rhode Island, mandate that meetings of a CIC governing body be open to CIC owners (except properly limited executive sessions). (page 32)
CIC secrecy policies are routinely established when a CIC association (also called an “organization of unit owners”) is created even though the association’s documents never explicitly empower the governing body to do so. These policies typically continue throughout the period of developer (also referred to as the “declarant”) control, and the policies often persist even long after the transition from developer to owner control. Even after transition, developers who are still selling their developer-owned properties can manipulate owner-elected executive boards (sometimes also referred to as the “Directors” or the “Trustees”) with a variety of sticks and carrots to continue favoring developer interests. (page 36)
Closed executive board meetings are the linchpins for an interconnected set of association secrecy policies (page 37)
It is during those executive board meetings, however, that the real business, management, and governance of a CIC take place. Association budgeting and financial planning are discussed and voted on. The board and management candidly discuss and the board votes on important community issues. Rule and policy changes are also discussed and voted on. Important association documents are discussed and voted on. Thus, the votes taken during these executive board meetings vitally affect the everyday lives of the owners as well as the future financial health of the community. Should these decision-making meetings be conducted in secret? (page 38)
The practice of closed Board meetings also deprives owners of critical insight into the discussions, reasoning, and voting of their elected Board members. Owners cannot intelligently choose whether to reelect a Board member when the Board has conducted the most important parts of its business behind closed doors. This undemocratic practice would never be tolerated in modern American politics—why is it accepted in CICs? (pages 39-40)
As previously noted, board meeting minutes are not even required in Massachusetts,94 and they can be skillfully written to mask references to any matters or documents that the board prefers not to share with owners. (page 48)
Free speech and openness in government go hand in hand. Free speech rights are worthless in the absence of access to the information needed to support that speech. People kept in the dark about the operations of their federal, state, local, or CIC governments cannot express informed opinions about those governments or intelligently choose their elected representatives. (page 89)