April 23, 2014

Real Estate Law Blog

How the Massachusetts Home Improvement Contractor Statute Can Protect Homeowners

Every year countless home improvement projects result in disputes between homeowners and the contractors they hire to perform work.  Fortunately, the Massachusetts Home Improvement Contractor Act, M.G.L. c. 142A (the “HICA”) was enacted in 1992 to protect homeowners in their dealings with home improvement contractors.  The HICA created a guaranty fund which can be used to reimburse homeowners for certain losses caused by contractors who go bankrupt or cannot be located to collect a judgment.  Also, the HICA establishes a program which allows homeowners to participate in arbitration to resolve disputes with their contractors. [Read more...]

Massachusetts Home Improvement Contractors-Get it in Writing!

Will you be performing home improvement contracting work in Massachusetts?  If so, you may be required to enter into a written agreement with the homeowner before starting the job.  Pursuant to Massachusetts law, every residential home improvement contract for more than $1,000.00 must be in writing and must include certain information (a complete list of requirements can be found in M.G.L. c. 142A sect. 2).  Most importantly, the contract must include a clear description of the work that the contractor is hired to perform.  It must also contain information about the contractor including his or her full name, street address (not just a post-office box), and the contractor’s Home Improvement Contractor license number.  The contract must include the dates on which work will begin and when work will be substantially complete.  The contract must contain information about the homeowner’s three day right of rescission, obtaining permits, warranties, and a boldface notice above the signature line advising the homeowner not to sign the contract if there are any blank spaces.  Importantly, the contract must include the price for the work to be performed.  Once the contract is signed, the contractor must provide a copy to the homeowner.  [Read more...]

Water, Water Everywhere…Massachusetts ‘Common Enemy Rule’ to ‘Reasonable Use Doctrine’

It’s a fact of life that surface water such as rain and snowmelt tends to move from higher elevations to lower elevations. Construction often changes the flow of surface water on a property, causing an increase in runoff which may affect neighboring lots.  Disputes often arise between property owners when excessive runoff flows from one lot onto another.  Do you know what rights you may have if a neighbor’s actions have caused increased surface water to flow onto your property?

For over 100 years, Massachusetts Courts followed the colorfully-named “Common Enemy Rule”, which protected property owners who attempted to remove or divert surface water from their land.  The Common Enemy Doctrine held that, with few exceptions, a property owner would not be liable for damages to adjoining property resulting from activities taken on his own property which affected the flow of surface water.   [Read more...]

Relocating an Easement under Massachusetts Law

An easement is a legal right allowing one party to use and enjoy a portion of a second party’s property for a certain purpose without actually owning it.  Easements are common in residential situations.  For example, you may hold an easement allowing you to cross a portion of your neighbor’s property to access the street.  Also, you may have a neighbor who holds an easement allowing her to cross your property to gain access to a public park or pathway.  [Read more...]

MA Permit Act Extended

As part of the Economic Development Act of 2012 (Chapter 238 of the Acts of 2012), signed by Governor Patrick on August 7, 2012, the legislature adopted a number of measures to support economic development.

Of particular interest is the provision which provides that applicable permits have been extended for an additional two (2) years.  Any state or local permit (other than Chapter 40B Comprehensive Permits) which was in effect at any time between August 15, 2008 and August 15, 2012 has now automatically been extended for four (4) years.  For example, a permit that expired on October 1, 2010 is now revived and expires on October 1, 2014.  The Executive Office of Housing and Economic Development has issued an updated FAQ sheet, which can be found at this Mass.gov website.

For questions about any real estate development matters, contact Craig A. Ciechanowski, Esq. or one of the real estate or business attorneys at Doherty, Ciechanowski, Dugan & Cannon, P.C.

Security Deposit Violation: The Easiest Mistake A Massachusetts Landlord Can Make

There are many ways in which landlords can cross the line and get into serious trouble with their tenants, but perhaps the easiest is by misappropriating their security deposit. Many landlords collect a security deposit to ensure that there are funds available to repair any damage caused by a residential tenant or to recover unpaid rent at the conclusion of the tenancy. Although this practice may have its advantages, it is important to be sure that you are complying with the laws regarding security deposits. According to the Massachusetts Security Deposit Statute, M.G.L. 186 §15B, a landlord may accept a security deposit provided it does not exceed the amount of the first month’s rent.  All Massachusetts landlords collecting a security deposit for a residential property must comply with the following minimum requirements:

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A Summary of Summary Process

Summary Process is the legal procedure landlords must use to evict tenants from residential and commercial properties. It is one of the most abbreviated court procedures in the Commonwealth, yet it requires careful adherence to Massachusetts law and the rules that govern terminations of tenancies and evictions. Below is a summary of the steps involved in the process.

1. Termination of A Tenancy – A landlord must terminate a tenant’s tenancy before commencing a summary process action. Tenancies that are subject to a lease automatically expire at the end of the lease term. When a tenant fails to pay rent or engages in some other type of lease violation, a landlord must send the tenant a “Notice to Quit.” This notice informs the tenant of the failure to pay rent or other lease violation and demands that the tenant move out of the premises. [Read more...]

New Foreclosure Bill May Spur Purchases of Foreclosed Properties in Massachusetts

The Massachusetts Supreme Judicial Court’s ruling last year in U.S. Bank v. Ibanez dramatically altered how foreclosures are conducted in the Commonwealth and created title clouds on many titles in the state where a foreclosure had taken place somewhere in the chain of title, even if it was several owners before the current owner.  The SJC affirmed a lower court ruling, which held that the practice by foreclosing lenders of completing a foreclosure and then obtaining and subsequently recording an Assignment of the foreclosed mortgage from the holder of record to the foreclosing lender, was improper and that such foreclosures were invalid, because only the holder of record of the foreclosed mortgage had the right to complete foreclosure proceedings.  The impact of this decision was far reaching.  Property owners who thought they acquired their property with clear title, now found that if there had been a foreclosure in their chain of title, even several owners before, their title was now suspect.  Such suspect titles posed such a problem that at least one major lender decided it would no longer underwrite loans in Massachusetts because it felt it could not foreclose on its collateral if necessary, and title insurance companies became very reluctant to insure these titles, making refinancing or selling the properties virtually impossible. [Read more...]

Massachusetts Short Sale Attorneys

Short sales can be tricky, but they can present excellent opportunities for homebuyers.

A short sale is a sale where the lender holding a mortgage on the property being sold allows the property to be sold for less than the amount required to payoff the mortgage. Give the current economic downturn and the corresponding slump in home prices, more and more sellers are eager to try to sell their home on a short sale basis. This presents great opportunities for homebuyers, but not without some risks. The Massachusetts Association of Buyer Agents (MABA) recently issued a warning to homebuyers to steer clear of short sales. MABA issued this warning because it felt that too many homebuyers were being held hostage because lenders took up to several month or more to make a determination as to whether the lender would approve the short sale or not. However, homebuyers do not have to fall into this trap. We disagree with the warning issued by MABA as homebuyers can take control of the process by properly drafting their purchase contract. Here at Doherty, Ciechanowski, Dugan & Cannon, P.C. we have real estate attorneys that focus their practices in the real estate area of law, including the short sale process. So we can offer you the best legal advice to make sure your real estate matter is handled properly.

For questions regarding Short Sales in Massachusetts or any other real estate matters, contact one of our real estate attorneys.

 

Do you own what you think you own?

The Massachusetts Supreme Judicial Court, in the case of Bevilacqua v. Rodriguez,  has decided that a purchaser of a foreclosed property does not have good title to the property due to the fact that the foreclosure was not completed in compliance with Massachusetts law.  What that means is that if the title to your property involves a foreclosure, even if you were not the purchaser at the auction, you potentially do not own what you think you own!

For questions regarding foreclosures in Massachusetts or any other title matters, contact one of our Franklin, MA real estate attorneys.

Upcoming Changes to Probate Law Will Impact Real Estate Practice

On January 2, 2012 Massachusetts will undergo sweeping changes to the probate laws. For example, Massachusetts will no longer recognize “Executors” or “Administrators” as they will be replaced simply by “Personal Representatives” or “PRs”. In addition, all real estate that passes through probate will require a deed from the Personal Representative to the named beneficiaries or heirs, which must be recorded at the appropriate Registry of Deeds. These highlight only two of many changes to how real estate must now pass through probate. Here at Doherty, Ciechanowski, Dugan & Cannon, P.C. we have attorneys that focus their practices in both the real estate and probate areas of law. So we can offer you the best legal advice to make sure your real estate/probate matter is handled properly.

If you have questions about the upcoming changes to probate law or any Massachusetts real estate matter, contact Metrowest real estate attorney, Ted Cannon to schedule a consultation.

Mass. Supreme Court Limits Standing for Zoning Appeals

In the recently decided case of Kenner v. Zoning Board of Appeals of Chatham, the Massachusetts Supreme Judicial Court considered a case where a homeowner wanted to rebuild, but due to new laws had to raise the level of the new house by seven feet.  Some who lived near the project and thought the additional seven feet for the new home was intolerable, appealed the local permits issued for the new house.  The Land Court, after visiting the site, found that any impact by an additional seven feet of blocked ocean view would be minimal, and decided those appealing did not have standing.  The Appeals Court ruled that the Land Court committed error because the neighbor-plaintiffs had specified the type of harm they suffered.  The SJC heard the case on further appellate review and upheld the Land Court’s decision.

Generally, zoning standing involves two requirements:  (1) Does the alleged harm concern zoning laws?  (2) How strong is the evidence to support the claim of harm by the opponents to a project?  The SJC focused on the second point and ruled, “The adverse effect on a plaintiff must be substantial enough to constitute actual aggrievement such that there can be no question that the plaintiff should be afforded the opportunity to seek a remedy.”

[Read more...]

Recent Change in Massachusetts Post-Foreclosure Eviction Law

On August 4, 2011, the Supreme Judicial Court of Massachusetts rendered a decision in the Bank of New York, et al. v. KC Bailey matter.  In Bailey, Bank of New York (the “Bank”) believed that it held title to a foreclosed property pursuant to a recorded deed. After purchasing the Premises, the Bank instituted a summary process action in the Boston Housing Court to regain possession from the former owner who still resided at the Premises. The former owner raised the defense that the foreclosure sale was not conducted properly and therefore he still held title to the Premises. The Housing Court Judge held that the Housing Court did not have jurisdiction to hear the former owner’s challenge to the Bank’s title.

On Appeal, the Supreme Judicial Court held that the Housing Court does have jurisdiction to hear challenges to title raised as a defense in post-foreclosure summary process actions and sent the case back to the Housing Court for a determination of title to the Premises.

This is an important ruling for both owners and former owners of foreclosed properties. By allowing tenants to challenge the purchaser’s title as a defense in summary process matters, the purchaser has a heavier burden to satisfy at trial. This case further illustrates the risks inherent in purchasing distressed property and the need for competent counsel to assist buyers of foreclosed properties in both the purchase and any subsequent eviction actions.

[Read more...]

When should you retain a real estate attorney to help with the sale or purchase of a new home?

Hire your attorney before you sign an Offer to Purchase.  In Massachusetts a signed Offer to Purchase is a binding contract.  Most people wait until after they have signed the Offer to Purchase – why hire an attorney if I don’t have a deal?  However, once you have signed the Offer to Purchase, those terms are binding.  Consult with your attorney before you sign and submit an offer to make sure you’ve covered all your areas of concern.

If you have questions about Massachusetts real estate laws or concerns about the home selling process, and would like to consult an experienced Massachusetts real estate attorney, contact Attorney Ted Cannon to schedule a consultation.

When should you complete your Title 5 inspection in Massachusetts?

Complete your Title 5 inspection as soon as you decide you want to sell your home, but before you list your home for sale.  The outcome of the inspection may dramatically effect how you market your home.  For example, if your system fails inspection, you may be looking at several months before you can have the system upgraded and the cost can easily be $15,000.00 to $20,000.00 or more.  If you have this information before you list your home, you can try to recoup some of that expense in the sale price, or decide to be less generous with some repair requests that a buyer may have after the home inspection.

If you have questions about Massachusetts real estate laws or concerns about the home selling process, and would like to consult an experienced Massachusetts real estate attorney, contact Attorney Ted Cannon to schedule a consultation.

What is Massachusetts law regarding the landlord’s responsibility with Security Deposits and Last Month’s Rent?

Massachusetts law is very clear regarding the landlord’s responsibility of handling both the tenant’s Security Deposit and Last Months Rent. Landlords’ obligations when holding both of these types of deposits are highly regulated and there are potentially serious penalties for mishandling either type of deposit. Massachusetts landlords should remember that Security Deposits must be kept in a separate interest bearing account, while there is no obligation to do so for Last Month’s Rent. Landlords are obligated to pay interest on both types of deposits on a yearly basis.

If you have questions regarding the proper management of Security Deposits and/or Last Month’s Rent under Massachusetts law, please contact the landlord/ tenant attorneys at Doherty, Ciechanowski, Dugan, & Cannon for an initial consultation.

Massachusetts Homesteads – Getting to the answers

March 15, 2011 | by Attorney Jennifer Taddeo

For years, many Massachusetts homeowners have unknowingly let a valuable benefit go unclaimed — homestead protection. In Massachusetts, any homeowner could record a single-page document, pay a $35-36 county recording fee, and protect up to $500,000 of equity in their home. However, a homeowner who did not know about this law, or who failed to record such a document, had no protection.

On March 16, 2011, a new law will take effect, updating our homestead law and providing many needed improvements. Beginning that day, every homeowner in Massachusetts will automatically have protection of up to $125,000 of the equity in their home — the “automatic homestead exemption.” By filing a homestead, they can increase their protection to $500,000 — the “declared homestead exemption.” Those who already have a homestead in place do not need to record a new one.

Either type of homestead protects equity in a principal residence from any debt that was incurred after the date the homestead is recorded with the Registry of Deeds. Because the protection is tied to the date the homestead is recorded, it is generally best to keep an existing homestead with its earlier date of recording. If you refinance the mortgage on a principal residence, the law allows the existing homestead to remain in place, although it will not protect you from the claim the new mortgage company has on your home. The law also provides you with a limited time during which proceeds from the sale of your primary residence or insurance proceeds paid as a result of the destruction of a primary residence are protected as well.

[Read more...]

Snow Removal: Change in Law

November 1, 2010 | by Doherty, Ciechanowski, Dugan & Cannon, P.C.

Recent Massachusetts Supreme Court ruling holds property owners have legal obligation to shovel and treat snow and ice on property

With the end of summer and the record snowfalls of 2009 still a recent memory, a recent decision by the Massachusetts Supreme Court could have far reaching implications for your snow and ice removal plans this winter. On July 26, 2010, the Massachusetts Supreme Court overruled 125 years of legal precedent and held that all Massachusetts property owners are legally responsible for the removal of snow and ice from their property in the case of Papadopoulos v. Target Corp.

[Read more...]

Attorneys in Franklin Massachusetts and Medfield MA lawyers

The Massachusetts attorneys of Doherty, Ciechanowski, Dugan & Cannon provide legal services to Massachusetts businesses, families, and individuals in the practice areas of business law, criminal defense, divorce and family law, employment law, estate planning, personal injury, real estate, and litigation matters.

Our attorneys represent clients throughout Massachusetts and in every county of Massachusetts including Norfolk County, Suffolk County, Worcester County, Bristol County, Middlesex County, Plymouth County, Hamden County, Essex County and Barnstable County. Our attorneys represent clients in Massachusetts’ largest communities including the cities of Boston, Worcester, Springfield, Lowell, Cambridge, Brockton, New Bedford, Fall River, Lynn, and Quincy.

Our law offices are located in Franklin and Medfield and serve the Greater Boston MetroWest region and the neighboring towns of Bellingham, Milford, Upton, Hopedale, Holliston, Medway, Millis, Medfield, Norwood, Walpole, Sharon, Foxborough, Wrentham, Easton, Mansfield, North Attleboro, Norton, Plainville, Raynham, Taunton, Attleboro, Seekonk, Rehoboth, Uxbridge, Whitinsville, and Worcester.