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Real Estate & Lease Litigation Blog

Appeals Court Holds That Condominium Owners Can Waive Constitutional Rights In Bylaws

The Massachusetts Appeals Court considered whether a provision in condominium by-laws unfairly prevented individual unit owners from seeking the intervention of the court where the unit owners alleged that the condominium's trustees had breached their fiduciary duties and mismanaged the condominium's affairs. In Bettencourt v. Trustees of Sassaquin Village Condominium Trust, the owners of three units in a twelve-unit condominium sued the three trustees who had hired a contractor to pave the condominium's parking lot without first putting the matter to a vote of all of the unit owners. The paving work resulted in $950 special assessments against each unit owner. The trustees alleged that the plaintiffs' claims were barred by the condominium by-laws, which contained a provision (referred to as a "consent requirement") that required unit owners to obtain the assent of at least 80% of the unit owners before filing suit against the trustees. The plaintiff unit owners had not obtained that assent before filing suit in this case.

Land Court Holds Unsigned Memorandum of Understanding Not Sufficient To Bind Parties to Real Estate Conveyance

In a recent Land Court case, the Court held that an unsigned Memorandum of Understanding regarding an ownership interest in a home on Nantucket was not binding upon the parties.  In Slover v. Carpenter, Walter Boyd Jr. and his sister Josephine Carpenter owned a house on Nantucket as tenants-in-common.  No. 14 MISC 487353 KFS, 2016 WL 54899, at *1 (Mass. Land Ct. Jan. 4, 2016).  Ms. Carpenter's daughter Katherine Slover and her husband claimed that Ms. Carpenter had repeatedly promised orally and in writing to transfer her one-half interest in the property to them.  Id.  Ms. Slover and her husband had been long-time tenants of the property under a ten-year lease signed by Mr. Boyd and Ms. Carpenter, but had held over at the expiration of the lease and continued to occupy the property.  Id.  Mr. Boyd notified Ms. Slover and her husband that the lease would not be renewed, and that the property would revert to the common family usage.  Id. at *3. 

The Benefits of Practicing in the Massachusetts Land Court

A silver lining to finding oneself involved in a property dispute is the opportunity to resolve the issue in one of the Commonwealth's specialized courts, the Massachusetts Land Court. The types of legal disputes that Land Court judges decide vary in type and scope, but they all touch upon real property. The Land Court's docket contains cases involving foreclosures, challenges to subdivision plans, and boundary disputes, among others. Pursuant to General Laws Chapter 185, the Land Court has exclusive jurisdiction over some issues and concurrent jurisdiction over others. 

The Massachusetts Lis Pendens Statute: Tactical Considerations

The ink has long since dried on the purchase and sale agreement for that seaside inn you have always dreamed of owning, but the seller has backed out at the last minute without explanation and failed to attend the closing. You suspect that another buyer has offered a higher price and the seller will try to close on that better deal post haste. You've done your due diligence - you know the inn is profitable and is exactly what you have been looking for. You want this property, and you want it for the price you have agreed to pay. How can you protect yourself from losing this special opportunity to the third party buyer waiting in the wings - whose identity you don't know?

Appeals Court Holds That Easements Provide Access To Landlocked Parcels

The Court of Appeals recently issued an interesting decision, Kitras v. Town of Aquinnah, 87 Mass. App. Ct. 10 (2015), concerning easements and accessibility rights to parcels of land owned in the late 1800s by members of the Wampanoag Tribe of Gay Head in Martha's Vineyard. The parcels in question had been part of a larger tract of land owned by the Tribe in common ownership. In the 1870s, members of the Tribe petitioned the Court to partition, or divide, the land into individual parcels which were then given to individual Tribe members to be held in severalty. Many of the parcels that resulted from that division were landlocked. At the time the land was partitioned, provisions were not made for easements that would provide a right of access to those landlocked parcels. Over a century later, the owners of the landlocked parcels brought an action asking the Court to declare that the parcels of land had access easements across neighboring lots.

Things to Look for in a Home Improvement Contractor

Most people don't realize that there are a series of important facts they should know about their building contractor before hiring them to build or renovate their home.  First, make sure that the contractor you are dealing with is registered with the state as Home Improvement Contractor ("HIC") and has a Construction Supervisor's License ("CSL").  Contractors who have registered as an HIC are required to pay a fee to a Guaranty Fund held by the Office of Consumer Affairs that may be available to partially reimburse the homeowner if the contractor does not perform or performs negligently.  A Construction Supervisor's License can only be obtained after the contractor has passed a test showing that he or she has knowledge of the building code, which will be important when the work is reviewed by a building inspector.  More detailed information regarding HICs and CSLs can be found on the website for Massachusetts Office of Consumer Affairs and Business Regulation.  This website also details the complaint process homeowners can use when something goes wrong.  

Massachusetts Appeals Court Holds Operators of Commercial Campground Established Right to Un-Enclosed Land Through Adverse Possession

Under the doctrine of adverse possession, an individual, business, or group of individuals who have continuously used land owned by someone else for twenty years can make a claim that such use entitles the claimant to ownership of the property. To prevail on a claim of adverse possession, a claimant must prove (1) he or she used the disputed property or portion of a property without permission, (2) that the use was actual, (3) open, (4) notorious, (5) exclusive, and (6) adverse for a period of at least twenty years. Lawrence v. Concord, 439 Mass. 416, 421 (2003). 

Partitioning Real Estate Owned By A Trust

Trustees sometimes face beneficiaries disagreeing about how to maintain real estate owned by a trust, such as a family vacation home.  But does a trustee have standing to bring a partition action to sell Massachusetts real estate?  Likely not.  

Land Court Orders Removal Of Structures Beyond Scope Of Easement

An easement "creates a nonpossessory right to enter and use land in the possession of another and obligates the possessor not to interfere with the uses authorized by the easement." Patterson v. Paul, 448 Mass. 658, 663 (2007).  In other words, a property owner can grant another party the right to use his property in certain ways - such as the right to enter and walk through it - without giving up ownership of the property.  Disputes can arise, however, when either party misunderstands or abuses the rights involved. 

Supreme Judicial Court Rules That Real Estate Salespersons Can Continue To Be Defined As Independent Contractors

The Supreme Judicial Court has recently affirmed in Monell v. Boston Pads, LLC, 471 Mass. 566 (2015) that real estate brokerage companies can continue to classify real estate salespersons as independent contractors and are not subject to the Massachusetts independent contractor statute.  

"Managerial Control" Key To Construction Site Negligence Claim

For a viable negligence claim against a construction project management firm, the plaintiff has the burden of showing that the defendant exercised "managerial control" over the manner in which the work was performed when the plaintiff was injured.  A recent Suffolk Superior Court ruling emphasized that in order for an injured plaintiff-laborer to bring suit against a construction manager, there must be a showing that the management company directed the work, assumed contractual responsibility, or otherwise could be deemed to have been "in control" of the jobsite.  

The Fate of Fixtures at the End of a Commercial Lease: Who Pays for Removal?

The obligation of a tenant to remove fixtures and the right of the landlord to recover the cost of removal of fixtures and attendant repairs to the property were the subject of a recent decision by Suffolk Superior Court Judge Robert Gordon in The Wilder Companies, Ltd. v. California Pizza Kitchen, Inc., 32 Mass L. Rptr. 505 (2015). 

Challenging A Zoning Decision In Boston

Local zoning decisions can radically change the landscape of neighborhoods, and challenging a local zoning board's decision in the Commonwealth's courts poses several procedural traps for the unwary. This is particularly true for challenging zoning decisions issued by the City of Boston's Zoning Board of Appeal.

As a Personal Representative, Do You Have to Sell Real Estate?

The largest asset in an estate is often real estate, such as the family home.  Sometimes the decedent owns additional real estate, such as a vacation home or an income-producing rental property.  What happens to such property varies in every situation and poses different risks for the Personal Representative.  The most straightforward situation is when the decedent leaves real estate through a Will to a devisee, such as a parent leaving the family home to their children.  Upon the parent's death, the real estate transfers to the children to whom it was devised through the Will, subject only to certain allowances, rights of creditors, elective share of a surviving spouse, and administration.  See M.G.L. c. 190B, § 3-101.

Homestead Estates in Massachusetts

Whether a litigant is seeking to enforce a judgment or protect assets from creditors, it is important to be aware of the implications of a homestead estate. Also referred to as homestead protection, a homestead estate safeguards part of a person's or family's primary residence from attachment, seizure, execution on judgment, and levy or sale for the payment of most categories of debt. Massachusetts General Laws Chapter 188 provides for an automatic homestead estate worth $125,000 per residence, and a declared homestead amount of $500,000 per residence. In order to receive the latter, a homeowner must file a declaration of homestead in the Registry of Deeds in the county where the property is located. Elderly (defined as 62 or older) or disabled homeowners of any age are entitled to $500,000 of protection individually if they file a declaration of homestead; in circumstances where two elderly spouses each file such a declaration, the couple could be protected in the amount of $1,000,000. 

Massachusetts Appeals Court Overturns Wind Turbine Zoning Ruling

In Drummey v. Town of Falmouth, the Massachusetts Appeals Court overturned a Superior Court ruling and held that the Town of Falmouth incorrectly failed to obtain a special use permit from the Falmouth zoning board of appeals in order to construct and install a wind turbine on town land.  87 Mass. App. Ct. 127 (2014).

Appeals Court Settles Jurisdiction Question For Large-Scale Development Projects

In February, the Massachusetts Appeals Court clarified that the Land Court and Superior Court have exclusive jurisdiction over appeals of permits granted by cities and towns for large-scale development projects. See Skawski v. Greenfield Investors Property Dev., LLC, No. 13-P-1947 (February 27, 2015). The Court relied on G.L. c. 185, § 3A and its prior decision in Buccaneer Dev., Inc. v. Zoning Bd. of Appeals of Lenox, 83 Mass. App. Ct. 40 (2012), in rendering its decision. 

Supreme Judicial Court: 'Try Title' Actions Challenging Foreclosure Are Only Available After Foreclosure Occurs

In a decision handed down earlier this month, the Massachusetts Supreme Judicial Court (the "SJC") has resolved a split among Land Court justices regarding the availability of a "try title" action brought against a mortgagee prior to foreclosure.

What Is The "Value" Of Real Property?

In litigation, such as contract disputes, construction disputes and divorces, determining the value of real property  (like the value of a marital home, for example) may become a key issue in the case.  While a seemingly simple concept, the term "value" may have several different meanings depending upon the context in which its used in litigation, and understanding the  various methods of determining "value" of real property is crucial.

Massachusetts Appeals Court Issues Important Zoning Clarification

In Pelullo v. Croft, the Massachusetts Appeals Court issued an important decision regarding zoning by-laws.  86 Mass. App. Ct. 908 (2014).  The Defendant applied to the Natick building inspector for a permit to construct a single family home on his lot at 15 Upland Road.  Id. at 909.  The plaintiff, who owned a property abutting 15 Upland Road, filed an opposition to the permit application on the grounds that the lot did not meet the requirement in a Natick Zoning Bylaw that there be a "minimum lot depth of 125 feet" for the construction of a single family home in a residential zoning district.  Id. at 908.

Do Violations of the Building Code Violate Chapter 93A?

The Massachusetts Consumer Protection Act, General Laws Chapter 93A, § 2, prohibits "unfair or deceptive acts or practices in the conduct of trade or commerce."   Since Chapter 93A was enacted in 1967, the Commonwealth's courts have continued to define the scope and substance of the conduct that the law prohibits.  

A Solution For Cases Involving Land Issues And Monetary Damages

The Land Court Department of the Massachusetts Trial Court exists, in part, because issues involving title, easements, and the various other rights in property are complex enough that judges with special expertise are preferable.

What is LEED Certification?

LEED, which stands for Leadership in Energy & Environmental Design, is a certification program that recognizes and promotes environmentally sound building and design practices.  Developed by the U.S. Green Building Council, LEED certification is available not only for new brick and mortar projects, but also for things like renovations, building maintenance, and land development.  

Massachusetts Court Sheds Light on Procedure for Appealing a BHAC Determination

In Maiocco v. Leggs, 32 Mass.L.Rptr. 228 (2014), Judge Robert Gordon considered when a party's right to appeal a decision of the Beacon Hill Architectural Commission terminated. Under 1995 Mass. Acts, Chapter 616, the proponent of a construction project involving exterior architecture within the Beacon Hill Historic District must apply to the Beacon Hill Architectural Commission for approval of the project in the form of a Certificate of Appropriateness (COA). After holding a public hearing on the application, the Commission "determine[s]" whether the proposed construction project is "appropriate to the preservation of the historic Beacon Hill district..."  Any party "aggrieved" by the Commission's decision must notify the Commission of its intent to appeal within 8 days of mailing of notice of the determination and must file its appeal in Suffolk Superior Court within 30 days of the "determination."

Massachusetts Tree Statute Guards Greenery - and Fall Finery, Too

If during the last two to three weeks you have spent any time on a soccer field, in the woods, or on the Massachusetts Turnpike, you have probably noticed that the Commonwealth's deciduous trees have been enjoying their annual star turn.  The spectacular colors have reminded this blogger of the protection found in the Massachusetts General Laws for trees on privately owned land.

Massachusetts Partition Actions: Division of Sale Proceeds

Massachusetts partition actions do not always end with the court-ordered sale of the real estate in question.  After a property being partitioned is sold, the proceeds of the sale must be divided between the co-owners.  The law presumes that the proceeds should be divided in accordance with each owner's respective ownership interest.  For example, if there are two owners who each own 50% of the property, the law presumes that the owners should each receive 50% of the sale proceeds.

Massachusetts Partition Actions: Methods for Disposing of Partitioned Property

Massachusetts partition law provides four methods for partitioning real estate: physical division, private sale, public auction, and "set-off" (a buy-out of the entire property by one or more co-owners).  Each method has its advantages and disadvantages, as well as particular procedural requirements.  Any owner of real estate considering a partition action should decide on a method to pursue before filing a Petition for Partition.

Massachusetts Partition Actions: An Overview

A partition action is a legal proceeding to force the sale of real estate that is held by multiple owners, and to fairly divide the sale proceeds among the owners.  A partition action is often used a last resort when one or more owners want to sell, but cannot agree with the other owners on the terms of the sale.  Partition actions are governed entirely by Chapter 241 of the Massachusetts General Laws.  "Any person, except a tenant by the entirety [a married couple], owning a present undivided legal estate in land, not subject to redemption" has a right to partition under Chapter 241.  M.G.L. c. 241, § 1.

Misuse of Escrowed Funds Lands Contractor in Prison

In an apparent case of first impression, the Massachusetts Appeals Court has ruled that a building contractor who misuses his customers' escrowed funds incurs not only civil liability for breach of contract and the like, but also criminal liability for "fiduciary embezzlement" (M.G.L. c. 266, § 57).  In Commonwealth v. DeGennaro, 84 Mass. App. Ct. 420, decided October 21, 2013, the defendant contractor executed purchase and sale agreements with a series of customers that required the customers to pay deposits, and required the contractor to hold those deposits in escrow.  The defendant contractor acted as his own escrow agent.  However, instead of placing the escrowed deposits into a separate, interest-bearing bank account, the defendant deposited them into his general business operating accounts.  Worse, the defendant then used the money--before it had been earned--to pay himself and to pay various business expenses.  The defendant never built the houses he was hired to build, and he never returned the escrowed deposits to his customers.

Appraisers Have Final Say on Lease Extension Rent

A panel of the Massachusetts Appeals Court recently grappled with the reviewability of rent-setting calculations performed by professional appraisers pursuant to a commercial lease, and determined that even mistaken appraisers will have the last word so long as they apply any criteria or formula set forth in the lease, and do not exceed the authority the parties have granted them.

275 Washington St. Corp. v. Hudson River Int'l., LLC: Collecting Indemnification Damages in Commercial Leases

In a recent case, 275 Washington St. Corp. v. Hudson River Int'l., LLC, 465 Mass. 16 (2013), the Supreme Judicial Court ruled that a commercial landlord cannot recover post-termination damages under an indemnification clause until the original lease term expires.  In 275 Washington St. Corp., the tenant vacated the premises and ceased paying rent 18 months into a 12-year lease.  The lease included an indemnification clause that provided, "Tenant shall indemnify Landlord against all loss of rent and other payments which Landlord may incur by reason of such termination during the remainder of the term."  After the tenant vacated, the landlord terminated the lease, and, relying on the indemnification clause, demanded that the tenant pay the landlord's lost rent over the entire 12-year lease term, in addition to the unpaid rent that accrued prior to termination of the lease.  The landlord's total potential damages with interest exceeded $1,000,000.

Broker Beware

According to the Supreme Judicial Court, a real estate broker must "exercise reasonable care" not only in making representations about a property, but also in determining whether to rely on a seller's information about that property. See DeWolfe v. Hingham Centre, Ltd., 464 Mass. 795, 796 (2013). After roughly four years of looking, the Plaintiff in DeWolfe, a professional hair stylist, found a property he liked, thanks to newspaper and MLS listings by the sellers' broker. Id. at 796-98. The broker advertised the property as zoned with a "Business B" designation, which would permit "hairdresser" as a use on the scale Plaintiff anticipated. Id. Shortly after the conveyance, however, Plaintiff learned the property in fact was zoned "Residential B," a designation permitting perhaps a small, home-based hairdressing business but not the six-station hair salon Plaintiff had planned to establish. Id. at 798.

Adverse Possession: Can My Neighbor Really Take My Land?

Good fences make good neighbors.  Unless, of course, the fence sits beyond the recorded lot line and the landowner who is now enjoying a somewhat larger piece of property than is reflected on his or her deed claims title to the extra strip of land on his or her side of the fence under the doctrine of adverse possession. In that case, the neighbors (particularly in areas with high land values) often end up in litigation. 

Old Common Law Applied to Current Problem

In a case decided earlier this year, the Appeals Court held that common law precedent some might deem "archaic" lives on in its applicability to structures built prior to 1978 that could, under today's standards, create an actionable water nuisance.

Property Owned in Family Trusts - A Recipe for Conflict

When parents or grandparents are able to pass down residential property to their children and grandchildren, it should be a piece of the American Dream come true.  And, with foresight, good planning, and a little bit of luck, it can be.  Too often, however, these "gifts" can devolve into situations that tear extended families apart.  It often doesn't take long before family members start to treat each other unfairly and eventually become openly hostile towards each other.

Tenant's Corporate Parent Insulated from Lease Default Claim; But Liable for Use and Occupancy

Last Fall, the Massachusetts Appeals Court held in OMV Associates, L.P. v Clearway Acquisition, Inc., 82 Mass. App. Ct. 561 (2012), that a lessee's corporate parent could not be reached under traditional veil-piercing principles to pay the debt of a subsidiary that breached a commercial lease.

As Beach Disappears, So Do Property Rights

In a case decided just last week, the Supreme Judicial Court (the "SJC") rejected the Plaintiffs-Appellants' contention that they held an interest in a "moveable" beach lot that shifted with the sands as the original lot disappeared into the Atlantic Ocean.

Appeals Court Carves Out Condominium Exception to 'Economic Loss Rule'

The "economic loss rule" prohibits a plaintiff from suing for negligence to recover "pure economic losses," such as lost profits or the cost of replacing an allegedly-defective product.  The rule requires a showing of harm to person or property in a negligence case.  If a defective product is involved, any property damage asserted must involve property other than the defective product itself.  

For Large Project Permitting Appeals, No Removal From Land Court's Permit Session to Housing Court

In a decision handed down just last week, the Appeals Court ruled that a large project permitting appeal filed in the Land Court's six-year-old permit session cannot be removed to the Housing Court, since the Housing Court lacks jurisdiction over such matters.  In Buccaneer Development, Inc. v. Zoning Board of Appeals of Lenox, Appeals Ct. No. 1-P-1159, the Appeals Court vacated a Housing Court judgment upholding the Town of Lenox's denial of a special permit for construction of a twenty-three home retirement community, and remanded the matter to the Land Court for a new trial. 

Venue for a Petition for Partition in Massachusetts

Parties who bring a petition for partition in Massachusetts have the choice under G.L. c. 241 of filing the action in either the Land Court or in the Probate and Family Court. As to the Probate court, venue is proper in the Probate Court of any county where any part of the land in the petition lies. Venue is proper in the Land Court, which sits in Boston, for any land within the Commonwealth. Where should you bring your case? There are a number of practical factors to consider.

In the Wake of 'Connors,' When Are Section 7 Zoning Appeals Viable?

Just about a year ago, in Connors v. Annino, 460 Mass. 790 (2011), the Supreme Judicial Court left no doubt that an abutter receiving "adequate notice" of issuance of a building permit must act fast (within thirty days of the issue date) to appeal the permit as violative of the local zoning code - and a zoning enforcement action brought pursuant to G.L. c. 40A, Sec. 7 will not be available to revive such a claim during the far longer six-year "repose" period set forth in that statute.

Subcontractors Beware: General Contract's Fine Print May Govern Your Contract Too.

The Supreme Judicial Court recently exhorted subcontractors to make sure they know the terms of general contracts before agreeing to import them in a wholesale fashion into their own subcontract.

In Public Projects, Subcontractors' Payment Bond Rights Are Not Waive-able

A recent Supreme Judicial Court decision should provide subcontractors who perform work on public projects with welcome assurance that payment bonds provide meaningful protection against non-payment.  In Costa v. Brait Builders Corp., 463 Mass. 65 (2012), the SJC held squarely that a subcontractor's rights under a statutorily required payment bond cannot be waived in a private contract between subcontractor and general contractor.  Since mechanic's liens are unavailable in public projects, we at Fitch Law Partners LLP view the security Costa affords subcontractors as important.

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