Fixing a Foreclosure Problem in Massachusetts

Challenging a Foreclosure

Fixing a foreclosure problem is a matter that may be necessary if a mistake is made in the foreclosure process. If such a mistake occurs, and the foreclosure is void, the buyer does not have full ownership of the property, which will prevent them from evicting any of the occupants or selling the home at a later date.

Fortunately, there are options available for fixing a foreclosure. As someone who has both helped buyers of foreclosed properties with these matters, and homeowners attempting to avoid foreclosure, I know many of the common pitfalls in this area of law.

Overview of Foreclosure In Massachusetts

Massachusetts is a non-judicial foreclosure state. This means that, unlike many other states (such as New York and Vermont), a lender does not need to go to court to foreclose. Rather, a lender can foreclose through a series of legal notices and a public auction sale.

The requirements for a foreclosure in Massachusetts are detailed and must be strictly complied with. Even a minor, innocent mistake can be grounds for arguing that a foreclosure is void.

Common Errors In Massachusetts Foreclosures

Common errors in Massachusetts foreclosures include, but are not limited to, the following:

For a third-party buyer of a foreclosed property, these defects can be problematic. Even though the lender made the error, such defenses can be used against the subsequent buyer of the foreclosed property, to challenge the home’s ownership.

Fixing a Foreclosure: What Can Be Done?

The first step for attempting to resolve a foreclosure problem is to try and negotiate with the former homeowner, if possible. If the former homeowner no longer lives in the home, or has no interest in keeping the property, it may be possible to reach an agreement where ownership of the home can be resolved.

If this is not possible, a court action will likely be necessary. In such a case, a third-party buyer can ask a court to quiet title for the property or allow it to perform a new foreclosure sale.

Final Thoughts

Addressing an issue with a foreclosure should never be done without an experienced attorney’s help. If you need assistance with such a matter, contact me for a consultation.

Selling a Home With Tenants In It: What to Know

Selling a home with tenants in it is a topic that often arises with the listing and purchasing of real estate. While it is common to sell property that is occupied with tenants, both buyers and sellers should be aware of certain topics that often come up in such matters.

Tenancies Remain After the Sale of Rental Property

The most common question I get about selling a home with tenants is whether a tenancy remains after the new owner purchases the rental property. In other words, can a new owner of rental property immediately terminate existing tenancy agreements?

Tenancy agreements, whether they are through a lease or a tenancy at will (“month-to-month”) do not end simply because property is sold.

This needs to be kept in mind before committing to a property sale, if a property must be sold vacant.

If a purchase agreement requires a property to be sold without tenants in it, this needs to be addressed by the seller, either through an agreement with the tenants or an eviction. The mere sale of property, on its own, will not require any existing tenants to vacate the property.

Be Extremely Careful With Security Deposits

All landlords need to exercise extreme care with Massachusetts’ security deposit law. This law regulates the acceptance, holding, and return of a security deposit, and comes with severe penalties if violated.

This law also has specific, detailed requirements for handling a security deposit when property is sold. Both buyers and sellers of rental property need to be aware of these requirements and how to properly handle such a deposit in these circumstances.

Be Mindful of the Responsibilities of Being A Landlord

Landlording comes with specific duties and responsibilities, including (but not limited to) prohibitions on housing discrimination, a duty to keep rental property habitable, and a requirement to use a formal eviction process should a landlord need to evict a tenant.

Failure to comply with any of these requirements can be highly problematic for a landlord.

These responsibilities are the same regardless of whether the buyer of property with tenants intends to remain as a landlord, or no longer wishes to keep renting after the tenants leave.

Final Thoughts

As with most legal matters, the best way to avoid problems is to prevent them in the first place. If you need assistance with a landlord-tenant matter, contact me for a consultation.

Quiet Title in Massachusetts

Massachusetts zoning

Quiet title is a legal action used to resolved real estate disputes. This action asks a court to issue an order resolving a property issue. This can be highly effective in determining one’s rights in property.

Overview of Quiet Title

Quiet title is a broad cause of action, and can conceivably be used for any type of real estate dispute where the rights of property are at issue.

I like to think of quiet title as being a declaratory judgment action for property, where a court is being asked to resolve an actual controversy.

Quiet title, importantly, gives a claimant a lot of leeway in who an action can be brought against, including “the claims or rights of persons unascertained, not in being, unknown or out of the commonwealth.” This is helpful for disputes where the potential defendants are unknown or not entirely certain.

Where to File

Quiet title actions are most often filed in Superior Court and Land Court. Deciding which court to use is a critical decision, which an experienced attorney can help with.

In my experience, Land Court is often the best forum for these matters. Land Court judges have a solid background in real estate matters, and expertise in addressing such cases in a prompt and effective manner.

Other Options for Resolving Property Disputes

When bringing a lawsuit to resolve a property dispute, it is important to similarly consider and include any other causes of action for resolving property disputes.

For boundary disputes, claims of adverse possession and easement by prescription often arise and come into play. Try title, which forces an opposing party to raise all of their claims to a property in a single action, is also a claim that should be considered in such matters.

Property disputes involving deeds and mortgages often implicate matters concerning reformations and discharges.

Final Thoughts

If you need assistance with a real estate dispute, contact me for a consultation.

Massachusetts’ Land Records: Five Things to Know

Massachusetts’ land records are an essential tool for any real estate matter, whether it be a real estate dispute or transaction (such as buying or selling a home).

Here, I’ll discuss five things to know about Massachusetts’ land records.

Free, Online Access

I’m from Vermont. While I would take a Vermont beer over a Massachusetts beer on any given day, I wouldn’t trade Massachusetts’ land records for anything. Vermont (like many other states) uses paper for all of their land records. If you want to search the land records, you need to visit the individual town or city.

In Massachusetts, our land records are online: www.masslandrecords.com. This is a tremendous resource for anyone involved in a Massachusetts real estate matter.

Although documents may be viewed online, the process of filing land records (known as “recording”) usually must be done at one of the physical registry locations. E-recording is allowed in some locations, but not all, and generally requires pre-registration.

Recorded v. Registered Land

Massachusetts uses two systems of land registration: recorded and registered land.

Recorded land is the most commonly used Massachusetts land records system. Documents are generally recorded individually, with references to other related documents, to make it easier to search.

Registered land is a land record system overseen by Land Court. The requirements for recording registered documents are more stringent than those for recorded land, and sometimes require approval from the court itself for any changes to be made. Recorded land is organized into “certificates of title”, which group together related land documents.

Common Documents to Find in Land Records

Common documents to find in the land records include deeds, mortgages, mortgage assignments, and homestead filings. All of these documents are associated with the buying and selling of property.

Court decisions can also be recorded in the land records. For example, if a homeowner prevails in a boundary dispute against a neighbor, the decision can and should be recorded so as to make it part of the chain of title, so future buyers of both properties become aware of the decision.

Problematic Documents to Find in Land Records

Some documents recorded in the land records can be problematic, and should be checked closely by a property owner. Judgments for money, where a court has ordered one party to pay another money, can be recorded in the land records as a lien on property. These generally must be satisfied prior to the sale of property. Liens can also arise from unpaid property and federal/state taxes.

The recording of a notice of a Servicemembers’ Case is often a prerequisite for the start of the foreclosure process. A homeowner who receives such a notice needs to act quickly to address the matter.

Affidavits to Clarify the Chain of Title

Massachusetts law allows the recording of an affidavit in the land records, for the “benefit and assistance in clarifying the chain of title.” Such an affidavit must have a certificate from an attorney.

These affidavits are helpful for explaining or clarifying real estate matters that are not otherwise apparent from other recorded documents.

Commonly known as “5B Affidavits”, these documents can be a great tool for resolving real estate disputes.

Conclusion

If you need assistance with a real estate matter, contact me for a consultation.

Appealing a Zoning Board Decision

Appealing a zoning board decision is an option available for anyone who has received an unfavorable zoning decision, or who is harmed by someone else’s zoning matter.

This blog post does not cover zoning matters in the City of Boston. Zoning in Boston falls under a different set of rules and is slightly different. I’ll write about Boston zoning in a future blog post.

Who Can Appeal?

A “person aggrieved” by a decision from a zoning board is entitled to appeal such a decision. This requirement is known as standing: one must have a real interest in the outcome of the zoning board to pursue an appeal.

This is a critical point about appealing a zoning board decision. Not just anyone can pursue such a matter; one needs to show aggrievement. Failure to do so will be fatal to a zoning appeal.

What is the Deadline for Appealing a Zoning Board Decision?

Zoning appeals come with incredibly tight deadlines. Most often, such a case must be filed within twenty days after the zoning decision is filed with the city or town clerk.

This is a “hard and fast” deadline: there are few, if any, exceptions allowed for the late filing of such an appeal.

Zoning appeals are generally filed in either Superior Court or Land Court, with advantages and disadvantages for pursuing such a case in each court.

Considerations for An Appeal

A major consideration for a zoning appeal is the likelihood of success in such a matter. The law gives zoning boards wide discretion in the decisions they make. However, such relief needs to have supporting basis in law and fact.

Variances, in particular, have detailed requirements to obtain, and a failure to meet each of these criteria can be grounds for a viable appeal.

Reviewing a zoning board decision with an experienced attorney is critical before making a decision to appeal.

Final Thoughts

I’ve helped many Massachusetts property owners pursue and defend zoning appeals. If you need assistance with such a matter, contact me for a consultation.

Avoiding Housing Discrimination Claims: Three Tips for Landlords

Avoiding housing discrimination claims is a must for any Massachusetts landlord. Such claims come with enormous penalties and exposure, and are frequently litigated in Massachusetts.

Even landlords with the best intentions can have problems with these matters if they are not careful. Here, I’ll discuss three tips to help landlords avoid housing discrimination claims.

Know the Law

While it may sound obvious, knowing the law is the most important tip for avoiding housing discrimination claims. Both state and federal law prohibit housing discrimination. State law, however, typically provides greater protections for tenants, and is the law that landlords should pay particular attention to.

I’m sometimes asked about exceptions to fair housing laws. Some exist, but in my opinion, landlords are best to assume that they are covered by all applicable housing discrimination laws. Doing so keeps one’s potential liability to a minimum.

Emotional support animals, in particular, have become an increasingly large source of these claims. I’ve written and presented on this topic in the past.

Keep Detailed Records For All Applicants and Tenants

As with every landlord-tenant matter, landlords should keep detailed records on all matters concerning applicants and tenants. Housing discrimination claims often come up months (and sometimes years) after the alleged discrimination occurred. Having good records is the key to defending against such charges.

Be Consistent With All Applicants and Tenants

Housing discrimination often arises when an applicant or tenant believes they were treated differently than a similar, other applicant or tenant. To avoid potential discrimination claims, landlords should be consistent in their dealings with such persons.

For example, a landlord should use similar questions when reviewing all potential applicants for tenants. If it is learned that a landlord required certain information from one applicant that was not requested from another, this can be grounds for a potential discrimination claim.

Landlords sometimes believe that housing discrimination requires landlords to rent to those tenants under these protected classification. This is incorrect: housing discrimination simply means that a landlord cannot treat an applicant or tenant differently solely due to their protected classification. If the landlord has a non-discriminatory basis for their conduct, this can be a defense to a charge of discrimination.

Final Thoughts

Housing discrimination claims are a nightmare for landlords. Avoiding such matters is the easiest way of limiting a landlord’s liability from such claims. If you need assistance with such a matter, contact me for a consultation.

Eviction Mistakes: Untimely Filing of Court Documents

The Massachusetts Appeals Court issued an important decision this week on eviction mistakes arising from the untimely filing of court documents. The full decision is below.

Evictions 101

Evictions, known in Massachusetts as “summary process” cases, are done to obtain possession of a rental property from tenants. The intended goal of these cases are to be “just, speedy, and inexpensive.”

With this in mind, evictions move at a much faster pace than most other cases. Evictions can end up in trial less than a month after being filed in court.

Eviction Mistakes: Not Timely Filing Court Documents

A critical part of eviction cases are the deadlines for filing documents. Court filings for eviction cases come with strict deadlines, and the failure to meet these deadlines can be fatal to one’s case.

In this case, the defendant wished to appeal an eviction decision, and filed the notice of appeal after the ten-day deadline. Compared to other types of cases, eviction cases come with an incredibly tight deadline, with little room for error if it is missed.

As this decision notes, case law holds that a court has no jurisdiction to hear an eviction appeal if one is filed after this deadline. Although the defendant’s attorney claimed he never received a written notice of the decision, and therefore did not know that the appeal deadline had begun, the Appeals Court nonetheless still dismissed the appeal.

Practical Implications

Years ago, I won an appeal on a nearly similar issue. These decisions emphasize a critical mistake to avoid with evictions: the importance of timely filing court papers. The failure to do so can be highly problematic in such a matter.

Like the Appeals Court, I am very sympathetic to the defendant in this case. Things do get lost in the mail, especially now, which can be a real problem for those involved in an eviction case (or other legal matter).

An important way to avoid this is to keep an eye on the online court docket for an eviction case. This way, if something is lost in the mail, you can still learn of the case status and when a decision is issued.

Conclusion

If you need assistance with a landlord-tenant matter, contact me for a consultation.

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How to Prove Adverse Possession

Land Court issued an interesting decision last week on how to prove adverse possession and whether landscaping activities, alone, are enough to do so. This decision, as of now, is not available online.

What is Adverse Possession?

Use it, or lose it! That is a quick and dirty summary of adverse possession. This area of law allows a non-record owner of property to acquire another person’s property if they continuously use it for twenty years.

Proving adverse possession in Massachusetts requires a showing that the property’s use was open, adverse, actual, notorious, and exclusive for twenty years. Courts, importantly, require a solid showing of proof for each element, and will not allow a claim if any one of these factors are not proven.

What’s the purpose of adverse possession? The best explanation of adverse possession, in my opinion, is to preserve the status quo. If a non-owner of property has taken care of real property for an extended period of time and made it their own, adverse possession is meant to keeps things are they are. Adverse possession also provides a strong incentive for owners to take care of their property.

How to Prove Adverse Possession

Proving adverse possession is not always easy. In this Land Court decision, a claimant asked for adverse possession on the grounds that he had performed extensive landscaping of the disputed property for the past twenty years, including weekly mowing, seeding, and lawn maintenance activities.

Land Court ruled that such activities were not enough to show open and actual use. This follows a general trend that landscaping, alone, is not grounds for adverse possession; a claimant must also do some other improvement to the land, such as erecting a fence or doing significant landscaping cultivation.

The Court similarly held that the claimant had not shown exclusive use. In other words, there was not enough to show that the non-owner was trying to exclude others from the property, such as enclosing the property with a fence.

Practical Implications

Adverse possession cases need to be prepared carefully, with a strong case made for each element. Here, while I think Land Court got this decision correct, there are other cases that seem to go the other way in similar scenarios. This is one reason why these disputes are fact intensive and require enormous preparation.

I’ve help many property owners with such cases. If you need assistance with such a matter, contact me for a consultation.

Sherwin Law Firm Prevails in Consumer Protection Law Cases


Although the COVID-19 pandemic has slowed the judicial process in Massachusetts, cases are still going forward. I’m pleased to write that I obtained two favorable decisions for Consumer Protection Law cases: one in state court and the other in federal court.

I didn’t win these cases . . . yet. Rather, I prevailed against the opposing sides’ attempt to dismiss each matter at the start of the case, for failure to state a claim upon which relief can be granted.

My opposition argued that our lawsuits didn’t have any merit, and should be dismissed at the onset of the case. The courts, however, agreed with me that my clients had viable lawsuits and were entitled to their day in court.

These cases, which concern issues of foreclosure defense, can and will be dismissed by courts if not properly drafted. In both cases, I faced opposition from two excellent attorneys who served their clients well.

What is the Consumer Protection Law?

The Consumer Protection Law, also known as “Chapter 93A”, protects consumers from “unfair and deceptive business practices.” There are several laws that fall under Chapter 93A, but the relevant portion for consumers is Section 9.

Chapter 93A has an incredibly broad reach, and covers nearly every area of law that can impact consumers. While my cases discussed above concern foreclosure, Chapter 93A often comes up in landlord-tenant disputes, debt collection matters, and a myriad of other consumer issues.

“Unfair and deceptive business practices” under this law is purposely broad and can cover an infinite number of violations. Moreover, the Attorney General is permitted to issue regulations that make certain practices automatic violations of Chapter 93A.

Benefits of the Consumer Protection Law

Because the Consumer Protection Law is broad, it can be used for many types of misconduct that are not otherwise violations of the law. Chapter 93A, importantly, also includes equitable powers, which allows a court to do more than just issue monetary damages.

A prevailing party under Chapter 93A, under the right circumstances, is also entitled to attorney fees.

Chapter 93A, importantly, allows courts to impose penalties on parties who refuse to settle cases that should be resolved without a lawsuit. This provides a strong incentive for parties to settle cases on their own.

Conclusion

Preparing a Chapter 93A case needs to be done properly. Even before a lawsuit is file, a claimant (in most cases) needs to serve a demand letter to the opposing party, in an attempt to resolve the dispute prior to court. Once a case is filed, a claimant must be sure to make a strong case that the other side violated this law.

If you need assistance with such a matter, contact me for a consultation.

Massachusetts Eviction Moratorium Goes to Court

The Massachusetts eviction moratorium, which has been in place since March, is off to court. A group of Massachusetts landlords have brought a lawsuit challenging the legality of this order, and have asked for a preliminary injunction, requesting that the court immediately stop the eviction ban while the case proceeds.

It would take much longer than a blog post to discuss all of the legal arguments for and against the Massachusetts eviction moratorium, but here’s a quick summary of some of the major points:

  • Landlords argue that the moratorium interferes with the right to access the courts, and the separation of powers between the legislative and judicial branches
  • Landlords argue that the ban is a constitutional “taking” of property, where landlords are deprived of property without compensation
  • Landlords argue that the eviction moratorium interferes with private contracts (leases)

This court case, which was filed in Suffolk Superior Court, is being followed by another legal action in federal court, concerning federal constitutional issues.

Attorney Richard Vetstein and Attorney Jordana Greenman represent the landlords, and did an superb job representing their clients. I’m not familiar with the attorneys who represented the Commonwealth, but they did an excellent job as well.

Judge Paul Wilson is hearing this case, and will be issuing a decision soon. I’ve had the opportunity to argue before Judge Wilson, and can attest that he is a good judge who will issue a well-reasoned decision on these important issues of law. Stay tuned.

If you need assistance with a landlord-tenant matter, or have a question about the eviction moratorium, contact me for a consultation.