Drone Privacy Law in Massachusetts

Drone Privacy Law in Massachusetts

Drones have changed a great deal in the last several years.  Once entirely used for military and warfare purposes, consumer drones are mainstream and increasingly being used for commercial and recreational purposes.  The uses of drones are endless: home builders, surveyors, and even lawyers are finding that drones, and the ability to do aerial photography and video, is an incredible tool.

Yours truly is an avid drone user.  The picture below was taken by me with my drone from the Middlesex Fells  in Medford, and shows my office location in Assembly Square, Somerville.

This picture highlights a growing concern with drones: this new technology has an amazing ability to capture photographs and video that could not otherwise be seen before.  Such use of aerial vehicles raises many legitimate concerns over privacy rights.  Here, I want to discuss drone privacy law in Massachusetts and discuss what can be done if you have privacy concerns arising from another person’s use of a drone.

Drone Law in Massachusetts 

Massachusetts, like most states, is still grappling with how to regulate drones. Presently, Massachusetts does not have a statewide law regulating drones.  This isn’t surprising; many states similarly do not regulate drones, although there are many proposed laws in state legislatures across the country.  Here in Massachusetts, some local towns and cities, such as Newton, have passed local ordinances on when and where drones can fly.  It is fair to say, however, that drone law in Massachusetts is very much in its infancy.

Drones and Privacy

An increasing problem with drones are privacy concerns.  It is increasingly common to hear complaints about drones flying too closely to homes and places of business and taking unwanted photos and videos.  With the limited laws on drones in Massachusetts, what can be done if you feel your privacy is being invaded by a drone?

Massachusetts, unlike many states, provides a specific right to privacy for its residents:

A person shall have a right against unreasonable, substantial or serious interference with his privacy. The superior court shall have jurisdiction in equity to enforce such right and in connection therewith to award damages.

I’m not aware (yet) of anyone using this law in regards to a drone, but I suspect that Massachusetts’s Right of Privacy Act could be effective in dealing with the unreasonable use of a drone.  This law, importantly, provides a court with equitable powers, allowing a court to issue an injunction, restraining order, or other declaration preventing someone from invading another’s privacy with a drone.

Once again, drone law in Massachusetts is new and it will be up to the courts to decide whether Massachusetts’s Right of Privacy Act and other existing laws cover drones.  If you find yourself in need of assistance with one of these matters, contact me for a consultation.

 

Notice of Default

Notice of Default

Foreclosures in Massachusetts generally begin through a notice of default.  A homeowner who is behind on their mortgage loan often receives many letters informing them of their owed balance.  A formal notice of default, however, is required under state law and the terms of most mortgage agreements.

What’s In a Notice of Default? 

A notice of default typically contains a number of required disclosures:

  • Information about the holder of the mortgage, terms of the loan, and the outstanding balance of the owed debt
  • The amount the borrower must pay to cure the loan default
  • Disclosure of the homeowner’s rights in a foreclosure proceeding

A notice of default must generally be sent by both certified and regular mail.  A homeowner who receives a notice of default will not immediately face a foreclosure sale; there are several other requirements that must occur before a foreclosure can begin.  One of these notices, however, is a sign that the mortgage lender will start foreclosure soon.

What To Do About a Notice of Default

The most important thing for a homeowner receiving a notice of default is to not ignore it.  A foreclosure is coming, and a delay in addressing this problem can make a resolution harder to come by.  Speak to a foreclosure defense attorney if you receive one of these notices to learn what can be done to avoid losing your home.

A homeowner receiving a notice of default should also review these letters closely.  Mistakes can (and do) happen and it is a good idea to make sure everything in one of these notices is correct.

Failure to comply with the requirements for a notice of default can be grounds for challenging a foreclosure, both pre-foreclosure and post-foreclosure.  An experienced attorney can discuss whether such a legal challenge is an option for your case.

A homeowner receiving a notice of default can certainly solve the problem of foreclosure by paying off the outstanding amount of the loan (and should do so if they are able).  Homeowners, however, should keep in mind that simply paying off the outstanding amount of the loan will not solve the long term problem for the borrower if they are unable to afford the monthly loan payments.  In such a case, the homeowner should apply for a loan modification and attempt to get a more affordable loan payment.

If you find yourself in need of assistance with one of these matters, contact me for a consultation.

 

Top Five Landlord Mistakes

Landlord Mistakes

In this blog post, I want to discuss the top five landlord mistakes made by those renting residential property in Massachusetts.   Massachusetts has numerous laws protecting tenants, and a landlord’s failure to comply with these regulations can cause major problems down the road.  Fortunately, these landlord mistakes are easily avoidable.

 1.  Accepting a Security Deposit From a Tenant

Few things get a landlord into more trouble than Massachusetts’s security deposit law.  Take a minute (or several!), attempt to figure out all of this law’s requirements, and you’ll learn quickly why the law is a disaster waiting to happen.  Few landlords comply with all of the law’s detailed requirements, and the failure to do so can result in treble damages, attorney fees, and costs.  The risks for landlords just aren’t worth it.

As I have suggested before, a landlord who wants a security deposit should make this part of their monthly rent.  For example, if a landlord wants a $1,200 security deposit, they should add (or set aside) $100 each month, rather than requesting it upfront from the tenant.  This keeps a landlord from having to comply with the security deposit requirements.  Moreover, unlike a security deposit, this money belongs to the landlord if no repairs need to be done at the end of the tenancy.

2.  Not Choosing Tenants Carefully 

Another common landlord mistake is not choosing tenants carefully.  A bad tenant can cause enormous problems to landlords.  Evictions can be long and expensive, and collecting a judgment against a tenant can be difficult.  Try to avoid these problems in the first place by selecting  reputable tenants.

3.  Not Using a Written Rental Agreement 

Landlords should always use a written rental agreement with tenants, regardless of whether it is a a month-to-month agreement or lease.  A written agreement lays out all of the expectations of the landlord and tenant, and can avoid problems from coming up later on.  Moreover, if a landlord expects a tenant to pay for any of the apartment’s utilities, a written agreement is a requirement under the state sanitary code.

4.  Failing to Maintain Rental Property

If you own rental property, the law requires you to maintain it.  Massachusetts’s state sanitary code contains detailed regulations for rental property, and many towns and cities have their own requirements for rental property as well.  A tenant must generally provide notice, and a reasonable opportunity to the landlord to address the problem, before the landlord can become liable for not maintaining the property, but a landlord should avoid these problems in the first place by keeping on top of a rental property’s maintenance and care.

5.  Attempting an Eviction Without An Attorney 

If a landlord needs to get rid of a tenant, an eviction is required.  A landlord should never try and do an eviction on their own.  While it may be tempting to try and avoid the costs of an eviction, the consequences of making a mistake in one of these cases can be far more expensive down the line.  Moreover, an experienced landlord attorney can often help finds ways to make the eviction process go as quickly as possible.

If you find yourself in need of legal assistance, contact me for a consultation.

Boundary Line Disputes

Boundary Line Disputes

Boundary line disputes are, arguably, one of the most contentious areas of law.   Understanding the right approach to dealing with boundary line disputes can make a real difference in effectively resolving these problems.

Determine Your Property Boundaries

The first step in resolving boundary line disputes is to determine your property boundaries.  Many times, the boundary line for property is not where the owner believes it is.  Even though fences and other physical structures may, informally, be considered the perimeters of property, the actual property lines may be in a different location.  Determining property boundaries is generally done by a survey or plot plan, which is prepared by a licensed surveyor.  A surveyor will review the land records for the subject property (found in the appropriate registry of deeds) and state the exact location of the property’s boundaries.

A survey or plot plan, however, is not always the final authority for determining a land boundaries.  Massachusetts, like most other states, allows for adverse possession of real property.  Adverse possession is a legal claim where the continuous use of property by a non-owner allows that user to legally acquire the property.  As such, even if the survey or plot plan states that disputed property belongs to a particular person, an adverse possession claim may allow a non-owner to become the property’s record owner.

Attempt to Resolve the Matter Amicably 

Property owners should always attempt to resolve boundary line disputes without going to court.  Court cases, while sometimes necessary, can be long and expensive.  Many times, boundary line disputes can be worked out amicably, which is to everyone’s benefit.  Mediation, where the parties meet with a neutral party to discuss the dispute, can be a useful process for these matters.

Although it is beneficial to try and settle these matters out of court, it is still a good idea to speak with an attorney for help with these negotiations.  A lawyer can help advise you of your rights and determine the best way to proceed.

Seek Court Action If A Resolution Cannot Be Found

For boundary line disputes that cannot be resolved amicably, court action may be necessary.  Massachusetts law allows property owners to get a court declaration on the ownership of property, and a court order preventing a party from using a portion of property, if necessary.

Unlike many states, Massachusetts has a court that specializes in property cases: Land Court.  Land Court is a popular court for these types of cases, with judges and staff that are familiar with these matters.  In addition to Land Court, these cases can also be brought in Superior Court or federal court.

If you find yourself in need of a court case for a boundary line dispute, contact a lawyer for assistance.  Preparing and filing a lawsuit for boundary line disputes can be tricky, and having an experienced attorney on your side can make all the difference in getting the results you need.

Foreclosure Help

Foreclosure Help

Foreclosure help can be essential for homeowners attempting to avoid foreclosure and save their homes.  One of the biggest mistakes homeowners make is waiting too long to get assistance with this stressful process.  When should homeowners seek foreclosure help?

Preparing a Loan Modification Application 

Foreclosure defense is not about getting a free home; foreclosure defense is about getting an affordable loan payment.  A loan modification is the general way to obtain this relief from a mortgage lender.  Applying for a loan modification, however, can be a complex process, requiring enormous paperwork and follow-up phone calls with the loan servicer.

A homeowner does not need a lawyer or other professional to help with this process.  However, if a homeowner does it on their own, they need to keep up with the paperwork requirements and do the application correctly.  If the homeowner does not have the time or interest in preparing an application, they should absolutely get the help of a reputable professional for this process.  The Massachusetts Attorney General’s Office is one good resource for seeking such assistance, and there are other non-profit organizations around the state who similarly help with loan modification applications.

Problems With The Review of a Loan Modification Application

If a homeowner is having trouble with a loan modification application, foreclosure help is a must.  Often, a lender’s repeated failure to properly review one of these applications, by “losing” paperwork and coming up with bogus reasons for denial, can be grounds for legal action.

Imminent Foreclosure Sale Date

A homeowner with a imminent foreclosure sale date should likewise obtain foreclosure help, mainly through an attorney.  An attorney can help a homeowner understand options available for stopping a foreclosure and see if a permanent resolution to the problem can be reached.

After a Foreclosure Sale

In my opinion, foreclosure help is an absolute must for any homeowner who has already been foreclosed.  A foreclosure defense attorney can help a former homeowner determine if there are grounds to rescind or buy back the foreclosed property.  Even if the homeowner has no interest in staying in the home, an attorney can be incredibly helpful in ensuring that the homeowner’s rights are protected, and avoiding an additional liability.

If you find yourself in need of foreclosure help, contact me for a consultation.

How Long Does an Eviction Take?

How long does an eviction take in Massachusetts?  Answering that question is like a weatherman stating what the weather is going to be the next day: an expert can give a good prediction, but many unknown factors can make a big difference in the ultimate outcome.

Beginning a Massachusetts Eviction Case

The beginning of a Massachusetts eviction case is an important consideration in determining how long one of these cases will ultimately take.  To start an eviction, a landlord is required to send a notice to quit, which informs the tenant that their tenancy is over.  The timeframe under one of these notices depends on the reason for eviction, and are usually anywhere from seven to thirty days.

Filing An Eviction Case

Following the service of a notice to quit, the landlord must file the eviction case.  Unlike a typical lawsuit, where the lawsuit is filed with the court and then served on the party, in an eviction case, the opposite happens: the eviction case paperwork is served on the tenant first, and then filed with the court.  This notice must be served on the tenant at a minimum, seven days before it is filed with the court (and not more than thirty days).

Discovery, Trial

The next factor in determining how long an eviction takes is whether the tenant(s) request discovery and a jury trial.

Discovery is the right of a party to learn information from the opposing side, through interrogatories (written questions) and request for documents.  A request for discovery automatically postpones an eviction trial by two weeks.  Depending on the amount of information requested, discovery may take even longer.

A defendant in an eviction case has a right to a jury trial.  Unlike bench trials, which are held before a single judge, a jury trial requires the calling of potential jurors by a court, and usually happens on select days at a court.  As such, a request for a jury trial typically also pushes back an eviction case, depending upon the court’s trial schedule.

Conclusion 

The above are some of the many factors that help answer how long  an eviction in Massachusetts take.  Generally, an uncontested eviction will take between one to two months.  A contested eviction, with requests for discovery and a jury trial, can take anywhere from three to six months.

Having an experienced attorney on your side can make a huge difference in moving one of these cases along, and getting you the results you need.  Contact me for a consultation.

Forced Sale of a Home – Understanding Massachusetts Partition Cases

Real estate is commonly owned by multiple persons.  It is not unusual for married couples, family members, and even friends to own real estate together, and share in the responsibilities and upkeep of the property.  When everyone is fine with owning the home together, no problems exist.  It becomes more difficult when one or more owners of the property wants out.  When this happens, a property owner can begin a court action for a forced sale of a home, known as partition.  While this post is aimed at multiple owners of a residential home, the same type of relief is available for all types of jointly owned real estate.

What is Partition?

Partition is a court case to divide jointly owned property.  A partition case may be heard in Land Court (most common) or Probate and Family Court.  Partition, importantly, is an absolute right of any property owner: if one owner wants to do a forced sale of a home, they can do so.

The Court will first determine the best way to divide the property, either through partition in kind or partition by sale.  A partition in kind is the physical division of property.  If the court can simply “split the baby” and give each owner a share of the property, this is the preferred outcome.  Most of the time, particularly with single residential homes, this is not a realistic possibility.  The other, and more common, form of partition is a partition by sale: the court orders that the home is sold, and proceeds divided among the owners.

Who Gets What?

A central job of the court in a forced sale of a home is determining who gets what.  A court will not merely allocate the proceeds from a home sale simply based on each party’s ownership of the property.  The court will consider whether one party contributed a greater share towards the initial purchase of the home and whether one owner made permanent improvements to the property.  The court will also consider whether one party was responsible for paying the property taxes, insurance, and other expenses responsible with property ownership.

How to Succeed With a Forced Sale of a Home

The best way to succeed with the forced sale of a home is to try and prevent one of these cases from happening in the first place.  A partition case often results in the owners getting much less than they would if they simply agreed to sell it on their own.  Joint property owners can negotiate to “buy out” the other owner’s share of the home, or simply agree on a sale price for the property.  An experienced attorney can help you determine if this is a possibility or, alternatively, help you succeed in a partition case.

I’ve Been Served With An Eviction Notice! Now What?

What to Do After Receiving a Massachusetts Eviction Notice

Getting served with an eviction notice can be a stressful experience.  Tenants who receive one of these notices need to act quickly to protect their rights.

What is An Eviction Notice?

An eviction notice in Massachusetts is generally one of two things.  To start an eviction, a landlord must send a tenant a notice to quit, informing the tenant that their tenancy is being terminated.  These notices typically provide fourteen or thirty days notice to the tenant, depending on the reason for the eviction.

After a tenancy is terminated, a landlord must serve the tenant with an eviction summons.  This is the official court notice that an eviction is beginning against a tenant, and is the eviction notice that a tenant needs to be most mindful of.

Important Dates in an Eviction Notice

An eviction summons contains a number of different dates, including an entry date, hearing date, and answer deadline.  This last date, the answer deadline, is the most important date to keep in mind in responding to an eviction notice.  This is the date by which the tenant must respond to the eviction notice, and state the reasons why the tenant believes he or she should not be evicted.

Under the rules for Massachusetts evictions, the answer must be received on the answer date.  Unlike other types of court cases, mailing an answer on the answer deadline is not compliant with this deadline; the clerk’s office and the landlord must actually get the answer by this deadline.  Failing to comply with this deadline puts you at risk of a default judgment (an automatic win for the landlord).

Filing An Answer and Request for Discovery

This response to an eviction notice is known as an answer.  In an answer, the tenant is required to admit or deny each of the allegations made by the landlord against the tenant, and to list each of their defenses against the eviction.  A tenant also has the option of bringing claims against the landlord, known as counterclaims.  Common defenses and counterclaims in eviction cases include poor conditions in the rental unit, discrimination, and violation of the Massachusetts Security Deposit Law.

A tenant also has the right to request discovery from the landlord.  Discovery is the process by which a tenant can ask a landlord written questions, which the landlord must answer under oath, and to request that the landlord produce all documents relevant to the case.

Speak With A Landlord/Tenant Attorney For Help in Responding to An Eviction Notice

If this process sounds confusing to you, you aren’t alone.  Despite the availability of many landlord/tenant resources online, eviction cases can be complex and tricky.  Tenants who have received an eviction notice should give serious thought to  meeting with a landlord/tenant attorney for help with their case.  Many tenants are surprised to learn that such services can be affordable and, most importantly, effective at getting you the results you need.

Appealing an Eviction Case

Appealing an eviction case is a complicated subject.  I could write for hours on the topic, and even then, would only cover the basics.  Here, I want to offer two critical points for anyone appealing an eviction case: act quickly, and hire an attorney for your appeal.

What is an Appeal?  What Court Does it Go to?

An appeal is a request for a higher court to review A trial court’s decision (the court where the eviction case was first brought).  An appeal looks at whether the trial court judge made the right decisions in the case, and whether the matter should be sent back to the trial court (“remanded”) for another hearing or trial.

An appeal, importantly, is not a “do over.”  A party generally does not get to do their case all over again, in hopes that the appeals court will come out a different way.  Rather, the appeals court looks at whether the trial court made any errors of law.  This is an important things to keep in mind: even if you believe, strongly, that the trial court got its decision wrong, this may not be enough to win on appeal.

Appeals for eviction cases, whether they be for standard landlord/tenant cases or post-foreclosure eviction matters, are brought in one of two courts.  For eviction cases brought in the District Court, appeals go to the District Court Appellate Division.  This is a court made up of other District Court judges, and hold hearings in different courthouses around the state.  A decision from the Appellate Division can then be appealed to the Appeals Court.  Eviction cases coming from the Housing Court or Superior Court go directly to the Appeals Court, which sits in Boston.

The appeal rules for the Appellate Division and Appeals Court have some differences, but the process is generally the same.  An appeal requires a party to prepare a brief, a written document (usually 40-50 pages) stating the reasons why the lower court was wrong.  Depending on the case, the parties may have an opportunity to do an oral argument before the appellate judges, and state the reasons why the lower court was wrong.  The appellate court will then issue a written decision, where the court will either agree or disagree with the lower court’s decision, and state what will happen next for the case (if anything).

Anyone considering appealing an eviction case should follow the following pieces of advise closely.

Tip #1: Act Quickly 

Hands down, the most important advice on the topic of appeals: act quickly.  Unlike most other appeals, which allow a party thirty days to file a notice of appeal, a notice of appeal for an eviction case must be filed within ten days of the trial court’s entry of judgment.  Moreover, several cases have held that the failure to comply with this deadline is grounds for dismissing an appeal . . . regardless of the circumstances.  This suggests that even a showing of good cause is not enough to file a late notice of appeal for an eviction case.  With this in mind, never, never take a chance of missing this deadline.  If you do not have a lawyer, the clerk’s office can generally help you fill out a notice of appeal, a short form telling the court and other side that you plan to appeal.

This advice, importantly, applies equally to both landlords and tenants/former homeowners: the failure to comply with this appeal deadline can be fatal to your case.

Tip #2: Get a Lawyer

The second piece of advice for appealing an eviction case is to get an attorney.  I’m generally not a fan of advising people with legal matters to do cases on their own.  Without a solid legal background, it is difficult for even the smartest pro se  party to prevail in court.  For appeals, it is near impossible.  The rules of appellate procedure are a challenge for even experienced lawyers, and the many other complexities of appeals make this process a real challenge for even the best lawyers.  If you find yourself involved in appealing an eviction case, don’t do it on your own.  Speak to an experienced attorney about obtaining legal representation.

Sherwin Law Firm Succeeds in Bringing Lawsuit Over a Denial of a Loan Modification

I’m pleased to announced that I prevailed today in bringing a lawsuit against a national lender for the denial of a loan modification.  The court rejected the lender’s argument that the lawsuit should be dismissed, allowing the lawsuit to go forward as planned.  In this lawsuit, I am seeking damages against a lender whose two year refusal to properly review my client’s loan modification application forced him into foreclosure.

What is a Loan Modification?

A loan modification is the restructuring of a mortgage loan to make the payments more affordable.  This generally consists of a combination of a lowered interest rate, term extension, and principle forbearance.  To apply for a loan modification, a borrower must generally prove they have sufficient income to afford a modified loan payment.  Lenders generally want borrowers to provide bank account statements, tax returns, and a variety of other documents about the need for this assistance.

Problems in Applying for Loan Modifications

Despite loan modifications being intended to help homeowners, the process of applying for this assistance is often a mess.  It is not uncommon for lenders to “lose” paperwork and required the repeated submission of the same documents over and over again.  Mortgage lenders have been known to deny loan modifications for reasons that do not make the slightest bit of sense.

What Can Be Done After a Denial of a Loan Modification?

In Massachusetts, like most of the country, a lender is not required to offer a homeowner a loan modification.  As such, a homeowner generally does not have a viable claim against a lender merely because their modification application has been denied.

Massachusetts courts, however, do allow lawsuits to be brought under the Consumer Protection Law under certain circumstances involving the denial of a loan modification.  The Consumer Protection Law, commonly known as Chapter 93A, prohibits “unfair and deceptive business practices.”  Massachusetts courts have taken the positions that repeated instances of misconduct by a lender in the denial of a loan modification can constitute a Consumer Protection Law claim.  This is the key, however: the borrower must alleged more than simply that their application was denied.  Rather, the borrower must show, as one court puts it, a “pattern or course of conduct involving misrepresentations, delay, and evasiveness” in reviewing a loan modification application.

The Consumer Protection Law can be a powerful weapon for consumers facing the denial of a loan modification.  This law, in certain circumstances, can allow for attorney fees, treble damages, and costs if the court find in the borrower’s favor.  In addition to money, the law also provides for equitable relief, which is a remedy other than money, such as a court order rescinding a foreclosure sale.

If your find yourself struggling with the denial of a loan modification, contact me to see if you have a similarly viable lawsuit against your lender.