Massachusetts Tree Law: When Can a Property Owner Be Liable For a Tree on Their Land?

Massachusetts Tree Law

The Massachusetts Supreme Judicial Court issued an important decision last week on Massachusetts tree law.  The decision, Shiel v. Rowell (included below), discusses a property owner’s liability for a tree on their property.

Background

The facts of this case are fairly straightforward.  The parties in this case were two neighbors, with one bringing a lawsuit against the other for damage caused by a tree from the other’s property.  This tree caused algae buildup on the other’s roof, from the branches that were hanging over the home.  The neighbor who filed this lawsuit sought money for these damages, and an injunction (court order) that the other neighbor cut back the tree that was causing this damage.

Overview of Massachusetts Tree Law

This case presented a simple, but important, question for the court: when can a property owner be liable for a tree on their land?

The Court reaffirmed a long standing rule in Massachusetts that a landowner may not hold a neighbor liable for damage caused by a neighbor’s healthy tree.  Here, the algae damage to the home resulted from branches hanging over the home . . . something that commonly occurs with trees.  As this was a “healthy” tree, it was not up to the owner of the tree to deal with this problem.  Rather, the neighbor who owned the home underneath these tree branches was responsible for addressing this problem.

The Court affirmed that a property owner has a right to cut off branches, roots, and other parts of a tree that interferes with one’s property.  If a property owner fails to do so, they cannot blame the tree owner for the natural damage caused by the tree.

The issue of whether a tree is “healthy” was a critical factor for the outcome of this decision.  If a tree is unhealthy, this rule of non-liability would seemingly not apply.  For example, if a dead tree breaks apart and falls onto a neighbor’s home, the owner of the tree will not automatically avoid liability for such damage.   Likely, in such a case, the owner will have liability for any resulting damage.

Practical Implications

As the Court stated in this decision, a practical lesson of this decision is the importance of maintaining one’s property.  A homeowner cannot expect to obtain relief against a neighbor if they fail to address the natural problems that arise from encroaching trees.

A word of caution about cutting down portions of a tree on your property.  While it is permissible to cut back portions of an intruding tree, Massachusetts law imposes steep penalties for willfully cutting down or destroying trees on another’s land.  With this in mind, one should use extra caution in dealing with an encroaching tree.

Conclusion 

If you find yourself in need of assistance with a matter involving Massachusetts tree law, contact me for a consultation.

Shiel v. Rowell (Tree Law)

Massachusetts’s Security Deposit Law

A recent article from the Boston Globe, “Apartment management won’t return security deposit? That’s just one problem at this Revere complex,” highlights the importance of understanding Massachusetts’ security deposit law: an important consumer protection law for tenants.

Overview of Massachusetts’s Security Deposit Law

This article discusses a common scenario for tenants who have provided a landlord with a security deposit: a landlord’s outright refusal to return the deposit at the end of the tenancy.  Prior to the security deposit law, tenants had few options for pursuing such claims; often, the expense in attorney fees for suing  for one of these deposits made such claims far more expensive than the actual deposit itself.

For this reason, Massachusetts passed the security deposit law, which, I imagine, is one of the most pro-tenant laws in the entire country.  This law imposes numerous regulations on the acceptance, holding, and return of a security deposit, and provides stiff penalties for a landlord’s failure to comply with this law, namely, treble damages of the deposit. This is 0ne reason, among many, why a landlord should consider not accepting a security deposit in the first place.

Violation of the Security Deposit Law 

It is a common misconception that every violation of the security deposit law allows a tenant to recover treble damages, attorney fees, and costs against a landlord.  Rather, the Supreme Judicial Court has clarified that some violations of the law simply require the immediate return of the deposit, while others mandate treble damages.  Generally, a landlord’s failure to return a security deposit within thirty days after the end of the tenancy (or otherwise account for its use towards any damage in the apartment) will impose the treble damage penalty.

Conclusion

If you find yourself having difficulty with a security deposit, contact me for a consultation.  I have helped many Massachusetts tenants obtain the return of their deposits and take full advantage of the protections of this law.

Guest Blog Post: Appeals Court Divides on Adequacy of Notice to Town Clerk for Zoning Appeal

The Massachusetts Property Law Blog is proud to have Attorney Joseph N. Schneiderman guest blog on the Massachusetts Appeals Court’s recent Hickey v. ZBA of Dennis decision, an appeal involving proper notice for a zoning appeal.  Attorney  Schneiderman is an appellate attorney licensed in Massachusetts and Connecticut and may be contacted at connlawjoe@gmail.com.

On June 15, in Hickey v. ZBA of Dennis,  93 Mass. App. Ct. 360, the Appeals Court, by a 2-1 vote, held that two zoning appellants had provided adequate notice to the Dennis Town Clerk and reversed allowance of summary judgment in favor of the Board. Specifically, although the appellants did not address the appeal to the Town Clerk, an assistant clerk discussed the notice with the town planner within the appeal period.

The Hickeys own land along Cape Cod Bay and proposed to build a staircase.  Ultimately, the Board denied them zoning relief and filed their decision with the Town Clerk on April 14, 2016. On April 20, 2016,  by counsel, the Hickeys timely appealed to the Land Court under G.L. c. 40A, §17. Counsel sent copies of the appeal by certified mail to the individual members of the Board at their home and one to the chairman at Dennis Town Hall. The town planner received the appeal on April 25 and discussed it with an assistant town clerk some time before May 4. However, the Hickeys did not notify the Town Clerk until May 5 by e-mail-after learning that she had not received the appeal.

The Board moved to dismiss, asserting that the Hickeys did timely not serve the Town Clerk pursuant to G.L. c. 40A, §17.  The Land Court allowed limited discovery on the issue of timeliness. The Land Court later converted the Board’s motion into one for summary judgment and concluded that there was not timely notice.

The Appeals Court reversed and reinstated the zoning appeal. Writing for the Court, Chief Justice Green recalled the failure to timely serve a zoning appeal on a Town Clerk was a jurisdictional defect that courts strictly policed.  Indeed, notice was important not only to the town but anyone who may be aggrieved.

However, so long as the Clerk had actual knowledge of the appeal, notice sufficed.  The Court recalled that filing a copy of the complaint but no notice of appeal (and vice-versa) suffice, as did serving the clerk at home after hours on the last day of the appeal period. Finally, serving the appeal at town hall with papers addressed to the town clerk that the clerk did not receive (and learned of from a town planner) sufficed.  Citing Konover v. Planning Board of Auburn, 32 Mass. App. Ct. 319 (1992).  The Court held that Konover echoed the present case where the Dennis town planner received the appeal and discussed it with an assistant town clerk before the end of the 20 day period. This sufficed to show actual knowledge.

Justice Singh dissented, asserting that the plaintiffs bore the burden of proving timeliness and noted deposed the town clerk to prove notice. Justice Singh argued that the cases the majority relied on dealt with instances where the appellants actually  attempted to serve the clerk-but for whatever reason, service was imperfect. By permitting actual knowledge to suffice, the majority would subject town officials to litigation-and permit the exception to swallow the rule. Since the appellants did not attempt to serve the town clerk in a timely fashion, Justice Singh would have dismissed their appeal.

This case poses an interesting doctrinal duel. On the one hand, notice is a fundamental pre-requisite to a zoning appeal. However, notice does not occur in a vacuum and the important end is that a town (and anyone aggrieved) be aware that a zoning appeal is occurring. An honest mistake about addressing papers or reaching the wrong room of town hall rather than the town clerk should not nullify an entire zoning appeal-nor should an evasive clerk.

However, Justice Singh raises a valid point that the Clerk’s knowledge should become an issue if there was unsuccessful or imperfect attempt to serve them. Unlike in Konover, where the papers were addressed to the Clerk but left at the wrong office, the record reflects that the appellants definitely did not address the appeal to the Clerk or otherwise notify the Clerk until after Day 20.

And indeed, the better practice, as the Appeals Court suggested in Konover,  is to address and confirm service by certified mail and return receipt personally before the expiration of the date. Indeed, after hours efforts at service can backfire.  Given this doctrinal duel and its public consequences,  this case may well be a candidate for further appellate review by the Supreme Judicial Court.  Indeed, a group involved with other litigation with the Hickeys has moved to intervene in the Appeals Court to seek further appellate review.

Joe has an appellate practice in Massachusetts and Connecticut and has previously taken on the Boston Zoning Board in the Appeals Court.

Firm News: Sherwin Law Firm Moves to Charlestown

Starting July 1st, my firm will be moving to Charlestown, Massachusetts (only several blocks away from my current office).  My new office has plenty of parking and facilities that will help me continue to best serve my clients, and hopefully open up new opportunities for me in years to come.

It was a blast to have worked in Somerville for the past five years.  Luckily, I won’t be far away, and look forward to staying active in this wonderful city.

Here’s hoping your summer is off to a great start!

 

Service of an Eviction Case

reversing-a-foreclosure

Service of an eviction case is a requirement for starting any eviction against a tenant.  The law requires that the tenants have proper notice that such a case has been brought against them.  A landlord’s failure to comply with these service requirements can be fatal to one’s case.

Service of an Eviction Case

An eviction generally requires serving two types of documents to a tenant: a notice to quit, informing the tenant that their tenancy is being terminated, and a summons,  informing the tenant that an eviction case is occurring in court against them.

Service of an eviction is needed to put a tenant on fair notice that the landlord is attempting to obtain possession of the rental unit.  Simply calling or emailing the tenant is not sufficient; the law requires (like any other lawsuit) that the tenant have formal notice of the eviction.

Contrary to popular belief, a landlord does not need to serve a notice to quit by constable or sheriff.  However, the landlord bears the burden of proving that the tenant received this notice.  If the landlord is unable to do so, the court will dismiss the eviction.  For this reason, most landlords (smartly) serve notices to quit through a constable or sheriff.  Under the law, such service creates a presumption that the tenant received the notice.  Absent a compelling argument to the contrary, proof of service by a constable or sheriff establishes that the tenant received the notice to quit.

A summons, which is a formal court notice stating that an eviction case will begin, must be served by a sheriff.  A constable, who is a private officer, is also permitted to serve most eviction cases.  This formal service is a mandatory requirement, unless the tenant elects to waiver service.  Failure to properly serve an eviction case will likely result in its immediate dismissal by the court.

Conclusion

Service of an eviction is a critical part of a Massachusetts landlord-tenant case.  Failure to comply with these requirements can add unnecessary time and expense onto one of these cases, and make the process far more difficult than it needs to be.  For this reason, consider hiring an experienced landlord-tenant attorney to assist with one of these matters.

 

Firm News: Client Review from a Successful Foreclosure Defense Case

This week, I received a client review from a homeowner I represented in a successful foreclosure defense case.  The client wished to stay anonymous, but gave me permission to use this review here:

Adam Sherwin is exceptional! Patient, kind, thorough and competent. We had contacted our lender on several occasions to inform them of unfortunate and serious disabling health conditions that had caused my husband and me to fall behind on mortgage payments. We were assured that our modification was in process. We made consistent monthly payments as agreed. However, for some reason, we were informed that the agreed upon modification was not valid. We had carefully kept all notices from the mortgage lender. We worked closely with Adam for more than a year on every step of re-negotiation and reinstatement of our original agreement. Adam consistently informed us of progress, he listened carefully to our thoughts, concerns, and perspective. He was timely, persistent, clear, careful and detailed in every aspect required. We are deeply grateful. The modification was approved. We are in our home and we are thankful.

As discussed in this review, my client had difficulty obtaining a loan modification with her lender, which she qualified for and did everything asked of her to receive this assistance.  Unfortunately, as with many loan modification applications, the lender made a mess of this process by denying her application for inaccurate reasons.

Through the filing of a lawsuit and negotiation with the lender, this turned out to be a successful foreclosure case: the client has kept her home through an affordable loan modification!

These are the kinds of cases I am especially proud of, where I’ve been able to help clients through difficult legal matters, and get them the help they need.

If you find yourself in need of help with a foreclosure defense case or other legal matter that I handle, contact me for a consultation.

Who Can File An Eviction in Massachusetts?

foreclosure appeal

The Supreme Judicial Court issued an important decision this week for landlord-tenant law: who can file an eviction in Massachusetts?  The decision, Rental Property Management Services v. Hatcher, is included below.

Overview

The facts of this case are fairly straightforward.  A property manager (a person hired to maintain rental property) filed an eviction (“summary process”) case against a tenant in Housing Court.  This property manager brought this case in the name of “Property Management Services” (his business), which was not the owner of the subject property, nor the lessor.  This property manager personally signed the eviction summons.

Who Can File An Eviction in Massachusetts?

This case presented two main questions for the Supreme Judicial Court.  First, could this property management service bring this eviction case against the tenant?  Second, could the property manager (who was not a lawyer) sign the eviction summons?

The Court held that only an owner or lessor of rental property is entitled to bring an eviction case against a tenant.  Here, while the property management company may have been responsible for maintaining the property, it was not the right party to bring this eviction.

It is not uncommon in Massachusetts for property management companies to directly enter into leases with tenants.  Here, if this property management company had a lease or written agreement with the tenant, I suspect the outcome may have been different.  However, where this company was neither the owner nor lessor, it was not entitled to proceed with this eviction.

The Court then addressed whether the property manager was permitted to sign the eviction paperwork.  Because this manager was not an attorney, the Court held that he was not permitted to do so, and had engaged in the unauthorized practice of law.

Lessons for Massachusetts Landlords

This case has an important lesson for Massachusetts landlords: proceed with caution when filing an eviction in Massachusetts.  While I highly recommend that landlords use property management services if they need assistance in maintaining their rental units, these services cannot substitute as lawyers.

The Court declined to find that doing so was an unfair and deceptive business practice against the tenant (a claim that could allow for monetary damages and attorney fees).  Hatcher is clear, however, that a Court can punish a party who knowingly disobeys these eviction requirements.

Conclusion

If you are confused about who can file an eviction in Massachusetts, take away this critical advice: hire an experienced landlord-tenant attorney for your eviction.  Aside from avoiding some of the problems stated above, an experienced attorney will help you navigate this tricky area of law and reach an effective resolution to your dispute.  If you are in need of such assistance, contact me for a consultation.

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Appealing a Lis Pendens in Massachusetts

The Massachusetts Appeals Court issued a decision this week on appealing a lis pendens.  This decision, DeLucia v. Kfoury (included below), discusses the process for doing so and the consequences of not filing a timely notice of appeal.

What is a Lis Pendens?

A lis pendens is a notice of a pending lawsuit affecting “title to real property or the use and occupation thereof or the buildings thereon.” A lis pendens may be obtained by a party involved in such a lawsuit, by showing that the lawsuit affects real property and that the party has verified the lawsuit.

Compared to a preliminary injunction, where a party needs to show a likelihood of success on the merits of a claim, a lis pendens is usually easier to obtain.  Once approved by the court, a party can record the lis pendens in the land records, which puts the public on notice about the pending lawsuit.  The practical implication of a lis pendens is that it keeps a sale of property from occurring: few buyers will want to purchase property knowing that a lawsuit affecting its title remains ongoing.

Appealing a Lis Pendens 

Under Massachusetts’s lis pendens law, a party has a right to appeal a lis pendens to a single justice of the Appeals Court.  The purpose of this is to allow a party to have an immediate right of appeal.  As a lis pendens can have serious implications for the sale of property, this right of appeal is intended to provide a “check” on this type of order.

An appeal to a single justice of the Appeals Court, commonly known as an “interlocutory appeal” (done while the trial court case remains ongoing), comes with an important requirement: such an appeal must be filed within thirty days of the trial court decision.  No exceptions exist for this deadline.

In Delucia, the claimant attempted to appeal the lis pendens decision after this deadline.  The Appeals Court, in keeping with established law on this subject, held that the appeal was “dead on arrival” due to being untimely filed.  This is keeping with other, similar decisions on appeals with strict deadlines: if you do not timely appeal, the Appeals Court will dismiss the appeal.

Practical Considerations On Appealing a Lis Pendens 

As the Appeals Court noted in Delucia, the dismissal of the lis pendens appeal was not too harsh of an outcome for the party seeking this appeal.  Rather than attempting to appeal the lis pendens, a party can simply defend itself in the trial court case, and seek to have the case dismissed if it considers the matter to be meritless.  Here, the dismissal of the appeal simply prevented the party from having an immediate appeal of the lis pendens; it does not mean that the lis pendens stays recorded in the land records indefinitely.

For this reason, one should carefully consider the decision to appeal a lis pendens.  The time and money in doing so might be better spent on the underlining trial court case which, if dismissed, would consequently end the lis pendens.  Nonetheless, Delucia is an important reminder of the importance of timely filing an appeal.

If you find yourself dealing with a lis pendens, contact me for a consultation.  An experienced real estate litigation attorney can help you determine the best way to address this legal matter.

DeLucia v. Kfoury

Understanding a Real Estate Purchase Agreement

A real estate purchase agreement is an essential part of buying or selling property.  Understanding the importance of these agreements is essential for avoiding potential problems later on in the sale process.

Selling Property Generally Requires A Written Agreement 

Massachusetts, like most states, has a statue of frauds, a law requiring that certain types of agreements be in writing to be enforceable, including the sale of property.  With few, limited exceptions, an oral agreement will not suffice when real estate is involved.

Importantly, the type of writing allowed for such agreements is broader than a traditional written contract.  A recent Land Court decision found that a binding agreement for the sale of property was created through text messages, and similar decisions have held that emails are also sufficient for satisfying the statute of frauds.

Common Types of Real Estate Purchase Agreements

For the sale of residential property, there are two common types of real estate purchase agreements: an offer to purchase real estate and a purchase and sale agreement.

An offer to purchase real estate is just that: a written offer for the sale of property.  These agreements are generally one or two pages and contain the “bare bones” terms of the sale.

When the parties are ready to move forward with the sale, a purchase and sale agreement is generally negotiated and signed.  This agreement contains more information on the sale of the property, which generally comes after the parties have had more time to seek financing and discuss the specific details of the sale.

The most important thing to remember about real estate purchase agreements is that such agreements are generally binding contracts.  If signed, a party is generally committed to selling or buying the property.  There can be defenses to such agreements, but a seller or buyer should exercise extreme care in signing one of these agreements.

Drafting Real Estate Purchase Agreements

If you are involved in buying or selling real estate, hire a lawyer to assist you in drafting a real estate purchase agreement.  An experienced attorney will know what to include in these agreements and how to include contingency clauses that excuse a party from performance if they are not able to buy or sell the property.

Enforcing or Defending a Real Estate Purchase Agreement 

If you need to enforce or defend a real estate purchase agreement, you need an experienced real estate litigation attorney on your side.  An attorney will help you in determining the right cause of action for your case and know the ways that the legal system can protect your interest in the property while the legal case is ongoing.

If you need help with one of these cases, contact me for a consultation.