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.

Do I Need A Foreclosure Attorney?

Homeowners facing foreclosure in Massachusetts often ask themselves: do I need a foreclosure attorney?  As an attorney who has helped hundreds of Massachusetts homeowners facing foreclosure, let me discuss some of the ways that a lawyer can assist with the foreclosure process.

Applying for a Loan Modification or Short Sale

A lawyer is not always needed for a loan modification or short sale application.  If a homeowner is comfortable completing the required paperwork and staying on top of the process, a homeowner can do this on their own.

However, many homeowners find these applications to be overwhelming, which often require extensive paperwork and communication with the loan servicer.  For many homeowners, a lawyer (or reputable loan modification professional) can be a huge help with this process.

Stopping a Foreclosure Sale

If a homeowner is facing a scheduled foreclosure sale, a foreclosure attorney is generally needed.  While a homeowner can attempt to represent themselves in court, the process for doing so is especially overwhelming and complicated for a non-lawyer.  I’ve rarely seen a self-represented litigant succeed in fighting a foreclosure.  Massachusetts foreclosure law is complicated, and a foreclosure attorney is generally necessary for developing an effective foreclosure defense strategy.

Facing a Post-Foreclosure Eviction 

After a foreclosure sale in Massachusetts, the bank (or the third-party buyer of the foreclosed property) is required to evict the occupants of the home.  Per Massachusetts law, a homeowner is allowed to challenge the foreclosure’s legality as an eviction defense.  If a homeowner wishes to pursue such a defense, having a foreclosure attorney is critical.  An experienced foreclosure attorney will know what defenses to raise, the information that is needed to pursue such a defense, and how best to present such a case before a judge or jury.

As I have written before,  even if the homeowner does not want to stay in the home, a foreclosure attorney can still be helpful.  A foreclosure attorney can help the homeowner obtain the time they need to leave the property and avoid any potential liability from the foreclosure sale.

Conclusion 

If you are facing foreclosure in Massachusetts, it is worthwhile to speak with an experienced foreclosure attorney.  If you are in need of such help, contact me for a consultation.

Advice for Choosing a Lawyer: Don’t Tell Me Just What I Want to Hear

Choosing a lawyer can be a difficult process.  Legal matters often require you to put trust into a person who you may only know through a website or referral.  For anyone choosing a lawyer, there are many things one should keep in mind when making this choice.  Here, I want to focus on what I consider to be an essential consideration in choosing a lawyer: finding someone who won’t tell you only what you want to hear.  This applies to all areas of law, but especially the practice areas that I cover.

Good Legal Advice Is Not Always the News You Want to Hear

When I meet with potential clients, it is not uncommon to have people ask me for a guarantee that they will win their case . . . regardless of the circumstances.  Sometimes, I suspect that the potential client simply wants an attorney to tell them what they want to hear.  Admittedly, this can be tempting, when the potential client is sympathetic and trying to do the right thing.

Of course, if the potential client has a strong case, I’m happy to tell them so and get to work.  But, if the case is not strong, it is important that the potential client knows this before making the decision to go forward.

In my practice, I follow a simple rule: good legal advice needs to be accurate and honest.  Nobody benefits from following a legal strategy that is doomed from the start and filled with unrealistic expectations.  When choosing a lawyer, look for someone who will tell you what you need to hear, and not only what you want to hear.

Be Wary of Taking Legal Advice From Non-Reputable Sources

 If it isn’t obvious, I am a big fan of using blogs and online resources for informational purposes.  I hear, on a regular basis, from many clients and lawyers who have benefited from my resources, which I’m proud of.  This information,  however, comes from years of experience and proven results.

The same isn’t true for other content floating around on the Internet.  Before believing something is true, take the time to learn where the content comes from.

Conclusion

Choosing a lawyer is an endeavor that should not be taken lightly.  Selecting a lawyer who simply tells you what you want to hear can have disastrous consequences down the road.  Picking an attorney with a reputable background and real understanding of the law is the best way for getting the legal help you need.

Landlord Not Returning a Security Deposit in Massachusetts

reversing-a-foreclosure

A landlord not returning a security deposit is one of the most common complaints that comes up between tenants and landlords in Massachusetts.  Massachusetts law heavily regulates the handling of security deposits, and this law can be used when a landlord improperly refuses to return a security deposit.

Massachusetts’s Security Deposit Law

A quick skim of Massachusetts’s security deposit law shows the complexity of this law.  G.L. 186 Section 15B regulates every aspect of a security deposit, from the acceptance of the deposit up to its return to the tenant.  The extensive requirements of this law is one reason why I advise Massachusetts landlords to never accept a security deposit.

Penalties for not complying with this law can be steep.  Some violations entitle the tenant to the immediate return of their deposit, and others permit the tenant to obtain triple damages, costs, and attorney fees against a landlord who fails to comply with this law.

What To Do About a Landlord Not Returning a Security Deposit 

If a landlord fails to return your security deposit, contact an experienced landlord/tenant attorney for assistance.  While the security deposit law offers numerous protections for tenants, an experienced attorney is often necessary for determining whether a violation occurred, how to pursue such a claim against the landlord, and the likely damages that can be obtained from such a case.

Landlords can equally benefit from having the assistance of an experienced attorney when handling a security deposit claim.  An attorney can help determine if a violation occurred and whether any possible defenses exists to such a claim.  An attorney can be helpful  in negotiating a settlement and minimizing damages.

A landlord should not wait until a security deposit claim has arisen to seek the assistance of a landlord/tenant attorney.  If you think you may be in violation of this law, or want help in making sure you comply with the law’s detailed requirements, speak to a landlord/tenant attorney right away.

Conclusion 

If you find yourself involved with a security deposit matter, contact me for a consultation.  Having an experienced attorney on your side can make all of the difference in getting you the help you need.

Responding to a 93A Demand Letter

Massachusetts has an important law that is of critical importance to Massachusetts landlords: the Consumer Protection Law.  Commonly known as “Chapter 93A” (where this law is located in the Massachusetts statutes), the Consumer Protection Law prohibits “unfair and deceptive business practices.”  This, as one can tell, is broad language that can cover an infinite number of scenarios.  Courts have construed the reach of Chapter 93A broadly, to include many potential claims that are not otherwise covered by other existing laws.

For a consumer to bring a Consumer Protection Law claim, the claimant must generally send the business a demand letter prior to filing a lawsuit.  For a landlord, responding to a 93A demand letter is incredibly important.  The failure in responding to a 93A demand letter can come with steep penalties if the matter ends up in court.

I always advise a landlord (and anyone else who receives such a letter) to hire an attorney when responding to a 93A demand letter.  Even if the demand appears to be without merit, it is worth having a legal professional ensure that you are handling the complaint properly.  Here are a few points that should be considered when responding to a 93A demand letter.

Is the Landlord Covered Under the Consumer Protection Law?

First, is the landlord covered under the Consumer Protection Law?  The general rule is that a person or business who rents residential space for a fee is engaged in business, and would be subject to Chapter 93A.  However, there is an exception if the landlord lives in the subject property, and is merely renting a unit in the building.  Courts have found that in such cases, the landlord is not a business.  An experienced landlord/tenant attorney can help determine this for you, and whether or not you might be subject to Chapter 93A.

Does the Demand Letter Satisfy the Requirements of a 93A Demand Letter? 

The second inquiry when responding to a 93A demand letter is whether the demand letter satisfies the Consumer Protection Law requirements.  Contrary to popular belief, simply calling a demand letter a Chapter 93A demand does not make it compliant with Consumer Protection Law.  Rather, the law has specific requirements on what needs to go into the letter.  The failure to send a proper demand letter can have severe consequences: in some cases, courts have thrown out a Consumer Protection Law lawsuit for not complying with the demand letter requirement.

Responding to a 93A Demand Letter

Regardless of the above, a landlord should always respond to a 93A demand letter.  Even if the claim is meritless, or the landlord is not covered by Chapter 93A, the failure to respond can be disastrous if the matter ends up in court.

In responding to a 93A demand letter, an attorney can help you determine whether to make a reasonable settlement offer.  Because Chapter 93A generally requires a demand letter before starting a lawsuit, the law (and judges who hear these cases) strongly favor resolution of these matters without litigation.  The Consumer Protection Law gives landlords strong incentives for settling these cases out-of-court, and strong penalties if the court believes that the landlord should have resolved the matter without the court’s involvement.

Conclusion 

Responding to a 93A demand letter is important.  If you find yourself in receipt of one of these demand letters, contact an experience attorney for assistance.

 

Legal Tips for Buying Your First Home

Buying your first home can  be both an exciting and stressful experience.  While home ownership is, to many, the height of financial success, the process of purchasing a home has many traps for the unwary.

As a lawyer involved in real estate litigation, my cases generally come to me when things go wrong.  Here, I want to share some legal tips for buying your first home that can help avoid these pitfalls and make the experience as easy as possible.

Review Your Finances With a Financial Expert Prior to Purchasing a Home

A large portion of my practice consists of foreclosure defense.  While I have helped many, many homeowners save their homes from foreclosure, I always maintain that the best way to beat foreclosure is to avoid it in the first place.  With this in mind, a potential home buyer should always speak with a financial expert prior to making an offer on a home.  An expert can help you identify a home that meets your budget and offer advice for covering the many expenses that come with home ownership.  Buying your first home is an enormous financial investment, one that a financial expert can be a great help with.

Get Everything in Writing

Enforcing any oral promise is tough to do, for the simple reason that it is tough to prove one’s word against someone else’s.  In real estate, oral promises are even more problematic due to the statute of frauds, a legal requirement that most contracts for real estate be in writing.  Without such a writing, it can be difficult (and many times, impossible) to enforce an oral promise.  Make sure that all matters concerning the purchase of your  first home are in writing.

Give Careful Consideration to the Demands of Becoming a Landlord

When looking to purchase a home, many potential buyers are tempted to purchase homes that include a rental unit, to offset the expenses of home ownership.  Rental property can be an excellent investment, but you need to give careful consideration to the demands of becoming a landlord prior to purchasing such property.

Massachusetts has many, many requirements for landlords, and the penalties for not following these laws can be disastrous.  Moreover, as a landlord, you’ll be responsible for maintaining the property and addressing the problems that will come up over time.  Be prepared for these responsibilities before making this commitment.

Be Wary of Buying a Home With a Non-Married Partner

For a married couple, the process of addressing “who gets the home” during a divorce is difficult enough on its own.  For home owners who are not married, the process can be even more complicated.  If the non-married home owners split up, and are unable to agree on what to do with the home, a partition case may become necessary: a legal proceeding where the court determines who gets what, which can be long and expensive.

With this in mind, be careful about making the commitment of purchasing a home with someone who is not your “permanent” significant other.  If the relationship goes south, the process of dealing with the home can be a real hassle to resolve.

Hire a Lawyer for the Real Estate Closing

When closing on a home, hire a lawyer.  Buying your first home can be a complicated process, and having an experienced attorney on your side can make the process much easier.  It may be tempting to try and do this on your own, but resist this temptation!  A real estate attorney will review the necessary paperwork for your purchase and ensure that nothing is missing or incorrect.  The small fee for this legal service will go a long way in avoiding problems down the road.

Conclusion

Here’s hoping the purchase of your first home is a stress free and rewarding experience.  In the event that a legal problem does arise, contact me for a consultation.  The benefits of having an experienced attorney on your side can make all the difference in getting you the help you need.

Sherwin Law Firm Files Brief for Lost Promissory Note Appeal

Last week, I filed a brief for a pending appeal in the First Circuit Court of Appeals concerning a lost promissory note.  This appeal concerns a critical issue of Massachusetts foreclosure law: the need for a lender to have a borrower’s promissory note to foreclose.

Overview of a Promissory Note 

A promissory note is a legal term for a written promise to pay a definite sum of money.  Often referred to as simply a “note”, this is a legal contract that a party signs, promising to repay a sum of money.  In the context of real estate, a promissory note is signed by a lender and a home buyer, where the home buyer agrees to repay the money borrowed to purchase the home.  While it is common for homeowner to refer to “paying my mortgage” when making payments on a home loan, a homeowner is actually making payments towards the promissory note (a mortgage, in contrast, is a security agreement, allowing a lender to foreclose if the debt is not repaid).

Most promissory notes for home loans are negotiable instruments, a legal document guaranteeing the payment of a specific amount of money at a set time.  The critical importance of this is negotiability: the right of a mortgage lender to sell the promissory note.  Mortgage lenders generally want to sell a mortgage loan as quickly as possible, for the purpose of maximizing their return on investment.

“Hold the Note” Requirement for Massachusetts Foreclosure Law 

Massachusetts law requires a foreclosing entity to “hold the note” at the time of foreclosure.  This comes from Eaton v. Federal National Mortgage Association, a landmark Massachusetts case that made this a requirement for the foreclosure process.  A foreclosing entity does not need to have physical possession of the note; it is permissible for an agent (such as the loan servicer) to hold it on the note owner’s behalf.

A home owner who wishes to see their promissory note can generally request it from their lender through a qualified written request.  Moreover, Massachusetts law requires a loan servicer to certify in writing to the borrower that they own the loan.  A foreclosing entity must also record an affidavit in the land records certifying that they own the note.  To the best of my knowledge, there is no requirement that a  foreclosing entity must show the actual, physical note to the borrower prior to foreclosure.

What Happens When a Promissory Note is Lost?

If a promissory note is lost, the lender has the option of doing a lost note affidavit.  The law for this, G.L. c. 106, § 3-309, only allows such an affidavit if the lender (among other things) previously had possession of the note and cannot obtain the note through a diligent search.

However, even with the the lost note affidavit law, a missing promissory note is a headache for a lender attempting to foreclose.  For example, a 2017 Land Court decision held that a lender could not foreclose on the basis of a lost note affidavit due to problems arising from the change of the servicer for the loan.

In my appeal, I challenged whether the foreclosing entity made an adequate showing for each requirement of the lost note affidavit law.  This is an area of law that continues to evolve and be relevant to matters of foreclosure defense.  Stay tuned . . .

Conclusion 

If you need help avoiding foreclosure, contact me for a consultation.  The benefits of having an experienced attorney on your side can make all the difference in getting you the outcome you need.