Payment Plans With Tenants: What to Know


With the ongoing coronavirus pandemic, many landlords are having an especially difficult time collecting rent from tenants. As the courts will be closed for the near future, landlords are best off trying to work out disputes with tenants on their own. Payment plans with tenants are a great option for attempting to resolve non-payment of rent.

Put Everything in Writing

Oral agreements are always problematic, particularly with any matter concerning real estate. With this in mind, repayment plans with tenants should always be in writing, and include the relevant details about the agreement. In particular, these agreements should state the total amount of owed rent, and when payments are to be made. Aim to be as specific as possible.

Reference The Original Tenancy Agreement And Your Intention to Preserve It

Payment plans with tenants should similarly reference the original tenancy agreement, and your intention to preserve it. Landlords need to be careful about entering into an agreement that could be considered a new tenancy agreement. Be clear that the payment plan is just that: an agreement for the tenant to repay the owed rent and preserve the existing tenancy, and not a new lease or tenancy agreement.

Encourage Tenants To Seek Rental Assistance

Given the enormous economic impacts of coronavirus, there are new resources available for tenants who cannot afford rent. Massachusetts’s Residential Assistance for Families in Transition (RAFT) program, for example, provides short-term assistance for tenants facing eviction. Massachusetts has recently increased funding for RAFT and similar tenant protection programs, and I won’t be surprised if additional aid is approved later on.

Landlords should absolutely encourage tenants to apply for such programs during this crisis. Such efforts can help landlords get their rent and avoid an eviction case after the pandemic passes.

Landlords, however, need to carefully review any paperwork for RAFT and other tenant protection programs. Some of these programs impose obligations on landlords, and landlords need to be certain that they can and will comply with any such requirements.

Conclusion

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

Evictions During Coronavirus

Evictions during coronavirus is a topic many Massachusetts landlords have been asking about in recent weeks. As the pandemic continues, this is a matter that will continue to be of importance to both landlords and tenants.

This state of affairs, of course, remains uncertain, but here are my thoughts about addressing a present tenant dispute.

No Eviction Hearings Until the End of April, At the Earliest

Housing Court is not scheduling eviction cases until the end of April (which may get pushed back). In essence, this means that there will be no evictions during coronavirus.

A landlord is permitted to request a court hearing before then, if they have good cause. “Good cause”, however, is likely to be a high burden to meet for most Massachusetts landlords. With the exception of a real emergency, I doubt any judge will permit an eviction to go forward during coronavirus.

Landlords who own homes with a mortgage backed by Housing and Urban Development (“HUD”), Fannie Mae, and Freddie Mac need to proceed with extra caution, as the federal government has temporarily suspended evictions for these types of properties.

Proceed with Caution for Notices to Quit

I’m not aware of any formal restrictions on serving a notice to quit while the pandemic is ongoing. While eviction cases will not be heard anytime soon, a notice to quit (which is a required precursor to most Massachusetts evictions) can still be served.

However, simply because a landlord can serve a notice to quit doesn’t mean it is the best idea right now. Given the ongoing crisis, it may be best to wait a while longer before taking such action.

Attempt to Work Out a Resolution On Your Own

What’s the best thing that landlords can do now, with no evictions during coronavirus ? Try to work out disputes with tenants on their own. If a tenant is behind on rent, try and see if you can work out a repayment plan. Such repayment plans should always be in writing and signed by both parties.

If a landlord is holding a security deposit from a tenant, a landlord may be tempted to use this money towards any owed rent. Landlords, however, need to use extreme caution when dealing with a security deposit, as even a minor violation of this law can result in steep penalties.

Conclusion

The coronavirus pandemic will end eventually, and landlords will be permitted to resume evictions again. Until then, Massachusetts landlords need to proceed with caution in any disputes involving tenants before then.

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

Emotional Support Animals: What Landlords Need to Know

Emotional Support Animals: What Landlords Need to Know

This Friday, I’ll be doing a webinar on emotional support animals for MassLandlords. This webinar will cover what landlords need to know about emotional support animals, including how to address request from tenants for these animals and ways to avoid liability.

Emotional support animals (“ESAs”) are increasingly becoming common; one report states that registered emotional support animals have increased 1,000% between 2002 and 2012.

This webinar will discuss:

  • The difference between service animals and emotional support animals
  • Common circumstances when issues with ESAs may arise
  • What a landlord should be do when considering a tenant’s request for such an animal
  • What landlords can and can’t do with ESAs
  • Best practices for avoiding liability

The dog above is not a ESA; he’s my dog, Barley. However, the harness we use to walk him sometimes gets him confused as a support animal. This is a great example of why landlords need to be diligent about properly considering ESA requests from tenants.

In my practice as a landlord-tenant attorney, I’m increasingly seeing more cases involving ESAs. The U.S. Department of Housing and Urban Development recently issued a guidance on this topic and noted the rise of discrimination claims on these matters:

As of the date of the issuance of this guidance, [Federal Housing Administration] complaints concerning denial of reasonable accommodations and disability access comprise almost 60% of all [Federal Housing Administration] complaints and those involving requests for reasonable accommodations for assistance animals are significantly increasing. In fact, such complaints are one of the most common types of fair housing complaints that [Housing and Urban Development] receives. In addition, most [Housing and Urban Development] charges of discrimination against a housing provider following a full investigation involve the denial of a reasonable accommodation to a person who has a physical or mental disability that the housing provider cannot readily observe.

For these reasons, this is an important topic for landlord-tenant law, and I hope you can join the webinar.

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

Help for Homeowners During Coronavirus

According to Google search result trends, searches for foreclosure increased 47% in the past week. This is a staggering number, and proof that American homeowners are deeply concerned about the impact of coronavirus.

I’ve practiced foreclosure defense for the past seven years, and I’ve never seen a time where the threat of foreclosure has ever been so dire. Here, I want to discuss help for homeowners during coronavirus.

Speak to Your Lender Directly If You Are Behind on Your Mortgage Payments

The first step for anyone facing foreclosure is to speak with their mortgage lender, as soon as possible. Don’t wait until a foreclosure sale is scheduled; start as soon as you realize you may need assistance with your mortgage payments.

In Massachusetts (as well as most other states), there are few, if any, requirements for a mortgage lender to offer a homeowner foreclosure assistance, such as a loan modification. Fortunately, most lenders will consider such relief: if often makes more sense to get a homeowner into an affordable payment plan than foreclose.

Many lenders, thankfully, are offering foreclosure assistance in lite of the coronavirus pandemic. I wouldn’t be surprised if the federal government offers a loan modification program like the Home Affordable Modification Program offered years ago, during the financial meltdown.

Keep Good Records, Keep Good Records, Keep Good Records

What’s the most important advice for homeowners during the coronavirus? Keep good records. Lenders are going to be swamped with requests from homeowners facing foreclosure. Paperwork will get lost, and mistakes in reviewing these requests will be made.

Keeping good records is critical if your mortgage lender denies you foreclosure assistance, and legal action becomes necessary.

Understand the Foreclosure Process

While many homeowners, understandably, are concerned about the threat of foreclosure, it’s important to understand the foreclosure process. Massachusetts (like most states) has a lengthy process for foreclosure, which generally requires a right to cure period for the homeowner. Foreclosure takes months, and sometimes years, to occur.

While homeowners need to be proactive in addressing foreclosure, foreclosure doesn’t happen overnight, and homeowners do not need to be worried about being thrown out of their homes unexpectedly. This is especially true now, as many lenders are putting moratoriums on the foreclosure process.

Conclusion

Please stay safe during the coronavirus. If you need assistance with a foreclosure matter, contact me. I’m not doing in-person consultations, but I am available by phone.

Landlords and Coronavirus

Coronavirus has become a worldwide pandemic, and its effects are being felt here in Massachusetts. If you are like me, your work and personal life have been heavily interrupted by this crisis, which unfortunately, will likely stay this way for a while longer.

Here, I want to share some advice for Massachusetts landlords dealing with coronavirus. Since this outbreak is new, and we are dealing with uncharted territory, this post is subject to change.

Evictions During the Coronavirus Epidemic

Last weekend, Housing Court announced that all evictions are to be postponed until April 21, 2020 or later. While the court is allowing cases to be heard earlier upon a showing of good cause, my bet is that most landlords will unlikely be able to meet this high bar.

This means, in effect, that no evictions will go forward for the next month. For small landlords with non-paying tenants, this will especially be a burden.

This also means that Housing Court will be swamped with cases in Spring/Summer 2020. On a normal week, each Housing Court gets dozens (if not hundreds) of new eviction cases. This one-month postponement will result in a huge backlog of eviction cases for months to come.

Care and Maintenance of Residential Apartments

It is a good idea for Massachusetts landlords to remind their tenants of the importance of preventing coronavirus, namely, through cleaning and disinfection. While it is a safe bet that nearly everyone knows about this pandemic, Massachusetts landlords can avoid potential liability by being on record about notifying their tenants with these precautions.

Housing Discrimination Laws

One potential area of liability that I see arising during coronavirus is housing discrimination. State law (and federal) strictly prohibit housing discrimination on the basis of race and national origin. The ongoing epidemic is perpetrating some horrendous racial stereotypes.

Statements like these are not only untrue, but also potential grounds for discrimination. Even an innocent question such as, “Where are you from?”, can subject a landlord to liability. For these reasons, now more than ever, landlords need to be careful about complying with housing discrimination laws when dealing with existing and potential tenants.

Conclusion

I want to express my deep gratitude for the many health care and public service employees who are working to help combat this epidemic. For information on the latest about coronavirus, visit Massachusetts’s official website.

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

Trusts in Massachusetts Courts: Do You Need a Lawyer?

The Massachusetts Appeals Court last month issued an important decision about trusts in Massachusetts courts, on whether a lawyer is needed to represent such entities. The full decision, Braxton v. City of Boston, is included below.

Although I am writing this as a blog post about landlord-tenant law, this issue regarding trusts in Massachusetts courts is equally relevant to other areas of law, especially real estate matters.

What is a Trust?

A trust is a property interest held by one person for the benefit of others. Trusts have become a common means of passing property to others without having to do a formal probate proceeding. A trust is generally run by a trustee, who runs it for the beneficiaries.

Trusts are a common means of holding real estate. When placed into a trust, the trust becomes the owner of the property.

Trusts, importantly, can sue, and be sued in Massachusetts courts.

Trusts in Massachusetts Courts: Get a Lawyer!

Braxton concerned a simple question: does a trust need to be represented by a lawyer in court?

Prior cases make it clear that a corporation or limited liability company (“LLC”) need an an attorney for a court proceeding (except small claims). The rationale is that an organized business is a separate legal entity, and not the same as the individuals who own it. Braxton, to the best of my knowledge, is the first case to address whether this rule also applies to a trust.

In Braxton, the Appeals Court ruled that trusts, like businesses, must also be represented by a lawyer in court. This ruling makes sense: a trust, like a business, is a separate legal entity, and it makes little sense to require a business to have an attorney represent it in court, but not a trust.

Limited Exception: Filing a Notice of Appeal

Braxton recognizes a limited exception to this rule: the filing of a notice of appeal. An appeal is a court case that reviews a lower court decision. To do an appeal, one must file a notice of appeal by a fixed deadline after a final decision in a case is reached. For civil matters, this deadline is generally thirty days. (eviction appeals are ten days, and zoning appeals are twenty days).

A notice of appeal must be filed by this deadline; if it is not, the appeal can get dismissed. In Braxton, a trust wished to appeal a court decision, but no longer had a lawyer representing it. Rather than miss the appeal deadline, it went ahead and filed a notice of appeal without an attorney. The question for the Appeals Court was whether this was an adequate notice of appeal.

The Court ruled that in such a scenario, where a trust no longer had an attorney, it was proper for a trustee to file the notice of appeal on its own, with the caveat that the trust needs to find a lawyer ASAP. This ruling applies to business entities as well: a corporate officer can also file a notice of appeal for a corporation or LLC if it does not have a lawyer.

The rationale of this rule, in my opinion, is the need to meet appeal deadlines. It would be unfair to deprive a trust or business with the right to appeal solely because it does not have an attorney by the deadline date.

Practical Implications

A trust, like a business entity, needs a lawyer for court proceedings. Although Braxton recognizes an exception to this rule, this exception appears to be a narrow, limited one. Recent cases show that Massachusetts courts are not tolerant of non-lawyers practicing law. The consequences for doing so can be severe.

Conclusion

If you need legal representation for an eviction, contact me for a consultation.

k18P0818

Short Term Rentals in Massachusetts: 3 Things to Know

Short term rentals in Massachusetts, like the rest of the country, come with some unique legal challenges. Such rentals, which most commonly occur through AirBnb, are not a traditional landlord-tenant relationship, but still come with various legal obligations.

The law is still developing, so this blog post may (and almost certainly will) need updating in the future.

Short Term Rentals and Zoning

Anyone interested in using their property as a short term rental needs to consult with their local zoning ordinances. Zoning regulates how property in a town or city may be used.

Some towns or cities in Massachusetts have heavily restricted short term rentals. In other places, such as Boston, short term rental owners need to register these units.

If you are considering a short term rental, check with your municipality and determine if any zoning relief is required. Do so before starting a short term rental (or considering buying a such a property). Some zoning relief, such as a variance, can take several months to obtain and is never a guarantee.

Short Term Rental Issues for Residential Tenancies

If you are an owner of residential property in Massachusetts, it’s a good idea to put in an addendum about whether your tenants can use their apartment as a short term rental.

While the law is not settled on this point, there is an argument to be made that, unless explicitly prohibited, short term rentals are not necessarily a violation of a standard lease agreement. Best to make this clear in any rental agreement.

Dealing With a Guest Who Won’t Leave

What happens if a short term rental guest won’t leave? Although not completely settled, it seems unlikely that such a guest would be considered a tenant, which would require a formal eviction proceeding.

In such a scenario, a short term rental owner could simply try to contact the local authorities, who may be willing to remove the holdover guest without a formal court hearing. If legal action becomes necessary, a civil action for trespass is a possibility, with a request for an immediate court order to have the occupant removed from the property.

Conclusion

If you need assistance with a short term rental, contact me for a consultation.

Commercial Evictions in Massachusetts: 5 Things to Know

Commercial evictions in Massachusetts concern property that is not used for human habitation, such as a store or office space. Similar to residential property, an owner of commercial property must bring a formal court action (known as “summary process”) for obtaining possession from a tenant.

This is where the similarities between commercial and residential evictions end. Read on for important information that one should know about commercial evictions in Massachusetts.

No Right to Housing Court for a Commercial Eviction Case

Housing Court is a popular forum for resolving residential property disputes in Massachusetts. A residential landlord is permitted to file an eviction in Housing Court, and if an eviction is filed in another court, either party (tenant or landlord) has the right to transfer it to Housing Court.

Housing Court, however, does not have jurisdiction over commercial evictions in Massachusetts. These cases must be brought in District Court or Superior Court.

Commercial Property Is Often Rented “As Is”, Which Limits the Available Defenses in a Commercial Eviction Case

Residential property comes with an implied warranty of habitability. A landlord can only rent property that is fit for human habitation: a responsibility that cannot be waived. Residential property must also comply with the state sanitary code.

Commercial property, in contrast can (and most often does) get rented “as is.” In such a case, the tenant is generally responsible for the care and maintenance of the property. As such, problems arising from conditions in the rental property are limited as defenses to commercial evictions in Massachusetts.

Commercial Leases Often Require the Waiver of a Jury Demand

Tenants in residential evictions have the right to a jury trial. Most commercial evictions require tenants to waive their right to a jury trial if an eviction case ever becomes necessary. As a result, commercial evictions typically move at a much faster pace than residential cases.

Counterclaims Are Not Allowed in Commercial Evictions

Counterclaims are not allowed in commercial evictions. As such, a tenant defending a commercial eviction is much more limited in the potential defenses they can raise in such a proceeding.

Commercial tenants, however, are free to file a separate lawsuit against a landlord and ask that it be consolidated with the eviction.

Massachusetts’s Security Deposit Law Does Not Apply to Commercial Tenancies

As I’ve written, Massachusetts’s security deposit law is a trap for unwary residential landlords, and can result in steep penalties if violated. This law, however, does not apply to commercial tenancies. A commercial landlord can accept a security deposit without having to comply with the numerous requirements of the residential security deposit law.

Massachusetts’s security deposit law often comes up in residential evictions, and is a problem if the landlord has not followed this law. For commercial evictions, however, this law does not apply.

That’s not to say that a commercial landlord can do whatever they want with a security deposit. Chapter 93A, which prohibits unfair and deceptive business practices, can apply if a commercial landlord acts unreasonably with a security deposit.

Conclusion

If you need assistance with commercial evictions in Massachusetts, contact me for a consultation.

Guest Blog Post: Preview of Upcoming Massachusetts Appeals Court Zoning Decisions

The Massachusetts Property Law Blog is proud to have Attorney Joseph N. Schneiderman guest blog on upcoming zoning decisions from the Massachusetts Appeals Court.  Attorney  Schneiderman is an appellate attorney licensed in Massachusetts and Connecticut and may be contacted at connlawjoe@gmail.com.

During the week of October 7, three different panels of the Massachusetts Appeals Court heard three zoning cases, Pecyna v. Town of Dudley, 2018-P-1377, Nimchik v. Chicopee City Council, 2018-P-1024, and Johnson v. Zoning Board of Appeals of Worcester, 2018-P-1425. Real estate and zoning practitioners should follow all three because all three have important procedural and substantive implications.

 Pecyna (Meade, Hanlon, and Kinder, J.J.)

Verizon sought to build a cellular tower in Dudley. On August 22, 2017, Verizon successfully obtained a special permit from the Dudley Planning Board. On September 11, 2017, the Pecynas, as self-represented abutters, timely appealed the special permit to the Worcester Superior Court but did not join Verizon as a party. Compare G.L. c. 40A, §17 (Aggrieved party has 20 days to appeal.) Curiously, the Town Clerk issued a certificate of no appeal the next week. As ten months of litigation elapsed, Verizon built the tower.

 Later represented by counsel, the Pecynas unsuccessfully sought an injunction to demolish the tower and to belatedly join Verizon as a party. A Superior Court judge denied both motions and dismissed their appeal, reasoning that: (1) because the Town Clerk never received the notice of appeal, the appeal was untimely and (2) belatedly joining Verizon would be prejudicial because Verizon built the tower despite the faulty notice. The Pecynas appealed to the Appeals Court. Curiously, the Town of Dudley did not file a brief-although Verizon appeared and argued as amicus curiae.

This appeal implicates the adequacy of notice of a zoning appeal to a Town Clerk-and presents a follow up to the Appeals Court’s divided 2-1 decision in Hickey last year. Indeed, much of the oral argument focused on the implications of Hickey.

 The Pecynas asserted that they notified the town orally that they intended to challenge and appeal the special permit. The Pecynas further asserted that they attempted to file the appeal but the Town Clerk refused to accept it until Day 21-and apparently wanted discovery on that point. By contrast, Verizon asserted that only actual notice suffices, citing much of the caselaw leading to Hickey. Verizon also asserted that the Pecynas forfeited or waived their right to seek discovery on the issue notice by filing a written motion for discovery.

 Like Hickey, two compelling doctrines are clashing here. On the one hand, courts demand and enforce strict compliance with the timing and notice provisions of Section 17. Those provisions ensure that Verizon has no encumbrances to building its tower, or conversely, so the Pecynas know about and can challenge it.

On the other hand, there is something unseemly about the Town Clerk refusing to accept appeal paperwork and issuing a certificate of no appeal. If the Town Clerk were a Court Clerk, they would have to accept the appeal papers-even if they thought the appeal was doomed. Compare e.g. Gorod v. Tabachnik, 428 Mass. 1001, 1002 (1998).  Dudley also does not have a good record of transparency, i.e., the purpose of notice. Indeed, in 2015, the Attorney General annulled a past decision of the Dudley Planning Board that occurred in violation of the Open Meeting Law.  

If the Pecynas have truly preserved their right to seek discovery on notice, a good intermediate solution is for the Appeals Court to remand the case for a hearing on that point-and possibly even retain jurisdiction. The trial judge could weigh whether the prejudice to the Pecynas of having the town thwart their ability to appeal outweighs the prejudice to Verizon of relying on a faulty certificate to build a tower.

 Nimchik (Lemire, Singh, and Wendlandt, J.J.)

This case is a challenge to “spot zoning”, i.e., singling out land in a particular area without regard to the general objectives of zoning. More specifically, a building supply company successfully applied to the Chicopee City Council to rezone parcels residential land to business land to facilitate the construction of a garage. This residential neighborhood is west of Route 33 near Westover Air Force Base. That part of Route 33 is, to quote Homer J. Simpson, a “miracle mile where value wears a neon sombrero and there’s not a single church nor cultural institution to offend the eye.” The abutters sued in the Western Housing Court, asserting that the rezoning amounted to unlawful spot zoning. A Judge granted summary judgment for the business and city.

 The abutters press on appeal that constructing the large garage and subsequent large truck traffic would be detrimental to the residential neighborhood and only benefits the building supplier and is not a public benefit for zoning. The abutters further contend that the city council’s voting practices to rezone the land were unlawful because there were not enough votes supporting the rezone. Finally, the abutters contend that the judge needed to make express findings of fact resolving the appeal as the judge allowed the motion in a handwritten margin endorsement.

The city and the supplier counter that much of the abutting land is already zoned for business and that the residents will not suffer any detriment.  The city and the supplier further argue that the abutters have forfeited or waived any issue on the voting practices by not expressly raising the issue in opposition to summary judgment. Much of the oral arguments focused on this point; Justice Lemire asked counsel for the abutters three different times about how and where this issue appeared below.

Spot zoning, i.e.,, that a municipality has singled out land without regard for the public welfare and purposes of zoning is certainly a serious issue since the Zoning Act requires uniformity-and amounts to a constitutional violation. But, the abutters are carrying a heavy burden to prove not only that there is spot zoning  but that there should be a trial. the abutters so See e.g. Van Renselaar v. City of Springfield, 58 Mass. App. Ct. 104, 108 (2003).  The abutters’ brief hints that, perhaps, Chicopee could have and should have granted a variance because of unusual land conditions here-indeed, one parcel is triangular. But if the city and the supplier are right about the neighboring land, the motion judge probably correctly resolved the issue at summary judgment.

           Johnson (Milkey, Sullivan, and Ditkoff, J.J.)

An ice cream stand owner on Lake Avenue along Lake Quinsingamond in Worcester sought to expand into a full borne fast food restaurant. He sought a special permit and variance for relief from the required parking spaces the Worcester Zoning Code require. Abutters who own property on Lake Avenue (also then self-represented) sued and the Superior Court granted summary judgment for the city and property owner.

 On appeal, the abutters assert that by adopting the findings of the zoning board verbatim as their facts in support of summary judgment, which were unsupported, summary judgment was inappropriate.  The abutters specifically emphasize that they put forward evidence that the expansion would increase noise, traffic and there is nothing unique about the parcel topographically to justify the variance. Rather, the Board granted the variance because it would be substantially beneficial. The abutters have also pressed that summary judgment was inappropriate in light of how the zoning appeal process is a de novo factual review.

The City counters that the abutters did not oppose their statement of facts. This raised concerns at argument-Justices Sullivan and Ditkoff alike pressed counsel for the city on whether or not there was not factual support. This led to the City’s point that the abutters have waived or forfeited this issue on appeal-and it was too late to challenge that in a motion for reconsideration. Justice Milkey contended that responses to interrogatories were part of the record-and questioned whether or not that fact alone would create a genuine issue of fact. The City continued to harp that the pro se abutters waived it-which drew serious doubt from Justices Milkey and Sullivan. Indeed, Justice Sullivan quite emphatically asked counsel for the city, “Is the city troubled by the notion of making a waiver argument against a pro se taxpayer where the problem was created by the manner in which the city presented its case?”

The verbatim adoption of one party’s statement of facts is not error in and of itself. See e.g. Cormier v. Carty, 381 Mass. 324 (1981) But, those facts are subject to challenge for clear error and reviewing courts will carefully scrutinize those findings. Id. This is also just as much of an issue in zoning cases-the verbatim articulation of the variance standards without factual support for the variance is error. Indeed, a board must make detailed findings to justify a variance. See e.g. Wendy’s Hamburgers v. Board of Appeal of Billerica, 454 Mass. 374, 387 (2009)

If the city did indeed make shoddy findings that do not justify the variance and indeed there is no basis for it, summary judgment is completely inappropriate and a trial should occur.  The only question is whether or not the abutters waived or forfeited the issue-and even that is not crystal clear. If the abutters did indeed proffer responses, that should suffice as counter evidence to defeat summary judgment.

Common Takeaways

All three appeals could rise or fall on the issue of waiver/forfeiture. The waiver/forfeiture rule means that a party cannot raise a legal issue for the first time on appeal that they did not raise in the lower court. To quote Justice John Greaney, the waiver/forfeiture rule exists because “…there is something unseemly about telling a lower court it was wrong when it never was presented with the opportunity to be right.” Commonwealth v. Alphas, 430 Mass. 8, 23 (1999). In criminal cases, the rule is relaxed. But in civil cases, including zoning cases, the rule is hard and harsh-even if the parties are self-represented. As earlier, if the Pecynas did not put the lower court on notice of the Town Clerk gaming the system, their appeal is or may be doomed.

Similarly, in Nimchik, although the validity of the vote to rezone is potentially a serious one, if the abutters did not properly preserve the issue, it’s not fair game on appeal-and neither the lower court nor the appellate court will comb the record to identify it. If there is a question about preservation, lay it out at the outset-or write a compelling a reply brief pointing out how the parties raised and addressed the issue below. Or better yet, avoid the issue of preservation by bringing in appellate counsel to frame and hone the legal issues and write a compelling motion or opposition.

However, in Johnson, if the parties did all they thought they could do to put the lower court on notice of some issue of fact, waiver/forfeiture is completely inappropriate. Indeed, Justice Sullivan made an important point during oral argument that it would not be fair to hold the rule against a self-represented party who tried to put the lower court on notice of an issue that the city did not.

Nimchik and Johnson offer important opportunities to clarify the application of summary judgment to zoning cases. Summary judgment is appropriate when a party’s evidence demonstrates there is no genuine issue of material fact and one party deserves judgment as a matter of law.  However, zoning appeals are also de novo proceedings-that is, a court finds completely new facts without regard to how the zoning board found facts. Jury trials are available in Superior Court zoning appeals.

However, nearly 40 years ago, the Supreme Judicial Court specifically endorsed and recognized summary judgment as an appropriate remedy in zoning appeals, even though zoning appeals could be quite “factually complex.”. Framingham Clinic v. Zoning Board of Appeals of Framingham, 382 Mass. 283, 299 (1981). Zoning boards often (tend to) assert that their decisions and findings deserve substantial deference-including on appeals from summary judgments in their favor. This is despite how appellate courts review summary judgment decisions de novo-without deference to the lower court judge.

This tangle also arises in practice. As noted earlier, the abutters/plaintiffs asserted that they wanted express factual findings in both Nimchik and Johnson. But motion judges do not find facts on summary judgment, motion judges determine whether there is some genuine issue of material fact. An express articulation of facts would be better suited for resolving a case on cross-motions for summary judgment to explain why there are no issues of fact and one party or the other is correct as a matter of law.  Ideally, the Appeals Court will clarify this tangle and provide substantive guidance to the practicing bar about how to frame and pursue these motions.

Joseph N. Schneiderman has an appellate practice with a particular interest in zoning since he took on the Boston Zoning Board in the Appeals Court. Joe also speaks to the Hampden County Bar AssociatIon’s Real Estate Section about the latest appellate developments. Joe gratefully thanks Adam for another opportunity to blog!