Fixing a Real Estate Mistake in Massachusetts

Mistakes happen . . . especially in real estate. The legal options for fixing a real estate mistake vary based on the circumstances and the dispute that must be resolved.

Fortunately, Massachusetts law provides a number of causes of action for resolving these issues.

Getting Someone Off a Deed

When property is owned jointly by several owners, it is not uncommon for one owner to want own. If the parties cannot work it out on there are, there are several options available for such cases.

If someone is on a deed through a mutual mistake (where both parties erred in the drafting of the deed), fraud, accident, illegality, or unjust enrichment, a deed reformation may be a possibility. This is a court action asking for the removal of a party from the deed. Such a case, however, will only be available in these limited circumstances, and will generally not be viable if the other person was freely and willingly deeded the property.

In most other cases, the process of removing someone from a deed must be done through a partition case, which is a legal action to force a sale of property.

Discharging a Mortgage

When a mortgage is paid in full, a notice must be filed (“recorded”) in the land records stating that no further debt is owed on the property. Known as a mortgage discharge, this document is incredibly important for a later sale of the property.

Without a discharge, few (if any) prospective buyers will purchase a property, with the concern that a mortgage may still exist.

Massachusetts has a detailed procedure for fixing a real estate mistake such as this, including a court action ordering such a discharge.

Getting Rid of An Adverse Claim To One’s Property

An adverse claim to property occurs when a property owner’s neighbor or abutter claims they own a portion of someone else’s real estate. When this occurs, the goal is to get rid of such an adverse claim as quickly as possible.

One means of fixing a real estate mistake such as this is through try title. Try title requires that the other party, who is asserting a adverse claim, to either pursue the claim, or lose it forever.

Final Thoughts

Fixing real estate mistakes is not always easy, but can be done through the assistance of an experienced attorney. If you need help in such a matter, contact me for a consultation.

Proving Adverse Possession

Proving adverse possession isn’t easy. A recent decision from the Appeals Court (enclosed below) explains some of the many nuances when pursuing such a claim.

Adverse Possession 101

Adverse possession is best described as a property rule requiring land owners to “use it or lose it.” Adverse possession is a legal claim by which a party can acquire someone else’s record property if they continuously use it for twenty years (along with some other requirements).

The person bringing an adverse possession claim has the burden of proving each these elements. A court will look closely at whether such a claimant has made a case for each of these detailed requirements. Since adverse possession will often result in the loss of record property to someone else, few courts will entertain such relief unless a viable case has been established.

Proving Adverse Possession

As the case below shows, proving adverse possession generally comes down to who the judge or jury finds is most believable. Often in these cases, there is “two sides to the story,” and a judge or jury must hear all of the evidence and make a finding of fact.

In the case below, a claimant who lost their adverse possession case appealed this decision and claimed that the judge’s decision was clearly erroneous. This required the claimant to convince the Appeals Court that the judge’s decision lacked a solid basis in fact or law.

Such a showing is hard to make. It is not enough to show that the decision could have “gone the other way.” Rather, proving that a decision is clearly erroneous requires a showing that the decision was not “soundly based in the record and the law.”

In every civil case, someone wins, and someone loses. An appellate court won’t change a decision simply because the claimant thinks the judge or jury should have reached a different decision.

Here, because the judge in this adverse possession case had a basis for his or her decision, the appeal of this decision was not successful.

Practical Implications

This case demonstrates the importance of preparing a strong case for proving adverse possession. Because the outcome of one of these decisions is entirely in the hands of a judge or jury, who has the sole decision in determining which side is credible, it is critical to properly prepare such a case through the assistance of an experienced attorney.

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

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Foreclosure Notices in Massachusetts: What’s Required?

Massachusetts’s Supreme Judicial Court issued its long-awaited decision in the Thompson case, concerning foreclosure notices in Massachusetts. This is a decision that lenders, title examiners, and other real estate professionals have been closely following since the original federal court decision. The full decision is below.

Thompson was a federal court case brought by a borrower challenging a foreclosure sale against his home. In 2019, the First Circuit of Appeals ruled that the foreclosure in this case was void due to an error in the right to cure notice, which both state law and the terms of most mortgages required to be sent prior to foreclosure.

This decision surprised many (including yours truly) because it seemed to “stretch the limits” on what is required for one of these notices, per established law.

For this reason, Thompson generated a great deal of concern and criticism, leading the Supreme Judicial Court to take this decision for the purpose of resolving this matter.

Foreclosure Notices in Massachusetts: Basic Requirements

To be clear, there are several required foreclosure notices in Massachusetts, including those notifying the property owner about the scheduled foreclosure sale. Here, I am focusing on the required default notice that must provide the mortgagor with an opportunity to cure their loan default, prior to foreclosure. Both state law, as well as the terms of most standard mortgages, require such notice.

Under the SJC’s decision in Pinti v. Emigrant Mortgage, a lender must strictly comply with the mortgage requirements for such notices. Even a minor error in one of these notices could seemingly invalidate a foreclosure.

In Thompson, the question for the court was whether an alleged error in one of these notices was fatal to a foreclosure’s validity.

Here, the First Circuit had held that a paragraph 22 notice sent to a borrower made the foreclosure sale void because it misrepresented the borrower’s rights. The notice told the borrower that he could reinstate his loan after acceleration , anytime before the foreclosure was to occur. The problem with this was that the borrower’s mortgage required this reinstatement to occur five days before a foreclosure sale.

The SJC ruled that, because state law gave the borrower a longer time to reinstate than the mortgage itself, the default notice was not deceptive.

Implications of Thompson

Due to a series of SJC decisions in the wake of the 2008/2009 financial crisis (including Pinti), the validity of many Massachusetts foreclosures have been often called into question, with many areas of foreclosure law remaining unclear. Thompson is a step away from this trend, and avoided a circumstance where many foreclosures across Massachusetts could have been voided.

The SJC, however, avoided answering an underlining question in this decision: how strict is strict compliance? In other words, how much of a mistake needs to occur in a foreclosure notice for an underlining foreclosure to be invalidated? Such a question remains unclear, and will likely be resolved in future court cases.

Conclusion

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

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Anti-SLAPP: Sherwin Law Firm Succeeds With Special Motion to Dismiss

Last week, I won a dismissal of a claim against my client in a real estate contract dispute, using Massachusetts’s “anti-SLAPP” law. Anti-SLAPP is a highly effective means of dismissing meritless claims aimed at inhibiting one’s right of petition.

“SLAPP” is an acronym for a strategic lawsuit against public participation. These lawsuits are brought to intimidate and harass those exercising their lawful rights under the law. Massachusetts, like many other states, has an anti-SLAPP law created purposely to punish those who pursue such claims.

Case Overview

I represented a client who was involved in a real estate case involving specific performance. The opposing party was seeking a court order against another party, ordering the sale of a home that my client ended up purchasing.

This opposing party brought a claim against my clients for monetary damages, due to a lawsuit that my client previously filed to obtain ownership of the home (which was successful).

In short, this opposing party was trying to punish my client for filing a necessary and viable lawsuit.

What is Anti-SLAPP?

Massachusetts’s anti-SLAPP law was created purposely for a case like this:

In any case in which a party asserts that the civil claims, counterclaims, or cross claims against said party are based on said party’s exercise of its right of petition under the constitution of the United States or of the commonwealth, said party may bring a special motion to dismiss. The court shall advance any such special motion so that it may be heard and determined as expeditiously as possible. The court shall grant such special motion, unless the party against whom such special motion is made shows that: (1) the moving party’s exercise of its right to petition was devoid of any reasonable factual support or any arguable basis in law and (2) the moving party’s acts caused actual injury to the responding party. In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.

The “right of petition” broadly includes “any written or oral statement made before or submitted to a legislative, executive, or judicial body . . .”, including the filing of a lawsuit. Anti-SLAPP, in short, is intended to punish the pursuit of a legal claim without factual support or any arguable basis in law, aimed solely to harass the opposing party.

A party can invoke the protections of this law through a special motion to dismiss, which must be heard as “expeditiously as possible.” A successful anti-SLAPP motion, importantly, provides the claimant with mandatory attorney fees and costs from the opposing party.

Here, the Court agreed with my argument, and granted my motion to dismiss.

Final Thoughts

I’m incredibly pleased with the outcome of my special motion to dismiss and the availability of anti-SLAPP for protection against baseless lawsuits. The legal process exists to provide readdress for those who have been harmed . . . not to purposely harm others.

If you think anti-SLAPP may apply to you, contact me for a consultation.

Foreclosure in Massachusetts: What to Know

One of my projects this fall has been writing for LexisNexis’s Practical Guidance series. LexisNexis, in my opinion, is the best source for legal research, and it is honor to be part of their team. My article, Residential Foreclosure in Massachusetts, is available on my website and included below.

This article provides a background on foreclosure in Massachusetts, for both lenders and borrowers. For the past seven years, I’ve helped homeowners and purchasers of foreclosed homes navigate this tricky area of law. I’ve help many homeowners avoid foreclosure, and have advised real estate professionals with some of the pitfalls that can occur when purchasing a foreclosed home.

Foreclosure law can arise in almost every area of real estate, including landlord-tenant law, title matters, and property disputes. Having an understanding of this process is critical when foreclosure arises in a legal dispute.

My article touches on some important areas of Massachusetts foreclosure law:

  • Pre-Foreclosure Requirements: Massachusetts is a non-judicial foreclosure state. This means that a lender doesn’t need a court case to foreclose. The caveat, however, is that a lender must strictly comply with Massachusetts’ detailed foreclosure requirements. Failure to do so can make the underlining foreclosure void.
  • Foreclosure Defenses: In certain cases, it is possible to defend against foreclosure, with the goal of working out a permanent solution to the problem. My article discusses what to consider when defending against foreclosure, and, importantly, the defenses that are not viable in these cases.
  • Post-Foreclosure Evictions: An eviction is required for any occupants who remain in a home following foreclosure. This is a entire topic on its own, as these types of evictions follow a slightly different process than a typical landlord-tenant eviction.

I hope this article is helpful . . . let me know what you think. If you need assistance with a foreclosure matter, contact me for assistance.

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Zoning Disputes in Massachusetts: Three Success Stories

Zoning disputes typically arise when property owners have disagreements over whether someone is entitled to specific zoning relief, such as a variance. The law allows a party who is “aggrieved” by a zoning decision to appeal the matter in court. By doing so, the party requesting the zoning relief is required to prove to the court that they are entitled to it.

I’ve had the honor of representing businesses and homeowners with zoning disputes in Massachusetts. Here, I’ll discuss three success stories I have had with such matters. For privacy purposes, I have only discussed the general facts of each case.

Small Business v. Real Estate Developer

My client was a medium-sized commercial landlord in the Greater Boston area who was having an issue with a real estate developer. The developer was seeking zoning approval to pursue a large-sized development in the neighborhood where one of my client’s rental properties was located. My client was concerned that such a development could have long lasting implications to its rental property, including loss revenue.

For this zoning dispute, I challenged the validity of the special permits that this developer had obtained from the city’s planning board. I argue that the planning board failed to consider all of the required criteria for such relief, including the implications of its development on nearby housing providers.

After several months of litigation, my client and the developer reached a successful settlement. This settlement provided my client adequate compensation for some of the losses it anticipated suffering during the construction of this development.

Homeowner v. Real Estate Developer

In this case, a Boston homeowner retained me concerning a proposed development in the immediate vicinity of his home. My client, understandably, was concerned about a large condominium complex in the rear of his home.

After reviewing the case, I determined that many of the approved variances were problematic and on shaky ground. In the Suffolk Superior Court case I filed appealing this decision, I asked the Court to annul the City of Boston’s Zoning Board of Appeal decision on this matter.

Shortly after, a settlement was reached, which helped alleviate many of my client’s concerns about this project.

Homeowner v. Homeowner

Zoning disputes often occur between adjacent homeowners. In this case, a North Shore homeowner hired me in regards to a special permit that his neighbor obtained. My client was concerned about an addition that his neighbor wished to construct on her home, which my client believed lacked justification.

As with all zoning disputes, timing is critical. Massachusetts law only allows a claimant twenty days to file an appeal, and failure to do so will be grounds for dismissing the appeal.

As a solo attorney, one thing I pride myself on is having full control over my schedule and ability to take on cases that are time sensitive. Here, I was able to timely file this matter on short notice, which lead to a successful resolution for my client.

Final Thoughts

Zoning disputes are highly interesting cases . . . and complex. It is critical to how a solid understanding of this law to pursue any zoning appeal or legal challenge.

While each of the cases discussed above settled, zoning disputes can (and often do) go to trial. Therefore, it is critical to have an attorney with a solid background in litigation and trial advocacy.

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

Buying a Foreclosed Home in Massachusetts

Buying a foreclosed property must be done with care. Compared to the purchase of other real property, foreclosed properties come with their own specific challenges.

Purchasing a foreclosed property usually occurs (1) at the public foreclosure auction sale or (2) from the bank or lender who foreclosed the property, commonly known as a real estate owned (“REO”) property.

Here, I’ll discuss some important topics for buying a foreclosed property.

Foreclosed Properties Are Often Sold “As Is”

Compared to the process of purchasing most other properties, buyers of foreclosed properties generally have few opportunities to inspect the property in advance. Moreover, in most sales of foreclosed properties, a buyer takes the property “as is”, and has limited recourse for any problems later arising in the property.

Title Problems With a Foreclosure Can Become the Buyer’s Problem

Massachusetts is known as a non-judicial foreclosure state, which means that a foreclosure can occur without a court case. Foreclosures, however, must be done with strict compliance under the law. An error in this process can invalidate the foreclosure sale, and can impede a subsequent buyer’s ownership of the property.

Not every error in the foreclosure process will affect the property’s title. However, a buyer of a foreclosed home needs to be mindful of the potential errors that can arise in the foreclosure process, and ensure that such issues have not occurred for the property they wish to purchase.

An Eviction Is Required for Occupants in the Home

If any occupants remain in a property after foreclosure, they must be evicted, through a formal court case. Any attempt to remove occupants without an eviction case is highly illegal and will lead to many problems down the road.

Compared to standard evictions, evictions for foreclosed homes are a slightly different process, and requires knowledge of Massachusetts foreclosure law. This is especially true if the occupant is the former homeowner, and wishes to challenge the foreclosure sale.

Final Thoughts

If you need assistance with buying a foreclosed home, contact me for a consultation.

Tree Disputes in Massachusetts: What to Do

Tree disputes happen much more than you might expect in Massachusetts. These problems are most common among adjacent landowners, and can lead to major disputes if not properly addressed.

Tree disputes generally consist of two types of matters: (1) damages caused from a tree and (2) the unauthorized removal of a tree.

Whose Tree Is It?

While it may be obvious in many cases, it is sometimes necessary to determine who owns the tree at issue in the dispute. Generally, this can be figured out through a survey or plot plan.

If the ownership of the property is unknown, this (on its own) may be a separate matter to deal with.

Damage From a Tree: Healthy or Not?

Determining one’s liability from a tree comes down to a central question: is the tree healthy? Massachusetts law prohibits a tree owner from being liable from damages caused by a healthy tree. The rationale for this is that trees, naturally, will loose limbs and fall down from weather conditions.

Liability does exist for an unhealthy tree. If you own a tree that is not healthy, and it causes damage to someone else’s property, you may be liable.

Determining whether a tree is healthy will likely require an expert opinion, through an arborist or landscaping professional.

Damages From Removing a Tree Without Permission

The unauthorized removal of another’s tree is a serious offense. Such a violation can subject one to triple damages. Given the large expense of replacing a tree, this can be a significant penalty.

How to Handle a Tree Dispute

As with most disputes, it is best to see if the matter can be resolved without court action. Often, such matters can be resolved through clear communication and negotiation.

Legal action is often necessary if such matters cannot be amicably resolved. The law, importantly, allows not just for money as damages, but equitable relief, where a court can order someone to do (or not do) something.

This can be critical if immediate relief is required, such as stopping the cutting of trees or requiring a neighbor to do something about an unhealthy tree, before significant damage occurs.

Conclusion

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

How to Prove Adverse Possession

While making a general claim for adverse possession can be easy, the process of proving adverse possession is a different ballgame.

Adverse possession has specific, detailed requirements that must be proven for a successful claim. Courts can and will look carefully at whether a claimant has met each of these criteria; more so, in my opinion, than most other legal claims involving property.

Here, I’ll discuss how to prove adverse possession and what to look for in making such a claim.

Overview of Adverse Possession

Adverse possession is a legal action by which someone can acquire another’s property through continuous use. The requirements for one of these claims are specific, and include a showing that the use was non-permissive. If the claimant was authorized to use the property, such a claim will not be successful.

How to Prove Adverse Possession: What to Look For

If you have personal knowledge of the property use for the twenty-year period, this can be offered as evidence for proving adverse possession. Other helpful evidence can include testimony from neighbors who lived near the property, photographs, and receipts for any work done on the property.

Often, a claimant has not lived or observed the property for the twenty-year period required for adverse possession. Fortunately, a claimant is allowed to include prior, similar use from predecessors for an adverse possession claim (known as tacking). Doing so often requires a claimant to track down the prior owners or users of the property, or others who may have past knowledge about the property’s use.

Conclusion

When I’m asked by claimants about how to prove adverse possession, I always emphasize that it is critical to make a strong case for each of the required legal elements. Adverse possession often results in the loss of property ownership to another party. No court will consider this unless a solid claim is shown.

For this reason, it is critical to have an experienced attorney help you with adverse possession, who has worked on these kinds of cases before. If you need assistance with such a matter, contact me for a consultation.