5 Things to Know About Massachusetts Land Court

Massachusetts has a unique forum for handling real estate disputes: Land Court. Land Court is a specialty court which handles a wide array of property issues, including Servicemembers’ Cases, boundary disputes, and other real property matters. Those involved with a real estate issue should be familiar with this court’s unique features.

1. No Jury Trials

No jury trials are allowed in Land Court. If you file a case in this court, your matter gets decided solely by a judge. This, in my opinion, is a great feature of Land Court for certain cases, such as adverse possession, which are best suited for a judge to decide, and not a jury.

Another feature of Land Court are judges with expertise in Massachusetts property law. It is a safe bet that the judge you are appearing before has heard a case of this type before, and has a solid background on the applicable law.

2. Assigned Judges for Cases

In most Massachusetts state courts, judges sit in different sessions at different periods of time. It is not uncommon in Superior Court, for example, to have a case heard by multiple judges for the duration of the lawsuit.

In Land Court, a single judge is assigned to each case. A benefit of this is that the judge will have familiarity with the history of the case throughout the proceedings. This is a huge benefit for complex and detailed matters.

3. Early Case Management Conferences

Upon the filing of a case, the court schedules a case management conference. This is an opportunity to meet with the judge and opposing party and make a plan for the case. Many times, this initial hearing can help pave the way forward to resolving the dispute.

4. Servicemembers’ Cases

Servicemembers’ cases are typically brought in Land Court. These cases are to determine whether a party is in the active military service, which provides some protections against foreclosure and other legal proceedings.

Such proceedings are often confused with an actual foreclosure sale itself. These cases, however, are only a prerequisite to a foreclosure sale. Unless the homeowner is in the active military service, the homeowner generally does not have a defense to one of these matters. Nonetheless, a homeowner who receives one of these notices should be proactive about addressing the oncoming foreclosure against their home.

5. Jurisdiction Over Registered Land

Land Court has exclusive jurisdiction over registered land. Registered land is a unique form of public land record keeping that is certified by the state. Land records for registered land are generally organized by certificates of title on the public land registries.

Land Court certifies such land records, and authorizes whether changes may be allowed to the property’s title. If your case involves registered land, more often than not, a Land Court proceeding will be necessary.

Conclusion

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

Requirement #3 for a Massachusetts Variance: Substantial Detriment

Massachusetts variance

This is a three part blog series on the requirements for obtaining a variance under Massachusetts zoning law.  The first post concerned the first variance criterion: a showing that the property has unique conditions. The second post discussed the requirement of hardship. This final post discusses the final requirement: that the variance will not substantially harm public good or substantially derogate from the bylaw’s purpose.

Overview

Obtaining a Massachusetts variance requires a showing of three distinct requirements; all of which a petitioner must satisfy:

[O]wing to circumstances relating to the soil conditions, shape, or topography of such land or structures and especially affecting such land or structures but not affecting generally the zoning district in which it is located, a literal enforcement of the provisions of the ordinance or by-law would involve substantial hardship, financial or otherwise, to the petitioner or appellant, and that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of such ordinance or by-law.

G.L. c. 40A, § 10

This third requirement requires consideration of how the requested variance fits in with the local community and zoning ordinances. Even if a petitioner meets the first two variance requirements, the permit granting authority has discretion to deny a variance under this third criterion.

Practical Implications for a Massachusetts Variance

Compared to the first two variance requirements, there are not as many court decisions interpreting this criterion. Generally, if a petitioner can make a good case for the first two requirements, they can generally meet this final criterion.

Nonetheless, a party seeking a Massachusetts variance should not ignore this last requirement. Rather, they should make a case that their variance is keeping with the purpose of the zoning ordinances, and will not cause harm to anyone else. Obtaining the written support of those who are living in the vicinity of the property can often be helpful in making such an argument.

Conclusion

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

Sherwin Law Firm Wins Real Estate Appeal

real estate appeal

I’m pleased to write that I won a real estate appeal before the Massachusetts Appeals Court last week. This case concerned a real estate contract dispute, concerning rescission (a request to cancel a legal agreement). I had previously won the trial and the other side appealed. The full decision is included below.

What is an Appeal?

All civil disputes begin in a trial court, where a party can file a lawsuit against another party and seek monetary damages or a court order. Most real estate disputes in Massachusetts typically begin in the Superior Court or Land Court.

If a party is not happy with the outcome of a case, they can pursue an appeal. An appeal is a legal proceeding that asks a appellate court to review the decision of a trial court. Appeals generally go before the Appeals Court or District Court Appellate Division (depending on the case). In some cases, an appeal can go directly to the Supreme Judicial Court, the highest court in Massachusetts.

Lessons for a Real Estate Appeal

In this real estate appeal, I was defending the trial court decision (known as being the “appellee”). An advantage of being the winning party in an appeal is that an appellate court can uphold a trial court decision for any reason supported by the trial record. This means that, even if the lower court got the reasons for its decision incorrect, its decision will still be affirmed if there is another basis for the decision.

For this reason, a large portion of my argument addressed the many reasons why a claim of rescission was improper in this case. The purpose was to give the Appeals Court as many reasons as possible for going my way. I’m pleased that the Court agreed with my argument and affirmed the lower court decision.

Conclusion

If you need assistance with a real estate appeal, contact me for a consultation.

Decision

3 Things To Know About Buying a Home with Existing Tenants

Buying a home with existing tenants has many traps for the unwary. While there are advantages to having existing tenants with the purchase of a home, there are also potential areas of liability. Here are three things to keep in mind when considering such a purchase.

1. Existing Tenancies Do Not End When a Home Is Sold

If a landlord-tenant relationship existed between the tenants and the prior owners of the home, that tenancy continues with the new owner. This is true regardless of whether there was a written lease or a tenancy at will (month-to-month lease agreement). The same terms of the prior tenancy agreement, in almost all cases, will carry over to the new owner of the home.

If a new home owner does not wish to have tenants (or wants new ones), an eviction will be necessary. Any attempt to remove tenants without a formal court case is a huge, huge violation of the law and comes with steep penalties.

If you are buying a home with existing tenants, and do not want to keep these tenants, it is strongly worth considering making the existing owner deliver the property without tenants in it.

2.Proceed With Caution With a Security Deposit

If the prior owner of the home accepted a security deposit from the tenants, you as the new owner are responsible for this deposit (unless the prior owner returned it to the tenants). The law requires the new owner to notify the tenants that they received this deposit and to comply with this law’s detailed provisions on holding a security deposit.

If the prior owner returned the deposit to the tenants, be sure to get this in writing.

As I have written about in the past, Massachusetts’s security deposit law is an incredibly complex law, filled with numerous regulations on the acceptance, holding, and return of a security deposit. New landlords should give careful consideration to not accepting a security deposit in the first place.

3.Landlords Must Maintain Residential Rental Property

Residential rental property comes with an implied warranty of habitability. This means that the property is fit for human habitation. The most common standard for measuring this is through compliance with the state sanitary code, a detailed list of the minimum standards for residential property. Local municipalities, as well as tenants themselves, have the right to enforce these regulations.

Residential rental property is quite different from commercial rental property, which is often rented “as is.” This is not allowed for residential rentals, and any attempt to get a tenant to waive the warranty of habitability will be void.

If you are buying a home with existing tenants, you need to be aware of these obligations. Failure to maintain rental property can lead to enormous liability, expenses, and other costs.

Conclusion

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

Requirement #2 for a Massachusetts Zoning Variance: Hardship

Massachusetts zoning

This will be a three part blog series on the requirements for obtaining a variance under Massachusetts zoning law.  The first post concerned the first variance criterion: a showing that the property has unique conditions. This post discusses the second requirement: hardship.

Massachusetts zoning regulates the use of property. For a party to obtain a exemption from a zoning ordinance, they need to obtain a variance. The requirements for a variance are rigorous, and an applicant must satisfy each. Here, I’ll discuss the second requirement: hardship.

What Is A Hardship?

A hardship is an inability to reasonable use one’s property. For example, if a zoning ordinance makes it impossible to construct a building on a vacant lot, an owner may have grounds for arguing hardship.

Such hardship must relate to the property itself. For example, a limitation on the size of a home that may be built on a property could cause personal hardship to an owner, who may need additional bedrooms for a growing family. This, however, is likely not sufficient as grounds for a variance, as the hardship must be based on a unique condition of the property itself.

What’s the purpose of requiring a hardship for a variance? Variances, under Massachusetts zoning law, aren’t meant to be granted on a whim, just because someone wants one. Rather, one is suppose to have a really strong justification for needing one.

What Is Not A Hardship?

There are several circumstances that are generally not recognized as hardships under Massachusetts zoning law.

Simply wishing to build a larger home, on its own, is not enough for a hardship. A property owner will generally need to make a showing that it is no longer economically feasible to make a reasonable use of their property with the existing building in place.

Hardship also does not exist from simply being located next to a zoning district. For example, if you own a property in a residential zoning district that is across the street from a business district, and wish to use your property for a commercial purpose, it generally won’t be sufficient to argue hardship simply because of how close you are to the desired zoning district.

Conclusion

Massachusetts zoning requires an explicit showing of a hardship to obtain a variance. Often, what many of us might consider to be a hardship does not satisfy this criterion, as the hardship must directly relate to the property itself. Without such a showing, a zoning variance will not be upheld.

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

Zoning in Massachusetts: Proposed Legislation

Governor Baker is backing a bill to reform zoning in Massachusetts, which will give local municipalities more flexibility in making zoning changes. This bill is a good example of some important lessons for understanding Massachusetts’s land use laws.

Zoning 101

Zoning in Massachusetts is generally done at the local level, through town and city ordinances. Zoning regulates how an owner may use their property, through usage and dimensional controls.

The proposed bill will allow towns and cities to switch to a majority vote to change local zoning ordinances. Presently, most zoning changes need to be done by a two-thirds vote, which makes enacting such changes a high hurdle to clear. Supporters of the bill argue that it will help create additional housing and make Massachusetts more affordable place to live.

Understanding Zoning in Massachusetts

This proposed bill is a good example of an important lesson regarding Massachusetts zoning: these land use regulations are often not very flexible. Many property owners find that their local zoning regulations can completely prohibit how one wishes to use their property. Sometimes, a seemingly minor regulation can put the brakes on a proposed development.

Zoning in Massachusetts provides exceptions to these regulations, known as variances. It is a common misconception, however, that one merely needs to show hardship to qualify for a variance. Rather, the variance criteria is extensive and requires a high burden to meet, including a showing that the subject property is unique.

This, in my opinion, is one of the driving forces behind this proposed legislation. Since many zoning laws have a “take it or leave it” approach for regulating property, fixing the law itself is really the only way to change the zoning process.

Conclusion

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

Appealing a Variance in Massachusetts

Appealing a Variance in Massachusetts

Like most states, zoning decisions in Massachusetts are primarily made at the local level, through municipal boards.  One of the most common types of zoning decisions are requests for variances. While a municipal board (commonly called the zoning board of appeals in most towns and cities) makes the decision on whether to grant a variance, such a decision can be appealed.

What is a Variance?

A variance is an exemption from a zoning requirement. Zoning ordinances regulate how a land owner may use their property, which typically includes regulations on the allowed uses and activities.

A property owner has a right to seek an exemption from a zoning requirement by applying through a variance. A variance requires the following:

[T]hat owing to circumstances relating to the soil conditions, shape, or topography of such land or structures and especially affecting such land or structures but not affecting generally the zoning district in which it is located, a literal enforcement of the provisions of the ordinance or by-law would involve substantial hardship, financial or otherwise, to the petitioner or appellant, and that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of such ordinance or by-law.

In short, a variance requires that the property have something unique about it, and due to this condition, the property owner will suffer hardship if forced to comply with the zoning ordinance.

Appealing a Variance

The decision to grant a variance is generally made by the local zoning board of appeals (“ZBA”). Such decisions are done at open public meetings, with members of the community permitted to speak in favor or in opposition of the request. After a decision is made, the ZBA issues a written decision stating its reasons for approval or denial.

A party aggrieved by a variance decision has a right to appeal. Such an appeal is made to either Superior Court or, most commonly, to Land Court. In such an appeal, the court hears all evidence about the variance and issues a decision upholding or denying the variance.

Practical Implications

What’s the most important thing to know about appealing a variance? Act quickly. There is a short deadline for filing such an appeal, and a detailed process for doing so. Failure to comply with these requirements can be grounds for immediate dismissal of an appeal.

Not anyone can appeal a variance. Only a person “aggrieved” by such a decision may do so. The issue of whether a person can bring such a claim (known legally as whether the party has standing) needs to be determined carefully. Simply not agreeing with a zoning decision, on its own, is not enough to bring an appeal.

Appealing a variance requires a thorough knowledge of the applicable law and underlining property. For this reason, one should strongly consider hiring an experienced lawyer for such a matter.

Conclusion

If you need help with a variance, contact me for a consultation.

Attorney Sherwin To File Adverse Possession Case for Washington D.C. Republicans, Democrats

April is going to be a busy month for me. In a rare case of bipartisanship, a group of Republican and Democratic Senators (who have been in Washington D.C. for over twenty years) have hired me to file an adverse possession lawsuit for them, seeking permanent ownership of Capitol Hill.

Adverse possession is a legal claim where a party can obtain someone else’s property without their possession if they use it as their own for a period of time (twenty years in Massachusetts). A critical requirement is that such use must be hostile: against the permission of the lawful owner.

These politicians have a great case. By staying in Washington for so long, without doing anything for their constituents, there is a good case that these politicians’ use of Capitol Hill for the past twenty years has been hostile.

“Getting reelected to Congress is a lot of work,” said one Republican Senator, who asked to remain anonymous. “It is much easier to hire Attorney Sherwin, who we are confident can make a compelling case that we haven’t done anything for the last twenty years.”

” I rarely agree with Republicans,” said a Democratic Senator, who also asked to remain anonymous.” “But, if there is one thing that all D.C. politicians agree on, it’s that we have a right to stay here forever.”

As a real estate litigator who has tried successful adverse possession cases in the past, I’m looking forward to this case. More information about this matter can be found here.

Fence Disputes: 5 Things Every Massachusetts Property Owner Should Know

I recently settled a case involving a fence dispute, which occurred between two neighbors who weren’t getting along. Fence disputes, believe it or not, are one of the most common types of boundary disputes, and most often arise when a property owner seeks to erect or take down an existing fence.

This case reminded me of some important advice that every Massachusetts property owner should know about these matters.

Location Matters

It may sound obvious, but it is worth mentioning: a property owner can only erect a fence on their property. Placing a fence on your neighbor’s property can quickly lead to a fence dispute and, in the worst case scenario, a court order mandating the immediate removal of the fence.

To avoid this, ensure that your fence is on your property. A plot plan or survey can be helpful in determining your boundary lines.

Fences Can Lead to Adverse Possession Claims

A claim of adverse possession occurs when a person uses property that is not theirs for an uninterrupted period of twenty years, without the record title owner’s permission. Adverse possession follows the rule of “use it or loose it.” If someone else is using your property, you can run the risk of it eventually belonging to someone else.

One of the requirements for adverse possession is exclusive use: showing that the property was within the exclusive use and control of the other party. Massachusetts courts have held that the placement of a fence is a strong example of an adverse possession claim because it puts the property owner on notice that someone else is using their property. For example, if a homeowner erects a fence which encroaches several feet of their neighbor’s yard, and makes use of this property as their own for twenty years, a claim of adverse possession may arise.

For this reason, property owners need to be aware of potential adverse possession claims when erecting fences.

Exercise Care When Removing Trees

Building or taking down a fence often involves the removal of trees and other vegetation. If this applies to you, proceed with caution. Massachusetts law imposes steep penalties for willfully cutting down someone else’s trees:

A person who without license willfully cuts down, carries away, girdles or otherwise destroys trees, timber, wood or underwood on the land of another shall be liable to the owner in tort for three times the amount of the damages assessed therefor; but if it is found that the defendant had good reason to believe that the land on which the trespass was committed was his own or that he was otherwise lawfully authorized to do the acts complained of, he shall be liable for single damages only.

Boundary Disputes Can Become Contentious Quickly

When it comes to land, even the smallest boundary dispute can become a source of friction between land owners. This is an important factor to keep in mind when dealing with a fence dispute. An overly aggressive approach to one of these matters can inflame tempers and lead to unnecessary legal expenses and time in court. For this reason, always try to find an amicable resolution to one of these matters first.

Consult An Attorney If All Else Fails

Of course, some fence disputes (like any other legal matter) can not always be resolved on their own. If you find yourself in such a scenario, strongly consider speaking to an experienced real estate litigation attorney.

Attorney Sherwin to Argue Real Estate Contract Case Before Massachusetts Appeals Court

foreclosure appeal

This Tuesday, I’ll be before the Appeals Court on a case concerning a real estate contract. I won a trial several years ago involving a contract dispute, and the other side has appealed. This is an interesting case that concerns some important topics on real estate contracts.

Appeals Process

In an appeal, a party is asking a reviewing court (known as an appellate court) to determine if the trial court made any errors in law. It is generally not enough to simply argue that the lower court made the wrong decision in the case. Rather, a successful appeal requires a showing that the lower court misapplied the law.

No new evidence is introduced in an appeal. The record is limited to the testimony and exhibits from trial. Each side is permitted to file a written argument to the court, known as a brief, and argue their side of the case to the court, known as an oral argument.

Lessons for Real Estate Contracts

This appeal concerns a couple of important topics relevant for real estate contracts.

Oral Agreements To Sell Property

Most people are familiar with the requirement that a sale of property needs to be in writing to be enforceable, known as the statute of frauds. It is a common misconception, however, that oral agreements for the sale of property can never be enforced. In certain circumstances, the law will not allow a party to avoid enforcement of an oral contract for real estate.

In this appeal, the contract was oral. However, the parties to this agreement changed their circumstances in reliance of this oral agreement, and partially performed it: a recognized exception to the statute of fraud.

This is a critical lesson for anyone involved in a real estate contract: do not assume that, because an agreement may be oral, there are no repercussions for failing to perform. As with any legal agreement, one should speak with an experienced attorney and proceed with caution.

Getting Out of a Contract

This appeal also concerns another important part of contract law: when can someone “undo” a contract? The “undoing” of a contract, known as a rescission, generally requires there to be a complete abrogation of the agreement. In other words, if a party really fails to do what they are supposed to, the other party may have the option of asking the court to cancel the contract. My appeal is primarily about this issue: whether or not one of the parties did their required obligations under the contract.

It is important to understand that the right to rescind an agreement is a high burden to meet. Courts will not allow rescission when a party has merely breached such an agreement, generally, it must be shown that an “utter failure of consideration” occurred.

This is important for anyone entering into a real estate contract agreement to know. Getting out of such an agreement is no guarantee, and the law provides powerful remedies for enforcing these agreements.

Conclusion

If you need assistance with a real estate contract matter, contact me for a consultation.