Overview of Summary Judgment in Massachusetts

Summary Judgment in Massachusetts

Summary judgment is a common part of civil lawsuits, and a topic that comes up frequently in discussing what to expect in litigation.  Summary judgment applies to any civil case, but I wanted to do a post on this topic because it frequently comes up in discussions with clients on the course of a lawsuit.

Overview of a Lawsuit

A lawsuit, simply put, is a demand for a court to offer a remedy against another party.  This can include a demand for money, possession, or equity (such as a court order demanding a party to do, or not do, something).  A party served with a lawsuit has an opportunity to present a defense and convince the court why it should not find for the plaintiff.

After service of a lawsuit and an answer by the defendant, the parties have an opportunity to do discovery, where they can learn about each other’s case.  Following discovery, the lawsuit is then ripe for trial.  However, either party can seek a summary judgment motion as a means of winning the case without trial.

What is Summary Judgment?

To understand summary judgment, it is helpful to first understand the role of a trial in a civil case.  The purpose of a trial is for the jury (or judge, if there is no jury) to decide which “side of the story” to believe.  Doing so requires the judge or jury to hear the disputed facts and determine which side is more credible.  Once doing so, the jury or judge applies these determined facts to the law, and offers a final judgment in the matter.

Summary judgment is an attempt to get a court judgment without trial.  Summary judgment requires a party to prove that (a) there are no genuine issues of material fact and (b) the moving party is entitled to judgment as a matter of law.

For the first element, the moving party must show that the facts are not disputed.  For example, in a landlord/tenant eviction for non-payment of rent, a landlord seeking summary judgment would need to show that there is a tenancy agreement between the landlord and tenant, rent is owed, and all of the required court papers were prepared and served.  If the tenant disputes any of this, such as alleging that no rent is owed, there would be a dispute of fact, and summary judgment would not be allowed.  Instead, a trial would be required.

For the second element, “being entitled to judgment as a matter of law,” the moving party must show that the law provides the remedy they are asking the court for.  It is possible to have a case where no facts are disputed, but the law simply does not provide the relief that the claimant is seeking.

Summary Judgment in Practice

Summary judgment is often requested in lawsuits, as it avoids the need for a trial.  Rather than putting on a full trial before a judge or jury, summary judgment can allowed a case to be decided solely on the papers, and avoid enormous time and legal fees.

The decision to seek summary judgment, however, must be made carefully.  I often seek lawyers attempt a summary judgment motion where the facts are clearly disputed, and the motion merely delays the case and adds unnecessary costs to the case.  In some cases, simply bringing the case to trial is the much more logical choice.

On the other hand, summary judgment can be effective at getting your case resolved quicker than trial.  An effective summary judgment motion, however, requires that the facts and law be presented in a proper manner to allow for this relief.

Conclusion 

The benefits of having an experienced attorney on your side can make all the difference in winning a case on summary judgment.  If you find yourself in need of help with a lawsuit, contact me for a consultation.

What is a Lis Pendens?

An effective tool in pursuing a real estate dispute is a lis pendens.  A request for a lis pendens often comes up in property lawsuits and can be useful for protecting one’s interest in real estate while a lawsuit is ongoing.

What is a Lis Pendens?

A lis pendens, simply put, is a formal notice of a pending legal action.  Per the law, a lis pendens is allowed for a lawsuit that “affects the title to real property or the use and occupation thereof or the buildings thereon . . .”  A lis pendens must be signed by a judge, after finding that the underlining lawsuit is one that meets this standard.  After a judge approves a lis pendens, it may be recorded in the appropriate registry of deeds as part of the land records.

Recording a lis pendens, on its own, will not stop the buying or selling of property.  The practical effect of a lis pendens, however, is to preserve the status quo while a lawsuit is ongoing.  Few people will buy real estate knowing that a lawsuit affecting the subject property remains ongoing.

Requirements for a Lis Pendens

Compared to a preliminary injunction (another legal tool for preserving the status quo during a lawsuit), a lis pendens is relatively easy to obtain.  The lawsuit must be one that affects title to real property, and must be verified by the party seeking the lis pendens.  This means that the party has affirmed, under the pains and penalties of perjury, that the facts of the lawsuit are correct.

Prior to recording a lis pendens, the law requires the party to prepare an affidavit stating that notice of the allowance of the lis pendens has been provided to the other parties in the lawsuit by certified mail.

In Superior Court, a lis pendens generally requires a hearing before the Court with proper notice to the other side.  While not in the formal rules for other trial courts in Massachusetts, this is the general practice for most lis pendens requests: the court will likely only consider this relief upon notice and hearing to the opposing party.

A party is permitted to seek a lis pendens on an emergency basis, by going to court first and not giving the opposing side notice (known as an”ex parte” action).  However, a party needs to show a real emergency for doing so.  If there is time for the court to hold a hearing and hear from the opposing side, the court will likely require a hearing.

Conclusion

A lis pendens is an effective part of litigating real estate disputes.  An experienced real estate litigation attorney can make a real difference in obtaining this relief and getting you the results you need.  If you find yourself in a dispute that may justify a lis pendens, contact me for a consultation.

Sherwin Law Firm Succeeds in Case of Easement by Prescription

I’m pleased to announce that I prevailed in a case last week involving an easement by prescription for residential property.  This case involved many interesting areas of Massachusetts property law.

Overview of the Case

My clients were homeowners who, for the past thirty years, had used a nearby paved lot by their home to park their cars.  Along with parking their cars, they regularly maintained the lot and performed improvements on the walls that surrounded the property.

Several years ago, someone else purchased this parking lot and demanded that my clients pay rent to use it.  My clients, who spent years using the lot as their own, were understandably upset about this turn of events and sought my legal advice on what could be done about this problem.

My Approach

I filed a lawsuit against the new owner of the property seeking a declaratory judgment that my clients were entitled to permanent use of the parking lot.  A declaratory judgment is a court order to determine one’s rights under the law.  A court order like this is needed in a case where the goal of the lawsuit is not money, but rather, a legal declaration from a court.

In this lawsuit, I asked for an easement by prescription for my clients.  An easement by prescription is a permanent right to use someone else’s land.  An easement by prescription requires the following:

  • The use of the property must be adverse for at least twenty years.  This  means that the person seeking an easement by prescription must show that the owner of the subject property never gave them permission to use the property.
  • The use of the property must constitute actual use.  This means that the person using the property used it in a way that property of that type is commonly used.
  • The use of the property must be open and notorious.  Simply put, the use of the property must put the actual owner on fair notice that someone else is using his or her property.

An easement by prescription is similar to adverse possession, which is a legal claim for permanent ownership of property that is used for twenty years.  The critical difference is that a claim of adverse possession requires a party to prove that their use of the property was exclusive, and  that the record owner of the property was “cut off” from the property.

An easement by prescription does not require proof of exclusive use.  Easements by prescription are commonly used for cases involving the right to use a road for access to land and for beach and waterfront rights (common in Cape Cod and other coastal areas of Massachusetts).

Outcome 

As with all claims of adverse possession and easements by prescription, the “devil is in the details.”  Proving one of these claims requires an understanding of how the subject property was used for the past twenty years, which often requires going through extensive land records, photographs, and other evidence related to the property’s use.  A trial for one of these cases requires that this evidence be presented to the Court in a way that coherently explains the required elements above.

In the end, the work on this case was worth it: following a trial, the Court agreed with our claim, and granted my clients a permanent easement for parking.

Lessons for Property Owners In Similar Cases 

Claims for adverse possession and easement by prescription may, at first blush, appear to be trivial, with neighbors fighting over small parcels of property.   In actuality, these disputes concern incredibly important matters.  Here, parking access was essential to my clients, who lived in a city that had limited off-street parking, making this easement by prescription a huge benefit to my clients’ home.

If you find yourself in a dispute involving the use of property, contact me for a consultation.  A lesson of this case is that long standing use of property, under the right conditions, can allow for a permanent right to access or ownership .  An experienced real estate attorney can help you decide if one of these claims is worth pursuing.

5B Affidavits

Massachusetts has an important law allowing for the clarification of potential issues in the ownership of property.  G.L. 183, § 5B provides for the following:

Subject to section 15 of chapter 184, an affidavit made by a person claiming to have personal knowledge of the facts therein stated and containing a certificate by an attorney at law that the facts stated in the affidavit are relevant to the title to certain land and will be of benefit and assistance in clarifying the chain of title may be filed for record and shall be recorded in the registry of deeds where the land or any part thereof lies.

Commonly known as “5B Affidavits”, these affidavits allow for the recording of information relevant to real property.  5B affidavits can be used to correct problems arising with Massachusetts real estate, such as potential problems involving the conveyance of property.  I have found 5B affidavits to be useful for foreclosure related matters; a foreclosure by entry, which is a foreclosure that begins with the recording of a certificate in the land records, requires a homeowner to oppose this foreclosure within three years of this certificate’s filing in the land records.  A 5B affidavit can be used as a means of preventing this type of foreclosure from occurring.

5B affidavits, importantly, must be certified by an attorney.  The law does not allow a non-attorney to record one of these affidavits on their own.

While 5B affidavits are commonly used for real estate matters, there is surprisingly little caselaw on the limits to how these affidavits can be used.  Although the law is written broadly, for use in “clarifying the chain of title” for real estate, I take the position that an attorney should exercise caution in recording such an affidavit.  A 5B affidavit should have a good faith basis in law and fact, and have a real purpose for the respective property it pertains to.  An affidavit that does not meet this standard can potentially subject a property owner (and attorney) to potential liability.

If you find yourself in a real estate dispute, contact me for a consultation.

Real Estate Contract Disputes

Real Estate Contract Disputes

Real estate contract disputes can arise over the selling and purchase of property.  Given that transfers in real estate have much at stake, these disputes can often become contentious and require the assistance of an experienced property attorney.

Avoiding Real Estate Disputes in the First Place 

Avoiding a potential problem in the first place in a real estate contract should always be a central consideration in entering into such an agreement.  If you are considering selling or purchasing property, you should always seek the assistance of an experienced attorney in preparing such an agreement.  An attorney can often help identify potential problems that might arise later on, and offer advice to protect yourself if a dispute develops.

Ways to Protect Real Estate When a Dispute Arises

A primary, immediate concern for real estate contract disputes is protecting the underlining property.  For example, if you entered into a contract to purchase property, and the seller intends to sell the property to someone else, your immediate goal is to do something to stop the sale.  Similarly, if the subject property is being damaged or neglected, you would want something done immediately to cure the problem.  Fortunately, the law offers some safeguards when these problems arise.

One common device used in real estate contract disputes is a lis pendens.  A lis pendens is a notice of a lawsuit involving an interest in real property, which is recorded in the land records.  This is a simple notice stating the name and case number of the underlining lawsuit, which must be endorsed by the  court.  A lis pendens is effective in real estate contract disputes because, as a public document, it puts any potential buyers of the property on notice about the underlining lawsuit.  Few buyers would be willing to purchase real estate if the property is subject to ongoing legal action.

Another effective tool for protecting real estate is an injunction.  An injunction is a court order restraining or compelling a party to do a particular act.  A court, for example, could issue an injunction stopping a party from damaging property is there is reason to believe such damage is occurring.  An essential requirement of an injunction is irreparable harm.   A court will not issue an injunction is money is the only thing that may be lost; a court will need to be convinced that a loss will occur that money alone cannot solve.

What Can You Get in a Real Estate Contract Dispute?

Contract disputes are generally about money, and determining the proper amount to give to someone for damages.  However, for contract disputes where money alone will not help an injured party, the law provides for the remedy of specific performance.  Specific performance allows a party to get exactly what they contracted for, and is generally allowed when this relief involves something distinctly unique.

Specific performance is usually allowed for real estate contract cases.  The rationale is that a particular property cannot be “replaced” by another, and a damaged party is entitled to the exact real estate they contracted for.  For real estate contract disputes, this is often the preferred outcome by parties in these cases.

If you find yourself involved in such a matter, contact me for a consultation.

Drone Privacy Law in Massachusetts

Drone Privacy Law in Massachusetts

Drones have changed a great deal in the last several years.  Once entirely used for military and warfare purposes, consumer drones are mainstream and increasingly being used for commercial and recreational purposes.  The uses of drones are endless: home builders, surveyors, and even lawyers are finding that drones, and the ability to do aerial photography and video, is an incredible tool.

Yours truly is an avid drone user.  The picture below was taken by me with my drone from the Middlesex Fells  in Medford, and shows my office location in Assembly Square, Somerville.

This picture highlights a growing concern with drones: this new technology has an amazing ability to capture photographs and video that could not otherwise be seen before.  Such use of aerial vehicles raises many legitimate concerns over privacy rights.  Here, I want to discuss drone privacy law in Massachusetts and discuss what can be done if you have privacy concerns arising from another person’s use of a drone.

Drone Law in Massachusetts 

Massachusetts, like most states, is still grappling with how to regulate drones. Presently, Massachusetts does not have a statewide law regulating drones.  This isn’t surprising; many states similarly do not regulate drones, although there are many proposed laws in state legislatures across the country.  Here in Massachusetts, some local towns and cities, such as Newton, have passed local ordinances on when and where drones can fly.  It is fair to say, however, that drone law in Massachusetts is very much in its infancy.

Drones and Privacy

An increasing problem with drones are privacy concerns.  It is increasingly common to hear complaints about drones flying too closely to homes and places of business and taking unwanted photos and videos.  With the limited laws on drones in Massachusetts, what can be done if you feel your privacy is being invaded by a drone?

Massachusetts, unlike many states, provides a specific right to privacy for its residents:

A person shall have a right against unreasonable, substantial or serious interference with his privacy. The superior court shall have jurisdiction in equity to enforce such right and in connection therewith to award damages.

I’m not aware (yet) of anyone using this law in regards to a drone, but I suspect that Massachusetts’s Right of Privacy Act could be effective in dealing with the unreasonable use of a drone.  This law, importantly, provides a court with equitable powers, allowing a court to issue an injunction, restraining order, or other declaration preventing someone from invading another’s privacy with a drone.

Once again, drone law in Massachusetts is new and it will be up to the courts to decide whether Massachusetts’s Right of Privacy Act and other existing laws cover drones.  If you find yourself in need of assistance with one of these matters, contact me for a consultation.

 

Boundary Line Disputes

Boundary Line Disputes

Boundary line disputes are, arguably, one of the most contentious areas of law.   Understanding the right approach to dealing with boundary line disputes can make a real difference in effectively resolving these problems.

Determine Your Property Boundaries

The first step in resolving boundary line disputes is to determine your property boundaries.  Many times, the boundary line for property is not where the owner believes it is.  Even though fences and other physical structures may, informally, be considered the perimeters of property, the actual property lines may be in a different location.  Determining property boundaries is generally done by a survey or plot plan, which is prepared by a licensed surveyor.  A surveyor will review the land records for the subject property (found in the appropriate registry of deeds) and state the exact location of the property’s boundaries.

A survey or plot plan, however, is not always the final authority for determining a land boundaries.  Massachusetts, like most other states, allows for adverse possession of real property.  Adverse possession is a legal claim where the continuous use of property by a non-owner allows that user to legally acquire the property.  As such, even if the survey or plot plan states that disputed property belongs to a particular person, an adverse possession claim may allow a non-owner to become the property’s record owner.

Attempt to Resolve the Matter Amicably 

Property owners should always attempt to resolve boundary line disputes without going to court.  Court cases, while sometimes necessary, can be long and expensive.  Many times, boundary line disputes can be worked out amicably, which is to everyone’s benefit.  Mediation, where the parties meet with a neutral party to discuss the dispute, can be a useful process for these matters.

Although it is beneficial to try and settle these matters out of court, it is still a good idea to speak with an attorney for help with these negotiations.  A lawyer can help advise you of your rights and determine the best way to proceed.

Seek Court Action If A Resolution Cannot Be Found

For boundary line disputes that cannot be resolved amicably, court action may be necessary.  Massachusetts law allows property owners to get a court declaration on the ownership of property, and a court order preventing a party from using a portion of property, if necessary.

Unlike many states, Massachusetts has a court that specializes in property cases: Land Court.  Land Court is a popular court for these types of cases, with judges and staff that are familiar with these matters.  In addition to Land Court, these cases can also be brought in Superior Court or federal court.

If you find yourself in need of a court case for a boundary line dispute, contact a lawyer for assistance.  Preparing and filing a lawsuit for boundary line disputes can be tricky, and having an experienced attorney on your side can make all the difference in getting the results you need.

Forced Sale of a Home – Understanding Massachusetts Partition Cases

Real estate is commonly owned by multiple persons.  It is not unusual for married couples, family members, and even friends to own real estate together, and share in the responsibilities and upkeep of the property.  When everyone is fine with owning the home together, no problems exist.  It becomes more difficult when one or more owners of the property wants out.  When this happens, a property owner can begin a court action for a forced sale of a home, known as partition.  While this post is aimed at multiple owners of a residential home, the same type of relief is available for all types of jointly owned real estate.

What is Partition?

Partition is a court case to divide jointly owned property.  A partition case may be heard in Land Court (most common) or Probate and Family Court.  Partition, importantly, is an absolute right of any property owner: if one owner wants to do a forced sale of a home, they can do so.

The Court will first determine the best way to divide the property, either through partition in kind or partition by sale.  A partition in kind is the physical division of property.  If the court can simply “split the baby” and give each owner a share of the property, this is the preferred outcome.  Most of the time, particularly with single residential homes, this is not a realistic possibility.  The other, and more common, form of partition is a partition by sale: the court orders that the home is sold, and proceeds divided among the owners.

Who Gets What?

A central job of the court in a forced sale of a home is determining who gets what.  A court will not merely allocate the proceeds from a home sale simply based on each party’s ownership of the property.  The court will consider whether one party contributed a greater share towards the initial purchase of the home and whether one owner made permanent improvements to the property.  The court will also consider whether one party was responsible for paying the property taxes, insurance, and other expenses responsible with property ownership.

How to Succeed With a Forced Sale of a Home

The best way to succeed with the forced sale of a home is to try and prevent one of these cases from happening in the first place.  A partition case often results in the owners getting much less than they would if they simply agreed to sell it on their own.  Joint property owners can negotiate to “buy out” the other owner’s share of the home, or simply agree on a sale price for the property.  An experienced attorney can help you determine if this is a possibility or, alternatively, help you succeed in a partition case.

Text Messages as Evidence – Lessons from the Massachusetts Texting Suicide Case

If you followed the news today, you know about the guilty verdict in the texting suicide case taking place in the Massachusetts Juvenile Court.   In a well reasoned oral decision, Judge Lawrence Moniz  found the defendant, Michelle Carter, guilty of involuntary manslaughter through her numerous text messages urging her boyfriend to kill himself.  This case earned national attention as it concerned sensitive topics of teen bullying, suicide, and electronic communications.  Here, I want to focus on another important aspect of this case: the growing use of text messages as evidence.

Text messages, like most areas of technology, have changed a great deal over the past decade.  I remember when text messages were more of a novelty than an accepted means of communication.  Now, it is completely acceptable to use text messages to share important information.  This is quite a change from years ago, when many of us relied more on email and phone conversations to communicate.

The texting suicide case shows an important implication of text messages as a means of communication: these messages last forever.  Unlike a phone call, which is rarely recorded, text messages often remain in a cell phone or in “the cloud” permanently.  This has enormous implications, as the defendant in this criminal case learned the hard way.  If this defendant had urged her boyfriend to kill himself over a phone call, it is doubtful the Commonwealth of Massachusetts could ever have obtained the evidence needed to convict her.  This is an important lesson from this case: text messages as evidence have powerful consequences in legal matters.

A simple lesson should always apply to using text messages: if you text a message, be prepared for it being presented as evidence if a legal matter ever arises.  This is not the first (and certainly will not be the last) time that text messages are the basis of a legal matter.  Last year, the Massachusetts Land Court ruled that text messages could constitute a legally binding real estate contract, emphasizing how courts are adopting to electronic communications in civil and criminal cases.

In my practice, I take advantage of text messages as evidence.  Such messages are extremely credible and persuasive in presenting facts to a judge or jury.  However, text messages are worthless if these communications are not preserved and, most importantly, in a form available to present to a court.  You would be surprised at how many people are prepared to simply hold up their cell phone to show a text message to a judge or jury!  That approach doesn’t work; a court requires such evidence to be presented in a manner that can be part of a permanent record.

As an evolving area of the law, it is not completely clear on the best way to present text messages as evidence.  Most smartphones have apps that allow a user to turn text messages into PDF files, which can be printed and introduced as evidence.  This approach appears to be generally allowed by courts in accepting such messages into evidence.  For anyone with a text message that may be relevant to a legal matter, I recommend using such an app, as well as keeping the original text message on your phone and making a backup copy.  Like any piece of evidence, if it is lost, it isn’t much help to you.

 

What to Look For In Hiring An Attorney

Hiring an attorney can be an intimidating process.  You’re putting your complete trust in an unknown stranger, who is often making important decisions on your behalf.  Choosing an attorney is an important decision, and there is much advice on what to look for in hiring an attorney.  Here, I’m going to focus on something you may not think of: does the attorney know how to use technology?  It may not sound too important, but take my word that it is an important consideration in selecting a lawyer.

Permit me an example.  Several months ago, I gave a closing argument in an adverse possession case in Massachusetts Land Court.  Cases like these are highly fact specific, which required extensive citations to the exhibits before the file.  This trial, like most trials in Land Court, had a full transcript from a court reporter, allowing both parties to cite to specific portions of the record.  Following my opposition’s argument, I had the opportunity to offer a rebuttal.  In my rebuttal, I argued that the other side had missed a key fact, and I gave the court the specific page of the transcript where this was found.  I did so through the help of my Microsoft Surface, a hybrid laptop/tablet that allows me to bring my case files to court.  I can access any document I need in seconds, which prevents me from bringing massive paper files to court.  Not only did my Surface help me get the information I needed for my closing argument, it saved my clients money: I did not need to print out a full copy of the trial transcript or other relevant papers for the case.

I use technology on a regular basis in the practice.  One of my other, favorite devices is my high speed scanner, which helps to make PDF copies of all of my documents.  This saves me (and my clients) without having to spend unnecessary money of a large office space and storage, and also lets me transit important documents to my clients by email, right away.  I’ve written about the importance of using technology in a law practice and I believe strongly that technology is as much to my clients’ benefit as it is to mine.

So, in considering what to look for in hiring an attorney, I suggest asking a potential lawyer how they use technology to run their practice.  A lawyer who keeps on top of the newest tools for practicing law will be the lawyer who get give you the best outcome…at the lowest price to you.