Fixing a Foreclosure Problem in Massachusetts

Challenging a Foreclosure

Fixing a foreclosure problem is a matter that may be necessary if a mistake is made in the foreclosure process. If such a mistake occurs, and the foreclosure is void, the buyer does not have full ownership of the property, which will prevent them from evicting any of the occupants or selling the home at a later date.

Fortunately, there are options available for fixing a foreclosure. As someone who has both helped buyers of foreclosed properties with these matters, and homeowners attempting to avoid foreclosure, I know many of the common pitfalls in this area of law.

Overview of Foreclosure In Massachusetts

Massachusetts is a non-judicial foreclosure state. This means that, unlike many other states (such as New York and Vermont), a lender does not need to go to court to foreclose. Rather, a lender can foreclose through a series of legal notices and a public auction sale.

The requirements for a foreclosure in Massachusetts are detailed and must be strictly complied with. Even a minor, innocent mistake can be grounds for arguing that a foreclosure is void.

Common Errors In Massachusetts Foreclosures

Common errors in Massachusetts foreclosures include, but are not limited to, the following:

For a third-party buyer of a foreclosed property, these defects can be problematic. Even though the lender made the error, such defenses can be used against the subsequent buyer of the foreclosed property, to challenge the home’s ownership.

Fixing a Foreclosure: What Can Be Done?

The first step for attempting to resolve a foreclosure problem is to try and negotiate with the former homeowner, if possible. If the former homeowner no longer lives in the home, or has no interest in keeping the property, it may be possible to reach an agreement where ownership of the home can be resolved.

If this is not possible, a court action will likely be necessary. In such a case, a third-party buyer can ask a court to quiet title for the property or allow it to perform a new foreclosure sale.

Final Thoughts

Addressing an issue with a foreclosure should never be done without an experienced attorney’s help. If you need assistance with such a matter, contact me for a consultation.

Selling a Home With Tenants In It: What to Know

Selling a home with tenants in it is a topic that often arises with the listing and purchasing of real estate. While it is common to sell property that is occupied with tenants, both buyers and sellers should be aware of certain topics that often come up in such matters.

Tenancies Remain After the Sale of Rental Property

The most common question I get about selling a home with tenants is whether a tenancy remains after the new owner purchases the rental property. In other words, can a new owner of rental property immediately terminate existing tenancy agreements?

Tenancy agreements, whether they are through a lease or a tenancy at will (“month-to-month”) do not end simply because property is sold.

This needs to be kept in mind before committing to a property sale, if a property must be sold vacant.

If a purchase agreement requires a property to be sold without tenants in it, this needs to be addressed by the seller, either through an agreement with the tenants or an eviction. The mere sale of property, on its own, will not require any existing tenants to vacate the property.

Be Extremely Careful With Security Deposits

All landlords need to exercise extreme care with Massachusetts’ security deposit law. This law regulates the acceptance, holding, and return of a security deposit, and comes with severe penalties if violated.

This law also has specific, detailed requirements for handling a security deposit when property is sold. Both buyers and sellers of rental property need to be aware of these requirements and how to properly handle such a deposit in these circumstances.

Be Mindful of the Responsibilities of Being A Landlord

Landlording comes with specific duties and responsibilities, including (but not limited to) prohibitions on housing discrimination, a duty to keep rental property habitable, and a requirement to use a formal eviction process should a landlord need to evict a tenant.

Failure to comply with any of these requirements can be highly problematic for a landlord.

These responsibilities are the same regardless of whether the buyer of property with tenants intends to remain as a landlord, or no longer wishes to keep renting after the tenants leave.

Final Thoughts

As with most legal matters, the best way to avoid problems is to prevent them in the first place. If you need assistance with a landlord-tenant matter, contact me for a consultation.

Quiet Title in Massachusetts

Quiet title is a legal action used to resolved real estate disputes. This action asks a court to issue an order resolving a property issue. This can be highly effective in determining one’s rights in property.

Overview of Quiet Title

Quiet title is a broad cause of action, and can conceivably be used for any type of real estate dispute where the rights of property are at issue.

I like to think of quiet title as being a declaratory judgment action for property, where a court is being asked to resolve an actual controversy.

Quiet title, importantly, gives a claimant a lot of leeway in who an action can be brought against, including “the claims or rights of persons unascertained, not in being, unknown or out of the commonwealth.” This is helpful for disputes where the potential defendants are unknown or not entirely certain.

Where to File

Quiet title actions are most often filed in Superior Court and Land Court. Deciding which court to use is a critical decision, which an experienced attorney can help with.

In my experience, Land Court is often the best forum for these matters. Land Court judges have a solid background in real estate matters, and expertise in addressing such cases in a prompt and effective manner.

Other Options for Resolving Property Disputes

When bringing a lawsuit to resolve a property dispute, it is important to similarly consider and include any other causes of action for resolving property disputes.

For boundary disputes, claims of adverse possession and easement by prescription often arise and come into play. Try title, which forces an opposing party to raise all of their claims to a property in a single action, is also a claim that should be considered in such matters.

Property disputes involving deeds and mortgages often implicate matters concerning reformations and discharges.

Final Thoughts

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

Massachusetts’ Land Records: Five Things to Know

Massachusetts’ land records are an essential tool for any real estate matter, whether it be a real estate dispute or transaction (such as buying or selling a home).

Here, I’ll discuss five things to know about Massachusetts’ land records.

Free, Online Access

I’m from Vermont. While I would take a Vermont beer over a Massachusetts beer on any given day, I wouldn’t trade Massachusetts’ land records for anything. Vermont (like many other states) uses paper for all of their land records. If you want to search the land records, you need to visit the individual town or city.

In Massachusetts, our land records are online: www.masslandrecords.com. This is a tremendous resource for anyone involved in a Massachusetts real estate matter.

Although documents may be viewed online, the process of filing land records (known as “recording”) usually must be done at one of the physical registry locations. E-recording is allowed in some locations, but not all, and generally requires pre-registration.

Recorded v. Registered Land

Massachusetts uses two systems of land registration: recorded and registered land.

Recorded land is the most commonly used Massachusetts land records system. Documents are generally recorded individually, with references to other related documents, to make it easier to search.

Registered land is a land record system overseen by Land Court. The requirements for recording registered documents are more stringent than those for recorded land, and sometimes require approval from the court itself for any changes to be made. Recorded land is organized into “certificates of title”, which group together related land documents.

Common Documents to Find in Land Records

Common documents to find in the land records include deeds, mortgages, mortgage assignments, and homestead filings. All of these documents are associated with the buying and selling of property.

Court decisions can also be recorded in the land records. For example, if a homeowner prevails in a boundary dispute against a neighbor, the decision can and should be recorded so as to make it part of the chain of title, so future buyers of both properties become aware of the decision.

Problematic Documents to Find in Land Records

Some documents recorded in the land records can be problematic, and should be checked closely by a property owner. Judgments for money, where a court has ordered one party to pay another money, can be recorded in the land records as a lien on property. These generally must be satisfied prior to the sale of property. Liens can also arise from unpaid property and federal/state taxes.

The recording of a notice of a Servicemembers’ Case is often a prerequisite for the start of the foreclosure process. A homeowner who receives such a notice needs to act quickly to address the matter.

Affidavits to Clarify the Chain of Title

Massachusetts law allows the recording of an affidavit in the land records, for the “benefit and assistance in clarifying the chain of title.” Such an affidavit must have a certificate from an attorney.

These affidavits are helpful for explaining or clarifying real estate matters that are not otherwise apparent from other recorded documents.

Commonly known as “5B Affidavits”, these documents can be a great tool for resolving real estate disputes.

Conclusion

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

Appealing a Zoning Board Decision

Appealing a zoning board decision is an option available for anyone who has received an unfavorable zoning decision, or who is harmed by someone else’s zoning matter.

This blog post does not cover zoning matters in the City of Boston. Zoning in Boston falls under a different set of rules and is slightly different. I’ll write about Boston zoning in a future blog post.

Who Can Appeal?

A “person aggrieved” by a decision from a zoning board is entitled to appeal such a decision. This requirement is known as standing: one must have a real interest in the outcome of the zoning board to pursue an appeal.

This is a critical point about appealing a zoning board decision. Not just anyone can pursue such a matter; one needs to show aggrievement. Failure to do so will be fatal to a zoning appeal.

What is the Deadline for Appealing a Zoning Board Decision?

Zoning appeals come with incredibly tight deadlines. Most often, such a case must be filed within twenty days after the zoning decision is filed with the city or town clerk.

This is a “hard and fast” deadline: there are few, if any, exceptions allowed for the late filing of such an appeal.

Zoning appeals are generally filed in either Superior Court or Land Court, with advantages and disadvantages for pursuing such a case in each court.

Considerations for An Appeal

A major consideration for a zoning appeal is the likelihood of success in such a matter. The law gives zoning boards wide discretion in the decisions they make. However, such relief needs to have supporting basis in law and fact.

Variances, in particular, have detailed requirements to obtain, and a failure to meet each of these criteria can be grounds for a viable appeal.

Reviewing a zoning board decision with an experienced attorney is critical before making a decision to appeal.

Final Thoughts

I’ve helped many Massachusetts property owners pursue and defend zoning appeals. If you need assistance with such a matter, contact me for a consultation.

How to Prove Adverse Possession

Land Court issued an interesting decision last week on how to prove adverse possession and whether landscaping activities, alone, are enough to do so. This decision, as of now, is not available online.

What is Adverse Possession?

Use it, or lose it! That is a quick and dirty summary of adverse possession. This area of law allows a non-record owner of property to acquire another person’s property if they continuously use it for twenty years.

Proving adverse possession in Massachusetts requires a showing that the property’s use was open, adverse, actual, notorious, and exclusive for twenty years. Courts, importantly, require a solid showing of proof for each element, and will not allow a claim if any one of these factors are not proven.

What’s the purpose of adverse possession? The best explanation of adverse possession, in my opinion, is to preserve the status quo. If a non-owner of property has taken care of real property for an extended period of time and made it their own, adverse possession is meant to keeps things are they are. Adverse possession also provides a strong incentive for owners to take care of their property.

How to Prove Adverse Possession

Proving adverse possession is not always easy. In this Land Court decision, a claimant asked for adverse possession on the grounds that he had performed extensive landscaping of the disputed property for the past twenty years, including weekly mowing, seeding, and lawn maintenance activities.

Land Court ruled that such activities were not enough to show open and actual use. This follows a general trend that landscaping, alone, is not grounds for adverse possession; a claimant must also do some other improvement to the land, such as erecting a fence or doing significant landscaping cultivation.

The Court similarly held that the claimant had not shown exclusive use. In other words, there was not enough to show that the non-owner was trying to exclude others from the property, such as enclosing the property with a fence.

Practical Implications

Adverse possession cases need to be prepared carefully, with a strong case made for each element. Here, while I think Land Court got this decision correct, there are other cases that seem to go the other way in similar scenarios. This is one reason why these disputes are fact intensive and require enormous preparation.

I’ve help many property owners with such cases. If you need assistance with such a matter, contact me for a consultation.

How to Settle Property Disputes

A recent story from Maine discusses the importance of how to settle property disputes and, most importantly, what to avoid. In this article, a dispute over property among neighbors got so bad that one of the neighbors cut the other’s garage in half!

Needless to say, this isn’t the best approach when addressing a boundary dispute.

Determine Who Owns What

The first step for settling a property dispute is to determine the exact property you own. The starting point for this is generally a survey or plot plan, done by a licensed surveyor who has reviewed the land records.

If you find that the disputed property is not within your record title, or the disputed property’s ownership is unknown, a claim for adverse possession may still be a possibility.

Attempt to Resolve the Matter Without Court Involvement

Property disputes can get expensive and complex . . . really quickly. With this in mind, it is worth trying to resolve the matter without court involvement.

That’s not to say this should be done without lawyer involvement. In many of the property disputes that I’ve handled, I have able been to prepare a demand letter that has successfully resolved the matter without a formal legal action. This option is almost always worth considering before pursuing a lawsuit.

Taking Legal Action

If the property dispute cannot be resolved on its own, court action may be necessary. Courts have broad powers to resolve real estate disputes, such as issuing orders to determine who owns disputed property and entering injunctions to prohibit the unlawful use of land

Conclusion

If you are involved in a property dispute, contact me for a consultation.

Obtaining a Mortgage Discharge

Obtaining a mortgage discharge is a critical part of selling property or refinancing a loan. This simple (but extremely important document) shows that a mortgage was fully paid.

The vast majority of the time, mortgage discharges are properly recorded in the land records, and nothing more needs to be done. On occasion, however, further action is needed if this was not done, or not done properly.

Mortgages 101

A mortgage is an agreement that gives a lender security against a borrower when making a loan for real property. When a borrower borrows money to buy property, the lender almost always requires the borrower to grant it a mortgage, in case the borrower does not repay the money. This allows the lender to foreclose the property, if the borrower defaults on the debt.

Mortgages, importantly, are filed (known in legal terms as “recorded”) in the appropriate county land registry. This allows anyone (most importantly, a potential purchaser of property) to know that a lender has an interest in the property.

When a mortgage is paid in full (either by the borrower or through a loan refinance), a mortgage discharge must be recorded. This is important for selling property: few, if any, potential buyers of property will want a home with unpaid debt on it!

By law, most lenders are required, on their own, to file a mortgage discharge once the debt is paid in full. Most of the time, this occurs without a problem, and the property owner generally gets notice of this in the mail. This, importantly, must be recorded in the land records along with the underlining mortgage.

Obtaining a Mortgage Discharge: What Can Be Done If A Problem Arises?

Problems with mortgage discharges generally occur when (1) a discharge isn’t recorded or (2) there is a question whether the entity who recorded the discharge had the authority to do so. In either case, what can be done?

The law allows, in specific circumstances, for the filing of an affidavit, which can serve as a mortgage discharge on its own. The law has detailed requirements on what is required for this option. Determining whether this applies should always be the first step in addressing a mortgage discharge problem.

If such an affidavit cannot be done, it is sometimes possible to obtain a new mortgage discharge from the lender. I’ve had luck doing this on a recent case, which saved my client enormous time and money.

If neither of the above are options, a property owner may also file an action in Land Court seeking a court order to discharge the mortgage. Such a case requires the property owner to include the lender as a party, and provide them an opportunity to object. This type of case can be helpful when it is not clear who the lender is, or whether the lender is still in existence.

Final Thoughts

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

Fighting a Zoning Decision

foreclosure appeal

Fighting a zoning decision generally occurs through the filing of a G.L. c. 40A, § 17 appeal in Land Court or Superior Court. Such, an appeal, however, many only be filed by a “person aggrieved.”

On this important topic, the Supreme Judicial Court issued its long awaited decision in Murchison v. Zoning Board of Appeals of Sherborn, a decision that overruled a prior appellate decision on this same matter.

This case is the only time I’ve seen an appellate court announce the outcome of a decision months before issuing a written decision, which underscores the importance of this area of law. The full decision is below.

Overview of Fighting a Zoning Decision

Fighting a zoning decision from a town or city zoning board (usually a Zoning Board of Appeals or Planning Board) is done through a civil court action. A party must file such an appeal twenty days after the decision has been filed in the office of the city or town clerk. After doing so, the party who is the applicant seeking zoning relief has the burden of proving their case.

This is a critical point for fighting a zoning decision. A party who appeals a zoning decision forces the other party to prove its right to zoning relief. This is in contrast to most other civil lawsuits, where the party filing the case has the burden of proof.

Who Has the Right to Appeal a Zoning Decision?

Appealing a zoning decision requires more than simply filing a court case. The law only allows a “person aggrieved” to pursue such a case. In other words, the party must have some real stake in the case outcome (known in legal terms as standing).

A homeowner trying to appeal a zoning decision for a parcel of property on the other side of town would most certainly not be considered a “person aggrieved.” This inquiry, however, gets tricky when it concerns zoning disputes among neighbors and those living near the property.

Murchison determined that an abutter of a property (who is located a specific distance from the property) is not automatically a “person aggrieved.” Rather, a person pursuing a zoning appeal must make a more detailed showing of standing, including a claim of harm from the zoning relief.

Final Thoughts

Standing is a mandatory requirement for a zoning appeal. If a party cannot demonstrate that they are a “person aggrieved,” the case is over.

For this reason, it is critical to have an experienced attorney help you in preparing such a case. If you are involved in a zoning matter, contact me for a consultation.

Murchinson

Dividing Property Through Partition: 3 Things to Know

Dividing property through partition is the legal process by which an owner of real property can force the sale of property owned with a co-owner. In Massachusetts, a partition case may be filed in Land Court or Probate and Family Court. In this post, I’ll discuss three things to know about this process.

Partition is An Absolute Right

Partition occurs when multiple persons own real property together, and one wants to sell. If the parties cannot agree to a sale of the property or buy-out of the individual owner’s share of the property, any party may file a case for partition.

In my experience, the most common case for partition occurs when property is owned among family members, such as a home that a set of siblings inherited from their parents. Married couples generally cannot divide property through a partition; such a matter is usually handled through a divorce.

Partition is a matter of absolute right. This means that, with few exceptions, any owner of property owned by multiple parties is entitled to divide the property.

A Court in a Partition Case Can Either Divide the Property or Order it By Sale

Dividing property through partition is done through one of two ways: (1) a physical division of property (“in kind”) or (2) by sale.

Courts prefer to physically divide property, if possible, to avoid a sale. This, however, is not possible in many cases, particularly for residential property in urban cities and towns. When this is not possible, the court will order the property for sale.

Most times, a court in partition will allow any of the parties who do not wish to sell the property to buy the other party’s share, to avoid having to do a full sale, commonly referred to as a “set off.”

Dividing Property Through Partition Is Expensive

One of the main functions of a court in a partition case is to determine who gets what from the sale of the property. The starting point is the ownership shares of each owner. If a brother and sister each own 50% of partition property, this will be the starting point for determining how much each gets from the sale.

While this is the starting point, it is not the end for determining each owner’s portion from sale. A court in a partition case determines the respective shares of each owner based on what is “just and equal.” This means that, if one owner has paid more of the required property expenses than another owner, the court can take this into account when determining the final distribution.

Dividing property through partition, however, is an expensive process. Attorney fees, court costs, and other required fees can add up quickly, and eat into the parties’ proceeds from the property.

For this reason, it is wise to try and avoid a partition altogether and reach an agreement for selling the property without court involvement.

Conclusion

As an experienced real estate attorney, I’ve helped many Massachusetts property owners resolve their legal disputes promptly and affordably. If you are involved in a dispute regarding the division of property, contact me for a consultation.