Deadlines for Enforcing a Mortgage

The Appeals Court issued a decision last week concerning the deadline for enforcing a mortgage in Massachusetts, under the obsolete mortgage statute. The full decision, Thornton v. Thornton, is included below.

Thornton isn’t the first appellate decision to look at this issue, and continues a trend of Massachusetts courts rejecting attempts by borrowers to eliminate mortgage requirements.

What Is a Mortgage?

A mortgage is an agreement that gives a lender security against a borrower when making a loan for real property. Under a standard mortgage, a lender is permitted to foreclose a property if the debt is not repaid. Without a mortgage, a lender would only have the right to sue the borrower for the owed money, and have no claim to the property itself.

A mortgage, importantly, is only a security agreement, and not the loan itself. While it is common for homeowners to state they are “paying their mortgage”, in reality, the homeowner is making payments towards the loan associated with the mortgage, known as the promissory note.

Mortgages and the Statute of Limitations

Massachusetts, like nearly every other state, has deadlines for bringing civil lawsuits, known as a statute of limitations. A common misconception is that the deadline for bringing a breach of contract claim applies to the enforcement of mortgages. The argument goes that, if the lender has not pursued a foreclosure for the owed loan within six years, no claim exists.

As explained in Thornton, this deadline applies only to enforcing the loan itself . . . not the mortgage. In other words, even if six years has passed since the loan default, the lender can still enforce the mortgage through a foreclosure.

Mortgages and the Obsolete Mortgage Statute

A bar, however, does exist for enforcing a mortgage through the obsolete mortgage statute. This law prevents the enforcement of mortgages in limited circumstances:

35 years from the recording of the mortgage or, in the case of a mortgage in which the term or maturity date of the mortgage is stated, 5 years from the expiration of the term or from the maturity date, unless an extension of the mortgage, or an acknowledgment or affidavit that the mortgage is not satisfied, is recorded before the expiration of such period. 

The borrower in Thornton argued that this deadline came from the promissory note. The Appeals Court rejected this argument, holding there was no basis for using the deadline from the note for this purpose.

In this case, because there was no maturity date stated in the mortgage, the thirty-five year deadline applied.

Practical Implications For Enforcing a Mortgage

Thorton underscores a critical point about the obsolete mortgage statute: courts, in my view, interpret this law strictly and will not allow a borrower to escape the enforcement of a mortgage unless all conditions of the statute are met. This statute is primarily intended for mortgages that are “up in the attic” and long forgotten by lenders, and courts are reluctant to extend this law much further than that.

This isn’t to say that a borrower has no options against a foreclosure. To the contrary, I’ve help many homeowners avoid foreclosure based on a wide array of defenses. None of these defenses, however, involve an elimination of the mortgage. For this reason, borrowers need to be realistic when dealing with such a matter.

Conclusion

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

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Zoning Litigation: Lessons from a Recent Decision

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

On April 24, 2020, a panel of the Appeals Court (Massing, Desmond, & McDonough, J.J.) decided Bylinski v. Building Commissioner of Douglas, 97 Mass. App. Ct. 1113, Docket No. 18-P-450 (Rule 1:28 decision) and reversed a court order to demolish a cottage for non compliance with the relevant provisions of the zoning act (G.L. c.40A).  This otherwise obscure case represents a cautionary tale for all zoning practitioners-it’s the latest chapter of a tortuous 11 year Dickensian odyssey through three trial court departments that has spurred, counting this case, five appeals to the Appeals Court.

Background

Bylinski owns property along Wallum Lake in the rural town of Douglas near the Connecticut and Rhode Island borders. Tusino owns Guaranteed Builders (GBI) and bought the adjoining lot through GBI. In 2008, despite insufficient frontage and setbacks, GBI obtained a permit to build a cottage. Bylinski unsuccessfully requested that the building commissioner revoke the permit and then appealed to the zoning board (“The Board.”)

The Board failed to resolve Bylinski’s appeal within 100 days. By operation of law, the Board constructively revoked GBI’s permit. See G.L. c.40A, §15, 5th par. GBI unsuccessfully appealed that order to the Superior Court. See Guaranteed Builders and Developers v. Haire, et. al., Civil Action No. 0985CV2052 (Super. Ct. Worcester Co., filed September 3, 2009).

Bylinski then filed a mandamus action in the Land Court to compel the building inspector to enforce the zoning bylaw and now revoked building permit. In the meantime, GBI successfully finished building the cottage. GBI then unsuccessfully sought a variance from the frontage requirements and litigated the issue all the way to the Appeals Court. Guaranteed Builders v. Zoning Board of Appeals of Douglas, 85 Mass. App. Ct. 1101, Docket No. 2013-P-948 (Rule 1:28 Decision, Feb. 21, 2014).

At the same time, the Land Court judge dismissed Bylinksi’s petition for mandamus because Bylinski had not exhausted his administrative remedies before. Bylinski appealed the Land Court’s order to the Appeals Court and pursued administrative relief at the same time. While Bylinski’s appeal was pending, the Board sided with him and reversed the building commissioner’s refusal to enforce the zoning bylaw and issued a demolition order.

The demolition order contained curious language-the order did not require the town to demolish GBI’s house. But the order also did not limit Bylinski’s right to seek direct injunctive relief if GBI and Tusino did not demolish the house. GBI unsuccessfully appealed that order to the Uxbridge District Court before appealing to the Appeals Court.

The Appeals Court consolidated and ultimately dismissed Bylinski’s and GBI’s appeals. See Tusino v. Zoning Board of Appeals of Douglas, et. al. 90 Mass. App. Ct. 89 (2016). Specificially, GBI had appealed to the wrong court by appealing directly to the Appeals Court rather than to the Appellate Division of the District Court-and they were out of time to go back there. Since dismissing GBI’s appeal made the demolition order final, Bylinski’s appeal from the Land Court’s denial of mandamus became moot because he obtained all the relief he sought.

Curiously, Bylinski did not seek to enforce the demolition order from the District Court. Rather, Bylinski went back to the Land Court, reopened his case, joined Tusino as a defendant, and sought an injunction to demolish the completed but empty cottage. (The Building Commissioner has never issued an occupancy permit.) In December 2017, a Land Court judge  finally ordered that Tusino and GBI demolish the cottage or risk being held in contempt of court. Tusino and GBI appealed and successfully stayed the demolition order.

The Appeals Court’s Most Recent Decision

Preliminarily, the panel resolved two procedural issues. First, the panel reached the merits notwithstanding that there were unresolved claims against parties below and the Land Court judge did not certify an immediate appeal under Mass. R. Civ. Pro. 54(b). Indeed, holding otherwise would needlessly further prolong this case. Second, in a lengthy footnote, the panel held that Bylinski properly and timely joined Tusino. By law, trial courts had authority to join any dispensable to permit the case to proceed and related back to the original pleadings-and thus were not outside any statutes of limitation or repose. See FN7, citing G.L. c.231, §51.

Cleared of that underbrush, the panel considered whether Bylinski, as an individual, could seek an injunction from the Land Court to compel Tusino and GBI to demolish the house. The panel comprehensively reviewed the relevant procedures under the zoning act.

G.L. c. 40A, § 7 permitted any person to request that the building commissioner (or other local official) to enforce the zoning by laws. If the party failed to obtain relief from the building commissioner, the party could appeal to and obtain enforcement orders from the zoning board, same as the building commissioner. G.L. c.40A, §§8, 14. If the party still remained aggrieved, they could then pursue judicial review and broad equitable relief. G.L. c.40A, §17.

 Section 7 empowered the Superior Court and the Land Court to enforce zoning bylaws and issue injunctions to remedy bylaw violations. However, Section 7 also contained an important caveat: “no action, suit or proceeding…[or] administrative action or other action…to…compel the removal..of a structure [for violating] a zoning by-law [shall proceed] except in accordance with this section and sections 8 and 17.” This limitation dovetailed with the important principle that  there is no private right of action to enforce zoning bylaws-a private citizen cannot go directly to court to enforce the zoning bylaws when a town or city does not.

The case distilled to whether Bylinski had assiduously followed these procedures. The panel concluded he had not. First, Bylinski’s case could not constitute a zoning appeal under Section 17 because he did not perfect the appeal under Section 17. Bylinski already obtained a demolition order from the Board-thus, he was not an aggrieved party who could appeal.

Although the Board’s order suggested that Bylinski himself could compel demolition, by law, only a building inspector or a zoning board could directly enforce zoning bylaws and compel demolition without pursuing administrative remedies. Bylinski had not done so, and thus the Land Court judge could not issue a demolition injunction directly against Tusino on Bylinski’s behalf. However, Bylinski had remedies. First, he could renew his mandamus action in the Land Court against the building commissioner. Second, he could reopen the District Court case where the demolition order issued. Indeed, because Bylinski remained an aggrieved abutter, he could seek repeated requests for enforcement based on changed circumstances.

The Takeaways

Are There Too Many Zoning Appellate Forums?

This case illustrates how the breadth of forums for zoning appeals can cause problems. Under G.L. c. 40A, §17, one may appeal a zoning board’s order to either of four trial courts: the District Court (except in Hampden County [Springfield]), the Housing Court, the Land Court, or the Superior Court. As occurred here, parallel actions can arise in any or all of those courts.         

This broad choice of forum has also caused serious mischief in the past.  In Skawski v. Greenfield Investors Property Development, 473 Mass. 580 (2016), abutters filed a zoning appeal in the Housing Court challenging a large development in Greenfield. The developers sought transfer to the permit session of the Land Court-which the Legislature specifically created to streamline challenges to large developments. 473 Mass. at 582-583 (describing their requests for transfer), and 586-591 citing G.L. c.185, §3A. Nearly five years later, the SJC finally concluded that the abutters erroneously went to the Housing Court but could press their zoning appeal to either the Land Court or the Superior Court. 473 Mass. at 591-593.

Confused yet? It gets better. Until Tusino’s 2016 appeal, all further appeals in zoning cases proceeded uniformly to the Appeals Court, even if they originated in the District Court. Tusino, 90 Mass. App. Ct. at 91, citing Walker v. Board of Appeals of Harwich, 388 Mass. 42 (1983). Indeed, when a litigant can file a case in the District Court or in another trial court, all appeals in that type of case should proceed to the Appeals Court to ensure uniform treatment of litigants. See e.g. Van Liew  v. Stansfield, 474 Mass. 31, 34-36 (2016). 

 But in Tusino, the Appeals Court held that the Legislature effectively overruled Walker by expanding the equity jurisdiction of the District Court and creating the “one trial system” during the 2000’s. 90 Mass. App. Ct. at 91. The Appeals Court reached this result despite their established rule that they do not and cannot overrule the SJC to alter established rules. See e.g. Burke v. Toothaker, 1 Mass. App. Ct. 234, 239 (1973). Put another way, if the SJC incorrectly decided Walker, or if the Legislature overruled Walker, it was up to the SJC and the SJC alone to overrule Walker. This decision also does not ensure uniform treatment of litigants.

If Section 17 commands that zoning appeals “shall have precedence over all other civil actions and proceedings”, the prospect of parallel actions in up to four trial courts with up to three layers of appellate review hardly seems to accomplish that end. Worse, as in Skawski, the issue of zoning appeal forum selection arose twice and two different trial court Chief Justices took no action to resolve it before it reached the SJC. 473 Mass. at 582-583.

How can you avoid forum wrangling? File the zoning appeal in the Land Court or the Superior Court to keep a case before one judge. Indeed, in the Land Court, all cases proceed before one judge for their entire legal lives there. Land Court Standing Order 1-04(B).  In the Superior Court, you can seek a special assignment of one judge. See Superior Court Standing Order 9-80. If there are multiple related cases in multiple courts, move to consolidate all your cases into one court pursuant to Trial Court Rule XII. Indeed, there is a presumption of consolidation in cases involving identical parties and issues.

Coordinate with Town Officials

This case also, at best, does not flatter, and at worst, is “a study in mulish behavior” of town officials and town government in Douglas, Darcy v. Hankle, 54 Mass. App. Ct. 846, 847 (2002) (Kass, J.) The Building Inspector allowed Tusino to build his cottage. Ironically, Bylsinki won his appeal by appeal by operation of law because of the Board’s inaction on it. Although the Board denied Tusino’s request for a variance, the Board still did not act to stop him from building the cottage. And, the Board wrote an ambiguous demolition order. Practitioners should be alert to whom they are working with locally and ensure that all interests are aligned. If you are seeking mandamus relief, be sure that the official government has no discretion not to act, with a statue or regulation that reads “shall”-and you have no other remedies.

Seeking Additional Appellate Review of Zoning Decisions

This case also exhibits some perils of taking an appeal. Bylinski could have avoided some appellate review by seeking to stay appellate proceedings to obtain administrative relief.  If a party validly entered their appeal, trial courts cannot enter orders that could moot appeals that are pending without leave of an appellate court. Springfield Housing Authority v. Garcia, 44 Mass. App. Ct. 432 (1998) . The same logic should apply to seeking administrative relief.

Moreover, neither party seemed alert to how this appeal was not from a truly final judgment-i.e. that the order resolved all claims against all parties. See e.g. Patel v. Martin 481 Mass. 29, 31-32 (2018). The best practice is to resolve that issue before appealing. The lack of a final judgment is potentially a serious jurisdictional defect. Had this case not dragged out for 11 years, the panel may not have exercised their discretion to decide the appeal.

Finally, this opinion is the latest in an unfortunate prevalence of unpublished opinions. The Appeals Court typically issues unpublished opinions in cases that present “no substantial question of law.” Appeals Court Rule 1:28, soon to be Appeals Court Rule 23.0. These issues do not seem to fit that rule. The question of who had the power to compel demolition seems to arise in an unusual context. A published decision could have clarified that issue as the panel’s decision cites many older cases and practitioners could have benefitted from that.

The end result of an unpublished decision is strange given the timeframe. The panel originally heard this case in January 2019. An April 24, 2020 decision is nearly a year beyond the Appeals Court’s internal guideline to resolve appeals within 130 days of argument.

Granted, cases can last longer under advisement if the Appeals Court will publish it. This is the “second panel” process where every Justice on the Appeals Court reviews the decision-and, if there’s a dissent, the panel may expand. See Sciaba v. City of Boston, 35 Mass. App. Ct. 181, n.1 (1993). But a party cannot compel the full Appeals Court to consider an appeal. Weber v. Appeals Court, 457 Mass. 407 (2010).

Given this background, this case seems like a candidate for further appellate review by the SJC. This case has lasted for 11 years-and the Appeals Court’s decision seems to all but assure further litigation. On practical level, it seems highly wasteful to have an unoccupied cottage taking up space along Wallum Lake because there is no occupancy permit for it-and it’s going to stay that way on remand.

 Although allowance of further appellate review may further prolong this case, further appellate review may finally spur a resolution to this case. The SJC tends to expedite matters on FAR. Indeed, historically, the SJC has seemed concerned about zoning matters dragging out-as in Skawski. See also Murchison v. ZBA of Sherborn, SJC-12867, on further appellate review from 96 Mass. App. Ct. 158 (2019), Paper No. 23 (affirming dismissal for lack of standing with an opinion to follow.) As of now (May 31), no application has been filed.  

 In sum, this decision should operate as a clarion warning for zoning practitioners about how litigation can proliferate out of control. But there are steps practitioners can take to avoid these pitfalls. Moreover, if the SJC does not step in to remedy how these trapdoors opened, the Legislature should-particularly about the breadth of  choices of forum in zoning cases.

 Joseph N. Schneiderman is an appellate practitioner in Massachusetts and Connecticut with particular affinities for zoning, municipal law, and appellate practice and procedure. Joe recently argued his 20th appeal in his career and Joe gratefully thanks Adam for another opportunity to blog.

Contracts for Real Estate: Email, Text Messages Count!

Most people with a basic understanding of real estate and property law are familiar with the concept that contracts for real estate need to be in writing. The statute of frauds bars the enforcement of agreements for “the sale of lands, tenements or hereditaments or of any interest in or concerning them” unless such an agreement is in writing.

The “writing” requirement need not be done solely through a formal, written contract. Recent decisions have found such a writing to occur through email, text message, and other electronic means.

Overview of Contracts for Real Estate

The most common forms of contracts for real estate, in my experience, are offers to purchase real estate, purchase and sale agreements, and leases. Such agreements are most commonly done through written paper, which all of the parties sign.

It is a common mistake, however, to believe that such agreements must be put in traditional written form to be binding. Rather, as it is becoming increasingly common to communicate through electronic means, courts are finding that such electronic exchanges can create binding agreements.

Electronic Communications: Email, Text Messages

Several years ago, a Land Court decision held that text messages could be used to create binding contracts for real estate. The court reasoned that, under the proper circumstances, communications through text message were no different than traditional letters between parties.

The same reasoning applies to email and, in my opinion, any electronic means of communication, including social media.

Practical Implications

With this in mind, those involved in real estate need to be incredibly careful when using electronic communications.

Compared to writing a traditional letter, sending a text message or email can be done in a matter of seconds. As such communications can create binding contracts for real estate, one must use extra caution when using email and text messages for such matters.

Conclusion

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

Zoning for Landlords: What to Know

Zoning is an important topic for any property owner, especially landlords. Landlords should have a basic knowledge of zoning before offering property for rent, and know what to do if problems arise later on.

What is Zoning?

Zoning are local rules on the use of real property. Zoning often regulates the size, shape, and use of property in a town or city. These regulations are generally found in a town or city’s ordinances, which are usually available online.

Most towns and cities are divided into zoning districts, where only certain uses are permitted. It is common to have zoning districts for residential and commercial purposes. Towns and cities generally have a zoning map that indicates the zoning district for a particular property.

Failing to comply with a zoning regulation can have severe consequences. A town or city often has the power to issue a fine or stop-work order for a property in violation of the respective zoning ordinance.

Zoning for Landlords: Is My Property Allowed to be Rented?

For landlords, a critical issue to determine is whether the property they wish to rent is allowed for renting. Many zoning ordinances have specific requirements on where rental housing is allowed, and the minimum requirements for such rentals. This is often in addition to the state sanitary code, which applies to all residential housing in Massachusetts.

A landlord should never assume that property is suitable for renting simply because a prior owner did so in the past. It is not uncommon for zoning violations to continue for many years before finally being brought to enforcement by the town or city.

If a landlord’s property is not allowed for renting, a landlord may be able to request permission for doing so, through a variance, special permit, or some other zoning request.

Zoning for Landlords: Short-Term Rentals

Landlords need to be especially cautious about using property for short-term rentals. Short-term rentals are becoming increasingly regulated by Massachusetts towns and cities. Some municipalities require registration of these rentals, and others are banning them all together. Best for landlords to know such requirements before entering into such rentals.

Final Thoughts

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

Appearing Before a Zoning Board: What to Know

Appearing before a zoning board is often required when a property owner is seeking a specific use of their property, or wishes to appeal a decision of a town or city building department. Unlike courts, where most parties are represented by attorneys, it is common for individuals to appear on their own behalf before a zoning board (although having an attorney can help in many cases).

Here, I want to offer some advice on appearing before a zoning board in Massachusetts.

What Are the Zoning Boards in Massachusetts?

The two most common zoning boards in Massachusetts are the Zoning Board of Appeals (“ZBA”) and the Planning Board. Each town or city has different rules on the specific zoning relief that each of these boards can consider.

Some towns and cities also have zoning decisions heard by the city council or selectboard. Boston has its own, unique system of zoning decision making.

Know What Is Required For What You Are Seeking

Zoning requests have different requirements that an applicant must satisfy. Simply explaining why you want the zoning relief is generally not enough; an applicant must show why their request meets each of the requirements.

Variances have detailed requirements which are generally uniform for all Massachusetts cities and towns. Special permit requirements are often unique for each individual jurisdiction.

Put It In Writing

A good piece of advice on appearing before a zoning board is what you can do before the meeting. You should consider submitting a letter to the board, in advance, that explains what you are looking for and why you meet each of the zoning requirements.

Doing this before the meeting will give the board members time to review your request in advance.

Seek the Support of Abutters

Often, a zoning request can implicate the rights of persons living near the property, known as abutters. Because of this, zoning boards often like to hear that abutters have no objection to the zoning request before them.

If you can, try to obtain a letter of support from such abutters or, even better, ask them to appear at the meeting on your behalf. If an abutter has concerns about the zoning relief you are seeking, try to work this out with them in advance.

Understand the Appeals Process

Anyone aggrieved by a zoning decision has the right to appeal. Such appeals, however, generally come with an extremely tight deadline. If you find yourself having to appeal, be sure to pay close attention to the timing of when the appeal must be filed. You should also consider obtaining an attorney, as zoning appeals can be complicated.

Final Thoughts

Zoning is an incredibly important topic for property owners in Massachusetts. If you find yourself in need of assistance with such a matter, contact me for a consultation.

Preventing Adverse Possession in Massachusetts

Massachusetts zoning

Preventing adverse possession is a concern that all property owners should keep in mind when dealing with a trespasser upon their property. Without taking the proper action, one’s property can be lost to another.

What is Adverse Possession?

Adverse possession is a legal claim that allows a party to obtain real property owned by someone else if the trespasser has used it continuously for a minimum of twenty years. Adverse possession has a number of specific requirements, including one that the use of the property must be non-permissive. In other words, the party using the property must have done so without the land owner’s permission.

In Massachusetts, there is a presumption that the use of another’s property is non-permissive, unless there is something to show otherwise. With this in mind, property owners need to be careful when dealing with a circumstance in which someone else is using their property.

Preventing Adverse Possession: Give Them Permission to Use the Property

The first, and easiest means of preventing adverse possession, is to simply give the other party permission to use the property. This is a good option when the other party’s use of the property isn’t a major concern, and (other than to avoid adverse possession) there is no real harm to the land owner.

Permission to use property can be done through a license, which is a limited right to use property that, importantly, is revocable. When giving such permission, it should always be done in writing, with proof of receipt to the other side. It is also a good idea to consider recording this notice in the land records.

Note that giving permission to the other party must be done within the twenty-year deadline for adverse possession. If the twenty-year period has already elapsed, adverse possession may already have occurred.

Preventing Adverse Possession: File a Court Action To Remove the Trespasser From the Property

If you do not want to give the other party permission to use your property, a court action to remove the trespassing party may be necessary. A court has authority to issue an injunction, which is a legal order preventing a party from doing something. In the case of a trespasser, a court can order a party to stay off of another’s property.

Final Thoughts

Preventing adverse possession is an important matter for any property owner with a trespasser. If you need assistance with such a matter, contact me for a consultation.

Challenging a Zoning Decision: SJC Clarifies the Rules

foreclosure appeal

I previously wrote a post about Murchison v. Zoning Board of Appeals, concerning the matter of challenging a zoning decision. This was a decision from the Appeals Court that discussed who can pursue a zoning appeal. Murchison, in essence, held that any zoning decision that affected a density matter was grounds for pursuing a zoning appeal.

This decision was of great concern to many developers and real estate professionals, who worried that the decision would allow anyone to pursue a zoning appeal. The Supreme Judicial Court (“SJC”) agreed to review this decision again, and ruled that the party trying to pursue this appeal in Murchison lacked standing to do so.

Challenging a Zoning Decision: Who Is Permitted to File an Appeal?

Massachusetts law allows for appeals of local zoning decisions from zoning board of appeals (“ZBA”), planning boards, and other local zoning agencies. Such an appeal must be filed twenty days after the decision is filed with the city or town clerk.

Challenging a zoning decision requires a party to be aggrieved. In essence, this means that the party will suffer harm from the zoning decision. In legal terms, this is referred to as having standing to pursue the case.

Standing for a zoning appeal is a critical, threshold requirement. If a party lacks standing, the appeal will be dismissed.

Zoning Appeals After Murchison

Murchison concerned one of the common grounds for showing aggrievement: density. Density is often regulated through front and side setback requirements, height limitations, and lot-width restrictions. The purpose of such density restrictions are to prevent overcrowding of properties.

Massachusetts law allows a party to apply for an exemption from a zoning requirement, known as a variance. In limited circumstances, the town or city zoning board can grant such a exemption. If, however, another party is harmed by such a decision, they have a right to appeal.

For example, if a property owner obtains a variance allowing them to build a storage shed closer to their neighbor’s home, the neighbor will likely be able to appeal this decision.

The Appeals Court decision in Murchison (which the SJC overturned) suggested that any violation of a density requirement was grounds for standing. This was contrary to prior decisions, which suggested that a party needed to show some actual harm from the zoning relief. If, for example, the party wishing to appeal was not located near the subject property, the Appeals Court decision suggested that the zoning appeal could still proceed.

The SJC overturned the Appeals Court decision in Murchison the day after the hearing in this matter. I’ve never heard of the SJC ever issuing a decision so quickly, which underscores the importance of this matter.

However, the SJC has not yet issued a written decision on this matter. Until they do, the law on zoning appeals remains unclear.

Conclusion

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

Hiring a Civil Litigation Lawyer: Lessons from a Successful Case

Civil Litigation Attorney

Last month, I obtained a favorable decision in a Superior Court lawsuit. As a civil litigation lawyer, I generally focus on real estate matters, including landlord-tenant matters, zoning issues, and boundary disputes. This case was a different area of law than I usually handle, but still concerns some incredibly relevant topics on succeeding in a civil litigation matter.

This case concerned a claim of emotional distress, where my client was accused of committing conduct that caused the opposing party to suffer severe anxiety, depression, and distress. These types of claims are a high burden to meet: the law generally requires a strong case of misconduct for such a claim.

To defend my client, I focused heavily on the extensive case law concerning this particular emotional distress claim. The law only allows such a claim in very limited circumstances, which I focused on when preparing our defense.

A successful civil litigation attorney takes advantage of discovery, the process by which a party is allowed to learn about the other side’s claims and defenses. In this case, I forced the other side to admit that they didn’t satisfy several of the requirements for their claim.

Many people, understandably, think that every legal proceeding ends in a trial, like we see on TV or movies. In reality, many claims can be resolved without a trial, through a dispostive motion, which asks the court to make a ruling on the merits of the overall claim, without a trial.

Here, I made a motion for summary judgment. Summary judgment is a final decision on a legal claim, where the relevant facts are not in dispute. Rather than go through a trial, summary judgment permits the judge to make a final decision on a case.

The decision for a civil litigation attorney to request summary judgment should not be made lightly. Summary judgment is only allowed when the facts are undisputed. If a case concerns a scenario where the parties disagree about the relevant facts, summary judgment will not be allowed.

I’ve seen too many cases where a civil litigation attorney requests summary judgment when the facts are clearly in dispute. Doing so is a waste of the client’s time and simply delays bringing the case to trial.

In this case, I believed summary judgment was appropriate, and a good use of my client’s time and money. The Court agreed, and ruled in our favor! This decision brought this matter to an end without a trial, and saved my client considerable time and money.

As a civil litigation attorney, there is no better feeling than getting your client a successful outcome in a case. It is especially gratifying when I’m able to do so at minimal time and expense for my client.

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

Guest Blog Post: Attorney Fees for a Lis Pendens Appeal

The Massachusetts Property Law Blog is proud to have Attorney Joseph N. Schneiderman guest blog on an upcoming Appeals Court decision regarding attorney fees for a lis pendens appeal.  Attorney  Schneiderman is an appellate attorney licensed in Massachusetts and Connecticut and may be contacted at connlawjoe@gmail.com.

In DeCicco v. 180 Grant Street, LLC, SJC-12831, the Supreme Judicial Court  is considering whether a party may seek appellate attorney’s fees in a lis pendens appeal in addition to attorney’s fees in the trial court. 

A memorandum of lis pendens is a judicially endorsed document filed with land records at the Registry of Deeds land indicating that litigation is pending that may affect title to and interest in the land. A comprehensive statute governs issuing and challenging a lis pendens. See e.g. Ferguson v. Maxim, 96 Mass. App. Ct. 385, 388-392 (2019), citing G.L. c.184, §15. 

A defendant may challenge the lis pendens by filing a special motion to dismiss the lis pendens as frivolous or “devoid of any reasonable factual support [or] arguable basis in law [or] is subject to dismissal based on a valid legal defense such as the statute of frauds.” G.L. c.184, §15(c). 

Filing a special motion to dismiss stays discovery but also expedites the case; the court shall hear the motion within three days of the date “notice of the motion was given to the claimaint.”  Ferguson, 96 Mass. App. Ct. at 389, n.12. Whoever loses the special motion to dismiss also has an immediate right to pursue an interlocutory appeal-and the ultimate prevailing party has the right to recover attorney’s fees and costs. Id. , n.13. 

This case stems from a purchase and sale agreement for a large, new $2M home in Lexington that went awry. The buyers (DeCicco) later filed a suit asserting breach of contract, implied warranty of good faith and fair dealing and obtained a memorandum of lis pendens. 

The sellers (180 Grant Street) brought a special motion to dismiss and dissolve the lis pendens. A judge of the Superior Court allowed the motion to dismiss and concluded that the facts did not support that the buyers and sellers intended to be bound by the purchase and sale agreement-and was therefore frivolous. The judge also awarded slightly less than $18,000 in attorneys fees to the sellers. The buyers unsuccessfully appealed. However, the Appeals Court disagreed with the seller’s claim that the appeal was frivolous and declined to award attorney’s fees and cost on appeal. The sellers successfully sought further appellate review of this specific point. 

The case distills to two apparently colliding definitions and applications of the term “frivolous.” As earlier, the lis pendens statute defines frivolous as a claim lacking factual or legal support or barred by an established legal defense. G.L. c.184, §15(c).  A trial court that finds a frivolous claim shall award the moving party fees and costs.

On the other hand, an appeal is frivolous when: (1) under settled law,  an appellant harbors no reasonable expectation of reversal or (2) when a litigant engages in such egregious conduct during briefing (like personally attacking a party or making claims without any good faith basis) that their conduct fatally quagmires any meritorious arguments. See e.g. Avery v. Steele, 414 Mass. 450, 455-456 (1993), citing, inter alia, Mass. R.A.P. 25.

However,“unpersuasive arguments do not render an appeal frivolous”-the appellate court has broad discretion to determine whether an appeal is frivolous. Steele, 414 Mass. at 455. Put another way, frivolous appeals are very much the exception and not the rule. Compare US Bank National v. Johnson, 96 Mass. App. Ct. 291, 297 (2019) (cleaned up.) (Frivolous claims are “[futile and without] a ‘prayer of a chance.’”)

The buyers argue that the express absence of a provision relating to appellate attorney’s fees in the lis pendens statute should favor them. Indeed, attorney’s fee awards are very much the exception and not the rule in American jurisprudence and in the absence of express authority for attorney’s fees, parties bear their own costs.

On the other hand, the sellers (supported by the Real Estate Bar Association [REBA] as amicus curiae) contend that the 2002 amendments to the lis pendens statute creating the expedited special motion to dismiss function to avoid long clouds over title from litigation. Awards of attorney fees are integral to those amendments to avoid those clouds and not awarding them thwarts that purpose. REBA recalls that before 2002, there was rampant abuse of lis pendens and the 2002 amendments were remedial. 

The sellers further emphasize that other fee award statutes that do not explicitly mention appellate attorney’s fees are still inherent in those statutes to fulfill the purpose of those statutes. The sellers and REBA specifically analogize the lis pendens procedure to special motions to dismiss under the Anti-SLAPP statute (G.L. c.231, §59H) where appellate fee awards are available. Compare Ferguson, 96 Mass. App. Ct. at 390-391. 

The sellers also argue that, in the context of lis pendens, the definition of frivolous at trial must also follow to an appeal. REBA clarifies this by arguing that the two standards are different and a finding of a frivolous claim for purposes of lis pendens is independent of a frivolous appeal. 

On the one hand, the buyer’s points follow the established rule because courts do not add words to a statute that the Legislature explicitly did not include. Commonwealth v. Calvaire, 476 Mass. 242, 245 (2017). Indeed, courts cannot insert otherwise absent words  by interpretive “surgery.” Commonwealth v. Dayton, 477 Mass. 224, 226 (2017). Courts also construe statutes creating appellate review strictly. Boston Five Cents Savings Bank v. Assessors of Boston, 317 Mass. 694, 699 (1943).

 On the other hand, resolving silence in a statute must also operate to further the statute or statutory scheme. Charbonneau v. Presiding Justice, 473 Mass. 515, 519 (2016). Courts also always interpret statutes as a whole.   Silva v. Carmel, 468 Mass. 18, 23 (2014). If attorney’s fees are fundamental to accomplishing how the special motion to dismiss avoiding clouding title, the seller’s and REBA’s points are especially compelling.

One of REBA’s points feels hollow: how often do appeals actually result in dissolution of lis pendens? Put another way, in the context of lis pendens, is frivolous the rule rather than the exception? Having two different standards and applications of “frivolous” are sensible. Compare Commonwealth v. Trussell, 68 Mass App. Ct. 452, 454-459 (2007) (the standard of good cause to file a late appeal in criminal cases is less exacting than in civil cases because of the liberty interests at stake.) But REBA did not discuss or answer that in their brief. 

At the same time, appellate review should not be so costly that there would be no review of lis pendens. This would follow from awarding attorney’s fees across the board and would potentially be an absurd and irrational result and is one that courts avoid. Compare i.e. City of Revere v. Gaming Commission, 476 Mass. 591, 606-607 (2017). 

Unfortunately, due to COVID-19 crisis, unfortunately, the SJC is not hearing oral arguments in this case. Nevertheless, as the SJC often does, they will strike a thoughtful balance between these clashing principles.

Joe Schneiderman practices appellate advocacy exclusively in Massachusetts and Connecticut. Joe recently won, as amicus curiae, Youghal v. Entwistle, 484 Mass. 1019 (2020), involving appellate procedure in eviction cases, and in June 2019, Joe also successfully co-authored and appeared for oral argument on behalf of the amici in the similar case of Ten Diamond Street Realty Trust v. Farrar,  95 Mass. App. Ct. 1118 (No. 19-P-315, Rule 1:28 Decision, June 24, 2019). Joe gratefully thanks Adam for his sixth opportunity to guest blog!