Last week, I won a dismissal of a claim against my client in a real estate contract dispute, using Massachusetts’s “anti-SLAPP” law. Anti-SLAPP is a highly effective means of dismissing meritless claims aimed at inhibiting one’s right of petition.
“SLAPP” is an acronym for a strategic lawsuit against public participation. These lawsuits are brought to intimidate and harass those exercising their lawful rights under the law. Massachusetts, like many other states, has an anti-SLAPP law created purposely to punish those who pursue such claims.
I represented a client who was involved in a real estate case involving specific performance. The opposing party was seeking a court order against another party, ordering the sale of a home that my client ended up purchasing.
This opposing party brought a claim against my clients for monetary damages, due to a lawsuit that my client previously filed to obtain ownership of the home (which was successful).
In short, this opposing party was trying to punish my client for filing a necessary and viable lawsuit.
What is Anti-SLAPP?
Massachusetts’s anti-SLAPP law was created purposely for a case like this:
In any case in which a party asserts that the civil claims, counterclaims, or cross claims against said party are based on said party’s exercise of its right of petition under the constitution of the United States or of the commonwealth, said party may bring a special motion to dismiss. The court shall advance any such special motion so that it may be heard and determined as expeditiously as possible. The court shall grant such special motion, unless the party against whom such special motion is made shows that: (1) the moving party’s exercise of its right to petition was devoid of any reasonable factual support or any arguable basis in law and (2) the moving party’s acts caused actual injury to the responding party. In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.
The “right of petition” broadly includes “any written or oral statement made before or submitted to a legislative, executive, or judicial body . . .”, including the filing of a lawsuit. Anti-SLAPP, in short, is intended to punish the pursuit of a legal claim without factual support or any arguable basis in law, aimed solely to harass the opposing party.
A party can invoke the protections of this law through a special motion to dismiss, which must be heard as “expeditiously as possible.” A successful anti-SLAPP motion, importantly, provides the claimant with mandatory attorney fees and costs from the opposing party.
Here, the Court agreed with my argument, and granted my motion to dismiss.
I’m incredibly pleased with the outcome of my special motion to dismiss and the availability of anti-SLAPP for protection against baseless lawsuits. The legal process exists to provide readdress for those who have been harmed . . . not to purposely harm others.
If you think anti-SLAPP may apply to you, contact me for a consultation.
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 aneviction. The mere sale of property, on its own, will not require any existing tenants to vacate the property.
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
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.
If you need assistance with a real estate dispute, contact me for a consultation.
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.
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.
If you need assistance with a real estate matter, contact me for a consultation.
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.
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.
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.
If need assistance with a real estate matter, contact me for a consultation.
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.
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.
The Massachusetts Property Law Blog is proud to have Attorney Joseph N. Schneidermanguest 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 firstname.lastname@example.org.
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 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!
I’m pleased to write that I won a real estate appeal before the Massachusetts Appeals Court last week. This case concerned a real estate contract dispute, concerning rescission (a request to cancel a legal agreement). I had previously won the trial and the other side appealed. The full decision is included below.
What is an Appeal?
All civil disputes begin in a trial court, where a party can file a lawsuit against another party and seek monetary damages or a court order. Most real estate disputes in Massachusetts typically begin in the Superior Court or Land Court.
If a party is not happy with the outcome of a case, they can pursue an appeal. An appeal is a legal proceeding that asks a appellate court to review the decision of a trial court. Appeals generally go before the Appeals Court or District Court Appellate Division (depending on the case). In some cases, an appeal can go directly to the Supreme Judicial Court, the highest court in Massachusetts.
Lessons for a Real Estate Appeal
In this real estate appeal, I was defending the trial court decision (known as being the “appellee”). An advantage of being the winning party in an appeal is that an appellate court can uphold a trial court decision for any reason supported by the trial record. This means that, even if the lower court got the reasons for its decision incorrect, its decision will still be affirmed if there is another basis for the decision.
For this reason, a large portion of my argument addressed the many reasons why a claim of rescission was improper in this case. The purpose was to give the Appeals Court as many reasons as possible for going my way. I’m pleased that the Court agreed with my argument and affirmed the lower court decision.
If you need assistance with a real estate appeal, contact me for a consultation.
This Tuesday, I’ll be before the Appeals Court on a case concerning a real estate contract. I won a trial several years ago involving a contract dispute, and the other side has appealed. This is an interesting case that concerns some important topics on real estate contracts.
In an appeal, a party is asking a reviewing court (known as an appellate court) to determine if the trial court made any errors in law. It is generally not enough to simply argue that the lower court made the wrong decision in the case. Rather, a successful appeal requires a showing that the lower court misapplied the law.
No new evidence is introduced in an appeal. The record is limited to the testimony and exhibits from trial. Each side is permitted to file a written argument to the court, known as a brief, and argue their side of the case to the court, known as an oral argument.
Lessons for Real Estate Contracts
This appeal concerns a couple of important topics relevant for real estate contracts.
Oral Agreements To Sell Property
Most people are familiar with the requirement that a sale of property needs to be in writing to be enforceable, known as the statute of frauds. It is a common misconception, however, that oral agreements for the sale of property can never be enforced. In certain circumstances, the law will not allow a party to avoid enforcement of an oral contract for real estate.
In this appeal, the contract was oral. However, the parties to this agreement changed their circumstances in reliance of this oral agreement, and partially performed it: a recognized exception to the statute of fraud.
This is a critical lesson for anyone involved in a real estate contract: do not assume that, because an agreement may be oral, there are no repercussions for failing to perform. As with any legal agreement, one should speak with an experienced attorney and proceed with caution.
Getting Out of a Contract
This appeal also concerns another important part of contract law: when can someone “undo” a contract? The “undoing” of a contract, known as a rescission, generally requires there to be a complete abrogation of the agreement. In other words, if a party really fails to do what they are supposed to, the other party may have the option of asking the court to cancel the contract. My appeal is primarily about this issue: whether or not one of the parties did their required obligations under the contract.
It is important to understand that the right to rescind an agreement is a high burden to meet. Courts will not allow rescission when a party has merely breached such an agreement, generally, it must be shown that an “utter failure of consideration” occurred.
This is important for anyone entering into a real estate contract agreement to know. Getting out of such an agreement is no guarantee, and the law provides powerful remedies for enforcing these agreements.
If you need assistance with a real estate contract matter, contact me for a consultation.