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 email@example.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 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.
A real estate purchase agreement is an essential part of buying or selling property. Understanding the importance of these agreements is essential for avoiding potential problems later on in the sale process.
Selling Property Generally Requires A Written Agreement
Massachusetts, like most states, has a statue of frauds, a law requiring that certain types of agreements be in writing to be enforceable, including the sale of property. With few, limited exceptions, an oral agreement will not suffice when real estate is involved.
Importantly, the type of writing allowed for such agreements is broader than a traditional written contract. A recent Land Court decision found that a binding agreement for the sale of property was created through text messages, and similar decisions have held that emails are also sufficient for satisfying the statute of frauds.
Common Types of Real Estate Purchase Agreements
For the sale of residential property, there are two common types of real estate purchase agreements: an offer to purchase real estate and a purchase and sale agreement.
An offer to purchase real estate is just that: a written offer for the sale of property. These agreements are generally one or two pages and contain the “bare bones” terms of the sale.
When the parties are ready to move forward with the sale, a purchase and sale agreement is generally negotiated and signed. This agreement contains more information on the sale of the property, which generally comes after the parties have had more time to seek financing and discuss the specific details of the sale.
The most important thing to remember about real estate purchase agreements is that such agreements are generally binding contracts. If signed, a party is generally committed to selling or buying the property. There can be defenses to such agreements, but a seller or buyer should exercise extreme care in signing one of these agreements.
Drafting Real Estate Purchase Agreements
If you are involved in buying or selling real estate, hire a lawyer to assist you in drafting a real estate purchase agreement. An experienced attorney will know what to include in these agreements and how to include contingency clauses that excuse a party from performance if they are not able to buy or sell the property.
Enforcing or Defending a Real Estate Purchase Agreement
Buying your first home can be both an exciting and stressful experience. While home ownership is, to many, the height of financial success, the process of purchasing a home has many traps for the unwary.
As a lawyer involved in real estate litigation, my cases generally come to me when things go wrong. Here, I want to share some legal tips for buying your first home that can help avoid these pitfalls and make the experience as easy as possible.
Review Your Finances With a Financial Expert Prior to Purchasing a Home
A large portion of my practice consists of foreclosure defense. While I have helped many, many homeowners save their homes from foreclosure, I always maintain that the best way to beat foreclosure is to avoid it in the first place. With this in mind, a potential home buyer should always speak with a financial expert prior to making an offer on a home. An expert can help you identify a home that meets your budget and offer advice for covering the many expenses that come with home ownership. Buying your first home is an enormous financial investment, one that a financial expert can be a great help with.
Get Everything in Writing
Enforcing any oral promise is tough to do, for the simple reason that it is tough to prove one’s word against someone else’s. In real estate, oral promises are even more problematic due to the statute of frauds, a legal requirement that most contracts for real estate be in writing. Without such a writing, it can be difficult (and many times, impossible) to enforce an oral promise. Make sure that all matters concerning the purchase of your first home are in writing.
Give Careful Consideration to the Demands of Becoming a Landlord
When looking to purchase a home, many potential buyers are tempted to purchase homes that include a rental unit, to offset the expenses of home ownership. Rental property can be an excellent investment, but you need to give careful consideration to the demands of becoming a landlord prior to purchasing such property.
Massachusetts has many, many requirements for landlords, and the penalties for not following these laws can be disastrous. Moreover, as a landlord, you’ll be responsible for maintaining the property and addressing the problems that will come up over time. Be prepared for these responsibilities before making this commitment.
Be Wary of Buying a Home With a Non-Married Partner
For a married couple, the process of addressing “who gets the home” during a divorce is difficult enough on its own. For home owners who are not married, the process can be even more complicated. If the non-married home owners split up, and are unable to agree on what to do with the home, a partition case may become necessary: a legal proceeding where the court determines who gets what, which can be long and expensive.
With this in mind, be careful about making the commitment of purchasing a home with someone who is not your “permanent” significant other. If the relationship goes south, the process of dealing with the home can be a real hassle to resolve.
Hire a Lawyer for the Real Estate Closing
When closing on a home, hire a lawyer. Buying your first home can be a complicated process, and having an experienced attorney on your side can make the process much easier. It may be tempting to try and do this on your own, but resist this temptation! A real estate attorney will review the necessary paperwork for your purchase and ensure that nothing is missing or incorrect. The small fee for this legal service will go a long way in avoiding problems down the road.
Here’s hoping the purchase of your first home is a stress free and rewarding experience. In the event that a legal problem does arise, contact me for a consultation. The benefits of having an experienced attorney on your side can make all the difference in getting you the help you need.
Massachusetts has an important law allowing for the clarification of potential issues in the ownership of property. G.L. 183, § 5B provides for the following:
Subject to section 15 of chapter 184, an affidavit made by a person claiming to have personal knowledge of the facts therein stated and containing a certificate by an attorney at law that the facts stated in the affidavit are relevant to the title to certain land and will be of benefit and assistance in clarifying the chain of title may be filed for record and shall be recorded in the registry of deeds where the land or any part thereof lies.
Commonly known as “5B Affidavits”, these affidavits allow for the recording of information relevant to real property. 5B affidavits can be used to correct problems arising with Massachusetts real estate, such as potential problems involving the conveyance of property. I have found 5B affidavits to be useful for foreclosure related matters; a foreclosure by entry, which is a foreclosure that begins with the recording of a certificate in the land records, requires a homeowner to oppose this foreclosure within three years of this certificate’s filing in the land records. A 5B affidavit can be used as a means of preventing this type of foreclosure from occurring.
5B affidavits, importantly, must be certified by an attorney. The law does not allow a non-attorney to record one of these affidavits on their own.
While 5B affidavits are commonly used for real estate matters, there is surprisingly little caselaw on the limits to how these affidavits can be used. Although the law is written broadly, for use in “clarifying the chain of title” for real estate, I take the position that an attorney should exercise caution in recording such an affidavit. A 5B affidavit should have a good faith basis in law and fact, and have a real purpose for the respective property it pertains to. An affidavit that does not meet this standard can potentially subject a property owner (and attorney) to potential liability.
If you find yourself in a real estate dispute, contact me for a consultation.
Real estate contract disputes can arise over the selling and purchase of property. Given that transfers in real estate have much at stake, these disputes can often become contentious and require the assistance of an experienced property attorney.
Avoiding Real Estate Disputes in the First Place
Avoiding a potential problem in the first place in a real estate contract should always be a central consideration in entering into such an agreement. If you are considering selling or purchasing property, you should always seek the assistance of an experienced attorney in preparing such an agreement. An attorney can often help identify potential problems that might arise later on, and offer advice to protect yourself if a dispute develops.
Ways to Protect Real Estate When a Dispute Arises
A primary, immediate concern for real estate contract disputes is protecting the underlining property. For example, if you entered into a contract to purchase property, and the seller intends to sell the property to someone else, your immediate goal is to do something to stop the sale. Similarly, if the subject property is being damaged or neglected, you would want something done immediately to cure the problem. Fortunately, the law offers some safeguards when these problems arise.
One common device used in real estate contract disputes is a lis pendens. A lis pendens is a notice of a lawsuit involving an interest in real property, which is recorded in the land records. This is a simple notice stating the name and case number of the underlining lawsuit, which must be endorsed by the court. A lis pendens is effective in real estate contract disputes because, as a public document, it puts any potential buyers of the property on notice about the underlining lawsuit. Few buyers would be willing to purchase real estate if the property is subject to ongoing legal action.
Another effective tool for protecting real estate is an injunction. An injunction is a court order restraining or compelling a party to do a particular act. A court, for example, could issue an injunction stopping a party from damaging property is there is reason to believe such damage is occurring. An essential requirement of an injunction is irreparable harm. A court will not issue an injunction is money is the only thing that may be lost; a court will need to be convinced that a loss will occur that money alone cannot solve.
What Can You Get in a Real Estate Contract Dispute?
Contract disputes are generally about money, and determining the proper amount to give to someone for damages. However, for contract disputes where money alone will not help an injured party, the law provides for the remedy of specific performance. Specific performance allows a party to get exactly what they contracted for, and is generally allowed when this relief involves something distinctly unique.
Specific performance is usually allowed for real estate contract cases. The rationale is that a particular property cannot be “replaced” by another, and a damaged party is entitled to the exact real estate they contracted for. For real estate contract disputes, this is often the preferred outcome by parties in these cases.
If you find yourself involved in such a matter, contact mefor a consultation.