Zoning and Anti-SLAPP

foreclosure appeal

The Appeals Court issued an important decision this week on the interplay between zoning and the Massachusetts Anti-SLAPP law. The full decision, Haverhill Stem LLC v. Jennings, is below.

What is Anti-SLAPP?

As I’ve written before, Massachusetts (like many other states) has a law that prohibits “SLAPP” lawsuits, an acronym for “Strategic Lawsuit Against Public Participation.” Such lawsuits aim to punish one’s right to petition the government, such as pursuing zoning relief.

Massachusetts’s anti-SLAPP law allows a party to file a special motion to dismiss such a lawsuit. A successful motion entitles the moving party to costs and reasonable attorney fees, making it a powerful weapon for attacking baseless lawsuits.

Anti-SLAPP, however, is limited to a narrow type of lawsuit: one that is solely based upon petitioning activity. If the opposing party can show that their lawsuit had a basis other than punishing the other party for petitioning activity, anti-SLAPP won’t apply.

Zoning and Anti-SLAPP

Zoning matters often implicate anti-SLAPP matters. The reason for this, in my opinion, is that zoning appeals are sometimes brought for nefarious purposes, such as stalling a development or attempting to punish another party. In certain limited cases, anti-SLAPP may apply to zoning disputes.

Haverhill Stem LLC concerned a zoning request for a marijuana dispensary in Haverhill. Another party objected to this project and demanded compensation to drop their opposition to the dispensary. Such demands escalated with numerous verbal and written threats.

Eventually, the party opposing the marijuana dispensary brought a lawsuit against this project in Land Court, seeking to invalidate the recreational marijuana zoning bylaw on several grounds.

Shortly after, the developer sued the opponent of the project under a variety of claims, including Chapter 93A and defamation. The opponent sought dismissal under anti-SLAPP, arguing that the lawsuit was punishment for its opposition to the dispensary. The trial court denied this motion, and the opponent appealed.

Haverhill Stem LLC upheld the denial of the anti-SLAPP motion, reasoning that the lawsuit was not based solely on petitioning activity. In other words, the lawsuit wasn’t simply filed to punish the other side for opposing the dispensary. Rather, the developer had a basis for the lawsuit on grounds of coercion and extortion.

Practical Implications

This case affirms a central requirement of anti-SLAPP: the protections of this law apply only against a lawsuit solely based on petitioning activity. In other words, if one can show they have an otherwise legitimate purpose for legal action, anti-SLAPP likely will not apply.

Legal actions, of course, are often pursued for reasons other than the relief sought in them. This case, however, is clear that there is a high bar for implicating anti-SLAPP.

Anti-SLAPP, however, is great protection against frivolous lawsuits under the appropriate circumstances. The key, however, is to make a compelling case in the limited situations where it can apply.

Conclusion

If you need assistance with zoning and anti-SLAPP, contact me for a consultation.

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Restrictive Covenants: What’s Allowed?

Restrictive covenants are private restrictions on land use. The Massachusetts Land Court has introduced a proposed procedure (“standing order”) for addressing restrictive covenants which are void and not enforceable under the law.

Restrictive Covenants

Restrictive covenants have existed since the start of basic property law in early Anglo-American law. Such covenants allow for the use of restrictions on property. There is an infinite number of uses for restrictive covenants, but common ones include limitations on what can be built on property and the protection of open space and scenic views.

The law, however, isn’t crazy about restrictive covenants. There is a general concern about restricting someone’s right to use their property, and, for that reason, there are restrictions in place on the use of restrictive covenants. Most notable is a thirty-year deadline for the limitation of these restrictions.

Unfortunately, restrictive covenants have a dark history of being used for segregation and other racial discrimination. For that reason, Massachusetts explicitly bans the use of covenants for such purpose:

A provision in an instrument relating to real property which purports to forbid or restrict the conveyance, encumbrance, occupancy, or lease thereof to individuals of a specified race, color, religion, national origin or sex shall be void. Any condition, restriction or prohibition, including a right of entry or a possibility of reverter, which directly or indirectly limits the use for occupancy of real property on the basis of race, color, religion, national origin or sex shall be void, excepting a limitation on the basis of religion on the use of real property held by a religious or denominational institution or organization or by an organization operated for charitable or educational purposes which is operated, supervised or controlled by or in connection with a religious organization.

How to Deal With a Void Restrictive Covenant

The proposed Land Court order offers a procedure for those affected by such covenants, to obtain a court order (“declaratory judgment”) making it clear that such restrictions have no legal effect. A claimant would not need to pay a legal fee for filing such a case. The order, moreover, provides that the court will order that subsequent land records include a notation that the restriction is void.

While this proposed order clarifies the process for addressing improper restrictive covenants, such relief is already available to anyone affected by one of these covenants. A request for a declaratory judgment or quiet title is an option for any party seeking to clarify one’s rights under the law. This proposed order, nonetheless, is a good step in helping to resolve such matters.

Final Thoughts

If you need assistance with a restrictive covenant, contact me for a consultation.

Encroachment of Property in Massachusetts

Encroachment of property occurs when a structure is on someone else’s land. In Massachusetts, the law allows a property owner to take court action to have such a structure removed.

Encroachment of Property: What Can Be Done?

Massachusetts law allows a property owner to file a civil lawsuit for encroachment of property. Per the law, a property owner is generally allowed to compel the removal of a structure significantly encroaching their property. Such an action would generally be pursued in Superior Court or Land Court.

To pursue such a case, a property owner would, of course, have to show they own the respective property that they claim is being encroached. This generally requires the property owner to have a professional survey or plot plan showing the boundary lines and location of the encroaching structure. A property owner may also be able to show property ownership through a successful claim of adverse possession.

Is the Encroachment Trivial?

Not all encroachments, however, will allow a mandatory removal of a structure. A court will not permit such relief when the encroachment is de minimis (“minor”). For example, a prior case found an encroachment to be de minimis for a building located on another’s property by only one-quarter of an inch.

Determining this will come done to the specific facts of each case, and will require a claimant to make a compelling reason why such a removal should be permitted.

Practical Implications

As with all legal matters, it is best to see if such disputes can be resolved without court intervention. Negotiation and compromise can often save all parties enormous time and legal expenses. If you need assistance with such a matter, contact me for a consultation.

Massachusetts Land Records

The Massachusetts land records consist of all documents related to the ownership of real property in the Commonwealth of Massachusetts. Compared to many other states, the Massachusetts land records are online, which makes searching them easy.

I recommend that every property owner check their land records once a year, to keep an eye on filings that are not common and should be addressed right away.

Searching the Land Records

The Massachusetts land records are available online at masslandrecords.com. Each county keeps records in an individual registry of deeds. The process of filing a document in the land records is known as recording, which is done at each registry.

Massachusetts uses two types of land recording systems: (1) recorded and (2) registered land.

Recorded land is the most common system, with recorded documents generally organized by book and page numbers. This is a relic of the past when such records were kept in individual books. Even though records are now all digitally, the old book/page system is still used.

Registered land is a recording system that Land Court oversees. Documents are organized by certificates of title, which group similar property documents together. Compared to recorded land, the requirements for recording documents in registered land are much stricter.

Common Documents in the Land Records

The common documents found in the Massachusetts land records are those associated with the sale of a property. Deeds, mortgages, mortgage assignments, and mortgage discharges are regularly found in the land records.

Other normal documents in the land records are zoning decisions, for an approved variance or special permit, and declarations of homestead, which provide certain protections for owner-occupied property.

Absent anything that looks unusual, property owners should not be concerned about seeing any of these documents in the land records.

Problematic Documents in the Land Records

The recording of certain documents in the land records can be a sign of a legal matter that needs to be addressed right away.

If a homeowner owes money to someone else, a lien may be recorded against their property. This is a debt that will have to be satisfied before the property is sold. Property owners should be particularly mindful of property tax liens, which come with strict penalties if not timely resolved.

Any documents concerning a Servicemembers Civil Relief Act case is generally a sign that a foreclosure sale is forthcoming. If a homeowner sees such a document, they should speak to their lender immediately to see what can be done to avoid foreclosure.

Some court cases, such as partition, require notice to be filed in the land records. If a homeowner sees any such legal notices, they should speak to a lawyer immediately to figure out what is going on.

Final Thoughts

If you need assistance with any matter concerning the land records, contact me for a consultation.

Zoning Judicial Review in Massachusetts

The Appeals Court issued an interesting decision earlier this year concerning some important topics on zoning judicial review in Massachusetts. This decision discusses some of the relevant matters that arise when a zoning decision goes before a court. A copy of the decision, Mancuso v. ZBA of Marblehead, is below.

Zoning Judicial Review 101

In Massachusetts, zoning decisions are primarily made at the local level by various town/city boards and commissions. The most common of these is a zoning board of appeals (“ZBA”) and a planning board.

Zoning boards have wide discretion in the decisions they make. This authority, however, is not unlimited, and such boards can (and many times do) issue decisions that exceed their authority. This is common for variances, where the requirements for such a zoning exemption are detailed and rigorous.

A legal challenge to a zoning decision may be pursued through a court case, where the court is asked to determine the validity of the zoning decision. Such cases are often filed in Land Court or Superior Court.

This Appeals Court decision looked at two important topics for zoning judicial review: (1) a court’s ability to issue zoning board remands and (2) the admissibility of board members’ testimony in such cases.

Zoning Board Remands

When reviewing a zoning decision, a court is not limited to simply upholding or denying the decision. Rather, a court also has the ability to issue a remand to the local zoning board. Such a remand orders the local zoning board to review their prior decision and correct any mistakes in their initial decision.

This is common when the local zoning board failed to consider a relevant factor under the law or did not issue an adequate written decision. After remand, the local zoning board must review the matter again, per the court’s instructions on what mistake or error it must correct.

As noted by the Appeals Court:

Remanding serves the goal of resolving controversies by “giving the board an opportunity to make further findings of fact or to state more fully the reasons for its decision, or . . . to reconsider an application in the light of stated principles different from those on which the board [had] thus far proceeded.” (citation omitted)

This Appeals Court decision underscores that courts have wide latitude in issuing remands for zoning cases. This is an important consideration when deciding to pursue a zoning appeal.

Testimony of Board Members

The Appeals Court also reaffirmed an important zoning judicial review principle: zoning board members’ testimony is generally not permitted in a zoning trial. While a court will certainly consider any written decisions from these local boards, each member’s individual testimony is usually not relevant evidence.

Final Thoughts

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

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Rent Escrow in Massachusetts

Rent escrow refers to the holding of rent money while a legal matter is ongoing. The questions most commonly asked about rent escrow in Massachusetts are when, and how, it is allowed.

Rent Escrow Before An Eviction Case

Without a court order, there is no requirement for tenants to escrow rent. This is most relevant when tenants are withholding rent from a landlord due to allegations that a landlord is not properly maintaining a rental unit. While a tenant is allowed to withhold rent in such cases, a tenant does not have to hold this rent money in a separate bank account.

In practice, however, any tenant who withholds rent should escrow this money. If the matter ends up in court, a tenant will inevitably be asked where the owed money went. A tenant who cannot account for such funds can (and likely will) lose credibility with the court.

Rent Escrow During An Eviction Case

If an eviction case has started, a court has the authority to require rent escrow from a tenant. This, however, will not happen automatically. When making such a request, landlords need to articulate why a tenant should be escrowing rent. Without providing a supporting basis, such requests will often not be successful in most courts.

Per the seminal case on this matter, Davis v. Comerford, a court must consider the following factors for such a request:

  • A landlord’s entitlement to use-and-occupancy funds from a tenant
  • The amount of rent due
  • The landlord’s monthly obligations
  • Whether the landlord is facing foreclosure
  • Whether the tenant has any viable defenses and counterclaims against the landlord

Escrowing of rent is most common in a case where a tenant has requested a jury trial; a matter which will inevitably delay the resolution of such a case.

The benefit of requiring the escrowing of rent, of course, is that the money is available at the resolution of the case. Moreover, as a practical matter, such orders often prompt both landlords and tenants to resolve these cases sooner than later.

Final Thoughts

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

Adam Sherwin Appointed to the Massachusetts Zoom Control Commission

I’m honored to announce that Governor Baker has appointed me today to the newly formed Zoom Control Commission (“ZCC”), a five-member panel with the job of regulating Zoom calls, meetings, and hearings during the COVID-19 pandemic. I am humbled by the confidence that Governor Baker has in appointing me to this important position.

Some of the ZCC’s important work will be:

  • Limiting the number of Zoom meetings during the workweek
  • Banning workplaces from retaliating against employees for not wearing suitpants during Zoom calls
  • Imposing fines for excessive delays in turning on Zoom microphones

Here is the press release:

BOSTON — The Baker-Polito Administration today announced the appointment of Att. Adam Sherwin to the newly formed Zoom Control Commission (“ZCC”). The ZCC was created to address the increasing complaints that Massachusetts residents have with awkward Zoom happy hours, participants in meetings without pants, and concerns that cats may be interfering with these important calls.

“As an experienced attorney, Adam Sherwin will bring an important perspective to the ZCC’s critical work. I, personally, am tired of that uncomfortable five minutes of waiting for someone to turn on their camera. The ZCC will implement needed regulations and fines for the use of Zoom as the COVID-19 pandemic continues”, said Governor Baker.

“Yesterday, I told a joke on Zoom. It wasn’t even remotely funny. It is time, more than ever, to get the use of Zoom under control during these difficult times,” said Lt. Governor Karyn Polito.

You can learn more about the Zoom Control Commission here.

Title Issues with Foreclosed Properties

Title issues with foreclosed properties often arise when a dispute comes up over a property’s lawful ownership. Most often, these involve a claim that the underlining foreclosure was not performed lawfully. Massachusetts law is clear that the failure to “strictly comply” with the applicable foreclosure requirements makes a foreclosure void.

As someone who has worked on foreclosure issues both for borrowers and third-party buyers of these properties, I’ve seen these problems from both sides.

Several options exist for resolving title issues with foreclosed properties.

Release from the Prior Property Owner

One of the easiest ways to resolve a faulty foreclosure problem is to get a release from the proper property owner.

If the underlining foreclosure is void, the prior owner still has ownership of the property. Often, if they are willing to deed this ownership to the new owner, any issues with the void foreclosure issue can be resolved.

This, of course, requires the consent of the prior owner (and the ability to locate him or her).

Court Action

If the prior owner cannot be located or is unwilling to resolve a void foreclosure, court action may exist to fix the problem. An action for quiet title or a declaratory judgment may be effective for one of these matters under the right circumstances.

New Foreclosure Sale

In neither option above is a possibility, a new foreclosure sale can occur.

Such a sale does not necessarily need to be performed by the original lender or mortgagee. In certain circumstances, a third-party buyer of a foreclosed property can assume the mortgage and promissory note and do a new foreclosure sale themselves.

Final Thoughts

Needless to say, anytime a problem arises in the foreclosure process, you should speak to an experienced attorney immediately. If you need help with such a matter, contact me for a consultation.

Cash for Keys: What Landlords Need to Know

Cash for keys is a popular alternative to the formal eviction process in Massachusetts. As an incentive for tenants to voluntarily leave a rental property, landlords can offer tenants money to move. Often, such deals can save landlords significant time and expense.

Here, I’ll discuss some important things that Massachusetts landlords should know about cash for keys.

Pros and Cons of Cash For Keys

For many landlords, the thought of offering money to a tenant (especially a non-paying tenant) is perplexing. However, basic economics can often make such agreements very viable for landlords. An eviction case can easily cost thousands of dollars in attorney fees and court costs. Offering a portion of that money to the tenant can sometimes avoid the entire process and lead to a much quicker outcome.

Cash for keys, however, isn’t always a good deal for landlords. If a tenant insists on an unreasonable amount of money, eviction may be the better option.

Cash for Keys Agreements Should Always Be in Writing

These agreements should always be in writing. Importantly, they need to include all of the deal’s relevant terms, including a specific date by which the tenant must vacate and a requirement that the tenant remove all of their possessions from the apartment.

Landlords should also require a tenant to waive all claims they might have against the landlord, arising out of the landlord-tenant relationship.

Cash for Keys Is Not A Substitute For A Formal Eviction

These kinds of agreements, importantly, are not a substitute for the formal eviction process in Massachusetts.

If a tenant does not leave the apartment, a landlord will still need to evict. If one of these agreements is reached as part of a settlement in an on-going eviction case, a landlord will still need to obtain the required execution for possession to have the tenants removed.

Final Thoughts

It can be beneficial to have an experienced attorney assist with one of these matters. If you need help in such a case, contact me for a consultation.

Specific Performance for Property: Three Things to Know

Specific performance for property is a legal remedy available for many real estate disputes. Here, I’ll discuss three things to know about this area of law.

Specific Performance Requires a Party to Fulfill A Contract Duty

A contract is a legally binding, enforceable agreement. What happens when someone breaches a contract? If the other party pursues the matter in court, they can recover damages from the other side. Most of the time, these damages are money. This is the preferred way that courts like to resolve these matters, by simply issuing a judgment for money against the offending party.

Money, however, won’t always solve the problem. Sometimes in a contract dispute, the goal is to get what was actually bargained for. This most commonly occurs with property. Most often, the buyer doesn’t just want money in a contract dispute; the buyer wants the actual sale of the home to occur.

In such a matter, a party can request specific performance. If successful, the court will order the breaching party to sell the property.

A Judge, and Not A Jury, Determines Whether Specific Performance Is Allowed

In law, some matters are determined by a jury, and others, by a judge. Whether or not someone is entitled to specific performance for property is a decision that a judge alone decides.

While specific performance is commonly granted for real estate contract disputes, it is not a strict requirement. A judge does have discretion in granting such relief and may not allow it if the other party acted in bad faith.

Contracts For Real Estate Have Many Forms

Massachusetts, like most states, requires most contracts for real estate to be in writing.

Most of us think of legal contracts as lengthy, typed agreements that lawyers negotiate and draft. However, this isn’t the only way to draft contracts. Courts have found contracts to be created through text messages, email, and other written correspondence.

For this reason, a claim for specific performance for property is not lost simply because a contract is not in a traditional written form. For this reason, those involved in a contract dispute involving property should speak to an experienced attorney to determine if specific performance is a viable option.