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.

Evictions for Lease Violations in Massachusetts

Evictions for lease violations occur when a landlord wishes to evict a tenant for violating the lease term, other than non-payment of rent.

Such cases are similar in many ways to other eviction cases but come with several differences that landlords need to be aware of.

What’s Required for Bringing an Eviction Based on a Lease Violation?

Many courts assume that a tenant’s violation of a lease needs to be a material breach of the agreement. In other words, a minor lease violation, on its own, may not be enough to justify an eviction.

This, of course, depends upon the case’s specific circumstances but is something to consider before pursuing such a matter.

Evictions for lease violations almost always require some form of notice to the tenant. Most leases generally require a seven-day notice to quit, stating the specific grounds for eviction.

Such notices must be prepared carefully; the failure to include a reason for eviction can keep the landlord from raising that matter later on.

Proving the Matter In Court

Evictions for lease violations generally follow the same procedure as most other eviction cases in Massachusetts. A notable exception is that tenants are generally not allowed to raise counterclaims against a landlord in such a case (where the tenant can sue the landlord in the same court action).

While it isn’t hard to start an eviction case for a lease violation, proving such a matter to a court can be different. The rules of procedure and evidence control how the court can decide one of these cases. Failure to know these rules can result in the exclusion of necessary witnesses and evidence and can be fatal to one’s case.

Final Thoughts

For these reasons, an eviction case for a lease violation has many traps for the unwary. Massachusetts landlords should strongly consider hiring an experienced attorney to help with one of these matters. Contact me if you need assistance with such a case.

Landlord Liability for Dogs

On the issue of landlord liability for dogs, a recent Appeals Court decision keeps landlords out of the doghouse for some of the problems that can arise from a tenant’s pets. The full decision, Creatini v. McHugh, is included below.

Background

This was a lawsuit brought by a man who was riding a bicycle with his dog running on a leash beside him, and attacked by a tenant’s dog on the street. This man sued the tenant’s landlord for his damages: someone he did not know, and who he never had any sort of relationship with.

Besides the obvious question, of why this man was riding a bicycle while walking his dog, this case raises the important issue of a landlord’s liability for a tenant’s dog. As the Court explained, does “a landowner h[ave] a legal duty to protect passers-by from a dog kept on the landowner’s property, but owned by the landowner’s tenant?”

Here, the Court ruled “no.” As explained in the decision:

Here, [the landlord and other party] had no special relationship.
Indeed, they had never met. Creatini’s injury did not occur on
McHugh’s property, but on a public street. Nothing in the
summary judgment record indicates that McHugh was aware that
Mills’s dog was aggressive or prone to attack passers-by. In
these circumstances, we agree with the judge’s conclusion that
“[a]n injury to a person running a leashed dog while riding a
bicycle on a public street from a dog fight started by an unleashed dog is not a foreseeable event that warrants the
imposition of a duty upon a landlord.”

Practical Implications

Creatini is a good decision for landlords. Imposing liability on a landlord in these circumstances would have opened the “flood gates” for all sorts of potential liability for a tenant’s conduct.

I caution, however, that there are three critical parts of this decision that lead to this outcome: (1) the injured man had no relationship to the landlord; (2) the landlord had no knowledge that the dog was dangerous; and (3) the injury occurred on the street, and not on the landlord’s property.

If any of these facts were different, this decision could have come out the other way. If, for example, the landlord knew that the dog could have caused harm to someone else, a stronger case could have been made against the landlord. For this reason, landlords cannot turn a blind eye if they have good reason to believe that a tenant’s dog is dangerous.

Conclusion

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

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Eviction Notices During COVID-19

As the COVID-19 pandemic continues, new state requirements now exist for the service of non-payment of rent notices to quit. This includes a required attestation form and the filing of the notice to quit with the Commonwealth of Massachusetts.

Eviction Notices During COVID-19: What’s Required?

For non-payment of rent notices to quit, state law now requires that landlords serve tenants with an attestation form, which provides an overview of the eviction process and resources available for tenants (a copy of the form is below).

This form must be served with the notice to quit, and both documents must be filed online with the state.

Practical Implications

Landlords need to be careful with eviction notices during COVID-19. Failure to comply with any of these requirements will likely derail an eviction case.

One of the requirements under the attestation form is to state whether the rental property is a “covered dwelling” under the federal CARES Act. If it is, this federal law requires a landlord to use a thirty-day notice to quit (rather than the standard fourteen-day notice).

Because it can be difficult at times to determine whether rental property falls under this law, I am erring on the side of caution and using a thirty-day notice, in most cases.

Landlords should be mindful that the CDC eviction moratorium remains in effect through the end of the month (and will almost certainly get extended). This moratorium does not prevent the filing of an eviction case, but it does stop a landlord from obtaining possession of rental property while the moratorium remains in place.

Conclusion

If it isn’t clear already, eviction notices during COVID-19 are tricky and can be a trap for the unwary. To avoid some of the pitfalls that can arise in these matters, contact me for a consultation.

Form

How to Divide Property Between Family

The topic of how to divide property between family often comes up when family members own property together, and one member wants out. This most commonly occurs, in my experience, through the inheritance of property among siblings, after a parent dies.

The rule of thumb is that, in nearly every case, if an owner of property wants out, they are entitled to force a sale of the property. For this reason, when such a scenario comes up, it is best for those involved to try and resolve it on their own.

How to Divide Property Between Family: Working Out a Buy Out Or Sale Agreement

When the topic of dividing property comes up, the first thing to be done is try and see if the matter can be worked out amicably, by joint agreement.

When one co-owner of property wants out, there are generally two options available. First, the parties can negotiate a buy out of the owner’s share, where the other owners pay them for their share of the property. This is generally required when one of the co-owners wishes to keep the property, and the others do not.

If a buy out cannot be worked out, the other option is to simply agree to sell the property.

How to Divide Property Between Family: Partition

If an agreement among the property owners cannot be reach, any owner may file a partition case, where the court orders a sale of the property.

A partition case may be filed in either Land Court or Probate and Family Court. The process can be expensive, as the parties will generally need to pay attorney fees and court expenses. The filing of one of these cases, however, can be effective in moving one of these matters towards a final resolution.

Final Thoughts

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

MCAD Complaints Against Landlords

MCAD complaints against landlords generally occur when a prospective, prior, or current tenant accuses a landlord of housing discrimination. When faced with such a claim, landlords need to act promptly and diligently in responding to such charges.

What is MCAD?

The Massachusetts Commission Against Discrimination (“MCAD”) is a state agency that handles discrimination claims, including those concerning housing.

MCAD is not a court, but functions in a similar manner, and has the power to issue decisions and award damages for violations under the law. For this reason, MCAD complaints against landlords are just as serious as any court case.

MCAD complaints against landlords begin with a notice that a claimant has filed a claim of discrimination against the landlord, which is followed by an investigation and determination on whether the tenant has a viable claim. MCAD will then see if a settlement can be reached. If a resolution is not possible, the matter will proceed to a hearing, in a manner similar to a trial.

Housing Discrimination

Housing discrimination is prohibited under federal and state law, and is a serious offense. Housing discrimination law prohibits a landlord from treating a tenant differently based on a protected classification, such as race or gender.

How to Handle a Housing Discrimination Claim in MCAD

When faced with a housing discrimination claim from MCAD, landlords must act promptly. Such a claim generally requires a landlord to respond by submitting a position statement, where the landlord gives their side of the story. Do not ignore a MCAD notice!

Compared to a court, MCAD is intended to be more “user” friendly, and it is not uncommon for tenants and landlords to represent themselves. However, given that MCAD functions nearly the same as a court, landlords should strongly consider hiring an attorney to represent them in such a proceeding. This is especially true given the many complexities of most housing discrimination cases.

Conclusion

As with any other legal proceeding, an MCAD complaint needs to be addressed timely and properly. If you need assistance with such a matter, contact me for a consultation.

Fixing a Real Estate Mistake in Massachusetts

Mistakes happen . . . especially in real estate. The legal options for fixing a real estate mistake vary based on the circumstances and the dispute that must be resolved.

Fortunately, Massachusetts law provides a number of causes of action for resolving these issues.

Getting Someone Off a Deed

When property is owned jointly by several owners, it is not uncommon for one owner to want own. If the parties cannot work it out on there are, there are several options available for such cases.

If someone is on a deed through a mutual mistake (where both parties erred in the drafting of the deed), fraud, accident, illegality, or unjust enrichment, a deed reformation may be a possibility. This is a court action asking for the removal of a party from the deed. Such a case, however, will only be available in these limited circumstances, and will generally not be viable if the other person was freely and willingly deeded the property.

In most other cases, the process of removing someone from a deed must be done through a partition case, which is a legal action to force a sale of property.

Discharging a Mortgage

When a mortgage is paid in full, a notice must be filed (“recorded”) in the land records stating that no further debt is owed on the property. Known as a mortgage discharge, this document is incredibly important for a later sale of the property.

Without a discharge, few (if any) prospective buyers will purchase a property, with the concern that a mortgage may still exist.

Massachusetts has a detailed procedure for fixing a real estate mistake such as this, including a court action ordering such a discharge.

Getting Rid of An Adverse Claim To One’s Property

An adverse claim to property occurs when a property owner’s neighbor or abutter claims they own a portion of someone else’s real estate. When this occurs, the goal is to get rid of such an adverse claim as quickly as possible.

One means of fixing a real estate mistake such as this is through try title. Try title requires that the other party, who is asserting a adverse claim, to either pursue the claim, or lose it forever.

Final Thoughts

Fixing real estate mistakes is not always easy, but can be done through the assistance of an experienced attorney. If you need help in such a matter, contact me for a consultation.