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.

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.

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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.