Foreclosure Notices in Massachusetts: What’s Required?

Massachusetts’s Supreme Judicial Court issued its long-awaited decision in the Thompson case, concerning foreclosure notices in Massachusetts. This is a decision that lenders, title examiners, and other real estate professionals have been closely following since the original federal court decision. The full decision is below.

Thompson was a federal court case brought by a borrower challenging a foreclosure sale against his home. In 2019, the First Circuit of Appeals ruled that the foreclosure in this case was void due to an error in the right to cure notice, which both state law and the terms of most mortgages required to be sent prior to foreclosure.

This decision surprised many (including yours truly) because it seemed to “stretch the limits” on what is required for one of these notices, per established law.

For this reason, Thompson generated a great deal of concern and criticism, leading the Supreme Judicial Court to take this decision for the purpose of resolving this matter.

Foreclosure Notices in Massachusetts: Basic Requirements

To be clear, there are several required foreclosure notices in Massachusetts, including those notifying the property owner about the scheduled foreclosure sale. Here, I am focusing on the required default notice that must provide the mortgagor with an opportunity to cure their loan default, prior to foreclosure. Both state law, as well as the terms of most standard mortgages, require such notice.

Under the SJC’s decision in Pinti v. Emigrant Mortgage, a lender must strictly comply with the mortgage requirements for such notices. Even a minor error in one of these notices could seemingly invalidate a foreclosure.

In Thompson, the question for the court was whether an alleged error in one of these notices was fatal to a foreclosure’s validity.

Here, the First Circuit had held that a paragraph 22 notice sent to a borrower made the foreclosure sale void because it misrepresented the borrower’s rights. The notice told the borrower that he could reinstate his loan after acceleration , anytime before the foreclosure was to occur. The problem with this was that the borrower’s mortgage required this reinstatement to occur five days before a foreclosure sale.

The SJC ruled that, because state law gave the borrower a longer time to reinstate than the mortgage itself, the default notice was not deceptive.

Implications of Thompson

Due to a series of SJC decisions in the wake of the 2008/2009 financial crisis (including Pinti), the validity of many Massachusetts foreclosures have been often called into question, with many areas of foreclosure law remaining unclear. Thompson is a step away from this trend, and avoided a circumstance where many foreclosures across Massachusetts could have been voided.

The SJC, however, avoided answering an underlining question in this decision: how strict is strict compliance? In other words, how much of a mistake needs to occur in a foreclosure notice for an underlining foreclosure to be invalidated? Such a question remains unclear, and will likely be resolved in future court cases.

Conclusion

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

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Anti-SLAPP: Sherwin Law Firm Succeeds With Special Motion to Dismiss

Last week, I won a dismissal of a claim against my client in a real estate contract dispute, using Massachusetts’s “anti-SLAPP” law. Anti-SLAPP is a highly effective means of dismissing meritless claims aimed at inhibiting one’s right of petition.

“SLAPP” is an acronym for a strategic lawsuit against public participation. These lawsuits are brought to intimidate and harass those exercising their lawful rights under the law. Massachusetts, like many other states, has an anti-SLAPP law created purposely to punish those who pursue such claims.

Case Overview

I represented a client who was involved in a real estate case involving specific performance. The opposing party was seeking a court order against another party, ordering the sale of a home that my client ended up purchasing.

This opposing party brought a claim against my clients for monetary damages, due to a lawsuit that my client previously filed to obtain ownership of the home (which was successful).

In short, this opposing party was trying to punish my client for filing a necessary and viable lawsuit.

What is Anti-SLAPP?

Massachusetts’s anti-SLAPP law was created purposely for a case like this:

In any case in which a party asserts that the civil claims, counterclaims, or cross claims against said party are based on said party’s exercise of its right of petition under the constitution of the United States or of the commonwealth, said party may bring a special motion to dismiss. The court shall advance any such special motion so that it may be heard and determined as expeditiously as possible. The court shall grant such special motion, unless the party against whom such special motion is made shows that: (1) the moving party’s exercise of its right to petition was devoid of any reasonable factual support or any arguable basis in law and (2) the moving party’s acts caused actual injury to the responding party. In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.

The “right of petition” broadly includes “any written or oral statement made before or submitted to a legislative, executive, or judicial body . . .”, including the filing of a lawsuit. Anti-SLAPP, in short, is intended to punish the pursuit of a legal claim without factual support or any arguable basis in law, aimed solely to harass the opposing party.

A party can invoke the protections of this law through a special motion to dismiss, which must be heard as “expeditiously as possible.” A successful anti-SLAPP motion, importantly, provides the claimant with mandatory attorney fees and costs from the opposing party.

Here, the Court agreed with my argument, and granted my motion to dismiss.

Final Thoughts

I’m incredibly pleased with the outcome of my special motion to dismiss and the availability of anti-SLAPP for protection against baseless lawsuits. The legal process exists to provide readdress for those who have been harmed . . . not to purposely harm others.

If you think anti-SLAPP may apply to you, contact me for a consultation.

Foreclosure in Massachusetts: What to Know

One of my projects this fall has been writing for LexisNexis’s Practical Guidance series. LexisNexis, in my opinion, is the best source for legal research, and it is honor to be part of their team. My article, Residential Foreclosure in Massachusetts, is available on my website and included below.

This article provides a background on foreclosure in Massachusetts, for both lenders and borrowers. For the past seven years, I’ve helped homeowners and purchasers of foreclosed homes navigate this tricky area of law. I’ve help many homeowners avoid foreclosure, and have advised real estate professionals with some of the pitfalls that can occur when purchasing a foreclosed home.

Foreclosure law can arise in almost every area of real estate, including landlord-tenant law, title matters, and property disputes. Having an understanding of this process is critical when foreclosure arises in a legal dispute.

My article touches on some important areas of Massachusetts foreclosure law:

  • Pre-Foreclosure Requirements: Massachusetts is a non-judicial foreclosure state. This means that a lender doesn’t need a court case to foreclose. The caveat, however, is that a lender must strictly comply with Massachusetts’ detailed foreclosure requirements. Failure to do so can make the underlining foreclosure void.
  • Foreclosure Defenses: In certain cases, it is possible to defend against foreclosure, with the goal of working out a permanent solution to the problem. My article discusses what to consider when defending against foreclosure, and, importantly, the defenses that are not viable in these cases.
  • Post-Foreclosure Evictions: An eviction is required for any occupants who remain in a home following foreclosure. This is a entire topic on its own, as these types of evictions follow a slightly different process than a typical landlord-tenant eviction.

I hope this article is helpful . . . let me know what you think. If you need assistance with a foreclosure matter, contact me for assistance.

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Zoning Disputes in Massachusetts: Three Success Stories

Zoning disputes typically arise when property owners have disagreements over whether someone is entitled to specific zoning relief, such as a variance. The law allows a party who is “aggrieved” by a zoning decision to appeal the matter in court. By doing so, the party requesting the zoning relief is required to prove to the court that they are entitled to it.

I’ve had the honor of representing businesses and homeowners with zoning disputes in Massachusetts. Here, I’ll discuss three success stories I have had with such matters. For privacy purposes, I have only discussed the general facts of each case.

Small Business v. Real Estate Developer

My client was a medium-sized commercial landlord in the Greater Boston area who was having an issue with a real estate developer. The developer was seeking zoning approval to pursue a large-sized development in the neighborhood where one of my client’s rental properties was located. My client was concerned that such a development could have long lasting implications to its rental property, including loss revenue.

For this zoning dispute, I challenged the validity of the special permits that this developer had obtained from the city’s planning board. I argue that the planning board failed to consider all of the required criteria for such relief, including the implications of its development on nearby housing providers.

After several months of litigation, my client and the developer reached a successful settlement. This settlement provided my client adequate compensation for some of the losses it anticipated suffering during the construction of this development.

Homeowner v. Real Estate Developer

In this case, a Boston homeowner retained me concerning a proposed development in the immediate vicinity of his home. My client, understandably, was concerned about a large condominium complex in the rear of his home.

After reviewing the case, I determined that many of the approved variances were problematic and on shaky ground. In the Suffolk Superior Court case I filed appealing this decision, I asked the Court to annul the City of Boston’s Zoning Board of Appeal decision on this matter.

Shortly after, a settlement was reached, which helped alleviate many of my client’s concerns about this project.

Homeowner v. Homeowner

Zoning disputes often occur between adjacent homeowners. In this case, a North Shore homeowner hired me in regards to a special permit that his neighbor obtained. My client was concerned about an addition that his neighbor wished to construct on her home, which my client believed lacked justification.

As with all zoning disputes, timing is critical. Massachusetts law only allows a claimant twenty days to file an appeal, and failure to do so will be grounds for dismissing the appeal.

As a solo attorney, one thing I pride myself on is having full control over my schedule and ability to take on cases that are time sensitive. Here, I was able to timely file this matter on short notice, which lead to a successful resolution for my client.

Final Thoughts

Zoning disputes are highly interesting cases . . . and complex. It is critical to how a solid understanding of this law to pursue any zoning appeal or legal challenge.

While each of the cases discussed above settled, zoning disputes can (and often do) go to trial. Therefore, it is critical to have an attorney with a solid background in litigation and trial advocacy.

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

Section 8 Evictions

foreclosure appeal

Section 8 evictions, compared to other residential evictions in Massachusetts, follow a slightly different set of rules and restrictions. This week, the Appeals Court issued a decision clarifying the required notice to quit for Section 8 evictions.

Ironically, I had been working on this exact issue the day before the Appeals Court issued this decision. I wish the courts would consult me before issuing their decisions!

What is Section 8?

Section 8 is a federal program that provides housing vouchers to those with low income. Section 8 caps the amount that participants must pay in housing (usually 30% of gross income) and subsidizes the rest.

Section 8, importantly, pays this voucher directly to the landlord and does not provide rental housing directly. Section 8 requires landlords and tenants to enter into a specific type of lease and rental paperwork.

Notices to Quit for Section 8 Evictions

Notices to quit are required for nearly every eviction in Massachusetts. For Section 8 evictions, however, the required paperwork for these tenancies have detailed requirements about what must be included in these notices, and include limitations on the potential grounds for eviction.

One of the central issues in this case was whether a Section 8 tenant, who had become a tenant at will (a “month-to-month” tenant) could be evicted for no-fault. Such a scenario occurs when a tenant has stayed pass the lease term, but continues to stay in the rental apartment and pay rent.

Typically, a tenancy at will can be ended by either the landlord or tenant, with no reason needed from either side. However, because the Section 8 paperwork seemed to suggest that a reason is needed for a Section 8 eviction, it remained unclear whether a no-fault eviction was ever allowed for Section 8 tenancies.

The court concluded that a no-fault eviction could be brought against a Section 8 tenant. However, unlike other no-fault evictions, the notice to quit for a Section 8 tenant is required to include an explanation for eviction. Even though no reason was required for the eviction, the landlord needed to expressly state that to the tenant in the notice.

Practical Implications

A paragraph at the end of this decision summarizes these points about evicting a Section 8 tenant:

This case demonstrates that landlords of Section 8 tenants
must be careful to comply with the notice provisions contained
in paragraph 8(g) of the HAP contract tenancy addendum even where the tenancy is at will. Those notice provisions do not
displace the landlord’s ability to terminate an at-will Section
8 tenancy, but they do require that the tenant receive notice of
the reason for the termination. That reason must be contained
either in the notice to quit or the summary process complaint.
Where there is cause for the termination, either the notice to
quit or the summary process complaint must so state; and the
same is true where there is no cause for the termination.

I would add that, in addition to specific requirements on notices to quit, Section 8 often requires that the housing administrator be notified of any eviction proceeding. For this reason, landlords need to review Section 8 paperwork carefully before starting the eviction process (or get the assistance of a qualified landlord-tenant attorney).

Conclusion

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

Buying a Foreclosed Home in Massachusetts

Buying a foreclosed property must be done with care. Compared to the purchase of other real property, foreclosed properties come with their own specific challenges.

Purchasing a foreclosed property usually occurs (1) at the public foreclosure auction sale or (2) from the bank or lender who foreclosed the property, commonly known as a real estate owned (“REO”) property.

Here, I’ll discuss some important topics for buying a foreclosed property.

Foreclosed Properties Are Often Sold “As Is”

Compared to the process of purchasing most other properties, buyers of foreclosed properties generally have few opportunities to inspect the property in advance. Moreover, in most sales of foreclosed properties, a buyer takes the property “as is”, and has limited recourse for any problems later arising in the property.

Title Problems With a Foreclosure Can Become the Buyer’s Problem

Massachusetts is known as a non-judicial foreclosure state, which means that a foreclosure can occur without a court case. Foreclosures, however, must be done with strict compliance under the law. An error in this process can invalidate the foreclosure sale, and can impede a subsequent buyer’s ownership of the property.

Not every error in the foreclosure process will affect the property’s title. However, a buyer of a foreclosed home needs to be mindful of the potential errors that can arise in the foreclosure process, and ensure that such issues have not occurred for the property they wish to purchase.

An Eviction Is Required for Occupants in the Home

If any occupants remain in a property after foreclosure, they must be evicted, through a formal court case. Any attempt to remove occupants without an eviction case is highly illegal and will lead to many problems down the road.

Compared to standard evictions, evictions for foreclosed homes are a slightly different process, and requires knowledge of Massachusetts foreclosure law. This is especially true if the occupant is the former homeowner, and wishes to challenge the foreclosure sale.

Final Thoughts

If you need assistance with buying a foreclosed home, contact me for a consultation.

Massachusetts State Eviction Moratorium Ends: Three Things to Know

The Massachusetts state eviction moratorium officially ends today, with Governor Baker declining to extend this protection for tenants. Here, I’ll discuss three things for landlords to know about the status of evictions in Massachusetts going forward.

A Federal Eviction Moratorium, Under the Centers for Disease Control and Prevention (“CDC”), Remains in Effect

Although the state eviction moratorium has ended, a federal regulation remains in place through the end of 2020. Compared to the state eviction moratorium, the CDC regulation is far less burdensome for landlords.

The CDC regulation only applies to evictions for non-payment of rent, and requires tenants to take the affirmative step of invoking the protections of this regulation, through an affidavit to the landlord. Under this regulation, a tenant (who meets specific criteria) prohibits a landlord from evicting a tenant through December 31, 2020.

Importantly, this regulation does not prohibit the filing of an eviction case; it only prevents the actual eviction of a tenant. In other words, a eviction case may go forward, but the actual process of removing a tenant from rental property must wait until next year.

The prior state eviction moratorium, in contrast, stopped all stages of the eviction process, and applied to nearly every type of eviction.

New Requirements for Non-Payment of Rent Notices

The Coronavirus Aid, Relief, and Economic Security (CARES) Act, which passed earlier this year, requires certain landlords to use a thirty-day notice to quit for non-payment of rent eviction cases (as opposed to a standard fourteen-day notice to quit).

This requirement only applies to landlords with a federally backed mortgage, or a participant in a federal grant or voucher. The language of this law is broad, and covers a wide array of different federal programs. For this reason, landlords should err on the side of caution when deciding whether to send a fourteen or thirty day notice for non-payment of rent.

It remains unclear how long this requirement remains. For now, I recommend following this requirement for the imminent future.

New Eviction Procedures in Housing Court

The procedure for evictions in Housing Court has changed, and will likely never be the same again. Before, eviction trials were automatically set by the court’s schedule, on a weekly basis. Now, trials will be scheduled following an initial conference with the court’s staff.

Hearings and trial, importantly, will likely done through Zoom, with few in-person hearings at courthouses.

Although the formal protections of the state eviction moratorium are over, Housing Court still has the inherent ability to offer tenants more time to stay in a rental apartment, under appropriate circumstances. I suspect, strongly, that Housing Court will continue to entertain such requests from tenants in the months to come.

As a practical matter, there is an enormous backlog of eviction cases in the courts now, with many more to come. Landlords need to be practical and realistic about what to expect from the eviction process going forward.

Final Thoughts

If you need assistance with a Massachusetts eviction, contact me for a consultation.

Landlord Advice: Five Tips for Renting in Massachusetts

Landlord advice is a topic I am often asked about for those renting in Massachusetts. Here, I want to share several tips on this important topic.

Use a Written Agreement for All Tenancies

There are generally two options for renting to tenants: a lease (with a specified duration for the tenancy) or a tenancy-at-will (where either party can end the tenancy with proper notice). While leases are generally in writing, tenancies-at-will (often known as “month-to-month” rentals) can be done verbally.

Verbal tenancy agreements should always be avoided. A written agreement should be used for any tenancy relationship and include, at a minimum, the amount of rent, terms of the tenancy, and responsibility for payment of the utilities.

Keep Extensive Records

Records are critical for landlords. If a dispute ever arises with a tenant, having such records are vital for a proper defense.

Records should always be kept of all rent billed and received from a tenant, all work done on the rental property, and all communications between the landlord and tenant.

Don’t Take A Security Deposit

Massachusetts’ security deposit law is long, complex, and impossible to fully understand. Few landlords are in perfect compliance with this law, and any violation can be expensive and time consuming.

Know the Housing Discrimination Laws

State and federal law prohibits housing discrimination. A landlord needs to know these laws and ensure that they are following them. It is a good idea for landlords to review these laws every year, as they do change, and a refresher is always a good idea.

Be Compliant With the State Sanitary Code and Local Zoning Ordinances

All residential housing in Massachusetts comes with an implied warranty of habitability. This means that the property must be fit for a tenant to live in. This responsibility cannot be waived or avoided, under any circumstances.

The guiding star for complying with this warranty is the state sanitary code. A landlord in compliance with this code will generally avoid most potential claims arising from the condition of the rental property.

A landlord should similarly be mindful of local zoning ordinances, and ensure that a property is allowed for renting under the applicable rules and regulations.

Final Thoughts

Renting in Massachusetts isn’t easy, but having a solid background of the applicable laws is critical for avoiding problems in this area of law. If you need assistance with a landlord-tenant matter, contact me for a consultation.

Evicting Commercial Tenants in Massachusetts

Evicting commercial tenants is a different process than a residential eviction, which are more common in Massachusetts. Although commercial evictions often occur through the same court procedure, the underlining law is different.

With the existing eviction moratorium expected to expire in several weeks, commercial evictions will likely resume soon and, given the economic repercussions of COVID-19, be heavily litigated in the months ahead.

Filing a Commercial Eviction Case

Commercial eviction cases are generally through the same eviction process as residential cases, known as summary process. Summary process cases move at a much quicker pace than other civil cases.

Such cases are generally filed in District Court, but may be filed in Superior Court if the owed rent is at least $25,000.

Importantly, commercial evictions may not be brought in Housing Court.

Under Massachusetts law, business entities (ex. corporations, limited liability companies) and trusts must be represented by an attorney in court (except for small claims cases).

As most commercial landlords exist as a business entity or trust, it is important to have an attorney handling the case. Courts can and will dismiss an eviction if a non-attorney attempts to handle it on their own.

Fewer Defenses for Commercial Tenants

Compared to residential evictions, there are far fewer defenses available for tenants in commercial evictions . The law allows landlords to make commercial tenants largely responsible for the care and maintenance of the rented premises. Many laws protecting residential tenants, such as the onerous security deposit law, do not apply to commercial tenancies.

Final Thoughts

Evicting a commercial tenant must be done with care and with knowledge of the applicable laws and summary process rules. If you need assistance with such a matter, contact me for a consultation.

Tree Disputes in Massachusetts: What to Do

Tree disputes happen much more than you might expect in Massachusetts. These problems are most common among adjacent landowners, and can lead to major disputes if not properly addressed.

Tree disputes generally consist of two types of matters: (1) damages caused from a tree and (2) the unauthorized removal of a tree.

Whose Tree Is It?

While it may be obvious in many cases, it is sometimes necessary to determine who owns the tree at issue in the dispute. Generally, this can be figured out through a survey or plot plan.

If the ownership of the property is unknown, this (on its own) may be a separate matter to deal with.

Damage From a Tree: Healthy or Not?

Determining one’s liability from a tree comes down to a central question: is the tree healthy? Massachusetts law prohibits a tree owner from being liable from damages caused by a healthy tree. The rationale for this is that trees, naturally, will loose limbs and fall down from weather conditions.

Liability does exist for an unhealthy tree. If you own a tree that is not healthy, and it causes damage to someone else’s property, you may be liable.

Determining whether a tree is healthy will likely require an expert opinion, through an arborist or landscaping professional.

Damages From Removing a Tree Without Permission

The unauthorized removal of another’s tree is a serious offense. Such a violation can subject one to triple damages. Given the large expense of replacing a tree, this can be a significant penalty.

How to Handle a Tree Dispute

As with most disputes, it is best to see if the matter can be resolved without court action. Often, such matters can be resolved through clear communication and negotiation.

Legal action is often necessary if such matters cannot be amicably resolved. The law, importantly, allows not just for money as damages, but equitable relief, where a court can order someone to do (or not do) something.

This can be critical if immediate relief is required, such as stopping the cutting of trees or requiring a neighbor to do something about an unhealthy tree, before significant damage occurs.

Conclusion

If you need assistance with a tree dispute, contact me for a consultation.