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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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.

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.

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.

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.

Proving Adverse Possession

Proving adverse possession isn’t easy. A recent decision from the Appeals Court (enclosed below) explains some of the many nuances when pursuing such a claim.

Adverse Possession 101

Adverse possession is best described as a property rule requiring land owners to “use it or lose it.” Adverse possession is a legal claim by which a party can acquire someone else’s record property if they continuously use it for twenty years (along with some other requirements).

The person bringing an adverse possession claim has the burden of proving each these elements. A court will look closely at whether such a claimant has made a case for each of these detailed requirements. Since adverse possession will often result in the loss of record property to someone else, few courts will entertain such relief unless a viable case has been established.

Proving Adverse Possession

As the case below shows, proving adverse possession generally comes down to who the judge or jury finds is most believable. Often in these cases, there is “two sides to the story,” and a judge or jury must hear all of the evidence and make a finding of fact.

In the case below, a claimant who lost their adverse possession case appealed this decision and claimed that the judge’s decision was clearly erroneous. This required the claimant to convince the Appeals Court that the judge’s decision lacked a solid basis in fact or law.

Such a showing is hard to make. It is not enough to show that the decision could have “gone the other way.” Rather, proving that a decision is clearly erroneous requires a showing that the decision was not “soundly based in the record and the law.”

In every civil case, someone wins, and someone loses. An appellate court won’t change a decision simply because the claimant thinks the judge or jury should have reached a different decision.

Here, because the judge in this adverse possession case had a basis for his or her decision, the appeal of this decision was not successful.

Practical Implications

This case demonstrates the importance of preparing a strong case for proving adverse possession. Because the outcome of one of these decisions is entirely in the hands of a judge or jury, who has the sole decision in determining which side is credible, it is critical to properly prepare such a case through the assistance of an experienced attorney.

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

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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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