Restrictive Covenants: What’s Allowed?

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

Restrictive Covenants

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

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

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

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

How to Deal With a Void Restrictive Covenant

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

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

Final Thoughts

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

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.

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.

Fixing a Foreclosure Problem in Massachusetts

Challenging a Foreclosure

Fixing a foreclosure problem is a matter that may be necessary if a mistake is made in the foreclosure process. If such a mistake occurs, and the foreclosure is void, the buyer does not have full ownership of the property, which will prevent them from evicting any of the occupants or selling the home at a later date.

Fortunately, there are options available for fixing a foreclosure. As someone who has both helped buyers of foreclosed properties with these matters, and homeowners attempting to avoid foreclosure, I know many of the common pitfalls in this area of law.

Overview of Foreclosure In Massachusetts

Massachusetts is a non-judicial foreclosure state. This means that, unlike many other states (such as New York and Vermont), a lender does not need to go to court to foreclose. Rather, a lender can foreclose through a series of legal notices and a public auction sale.

The requirements for a foreclosure in Massachusetts are detailed and must be strictly complied with. Even a minor, innocent mistake can be grounds for arguing that a foreclosure is void.

Common Errors In Massachusetts Foreclosures

Common errors in Massachusetts foreclosures include, but are not limited to, the following:

For a third-party buyer of a foreclosed property, these defects can be problematic. Even though the lender made the error, such defenses can be used against the subsequent buyer of the foreclosed property, to challenge the home’s ownership.

Fixing a Foreclosure: What Can Be Done?

The first step for attempting to resolve a foreclosure problem is to try and negotiate with the former homeowner, if possible. If the former homeowner no longer lives in the home, or has no interest in keeping the property, it may be possible to reach an agreement where ownership of the home can be resolved.

If this is not possible, a court action will likely be necessary. In such a case, a third-party buyer can ask a court to quiet title for the property or allow it to perform a new foreclosure sale.

Final Thoughts

Addressing an issue with a foreclosure should never be done without an experienced attorney’s help. If you need assistance with such a matter, contact me for a consultation.

Quiet Title in Massachusetts

Quiet title is a legal action used to resolved real estate disputes. This action asks a court to issue an order resolving a property issue. This can be highly effective in determining one’s rights in property.

Overview of Quiet Title

Quiet title is a broad cause of action, and can conceivably be used for any type of real estate dispute where the rights of property are at issue.

I like to think of quiet title as being a declaratory judgment action for property, where a court is being asked to resolve an actual controversy.

Quiet title, importantly, gives a claimant a lot of leeway in who an action can be brought against, including “the claims or rights of persons unascertained, not in being, unknown or out of the commonwealth.” This is helpful for disputes where the potential defendants are unknown or not entirely certain.

Where to File

Quiet title actions are most often filed in Superior Court and Land Court. Deciding which court to use is a critical decision, which an experienced attorney can help with.

In my experience, Land Court is often the best forum for these matters. Land Court judges have a solid background in real estate matters, and expertise in addressing such cases in a prompt and effective manner.

Other Options for Resolving Property Disputes

When bringing a lawsuit to resolve a property dispute, it is important to similarly consider and include any other causes of action for resolving property disputes.

For boundary disputes, claims of adverse possession and easement by prescription often arise and come into play. Try title, which forces an opposing party to raise all of their claims to a property in a single action, is also a claim that should be considered in such matters.

Property disputes involving deeds and mortgages often implicate matters concerning reformations and discharges.

Final Thoughts

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