Client Update Articles

What Property Owners, Managers and Trustees Of Mixed-Use Buildings Need to Know About Changes to Massachusetts’ Strict Liability Law

By Howard S. Goldman, Esq.

As recently reported in Massachusetts Lawyers Weekly, a Massachusetts Housing Court Justice recently held in the case of Sheehan v. Weaver that an owner of a structure with three residential apartments above a commercial unit could be held strictly liable for injuries suffered by an intoxicated residential tenant who fell off a balcony due to a defective guardrail under the State Building Code (M.G.L c. 143, Sec. 51) (“Strict Liability Statute”).

So what does the Sheehan case mean to property owners, managers and trustees of mixed use buildings? This ruling appears to have expanded the potential liability of the owner of a mixed residential-commercial non-owner-occupied structures because the court ruled that mixed-use structures were sufficiently “commercial” and “public” to be considered a “building” within the meaning of the State Building Code’s Strict Liability Statute. [Read more...]

What You Should Know About Accumulation of Snow and Ice

By: Howard S. Goldman

What is the winter forecast for this year?

According to the managing editor of the Farmer’s Almanac, “New England and Massachusetts are going to have a very stormy and snowy winter on tap.”  As we approach the upcoming New England Winter, it is important for business and property owners alike to keep abreast of the latest developments and trends in Massachusetts law to minimize the exposure to litigation from, primarily, slip and fall accidents from snow accumulation.  This Client Update
discusses the recent and major changes in Massachusetts law on the duty of care of a business/property owner regarding snow and ice removal.  It also provides a few pragmatic recommendations for a carefully worded Snow Removal Maintenance Agreement that can minimize legal exposure.

Change in Massachusetts Law and Duty of Care

 The traditional Massachusetts legal distinction with natural and unnatural accumulation snow and ice was recently abolished Massachusetts highest court.  In the past, business/property owners were not negligent if they failed to remove a natural accumulation of ice and snow, and were negligent if they failed to remove an unnatural accumulation of ice and snow. This however changed with a recent decision from the Massachusetts highest court.

In the recent Supreme Judicial Court decision of Papadopoulos v. Target Corporation, (2010), the state’s high Court abolished the distinction between natural and unnatural accumulation of snow and ice, and applied to all hazards arising from snow and ice the same obligation of reasonable care that a property owner owes to lawful visitors regarding all hazards.  In Target, the plaintiff, on his way back to his car after the purchase, slipped on a piece of ice that had frozen to the pavement.  The ice on which plaintiff tripped either had fallen from the snow piled on the road median or had formed when snow melted and ran off the snow pile stacked by the snow plower, and then re-froze to the parking lot pavement.  The Supreme Judicial Court in Target, in discarding the distinction between natural and unnatural accumulations of snow and ice, stated that such distinction was an exception to the general rule of premises liability that a property owner owes a duty to all lawful visitors to use reasonable care to maintain its property in a reasonably safe condition in view of all of the circumstances.

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The American dream of one day owning your own business and being your own boss is often considered.  After years of hard work and savings, you finally purchase your own business. Within 6 months of purchase, however, your business is closed, and to make matters worse, you have signed a personal guaranty on a long term lease and are considering filing for personal bankruptcy protection. Unfortunately, the attorneys at Goldman & Pease LLC have seen this happens all too often. We have, however, seen a recurring reasons for these business failures that we would like to share with you so that you can seriously consider these factors before the business purchase.

I.     KNOW THE “VALUE” OF THE BUSINESS YOU ARE BUYING

Know the “value” of the business you are buying. This seems quite obvious, but in our experience, overinflated asset values are the biggest reason for failure of a recently acquired business. For example, consider the acquisition of a real estate franchise. Certified financials, based upon the last twelve months of operations, show that the real estate franchise is generating average monthly gross revenue of $50,000.00 per month. Your accountant’s review of the financials reinforces the legitimacy of the financials. Based upon these financials, you agree to purchase the business. If you agree to purchase the business based solely upon past financials, you are falling into a trap that can lead to disaster.

The value in a real estate franchise is the “good will” and the reputation the franchise has developed in the community. Most importantly, the top notch real estate agents must remain a part of the acquired company. All too often, we see someone buy a business, such as a real estate franchise, and end up with the desks, the chairs, and the business cards, but the top sales producers leave the company. The value in any acquired business is the ability to make money in the future, based upon the future income stream, not the past income stream.

[Read more...]

By Goldman and Pease 

Massachusetts Superior Court takes a bite out of a Board’s ability to treat fines for violations of restriction on the private use of units as “Common Expenses”.

A recent Massachusetts Superior Court case, Trustees of The Beacon On The Charles Condominium Trust v. Bruce Adler, et. al. (“Beacon Case”),  may drastically change the ability of  a Board to treat fines for violations of restrictions on the private use of units as “common expenses,” unless the restriction is unambiguously incorporated into the By-Laws. While the Beacon Case dealt specifically with fines assessed against a unit owner regarding a dog which allegedly  caused a nuisance by barking and howling in the unit, this decision could have far reaching effects on a Board’s ability to treat other types of fines arising out of offensive conduct which occurs strictly within a unit as a common expense.  The Judge was also concerned about the large amount of fines and attorney fees for this matter in the context where a fair hearing with the Board did not occur.

[Read more...]

Lenders initiating foreclosure proceeding in the City of Boston and many other cities across Massachusetts can no longer shirk their responsibilities of maintaining vacant properties

By: Howard S Goldman, Esq.

As a result of the deteriorating economic climate in Massachusetts and nationwide, there has been a significant increase in the amount of foreclosure proceedings on residential properties, including condominium units.   A lender may initiate foreclosure proceedings in many ways; by taking possession of a property if the owner does not oppose such possession, by delivering a notice of intention to foreclose to a property owner, or by commencing a foreclosure action in court.[1]

During the foreclosure process, a property owner may abandon the property because he has no equity or stake in the ownership, leaving the lender in possession or control of the property.  However, the lender may be a large out of state institution which has no intention of maintaining the abandoned property and which has no local property manager to oversee its maintenance.   Lenders may even delay filing the appropriate foreclosure documentation with the local registry of the deeds in order to hide from these responsibilities.

This is where the problems arise.  Such unsightly units may be in violation of state and local building codes and sanitary codes.  In addition to possible code violations, vacated properties may also be susceptible to vandalism, unsafe and dangerous, contain litter and trash, have overgrown grass and bushes, unsecured swimming pools and unshoveled snow rendering walkways impassible.  These vacated properties could also be left unlocked or not properly secured leaving the properties susceptible to squatters, holdover tenants or others not legally entitled to occupy the property.  Property values in the condominium may become depressed and sales of other condominium units may be rendered impossible. [Read more...]

By Howard S. Goldman, Esq.

The Homestead Law is changing soon, effective date March 16, 2011, to provide an automatic $125,000 in protection to homeowners from debt collectors. Under the new Homestead Law, homeowners no longer need to file a Declaration of Homestead in order to obtain protection of up to $125,000 in home equity from creditors. While the protection for the initial $125,000 is automatic, homeowners, who hold more than $125,000 in equity in their home, must still file a Declaration of Homestead with the Registry of Deeds to gain up to $500,000 in protection from creditors.

The new Homestead law also clarifies that a previously-filed Declaration of Homestead remains in effect after a family members transfers his/her home to a relative, or refinances the mortgage. Similarly, after the death of a homeowner, the Declaration of Homestead transfers automatically to the surviving spouse or co-owner. The law also allows for houses owned by trusts to qualify for Homestead Act protection, and provides protection for multi-family homes of up to four families. And even if a home is sold, the closing proceeds will be protected from creditors for up to a year. Insurance payouts from casualties are also exempt from creditors for up to two years, and the new law no longer excludes pre-existing debts from creditor protection.

Closing attorneys or settlement agents in all mortgage transactions must obtain written proof that they informed borrowers of their right to declare a homestead. They must also discuss the difference between automatic and declared homestead.

All existing homesteads will be grandfathered under the new law.

Main features of the new Declaration of Homestead Laws are as follows: [Read more...]

By Howard Goldman

This Memorandum serves to outline and highlight the latest developments in the Real Estate Bar Association’s (“REBA”) unauthorized practice of law litigation against Pittsburg-based National Real Estate Information Services (“NREIS”).  NREIS, a multistate real estate services provider, outsources the vast majority of functions traditionally performed by attorneys during residential closing transactions by using non-attorneys to perform certain tasks, including certifying and analyzing title, preparing the deed, and conducting the closing.  REBA contends that these activities, when performed by non-attorney office workers, constitute the unauthorized practice of law.

1. History of the Case

Traditionally in Massachusetts, licensed attorneys have been required to oversee and conduct the residential real estate closing process. In 2006, REBA brought suit in Suffolk County Superior Court, arguing that NREIS’ business practices violate Massachusetts common law and consumer protection statutes that state that attorneys must perform the key functions of real estate closing transactions. REBA sought a permanent injunction banning NREIS from engaging in what it deemed to be the unauthorized practice of law.

NREIS removed the case to Federal District court, and filed an answer and counterclaim seeking a declaratory judgment that REBA’s interpretation of what constituted the unauthorized practice of law under Massachusetts statutes violated the Dormant Commerce Clause, and seeking a permanent injunction barring REBA from enforcing its opinion of what constitutes unauthorized practice of law on NREIS.   In an April 2009 decision, the Federal District Court entered judgment against REBA. The Federal District Court then ordered REBA to pay nearly one million dollars in attorney’s fees and costs to NREIS as a prevailing party. [Read more...]

After years of experience handling a diverse number of claims arising under title insurance policies, Goldman & Pease LLC has developed a streamlined process aimed at resolving the particular title defects in a most efficient and cost effective manner.  What follows is Goldman & Pease’s “Best Practices” to resolve a title dispute, from the initial claim through the final resolution of the particular defect.

You may download “Best Practices To Remedy Title Defects” (opens PDF document)

Best Practices to Remedy Title Defects

June 10, 2010

Congress recently passed a federal law entitled Protecting Tenants at Foreclosure Act (“Foreclosure Act”) that supersedes state law and also amends existing federal laws. The primary focus of the Foreclosure Act is to provide protections to tenants of a foreclosed property related to a “federally-related mortgage loan” or a foreclosure on “any dwelling or residential real property.”  Broadly speaking, the Foreclosure Act requires that a party taking title to a dwelling or residential property pursuant to a foreclosure (“Foreclosing Party”) assumes such dwelling subject to certain rights of any bona fide tenant.

So what does this mean for you? Massachusetts General Laws 183A and the condominium documents govern the rights of condominium associations against unit owners who refuse/fail to pay common area fees and permit the associations to initiate foreclosure sales, where necessary. As a condominium board member or property manager, there may come a time when you are forced to initiate a foreclosure sale against a defaulting unit owner and his unit because of a failure by the unit owner to pay his condominium fees.  In the majority of these situations, a mortgage holder usually steps in at the foreclosure sale and purchases the unit to protect its mortgage.  Occasionally, the association purchases the unit itself, either because the mortgage holder failed to act on the foreclosure notices it received, the current mortgage holder could not be located, or there was no mortgage on the unit. [Read more...]