Legal Questions & Answers

Additional Information:

I am the owner of a condo unit in Needham. I have a mold problem which stems from water damage coming through the outside bricks. I had a mold assessment company take air and material samples. It was determined that there is extensive mold growth and damage. I assume the management company is responsible for any and all cleaning and repairs to my unit?

ATTORNEY ANSWER:

A condominium is a hybrid type of ownership with individual ownership of the unit and an undivided interest with the other unit owners in the common area of the condominium. The condominium documents and, in particular the Master Deed, will define what is considered common area. Typically, the Trustees of a condominium are responsible for repairs and maintenance in the common area and you are responsible for repairs and maintenance in your unit.    [Read more...]

Additional  Information:My Boston based business is being sued for a debt from a production company who provided services and was only paid about 20% of the debt. It has been 2 years and we have not had the funds to pay. It was a deal between corporations and it was not in writing and the amount owed is in dispute. We never got our film footage. There was no contract.   Does Mass law require contracts between businesses to be in writing?  Is not having a contract in writing a good defense?  Our company cannot pay it now yet it could within the year and they would have been paid.  Now the time we are wasting for the same end result makes me want to lower this as much as possible.   What can we do?

ATTORNEY ANSWER: Under Massachusetts law, an oral contract is enforceable in court unless the statute of frauds requires such a contract to be in writing. Your contract does not appear to fall within the statute of frauds unless it was “an agreement that is not to be performed within one year from the making thereof”, but I cannot tell from the information you have provide in your question. You state that the amount owed is in dispute, but you do not say why it is in dispute. This dispute should likely be brought as a counterclaim. As you do not have the ability to pay this debt, you certainly do not want to have to pay an attorney a lot of money to defend this matter. My recommendation would be to try to mediate this case and negotiate the debt down as low as possible based upon your dispute and then try to enter into a modest payment plan that you can afford.  [Read more...]

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Is a non-compete still valid if I only worked during a probationary period?  I started a new job, and worked for 3 weeks before I quit. They promised a lot and delivered very little.  Now they are trying to keep me from earning a living. All I have done for the past 18 years is advertising sales. I just started another job in Needham where the former job was in a different region.  Will Massachusetts courts enforce the non-compete?

ATTORNEY ANSWER:

Your question is difficult to answer without a knowing more facts and the courts will weigh the circumstances of your case based upon a number of criteria. In particular, a noncompetition agreement is enforceable in Massachusetts if the agreement is (1) supported by consideration; (2) necessary to protect a legitimate interest of the employer, and (3) is reasonable as to its duration and geographic scope. Massachusetts law has held that a noncompetition agreement executed prior to or at the commencement of employment is supported by consideration. If you signed the non-compete at the beginning of your work it is probably supported by consideration.  In order for a non-compete to be enforceable it must also protect the employers legitimate business interests.  “Legitimate business interests” to be protected by a non-competition agreement include: (a) trade secrets; (2) confidential information; and (3) good will acquired through dealings with customers. As you quit during your probationary period, you likely did not have access to this information and you can attempt to argue that the non-compete is not enforceable because it does not protect a legitimate business interest. Finally, a covenant not to compete must be “reasonable” in its duration and geographic scope. As you have stated that your former job was in a different region, you could argue that the covenant not to compete is not reasonable in geographic scope as the former job was in a different region. This would be particularly compelling if your former employer does not do business in your new region and has not attempted to do business there. Good luck.  [Read more...]

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We own a small business outside of Boston.  We have been trying to collect a business debt for $9000 without any luck.  Can I file a claim in small claims court for the money owed to our business or do I need an attorney?  What are the guidelines for filing small claims and what fees are associated if I do this on my own vs. hiring an attorney?

ATTORNEY ANSWER:

In Massachusetts, small claims are brought for matters of $7,000.00 or less, except for an action for property damage caused by a motor vehicle. You have stated that your claim is for $9,000.00 so you would likely have to bring your case in District Court. If, however, your claim is divisible you could attempt to bring two separate cases in small claims court. For example if you had once invoice for $4,000.00 and another for $5,000.00 you could bring to cases and then attempt to have them heard together.  You do not need an attorney to file a small claims case, but you can hire one if you desire. The procedure for bringing a small claims matter would be to go the appropriate District Court where your business operates or where the Defendant resides and you would fill out a form called a “Statement of Claim and Notice of Trial” and pay the filing fee. The filing for small claims varies between $40 and $150.00 depending upon the size of the claim. The court will then set a trial date and you will appear at trial and present your case. A trial is usually informal, but you will want to prepare important documentation to support your claim for $9,000.00 and explain how the transaction arose. An advantage in hiring an attorney is that they are skilled in preparing their case, know what evidence is needed to win a case and can often take aggressive steps, such as attachments, to try to collect any monies awarded. By bringing the claim yourself, you may save attorney fees, but you may not have the experience necessary to win your case and/or to collect what is owed. Good luck.  [Read more...]

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We own a small family business in Needham and it is doing OK, but not good enough to pay off a credit card judgment against me personally. The bank that handles my business account is worried the credit card company could come after business assets or monies. What can I do to protect the family business?

ATTORNEY ANSWER:

If your business is a sole proprietorship and/or partnership, your credit card company could attempt to attach the assets of your business to pay the debt you owe the credit card company. If your company is a corporation, limited liability partnership (i.e. LLP), and/or limited liability company (i.e. LLC), it is a separate legal entity from you individually and your credit card company cannot go after the business assets. If your business is not currently a corporation, LLC or LLP, you should consider forming one of these entities to protect both your business and personal assets. By setting up a corporation, LLC or LLP, your personal and business assets will be kept separate and you will not be personally liable for debts of the business. You can only loose the amount you have invested in the corporation, LLC or LLP on any debts owed by the business. You should consult with a lawyer and they can describe for you the benefits of establishing a corporation, LLC, and/or LLP.  [Read more...]

Additional Information:

I own a 1 bedroom condo in Needham and am looking to buy a larger condo. My 1 bed condo is only worth about 25% of what I paid for it.  If I’m unable to rent it after I buy the 2 bedroom, and the 1 bedroom goes into foreclosure, can they take the 2 bedroom from me?  Can I file a declaration of homestead in Massachusetts? Would this help protect my properties?

ATTORNEY ANSWER:

Once again, the answer to your question depends upon the circumstances.  In all likelihood  if your 1 bedroom condominium goes into foreclosure, there will be a deficiency. A deficiency is the difference between what the lender would have received under the promissory note you signed and what the property finally sells for at foreclosure. If your property is only worth about 25% of what you paid for it, your deficiency could be substantial.  Assuming the lender provides the requisite notice to you, the lender would be entitled to sue you for the money that you owe the Lender under the deficiency and could seek to attach and ultimately sell your 2 bedroom condominium to satisfy the deficiency.  If the 2 bedroom is your primary residence, you can file a homestead that will protect you somewhat. With the homestead, the lender that held the deficiency could not foreclose the 2 bedroom to collect the deficiency, but it could still seek to put a lien on the property and when you eventually go to sell or refinance the 2 bedroom condominium you would have to deal with the deficiency at that time. In your situation, you may consider a short sale whereby you negotiate with the lender and seek a release of any deficiency.  The key in any short sale with the lender would be a release of this deficiency debt so that you can move on with your life. Good luck.   [Read more...]

Additional Information:

My wife and I are considering a short sale on our home in Westwood.  What are the tax obligations we may face?

ATTORNEY ANSWER:

The short answer is that it depends on the circumstances and you should check with a tax accountant on this issue. Generally, with regard to federal sales taxes, your liability depends upon whether the Westwood home is a primary residence or not. If your Westwood home is your primary residence, The Mortgage Debt Relief Act of 2007 generally allows taxpayers to exclude income from the discharge of debt.  The act applies to debt forgiven in the calendar years 2007 through 2012. If your Westwood property is not your principle residence, you will be paying taxes on the short sale deficiency that is forgiven unless you fall into one of the exceptions to this general rule. Once again, we recommend that you speak to a qualified tax professional who is well versed in this area.  [Read more...]

Additional Information:

We recently broke up and I moved out.  I’m still paying 1/2 the mortgage. How do we equitably split the house?

ATTORNEY ANSWER:

This is becoming a common problem today as more unmarried people purchase real estate together. When I counsel unmarried couples who purchase real estate in this day and age, I recommend that they enter into Agreements that outline how the parties will “uncouple” in the event of a breakup. In addition to the questions you raise, clients in this situation often argue that they should no longer have to pay the mortgage because they no longer live at the property. Often times one couple states that they put down most of the down payment and mortgage payments and they want their money back. In addition, issues come up as to who can claim the deductions on their tax returns. From your question, it appears that there was no contractual agreement outlining what is to be done in the event of a breakup. Accordingly, you will most likely have to file a “Petition for Partition”. This is a civil lawsuit to resolve these situations wherein the Judge considers all the factors involved in the joint ownership of the property. Such factors include, but are not limited to, each parties respective contributions to the joint property over the years. A judge will then try to come up with an equitable solution to “uncoupling” your ownership in the property and will address the issues that arise out of the joint ownership. Good Luck.

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Additional Information:

I missed my court date regarding the eviction, and the judge found in favor of my landlord.  Is there anything I can do? The eviction was for non-payment of rent.  I stopped paying rent because the landlord would not complete repairs on my apt. I am a tenant at will and pay rent weekly.

ATTORNEY ANSWER:

You should file a Motion to Remove Default and request that you be allowed to file an answer and counterclaims late. You should also file an Affidavit with your motion outlining the reasons you did not appear at the hearing date. You will need to show “excusable neglect” for your not appearing on the scheduled hearing date. In other words, you will need a really good excuse such as a medical emergency.  You may even consider offering to escrow some rent to show that the Landlord will not be prejudiced by your failure to appear at the court date.  In addition, any evidence that you can attach to the Affidavit to show the Judge that you had a valid reason for withholding rent such as code violations from the Board of Health or Inspectional Services Department would be helpful as it shows the Judge that you may have a potentially valid defense.  Finally, you should move quickly to file your motion to remove default with the Court because the more time that passes, the less likely a Judge will allow your motion to remove default.

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Additional Information:

I remember when I was a student and renting an apartment in Boston my roommates and I once withheld rent from our landlord to get him to make repairs to our stove and water heater. Now, a bit older, my wife and I own a condominium unit in Westwood, MA that suffered water damage to the ceiling in our living room as a result of a leak in the roof that the condominium association has, to this date, refused to adequately repair. So my question is: can we withhold our condominium fees until they make the repair? Thanks for any help you can offer.

ATTORNEY ANSWER:

Both state law as well as Court decisions have confirmed that a unit owner may not withhold the payment of the common area charges. These Courts have recognized that just as a homeowner can not withhold their payment of taxes, a unit owner must pay his common area charges without deduction. The unit owner must pay the common area charges under protest and then is free to challenge the actions of the Board. A common mistake unit owners make is attempting to protest a Board’s action by refusing to pay common area charges. This can lead to devastating results because Board’s have considerable power to collect unpaid common area assessments. The amounts which are not paid constitute a lien on the unit as well as a personal liability of the unit owner. In addition, all costs of collection, including the attorneys fees, are assessed against the unit owner. Thus, not only can the association obtain a judgment against the unit owner for the unpaid amounts, but the association will also obtain a judgment for the attorneys fees and costs incurred in collecting these amounts. In many cases, these amounts can be more than the unpaid common area charges. If the unit owner continues to fail to pay, the association maintains the power to foreclose on the lien which results in the unit owner losing title to the unit. In fact, the association’s lien has priority to the first mortgage for six months of common area charges and legal fees. This means that the association can foreclose on the unit and gain title to the unit free of the mortgages. The main point is that the non payment of common area charges often leads to added expense to the unit owner and, in some cases, to the loss of the unit.

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Additional Information:

If one were to begin maintaining and occupying land to claim through adverse possession, is it possible to build a dwelling/building IE: house and/or garage on said land? Legally? What about taxes/permits/etc?  If this land was to be reclaimed by the owner before the 20year period, what would happen to the dwelling/building?

ATTORNEY ANSWER:

Home ownership through adverse possession is not a good strategy. Typically, claims of adverse possession arise when two neighboring homeowners do not know exactly where the property line exists and/or are mistaken about a property line, and one homeowner maintains a portion of the other homeowner’s land for the requisite period of time. In order obtain title to a piece of property through adverse possession, a homeowner and/or their predecessor in title (i.e. prior owner) must show that they have used and enjoyed a portion of the disputed land openly, notoriously, exclusively and adversely to all the world continuously for at least twenty years. In addition, one cannot maintain the land with the permission of the true owner. In addition, you will need evidence to prove your claim of adverse possession which usually involves a survey, pictures, videotape and live testimony from witnesses.

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Additional Information:

About ten years ago I bought my home in Needham MA from my dad who is still alive. He had built a garage many (25) years ago and part of it was built on a neighboring parcel of land owned by a corporation. Two questions:  Can I now assert adverse possession to claim the land the garage is built on? How would the tacking work? In other words, if my dad was ‘trespassing’ for 15 years and then he sold it to me and I trespassed for another 10 years, can we add them together to make 20 years? Would we both then own the land or just me?

ATTORNEY ANSWER:

Massachusetts allows for tacking. In order to prevail in action to establish that you acquired title to the disputed area of land in question, you would need to show that both you and your father, as predecessor in title, have used and enjoyed the portion of the disputed land openly, notoriously, exclusively and adversely to all  the world continuously for at least twenty years. The use of the disputed portion of land must also not be permissive. In seeking to enforce your claim to adverse possession, you will typically need a survey outlining precisely the area in question that you claim to have acquired by adverse possession. Evidence in these cases often includes pictures, videotapes, and live testimony about how the area had been maintained by both you and your father openly, notoriously, exclusively, adversely and continuously for at least 20 years. Good Luck.

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Additional Information:

I am a landlord with  rental properties in Dedham MA.  As a landlord, do I have the ability to evict a tenant at the end of the lease term for no reason?  There is nothing on the lease suggesting the tenant has a right to renew. And no clause for renewing. So is it even called eviction if the landlord simply chooses not to renew the lease on college students?

ATTORNEY ANSWER:

No it’s not called an eviction. The tenancy terminates because of the expiration of the lease terms. Unfortunately for many landlords, many tenants do not voluntarily vacate at the end of the lease term. Even though the lease terminates pursuant to its terms, a landlord cannot simply change the locks at the end of the lease if the tenant does not vacate. This is called a “self-help eviction” and has some serious liability ramifications for a landlord if they simply change the locks. To be safe, a landlord should send a letter to the tenants at least 30 days prior to the leases expiration advising the tenant that they do not intend to renew the lease. If the tenants do not vacate at the end of the lease, the landlord would then have to file a summary process complaint and seek a court order for possession and related damges.

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Additional Information:

I am looking for an apartment for me and my mother to live together. She is legal resident of the US.  We found an apartment in Framingham, MA and the landlord refused to rent to us when I told him that my mother will live with me. Is this legal? Can I report it to housing for senior discrimination?  What will happen to this landlord?

ATTORNEY ANSWER:

M.G.L. c. 151B Sec. 4 prohibits descrimination in housing on the basis of race, religion, national origin, age, ancestry, military background or service, sex, sexual prefererence, marital status, blindness, deafness, or the need of a guide dog, except owner occupies two family dwellings. If you feel that the landlord discriminated against you and your mother because you fall into one of these protected classes, you can bring a claim at the Massachusetts Commission Against Discrimination (“MCAD”). If you can provide evidence that you are in a protected class, that you applied for the apartment, and that your application for the apartment was rejected under circumstances that give rise to unlawful discrimination, you might have a case. The landlord, however, can try to defend your claim by articulating a legitimate, non-discriminatory reason for his failure to rent the apartment to you. For example, the landlord could allege that he did not think you could afford the rent based upon your income or that he had another tenant who was more qualified. Good Luck.

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Additional Information:

I moved to MA from NY and was unaware that I was supposed to have a Home Improvement License to do any work in the state. I contracted into a painting job at a residence in Natick, MA not knowing this and the local building inspector was made aware that I was not properly licensed to do this work. I am obviously taking the steps to obtain this license now which is just a one hundred dollar fee but am concerned of any penalties that may be imposed, and if they would be civil or criminal for not having this license and doing this painting work. Can someone PLEASE tell me how much trouble I could possibly be looking at!?!?

ATTORNEY ANSWER:

You do not state in your question what type of painting that you were hired to do at the residence in Natick.  Some forms of painting are exempt from licensing under the Code of Massachusetts Regulations if you are involved exclusively in “interior painting or wall covering”. The penalties for violation of the Home Improvement License law are set forth in M.G.L. c. 142A Secs. 18 and 19. For administrative penalties under M.G.L. c. 142A Sec. 18, the statute provides that the director could assess an administrative penalty not to exceed $2,000.00 for each violation and may suspend one’s registration as a Home Improvement contractor. M.G.L.. c. 142A Sec. 19 provides that a contrator or subcontrator who shall knowingly, willfully or negiligently operate without obtaining a certificate of registration…….shall be punished by a fine not exceeding five thousand dollars or improsinment not exceeding two years, or both.

Unfortunately, these are potentially harsh penalties for what appears to be a mistake on your part. From what you have stated in our synopsis, you do not appear to have violated the statute knowingly and/or willfully. The only issue would be if you negligently violated the statute. I wish you luck.

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