MA Legal Questions & Answers by Boston Attorneys

Our Newton condo was damaged by fire in neighbor’s unit.

Additional Information:

I live in a 3 unit condo building in Newton and my unit has been damaged as a result of a fire in our neighbor’s unit. I’ve had some contractors give estimates so I know that the estimate settlement from the Association’s Insurance company won’t cover the repairs.  How do I dispute the amount with the Association’s insurance? Do I need to get a condo lawyer involved?

ATTORNEY ANSWER:

First, based upon your question, it appears that your claim is being made under the Association’s Master Insurance Policy. I always recommend condominium unit owners, for their own protection, to buy an individual HO-6 policy covering the interior and contents of the unit because the master policy does not cover such damage. If you have an HO-6 policy, you should also consider making a claim under this policy. In addition, you may consider hiring a “public adjuster”.  A public adjuster is an insurance claims adjuster who advocates for the policyholder in appraising and negotiating a claimant’s insurance claim.  A public adjuster may be beneficial in this case as it is clear that the insurance company will pay the claim and the only issue is the valuation of the loss. Most public adjusters charge a percentage of the settlement which is usually on average around 10%. Another option would be to hire an attorney and file a lawsuit. In filing the lawsuit, you would use the contractor’s estimates which you have to demonstrate value. Before doing so, you should be confident that the contractor is reputable and can justify his bill because the insurance company will likely have an expert who will testify that the job can be done for much less.  [Read more…]

Our home owners association is fining residents.

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We live in a 10 unit condominium complex in Chestnut Hill, and the home owners association is fining residents, but there is no statutory authority to do so.  Do we have to pay the fines?  I don’t want to be in “bad standing” with the HOA. What should we do?

ATTORNEY ANSWER:

The statement in your question that “there is no statutory authority” for trustees to fine unit owners is incorrect.  M.G.L. c. 183A Sec. 10(b) provides, in material part, that:  “Such corporation, trust or association shall have, among other powers,  the following rights and powers:….(3) to…levy reasonable fines for violations of  the master deed, trust, by-laws, restrictions, rules or regulations of the organization of unit owners.

You do not elaborate in your question about how much the fine is or why it is being levied. Certain types of fines can be treated as “common expenses” and in order to challenge those fines you must first pay them and then challenge them in a separate legal action.  [Read more…]

My business partner and I are in disagreement over her ownership percentage.

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I started a business 6 months ago with a partner. We decided we’d see if the business is really viable before having a lawyer draft an agreement.  It was my business plan, I do the majority of the work, and I contributed more money to the venture than she did.  We work out of the apartment on my Newton property, I pay utilities and property tax.  My understanding was that the ownership was 60-40 in my favor. She now claims that she owns 50% of the company. What can I do?

ATTORNEY ANSWER:

Unfortunately, this situation arises quite often when people start a small business without consulting an attorney. What could have easily been spelled out in a written agreement at the commencement of the business now has the potential to lead to costly litigation. What you have explained sounds like an “oral partnership” or possibly an “oral joint venture.”  [Read more…]

Does Massachusetts law require contracts between businesses to be in writing?

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My business is being sued for a debt from a production company in Waltham who provided services and was only paid about 20% of the debt. We never got our film footage and there was no contract.   Does Mass law require contracts between businesses to be in writing? 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:

To answer your question about whether Massachusetts requires certain contracts to be in writing, the answer is it depends upon the type of contract. The Massachusetts version of the statute of frauds (i.e. M.G.L. c. 259 §1) provides that certain types of contracts must be in writing. For example, a contract for the sale of real estate must be in writing.  The subject contract does not appear to be a contract that is required to be in writing unless it was “an agreement  that is not to be performed within one year from the making thereof”. [Read more…]

The lenders won’t sign paperwork for short sale.

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I’m in the process of buying a home in Wayland on a short sale. The asking price had already been approved by the seller’s lenders, I offered it, and the lenders accepted. Now it’s been over 3 weeks and we can’t seem to get the lenders to return the signed paperwork so we can set yet another closing date. The house will go into foreclosure in about 2 weeks. What can we do?

ATTORNEY ANSWER:

Lender delays in processing and approving short sales is the rule and no longer the exception.  The lenders also require that their purchase and sale form agreement be used and they accept few, if any, requested buyer changes to provide a balanced and fair agreement.  And if the lender does not countersign the purchase agreement, the prospective buyer has no recourse.  The one sided purchase agreements, even if signed by the lenders, offer little if any remuneration in the event that the sale does not occur.  Finally, a buyer must be very careful to have counsel closely review the underlying title because sellers looking to conduct a short sale have amassed excessive debt and liens on their properties, all of which must be discharged prior or at closing with closing proceeds, to ensure a good and marketable title.  Buyer beware in short sales!   [Read more…]

What are some of the benefits of condo conversion?

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What are some of the benefits of converting to condos?  My brother and I inherited a two family in Newton and we’re considering converting them to condos.  We may or may not move into the respective units.

ATTORNEY ANSWER:

The primary benefit to convert the two family building into a two unit condo is ease of sale and a basis to increase the sale price.  Newton is a strong market with much pent up demand at the lower price point. So buyers could become excited about an affordable condo unit in Newton and perhaps cannot afford a single family home.  This condo proposal requires at least a partial rehab of the units, with fresh paint and carpets, if not new kitchens and bathrooms.  But to convert to a condo you must hire an architect to prepare floor plans and perhaps a land surveyor to lay out the land and the common areas, and perhaps the exclusive use common areas to be used and maintained by separate unit owners.  A lawyer is also needed to draft the condo documents and to oversee the conversion to condos.

Buyers need to be careful about a two unit condo if the other unit owner fails to comply with the applicable rules and regulations, including noise control and the monthly obligation to pay the condo fees.  We have received many complaints by one unit owner that the other unit owner is impossible to deal with and is violating the applicable rules and regulations.  [Read more…]

Are the condo trustees responsible for mold on outside of the building?

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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…]

Does MA law require contracts between businesses to be in writing?

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…]

Is a non-compete still valid if I only worked probationary period?

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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…]

Do we need a business attorney to file in small claims court?

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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…]

I have a personal credit card judgement. Can I protect our family business?

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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…]

If my rental property goes into foreclosure, is my primary residence protected?

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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…]

I have a question re: short sale on our home in Westwood.

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…]

My boyfriend and I own a house in Southborough MA.

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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I got evicted from my apartment in Ashland, MA.

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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.

[Read more…]