Rich Vetstein

Court Shoots Down Lender’s Attempt to Expand Doctrine of Equitable Subrogation

In the interesting case of Wells Fargo Bank v. Comeau (Nov. 15, 2017), Justice Peter Agnes of the Appeals Court has held that a surviving wife is not financially responsible for paying back a refinanced mortgage where the wife neither signed the promissory note nor the refinance mortgage, even though she originally held title to the home as a married couple (tenants by the entirety) and signed the original mortgage on the property. In so ruling, Judge Agnes rejected Wells Fargo’s argument to expand the doctrine of equitable subrogation to cover a situation such as this.

Parties to Deed Must Match Up With Mortgage!

Nancy and William Comeau owned their Haverhill home jointly in the traditional Massachusetts form of ownership called “tenancy by the entirety” where title passes automatically to the surviving spouse upon death of a spouse. When the couple purchased the home, they both signed a first mortgage to Haverhill Cooperative Savings Bank. It appears that Nancy was not an applicant for the loan because she did not sign the promissory note. However, the cardinal rule is that the parties to the deed must match the parties to the mortgage, otherwise there will be problems (foreshadowing what happened in this case).

When the couple went to refinance the Haverhill Savings loan with Wells Fargo, only William, the husband, signed the note and mortgage. Big mistake! Since Nancy, the wife, remained on the title as a joint owner, she should have signed the mortgage as well. After the refinancing, William unfortunately dies. His estate is probated, but Wells Fargo makes another mistake and fails to file a claim within the one year probate statute of limitations.

Lender Goes To Court

In an attempt to get Nancy to pay up on the mortgage, Wells Fargo went to Superior Court and made the creative argument that the wife should be responsible under the little known legal doctrine of equitable subrogation which gives courts equitable power to reform mortgages, to restore once-extinguished mortgages, and to adjust priorities among existing mortgages where it is fair and just to do so. Wells lost in Superior Court. On appeal, Justice Agnes agreed, ruling that this case was not appropriate for the equitable subrogation remedy, thereby leaving Wells Fargo with a total loss on its mortgage debt. Judge Agnes reasoned that the situation was entirely of Wells Fargo’s making, and that it had the opportunity to have Nancy sign the mortgage or make a claim against William’s estate, but it failed to do so.

Having handled many title insurance claims in my prior practice, we often used equitable subrogation in cases where a title examiner missed a mortgage in connection with a refinance. Those types of human error would allow for equitable subrogation, however, this case would not, as Judge Agnes correctly ruled in my opinion.

This case is a good example why closing attorneys should always have both married spouses execute the mortgage even if one spouse is not on the loan.

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No Triple Damages Although Landlord Failed To Provided Sworn Statement of Itemized Damage at Move Out

When a tenant leaves damage to a rental unit at move out, the Massachusetts Security Deposit Law allows a landlord to deduct the cost of repairs from the security deposit, provided the landlord issues a sworn statement of itemized damage along with repair estimates within 30 days of the move out. I’ve seen many landlords attempt to comply with the law only to be on the receiving end of a Chapter 93A letter from a tenant attorney demanding triple damages for messing up this requirement. This is one of many reasons why I advise my landlord clients to decline taking a security deposit from tenants.

Last week, the Supreme Judicial Court had the opportunity to clarify this particular provision of the law in the class action case of Phillips v. Equity Residential Management LLC. In this case, Equity Residential, attempted to deduct $968.08 in carpet and other cleaning charges from a tenant’s security deposit. However, Equity failed to provide the required itemized statement sworn under the pains and penalties of perjury. The tenant filed a class action seeking return of the deposit, triple damages, and attorneys’ fees under the statute.

I won’t bore you with all the technicalities of the Court’s ruling, but the SJC came down on the landlord’s side on this case, holding that while the landlord mistakenly failed to provide the sworn statement the law was clear that this is not one of the situations where triple damages is the proper remedy. (Equity did have to return the tenant’s security deposit in full). Yes, I know a rare victory for property owners in Massachusetts…

Again, while this case came out on the landlord’s side, it demonstrates the risks involved in failing to comply strictly with the Massachusetts Security Deposit Law. As a reminder, if a landlord is claiming that a tenant caused damage at the end of the tenancy and wants to deduct it from the deposit, it must provide within thirty days “an itemized list of damages, sworn to by the lessor or his agent under pains and penalties of perjury, itemizing in precise detail the nature of the damage and of the repairs necessary to correct such damage, and written evidence, such as estimates, bills, invoices or receipts, indicating the actual or estimated cost thereof.” The law also requires that landlord provide a “statement of condition” at the beginning of the tenancy, so that damage can be verified. Only then will a landlord be allowed to deduct repair costs from a security deposit.

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Richard D. Vetstein, Esq. is an experienced Massachusetts residential landlord – tenant attorney. You can contact him at info@vetsteinlawgroup.com.

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Changes Catching Landlords By Surprise

Without much publicity or property owner input, the Massachusetts Department of Public Health has rolled out proposed revisions to the State Sanitary Code which provides minimum standards of habitability for all rental housing units across the state. There are some significant changes which will definitely impact both small and large property owners/landlords.

Integrated Pest Management Plan
The proposed rules requires that any rental property with 4 or more units implement an Integrated Pest Management Plan with pest inspections conducted at least every 4 months. Owners are required to maintain a record documenting the following activities conducted within the residence including inspection results, complaints filed by occupants, the date, location, product name, and name of any person applying pesticides, and modifications to the original IPM plan, all of which should be available upon request by the board of health.

Mold, Mold, Mold
DPH is on a mission to eradicate mold in rental housing. The new rules place landlords responsible to remove all possible signs of mold in apartments as well as any areas of “chronic dampness.” As every landlords knows, tenants are often the ones who cause mold growth by not using proper ventilation or having poor hygiene. Boards of health are now authorized to conduct mold-specific inspections and conduct air quality tests.

Bathroom Exhaust Fans

The new rules require exhaust fans in every bathroom whether or not there is a window. Previously, landlords did not have to install a fan if there was a bathroom window.

Central Heating Systems

Property owners are required to provide a “central heating system” for all units. Fireplaces, woodstoves, pellet stoves, portable electric space heaters and unvented propane or natural gas-fired space heaters will not meet the requirements of this new standard. This will impact rental housing in the outer counties. Also prohibited from use in any residence are (1) any portable space heater, parlor heater, cabinet heater, or room heater that has a barometric fed fuel control and a fuel supply tank located less than 42 inches from the center of the burner, (2) heating appliances adapted for burning propane, kerosene, range oil or number one fuel oil, and (3) Portable wick type space heaters.

Code Violations/Tenant Remedies

Of course, any violations of the State Sanitary Code entitles tenants to withhold rent under state law. There can also be Chapter 93A/Consumer Protection liability which carries the prospect of triple damages and payment of tenant attorneys’ fees. Code violations can severely de-rail any eviction action so landlords must ensure that any code violations are quickly and properly addressed. Without the passage of a rent escrow law, landlords remain at risk of tenant abuses of the rent withholding statute.

The proposed revisions to the State Sanitary Code, 105 CMR 410 can be downloaded here.

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Updated 11/10/17

Proposal Heads To State House Next

Once thought to be dead, the Boston City Council yesterday approved the first ever “just cause” eviction act in Massachusetts, known as the Jim Brooks Community Stabilization Act. The Act, which opponents dubbed a return to rent control, requires landlords owning 6 or more units to file a notice to quit/termination with the newly formed Office of Housing Stability, prior to starting an eviction. However, after intense lobbying by property owner groups, the council passed a watered-down just cause eviction provision which only applies to foreclosing owners/lenders. The vote was 10-3 in favor of the Act, with City Councilors Bill Linehan, Sal LaMattina, and Timothy McCarthy voted no.

City Rights Notice

The Act requires that a landlord or foreclosing owner provide a city-approved “notice of basic rights” and a list of tenant assistance organizations simultaneously with the issuance of a notice to quit/termination or notice of lease renewal/expiration. In the case of a lease non-renewal or expiration, landlords and foreclosing owners must provide another “City Termination Notice” to the tenant and the City, at least 30 days prior to starting a summary process (eviction) action. All of these notices must be filed with the summary process case, and the failure to provide these notices will result in eviction cases being dismissed. As with any notice to quit, the best practice is to have such notices served by licensed constable or deputy sheriff.

“Just Cause” Grounds for Eviction

The original version of provided that landlords could only evict tenants for nine (9) specified just cause reasons. However, the final version passed only applies to foreclosing owners/lenders, not to ordinary landlords. Some of the just cause reasons include

  • Nuisance/damage to unit
  • Illegal activity such as drug use
  • Refusal to pay reasonable rent
  • Failure to provide access.
  • Owner requires premises for housing for family member

What’s Next?

It’s not all bad news for property owners, however. The bill faces more hurdles before becoming law. It is a Home Rule Petition, so it must be approved by the entire State Legislature before it becomes law. That may prove to be quite difficult for proponents. The bill may also face court challenges because, as opponents argue, it’s an unlawful return to rent control, which was outlawed in the 1980’s, and fundamentally alters existing private contracts and the very nature of a tenancy at will relationship.

The Act is also somewhat of a compromise between property owners and tenant groups. Tenants wanted to require landlords to submit to mediation for rent hikes of more than 5%, but were not able to get support for it among city council members. Tenant groups also pushed for prohibitions on evicting elderly or disabled tenants and long term renters with children in the school system. The Mayor rejected those ideas as well.

Additionally, small landlords owning 6 or fewer units are exempt from coverage as are owner-occupants of multi-family dwellings and Section 8/federally subsidized housing providers.

The final text of the Act can be read here.

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Public Hearing Scheduled For September 26, 1pm

Small property owner groups are saying that this may finally be the year when state legislators pass a Rent Escrow bill on Beacon Hill. The bill is designed to reform tenant abuses of the rent withholding law and level the playing field with landlords.

Under current law, if a tenant is being evicted, she may report the landlord to the health department and withhold paying rent if an inspection reveals any sanitary or building code violation  — even if very minor. Evictions often last for months, and therefore, the rent withholding gives tenants incredible financial leverage to gain advantage during the process.

Unlike most other states, there is no requirement in Massachusetts that a tenant post the withheld rent into some form of escrow account. There have been many instances where tenants have intentionally inflicted property damage to claim code violations or just made them up altogether.

A rent escrow bill would simply require any tenant who withholds rent to pay ongoing monthly rent into a court ordered escrow account until the eviction case is heard on the merits by a judge. Fairly, the bill has a carve out giving judges discretion to not require an escrow deposit if it would result in “undue hardship” to the tenant. This way, the tenant has some “skin in the game,” and is less likely to financially cripple the landlord over a minor code issue.

The leading bill is House Bill 980, sponsored by Rep. Chris Walsh. The text of the bill is as follows:

Notwithstanding the foregoing, in the event that the originally scheduled trial date is continued for any reason, and upon motion of any party, the court after hearing shall require the tenant or occupant claiming under this section to deposit with the clerk of the court, the plaintiff’s attorney, or other secure depository each month (or at such other intervals as the court deems just) the amounts due for use and occupancy, calculated according to the fair market value of the premises, which amounts shall be held in escrow pending final disposition, unless the court determines that such requirement would result in undue hardship to the tenant or occupant. In the event that a tenant or occupant fails to comply with an order requiring deposit, the court upon motion shall order the matter to be scheduled for bench trial at the earliest date available and make such further orders as the court deems just.

The bill, along with several other rental housing bills, will be heard on September 26, 2017 at 1pm in Hearing Room B-2 at the State House. All members of the public are welcome to testify in support or against the bill.

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Kenney v. Brown:  First Reported Decision Under Act Clearing Title to Foreclosed Properties

In a ruling applauded by the conveyancing bar and title underwriters, Land Court Justice Robert Foster has dismissed a borrower’s challenge to a 2007 foreclosure sale even though the borrowers recorded an affidavit reflecting the alleged title defect within the time period set by the Act. This is the first court ruling that I am aware of interpreting the new Act Clearing Title to Foreclosed Properties.

The Title Clearing Act, now codified in Mass. General Laws Chapter 244, section 15,was enacted by Gov. Baker last year in an effort to minimize the impact of several troublesome SJC rulings which cast doubt on titles coming out of foreclosures, including the seminal case of U.S. Bank v. Ibanez. The Act establishes a three-year deadline to bring a legal challenge to a foreclosure. To timely bring a challenge, an aggrieved homeowner must file lawsuit challenging the validity of the foreclosure sale, and must also record a copy of the lawsuit in the registry of deeds before the limitations period expires.

The plaintiffs argued that even though the Act expressly calls for the timely filing of a copy of the complaint challenging a foreclosure sale with the Registry of Deeds, the timely recording of their affidavit provided sufficient notice of their claim to satisfy the intent of the statute.

But Judge Robert B. Foster found the plain language of §15 controlled. “The language of the Statute is conjunctive,” Foster ruled. “It requires both the commencement of an action in court and the recording of the complaint or pleading with the registry before the deadline. The recording requirement is not surplusage. It is not simply a notice provision, but rather an additional requirement necessary to file a timely suit.”

Because the plaintiffs failed to comply with §15’s requirement to record their amended complaint within one year of the effective date of the act, Dec. 31, 2016, the judge concluded that their wrongful foreclosure claims were barred.

This is a great ruling for the conveyancing bar. Judge Foster’s decision furthers the underlying purpose of the statute to provide clarity of title in the wake of the foreclosure crisis and the Supreme Judicial Court’s 2011 decisions on wrongful foreclosure in Bevilacqua v. Rodriguez and U.S. Bank National Association v. Ibanez. The whole purpose of the act is to slowly clear away these defective foreclosure titles. It was also important for Judge Foster to clarify that so-called “5B affidavits” do not satisfy the act’s recording requirements. I have seen an increased prevalence of borrowers and attorneys recording bogus 5B affidavits in an attempt to cloud titles and shake down third party buyers and title insurance companies.

The 23 page court opinion can be read below.

Kenney v. Brown (Mass. Land Court) by Richard Vetstein on Scribd

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By Richard P. Howe, Jr., Registrar, Middlesex North Registry of Deeds

As young people who have known nothing but digital commerce enter the home ownership market, the conveyancing community in Massachusetts will face increased pressure to leave paper behind in favor of purely electronic closings. The statutory basis for this technological transition has been in place since 2004 with the adoption of MGL c.110G, the Massachusetts Uniform Electronic Transactions Act. Since then, all registries of deeds in the commonwealth have implemented electronic recording systems. Still, some uncertainly remains, especially regarding acknowledgements.

Earlier this year I wrote about electronic acknowledgement statutes in other jurisdictions in “Remote electronic acknowledgments,” published in the March 2017 edition of REBA News. In the same article, I explained why registries of deeds in Massachusetts should record documents electronically acknowledged outside of Massachusetts, but not record those electronically acknowledgement within Massachusetts. The primary basis for that opinion was that Massachusetts law requires a notary to affix a notary stamp to an acknowledgement, and that our law provides no electronic equivalent of that notary stamp.

With the demand for electronic acknowledgements looming but not yet fully upon us, now is the time to amend our notary statute to accommodate new technological practices. The starting point for such an amendment should be a shared understanding of the purpose of an acknowledgement, particularly with regard to real estate documents.

In colonial Massachusetts, registries of deeds and the requirement that real estate documents be acknowledged arose simultaneously. The purpose of the registry was to provide a public record of who owned what land as a means of curtailing secret sales that muddled ownership and created uncertainty in real estate transactions. The purpose of requiring deeds to be acknowledged before recording was meant to curtail fraud, either in the guise of a forged signature or of an actual signature that was later denied by its maker.

Conceived in the seventeenth century, the rationale for these rules, and the rules themselves, persist today. Registries of deeds perform the same core function of making public real estate ownership records, using new technology to do it.

So what is the core function of an acknowledgement? Primarily, it is to assure the public that the person who signed a document is who he or she purports to be. In Massachusetts, a notary does this by personally witnessing the signing of the document while positively identifying the person who signed it. The notary attests to this by signing the acknowledgement clause, printing his name and the expiration date of his notary commission underneath his signature, and then affixing his notary stamp to the document.

MGLc.222, s.8 requires a notary stamp to include “the notary public’s name exactly as indicated on the commission; the words ‘notary public’ and ‘Commonwealth of Massachusetts’ or ‘Massachusetts’; the expiration date of the commission in the following words: ‘My commission expires _____’; and a facsimile seal of the commonwealth.”

Not to minimize the importance of the facsimile seal of the commonwealth, but I am not sure how including that on an inked stamp that anyone, anywhere may purchase in any name from multiple vendors adds appreciably to the authenticity of a document or the signature upon it. To me, the basic reason for requiring a notary to include identifying information such as a printed name and a commission expiration date in the acknowledgement clause is to help identify and locate the notary if questions arise about the document.

While the notary stamp does require those two bits of information, so does the notary clause itself, which seems to make the notary stamp superfluous. Perhaps it would be more useful to assign each notary public a unique identifying number, much like an attorney’s BBO number, and require that number to be included in the acknowledgement clause in lieu of a stamp. Such a unique number would expedite the identification of the notary and his whereabouts. It would also be easy and inexpensive to implement, both on paper and in electronic form.

In reviewing electronic acknowledgement statutes already adopted elsewhere, it seems that many states have created a dual commission regime, one for regular notaries, the other for electronic notaries. Other places require notaries to invest in sophisticated (and presumably expensive) technology that renders the electronic document being acknowledged tamper-proof. Perhaps the tasks assigned notaries in other jurisdictions are more complex than those in Massachusetts, but both of these practices – a dual commission system and requiring sophisticated software of electronic notaries – greatly exceed anything now required or expected of notaries in this commonwealth.

In crafting rules for electronic acknowledgements in Massachusetts, we should strive to duplicate the functions now being performed by our notaries while allowing those functions to be performed on tablets and computer screens, not just on paper. Complex and expensive systems are not needed to do this, and such additional requirements would needlessly delay our ability to keep pace with the evolving expectations of those we serve.

Dick Howe has served as register of deeds in the Middlesex North Registry since 1995.  He is a frequent commentator on land records issues and real estate news.  Dick can be contacted by email at richard.howe@sec.state.ma.us

Reprinted with permission from the REBA Blog.

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Strawbridge v. Bank of NY Mellon:  Appeals Court Justice Peter Agnes Gives Judicial Blessing to MERS Assignment System, Rejects Other Foreclosure Challenges

The most recent foreclosure case heard by a Massachusetts appellate court should allow title underwriters and foreclosing lenders to sleep better at night. In Strawbridge v. Bank of NY Mellon, No. 16-P-1244, embedded below, Appeals Court Justice Peter Agnes upheld the MERS system of holding and assigning mortgages in Massachusetts as a “nominee.” Judge Agnes also ruled that the borrower lacked standing to raise defects in the pooling and servicing agreement by which the bank created a securitized mortgage trust, because she is not a party to that intra-lender agreement. This ruling should simultaneously benefit the housing market, while taking away a major weapon for foreclosure defense attorneys.

The case was brought by well-respected foreclosure defense attorney Glenn Russell, Esq. who represented the borrower, Sandra Strawbridge. Attorney Russell’s cases are typically on the cutting edge of foreclosure defense law, and thus, should always be read with interest.

Foreclosure Challenge

Strawbridge challenged the foreclosure on the grounds that the Bank did not comply with Massachusetts foreclosure law after the SJC’s decision in Eaton v. FNMA which held that a foreclosing lender must establish it holds both the promissory note and the mortgage. (Title companies have issued comprehensive underwriting guidelines after the Eaton ruling). Strawbridge also claimed that MERS’s assignment of her mortgage to the Bank was void because the assignment occurred after a date established in the pooling service agreement (PSA) of the securitzed trust.

Countrywide-MERS Assignment System

In 2007, Strawbridge obtained a $370,000 mortgage from Countrywide Home Loans. The mortgage designated Mortgage Electronic Systems, Inc. (MERS) as the nominee for Countrywide. In 2009, Strawbridge defaulted on her note by failing to keep up with her mortgage payments. In February, 2010, MERS assigned Strawbridge’s mortgage to Bank of New York Mellon which held the mortgage as part of a securitized trust. A MERS “Assistant Secretary and Vice President” executed the assignment, which was notarized and recorded at the appropriate registry of deeds. Later, in March, 2015, a “Second Assistant Vice President” at the Bank’s loan servicer executed an “Affidavit Regarding Note Secured by Mortgage Being Foreclosed.” That affidavit states that the Bank is the holder of the note. In addition, in April, 2015, the Bank’s loan servicer executed a “Certificate Relative to Foreclosing Mortgagee’s Right to Foreclose Pursuant to 209 C.M.R. 18.21A(2)(c),” which certified that the Bank is the “holder of the Mortgage” and “the holder of the Note or is authorized agent of the Note holder with the specific authority to enforce payment and pursue foreclosure of the Mortgage on behalf of such Note holder.” Finally, in July, 2015, the Bank sent Strawbridge a notice of foreclosure sale, informing her that a foreclosure sale would take place in August. The borrower challenged the sale in the Superior Court which ruled against her.

Appellate Rulings

On appeal, Judge Agnes ruled that “MERS’s nominee status does not preclude it from validly assigning the mortgage, or does it limit MERS’s power to exercise a right of [foreclosure] sale.” The Court also rejected the borrower’s argument that the Bank is required to provide a complete chain of assignments of the mortgage, opting instead to hold the Bank to a less onerous standard of merely producing a single assignment directly from MERS, the last holder of record. Lastly, the judge ruled that the borrower lacked standing to raise defects in the pooling and servicing agreement because she is not a party to that intra-lender agreement.

Take Aways

The impact of this decision is a reaffirmation that the MERS system of assigning mortgages remains legal and binding in Massachusetts. MERS mortgages account for the vast majority of conventional mortgage financing in Massachusetts. This ruling will also make it more difficult for distressed homeowners to challenge foreclosures, clearing the way for banks to sell REO property. I spoke to Attorney Russell about the case, and he indicated that he is considering taking an appeal up to the Supreme Judicial Court. So this may not be the last word on the matter.

Strawbridge v. Bank of NY Mellon by Richard Vetstein on Scribd

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State-Wide Housing Court Coverage a “Done Deal”

Governor Baker has earmarked $750,000 in the new state budget towards the Housing Court Expansion plan, clearing the way for state-wide coverage for the Housing Court.

Senator Karen Spilka (D-Ashland), a sponsor of the Senate Bill for the expansion, confirmed to me directly that it is a “done deal.”

Likewise, Chris Walsh (D-Framingham) commented in the Framingham Source that “recognizing that one-third of the residents in the Commonwealth currently do not have access to a Housing Court, working with the Massachusetts Law Reform Institute and other groups, we crafted legislation to expand the Housing Court across the entire state, that has been supported both by the entire Framingham legislative delegation and more than 50 legislators.”

Expansion proponents asked for $1 Million in new funding, but Gov. Baker cut that down to $750,000. The Housing Court will likely need more funding for the additional judges and staff to implement state-wide coverage. The initial funding, however, should allow the Housing Court to start rolling out new sessions in Middlesex County and other unserved areas.

For more information on the Housing Court expansion proposal, please see my other posts here.

Photo credit: Mass. Bar Ass’n.

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Proposal: 5%-10% Tax, Plus Comprehensive Regulations

Like Uber and Lyft, is the law finally catching up with the new economy-disrupting technologies for the real estate industry like Airbnb? The answer is yes if Massachusetts legislators have their way. Today, Massachusetts House legislators are holding a hearing on a new bill which would tax and regulate Airbnb and other short term rentals. The proposal is House Bill 3454 (click to read). The proposal would impose a new excise tax between 5% – 10% on short term rentals, depending on whether the host rents his/her own residence, is a “commercial host,” or the rental is professionally managed.

According to a recent Boston Globe article, Airbnb, the largest of such rental sites, reports that it logged about 592,000 guests in Massachusetts last year. Had those stays been subject to the state’s hotel tax rate of 5.7%, that would have added an estimated $15 million to the Commonwealth’s coffers. The availability of such easy tax revenue may be too much for legislators to pass up this year, although a similar effort failed at the last minute last year.

Airbnb is happily sharing these calculations because it wants to be taxed, and this week it’s airing a new TV commercialabout the issue. Now don’t think for a second that this is some kind of benevolent new-economy thing. Guests, not Airbnb, pay the tax! Taxation is also a form of legitimization for these online portals.

The House proposal would also establish a comprehensive regulatory and safety scheme on Airbnb rentals, similar to that imposed on bed and breakfasts and other small local lodging facilities. Local towns and cities would be permitted to restrict certain types of short term rentals, the number of rental days allowed, require business licenses and a housing registry, and make the host obtain liability insurance of at least $1M in coverage. Violations of the new law carry a stiff fine of up to $1000/day for the illegal rental period.

The proposal has received much attention in recent months as hearings have been held across the state. The Massachusetts Association of Realtors has come out in opposition to the bill, as with many Airbnb hosts who rely on this source of additional income.

I will keep up with developments, so check back here from time to time.

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Proposal Moving Through State House, But Funding Remains a Question

The Housing Court expansion plan to have statewide coverage has been gaining political momentum, but whether the plan will receive the long-term funding it needs to make it a reality remains a question mark. Legislators have filed two bills in the House and Senate which are co-sponsored by over 75 legislators. The bills were before the Joint Judiciary Committee on May 2, and are reportedly moving through the State House. Housing Court Chief Justice Timothy Sullivan hopes that the expansion will be in place by January 2019.

The expansion would provide currently unserved Middlesex County with Housing Court jurisdiction and reorganize the remainder of the system into 6 new geographic divisions. A new Central Division would serve Framingham, Marlboro, and other Middlesex county towns plus all of Worcester County. A new Northeastern Division would serve all of Essex county plus several towns along the Route 128 corridor including Waltham, Burlington, Lexington, Watertown, and Woburn. The new Eastern Division would be the largest, serving all of Suffolk County plus Somerville, Brookline, Cambridge, Newton, Medford, Arlington, and Belmont. A new Metro South Division would serve Norfolk county towns plus the Brockton area. The new Southeastern Division would serve the Bristol-Plymouth County/South Coast area (Taunton, Fall River, New Bedford), the Cape and Islands. The Western Division would serve the 4 western counties. The new sessions would be “mobile” and travel to existing district courthouses in addition to holding sessions in present facilities such as the Worcester County Courthouse and Edward Brooke Courthouse in Boston.

Landlords would still have right to file an eviction case in district court, but tenants would have right to transfer to Housing Court. So effectively the vast majority of eviction cases would wind up in the Housing Court.

The expansion bill increases the total number of judges to 15, up from 9. Of course, each new justice would cost $185,000/year under the controversial pay increase recently approved by House Leader Stan Rosenfeld, over Gov. Baker’s veto. The total cost of the expansion proposal could reach $2.4 Million or more. It appears that funding remains the primary obstacle to getting this expansion passed.

I would support the Housing Court expansion if the Legislature finally approves the long-awaited Rent Escrow bill requested by landlords to level the playing field in notoriously tenant-friendly Massachusetts. I believe that would be a fair trade-off for both landlords and tenants.

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Just a quick note about yet another recent case demonstrating the backwards nature of Massachusetts landlord-tenant law. In CMJ Management Company v. Wilkerson, the Appeals Court ruled that a tenant could be evicted from Section 8 housing because her grandson shot and injured a neighbor child with a BB gun. Sort of reminds me of the movie the Christmas Story — you’ll shoot your eye out kid!

But — hold on — the court ruled the tenant would not be evicted because the housing court judge made a legal error by striking the tenant’s jury trial because she (not being represented by a lawyer) did not file a pre-trial memorandum. The net result is that the landlord is back to the starting line — the case goes back to the Boston Housing Court for a retrial, some 3 years after the eviction case was originally filed. Only in Massachusetts!

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When All Else Fails, Quiet Title

Quiet title cases are lawsuits typically brought in the Land Court in order to resolve complex title defects — often as a last resort for property owners when conveyancing attorneys and title insurance companies cannot cure title issues using traditional methods. Usually quiet title cases involve missing interests in the chain of title such as unknown heirs or relatives of the property owner who cannot be found. Other times they can involve easements, missing mortgage discharges, or adverse possession. The statute governing quiet title actions is M.G.L. chapter 240, section 6.

The Curious Case of the Two Sisters

Let me give you an example of one of my recent quiet title cases. My client, “Mr. Jones,” is trying to sell his childhood home in Cambridge where his mother lived. The mother recently passed away. Unknown to everyone, title to the property was originally held by the mother and her sister back in 1947, but the deed mistakenly referred to them as a married couple. As a result of this drafting error and the age of the deed, they are considered tenants in common, so when the sister died, her interest went to her family (rather than to her sister, the surviving joint owner). When my client’s mother died, he only inherited a 1/2 interest in the property, with the other half following the sister’s heirs. Murphy’s Law — the sister has no known heirs. She had no children, her husband passed away, and no probate or will can be found for either of them. Oh, and the sister and her husband lived in Queens, NY all their lives! So I’ve brought a quiet title action in the Land Court to have the judge decree that my client is the rightful owner of the property. We have published a legal notice in the local Queens, NY newspaper and will need to file affidavits demonstrating that my client’s side of the family owned and cared for the property for decades.

Cost and Time

Quiet title actions are not for the faint of heart or inexperienced attorneys. Only a handful of lawyers in Massachusetts do these on a regular basis, and I happen to be one of them. Fortunately, the Land Court judges are very experienced with the subject matter and quite helpful in guiding attorneys along in the process. It can take up to 6 months to get a final judgment in a quiet title case. If it is a contested case, throw that out of the window. In terms of cost, it is not cheap. A client can expect to pay at least $5,000 in legal fees and expenses. But the alternative is not being able to sell the property, so it’s usually money well spent!

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If you need assistance with a potential Massachusetts Quiet Title Case, please email me at rvetstein@vetsteinlawgroup.com or call me at 508-620-5352.

 

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Foreclosure2.jpgQuestionable Ruling Goes Against Established Law That Foreclosed Owner Not Entitled to Notice to Quit

In a recent post-foreclosure eviction case before the Southeast Housing Court, Justice Anne Kenney Chaplin issued a head-scratching ruling that a third party purchaser at foreclosure was required to issue a 90 day notice to quit to the former owner. The ruling goes against the generally accepted rule of law that a foreclosed owner still in occupation of the mortgage premises is merely a tenant at sufferance, not entitled to any notice prior to an eviction. The case is Lenders Commercial Finance LLC v. Pestilli, 16-SP-03779, embedded below. This is a very troubling ruling which has the landlord-tenant legal community buzzing.

Foreclosed Owner Squats For 6 Years

In 2011, Bank of America foreclosed upon Bruce Pestilli’s home in Whitman, but Mr. Pestilli remained in occupation of the premises. As a side note, Mr. Pestilli filed a federal lawsuit challenging the foreclosure which was ultimately dismissed. Several years later in 2016, Lenders Commercial Finance LLC purchased the property from Bank of America and issued Pestilli a standard 30 day notice to quit, although such is not typically required in a post-foreclosure eviction. Lenders Commercial then filed an eviction action in Southeast Housing Court.

Pestilli’s lawyer again challenged the validity of the foreclosure during the eviction case. Lenders Commercial filed sworn affidavits and certified documents demonstrating that the foreclosure was conducted lawfully. Judge Anne Kenney Chaplin heard the matter on a motion for summary judgment.

Judge Rules 90 Day Notice to Quit Required

Although the legal arguments were centered around the foreclosure title issues, Judge Chaplin raised the issue concerning the notice to quit on her own even though the tenant’s attorney did not even make that argument during the case. Judge Chaplin held that a 90 day notice to quit was required under M.G.L. c. 186, § 12 because there was no evidence that there was any agreement between Lenders Commercial and Pestilli to pay rent. Well, that’s not surprising because the vast majority of post-foreclosure occupants have not made any payments to anyone for a long time! Indeed, in this case, Mr. Pestilli has not made any mortgage or rent payments for some six years.

Did Judge Make Major Legal Error?

The ruling goes against long-standing Massachusetts case law concerning the rights of third party purchasers of foreclosed properties. Massachusetts courts have universally held that after default and foreclosure, a former mortgagor is a tenant-at-sufferance, i.e., an occupant who has lost his or her title to the premises with no further right to possession. Further, courts have held that tenant-at-sufferance are not generally entitled to a notice to quit.

If this ruling is followed by other judges, it could give foreclosed owners another tactic to delay post-foreclosure evictions. Landlords and their attorneys should be aware of this ruling and prepared to push back that former owners are tenants at sufferance and not entitled to a 90 day notice to quit.

Lenders Commercial Finance LLC v. Pestilli, Mass. Southeast Housing Court by Richard Vetstein on Scribd

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licensenotary-public-2An Act Regulating Notaries Public to Protect Consumers And The Validity And Effectiveness Of Recorded Instruments

On October 6, 2016 Governor Charlie Baker signed Chapter 289 of the Acts of 2016, An Act Regulating Notaries Public to Protect Consumers And The Validity And Effectiveness Of Recorded Instruments. The Act is a product of cooperation between the Real Estate Bar Association and the title industry. The Act officially codifies Mitt Romney’s Executive Order No. 455 (04-04), which in 2004 reformed the standards of conduct for notaries.  It also codifies the prohibition that a notary public cannot oversee and conduct a real estate closing; only a licensed attorney can handle closings. It also addresses several bankruptcy court rulings which called into question the effectiveness of notary acknowledgements involving powers of attorney.

Unauthorized Practice of Law
In the last decade, the practice of so-called “witness-only closings,” or “notary closings,” by non-lawyer notaries has spread from other states to Massachusetts. This practice has been vigorously opposed by REBA which filed a successful lawsuit effectively barring the practice in REBA v. National Real Estate Information Services, 459 Mass. 512 (2011). The Act codifies the rule of law that a non-attorney notary may only notarize documents but may not conduct a real estate closing. Only licensed attorneys may conduct real estate closings in Massachusetts.

Title Curative Provisions

Recent rulings from the Bankruptcy Court called into question the validity of mortgages with notary acknowledgements involving powers of attorney. The result of these rulings were that many mortgages were held null and void due to defective acknowledgements. The Act addresses these issues by providing, among other things:

● A revision to the standard acknowledgment clause, when the document is executed by the signatory in other than an individual capacity, to assist the notary in making clear that the document is the voluntary act of the principal, not merely the signatory [M.G.L. c. 222, § 15(b)]
● Notaries may vary from the forms set forth in the statute if they are using a form that is authorized or required by statute, regulation or executive order, including one executed in a representative capacity by one who acknowledges his voluntary act but fails to acknowledge the deed or instrument as the voluntary act of the principal or grantor [M.G.L. c. 183, § 42, as revised] [M.G.L. c. 222, §§15(h), 20]
● Failure to state that a document signed by an attorney in fact or in another representative capacity is in fact being signed as the voluntary act of the principal, not merely the signatory, shall not make the document invalid.  [M.G.L. c. 222, § 20(b)(iii)]

Other Provisions

Chapter 289 includes most of the Executive Order’s provisions, some in a modified form. The legislation also added other new provisions in M.G.L. cc. 183 and 222 —

● Notaries shall continue to maintain a chronological official journal of notarial acts, except that attorneys and their office staff shall continue to be exempt from this requirement.  [M.G.L. c. 222, §§ 12, 22, 24]
● Requirements for the notarial seal or stamp (expiration date affixed, exclusive property of the notary, etc.), except that a failure to comply shall not affect the validity of any instrument or the record thereof [M.G.L. c. 222, § 8, as revised]
● Qualifications for a notary; the grounds for which the Governor may decline an application for appointment or renewal of a notary commission, and the seven-year term of office, all as incorporated into the statute [M.G.L. c. 222, §§ 13, 14]
● Types of notarial acts that a notary may perform and prescribed forms for an acknowledgment, jurat, signature witnessing or copy certification [M.G.L. c. 222, § 15]
● Obligations of the notary to determine the appropriateness of the circumstances under which the notary is asked to perform a notarial act (identity and demeanor of the principal, incomplete notarial certificates, no undue influence by the notary, the notary’s relationship to the transaction or to the parties, etc.) [M.G.L. c. 222, §§ 16, 19, 20]
● Prohibition against notarizing signatures of family members shall not apply to notaries who are Massachusetts attorneys, as when the attorney takes the acknowledgement of an employee family member who witnesses a will, as provided in the Executive Order, but also if the family member employed by the attorney is the notary who takes the acknowledgement of the attorney.  [M.G.L. c. 222, § 16(a) (vii)]
● Failure of a document to contain the statutory forms shall not have any effect on the validity of the document or the recording thereof.  [M.G.L. c. 222, §§ 16, 19, 20]
● Notary public’s commission may be revoked for official misconduct, or for other good cause.  [M.G.L. c. 222, §§ 1, 26]

For more information, go to the Mass.gov Notary Public Page.

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Foreclosure2-300x225.jpgMany Titles Automatically Cleared As Of Dec. 31, 2016

While 2016 may have been a tough year for some, the new year brings some relief to those affected by foreclosure related title defects. For some homeowners saddled with bad titles due to improper foreclosures, when the Times Square ball dropped, their titles defects magically disappeared under The Act Clearing Title to Foreclosed Properties. They are now free to sell or refinance after waiting many years in most cases.

The Act, now codified in Mass. General Laws Chapter 244, section 15, was enacted by Gov. Charlie Baker last year in an effort to minimize the impact of several troublesome SJC rulings which cast doubt on titles coming out of foreclosures, including the seminal case of U.S. Bank v. Ibanez. The Act, which I testified in support of at the State House, establishes a new three year statute of limitations for challenging foreclosures and clears titles with foreclosures conducted prior to Dec. 31, 2013, unless the homeowner brought a lawsuit and records it with the Registry of Deeds.

Practice Pointer: Under the Act, any defective title stemming from a foreclosure completed prior to Dec. 31, 2013 is now cured, provided there is no legal challenge filed and complaint recorded with the Registry of Deeds and no other statutory exemption applies. Speak to your title underwriter or consult an attorney for guidance.

Covered Time Period

The Act establishes a three-year statute of limitations period to bring a challenge to a foreclosure. To timely bring a challenge, an aggrieved homeowner must file lawsuit challenging the validity of the foreclosure sale, and must also record a copy of the lawsuit in the registry of deeds before the limitations period expires. The Act reaffirms the mortgagee affidavit requirements of the foreclosure law, including the provision that the recording of a valid affidavit is “evidence that the power of sale was duly executed.”  The Act also provides that after three years from the date that the foreclosing lender records a validly executed affidavit, the affidavit serves as “conclusive evidence” that the power of sale was duly executed.

Retroactive Application

The Act applies retroactively. To address constitutionality concerns, for mortgagee affidavits recorded prior to December 31, 2015, the statute of limitations period is the longer of the full three-year period or one year from the effective date of the Act, December 31, 2015. Thus, by the terms of the Act, for all foreclosures completed prior to December 31, 2013, the deadline to assert and record a challenge was December 31, 2016. For foreclosures completed between January 1, 2014 and December 31, 2015, the three year statute of limitations runs from the date of the foreclosure.

No Relief to REO/Fannie Mae Owned Properties, But….

The Act does not apply to mortgagees, noteholders, servicers, their affiliates, or government entities like the Federal National Mortgage Association (Fannie Mae) and the Federal Home Loan Mortgage Corporation (Freddie Mac) that continue to hold title to properties following foreclosure sales. The Act only applies “arm’s length third party purchasers for value,” defined as a party who either (1) purchased the property directly at the foreclosure sale, or (2) purchased the property from the bank or another entity at some point after the foreclosure sale, to the extent the power of sale was not duly exercised.” While foreclosing parties, noteholders, and mortgagees will not benefit directly from the Act on properties that they own or service, they will benefit from the resolution of title disputes, the insurability of properties they formerly owned or foreclosed, and the validity of mortgages that they currently service.

Broader Applicability?

The Legislature clearly intended for the Act to resolve title defects arising out of the Ibanez case. But the Act, as drafted, is not limited to just Ibanez defects. It could also be applied to defects arising out of other SJC rulings, including Eaton (promissory note status), Pinti (cure notice) and Schumacher (cure notice).  Because the Act is retroactive and silent as to what specific title issues it resolves, a recorded mortgagee affidavit could cure many other issues aside from Ibanez issues. We will see how title underwriters and the courts apply the Act in the months to come. As always, the best practice is to get your title underwriter’s opinion in an email and place in your file.

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marijuana-growing-green-rush-1217.jpgProperty Owners Should Get New Marijuana Policies and Lease Riders In Place Now

On December 15, 2016, the recreational use of marijuana became legal in the Commonwealth of Massachusetts, after voters approved Ballot Question 4 The Regulation and Taxation of Marijuana Act. Driving down the Pike this morning on my way to Boston Housing Court, I did not see any “Cheech and Chong” scenes in vehicles. That said, the new law will no doubt affect the legal relationship between landlords and tenants and will likely result in disputes as to what can and cannot be done with respect to cultivating, growing and using marijuana in and around rental property.

What is Legal and Illegal Generally?

  • Adults (21 or over) may possess up to 10 ounces of marijuana in their primary residence. A person may cultivate up to 6 marijuana plants for personal use, and up to 12 plants per household are allowed if more than one adult lives on the premises. Marijuana growing at home must be done discreetly and securely. Marijuana plants cannot be plainly visible from the street or any public area and must be cultivated someplace where there is a security device.
  • Outside the home, adults 21 or over can possess up to 1 ounce of marijuana.
  • Recreational marijuana cannot be sold in any form in Massachusetts without a retail license. A Cannabis Control Commission, yet to be named, will be responsible for issuing retail licenses.
  • Marijuana cannot be possessed, purchased, grown or used by anyone under age 21 (unless they have a valid medical marijuana permit), and it’s against the law to give away marijuana to someone under 21.
  • Using marijuana is illegal in any public place. You can’t, for example, walk down the street smoking a joint the way you would a cigarette. It’s also illegal to use marijuana in any place where tobacco is banned.
  • Possession of any amount of marijuana remains illegal on school grounds, public housing, and government buildings.

Can Tenants Use or Cultivate Marijuana In Rental Property?

The key provision in the Act provides that it is illegal to:

“prevent a person from prohibiting or otherwise regulating the consumption, display, production, processing, manufacture or sale of marijuana and marijuana accessories on or in property the person owns, occupies or manages, except that a lease agreement shall not prohibit a tenant from consuming marijuana by means other than smoking on or in property in which the tenant resides unless failing to do so would cause the landlord to violate a federal law or regulation.”

As I read the new law, landlords have the ability through a lease agreement to regulate the smoking and cultivation of marijuana in rental property, except that landlords cannot prohibit the consumption of marijuana edibles or any other form of non-smoking consumption.

New Marijuana Lease Addendums Should Be Implemented

Now, here’s the rub. Most current leases in effect right now do not have specific provisions dealing with marijuana use. Some leases have anti-smoking and nuisance provisions, which would arguably prohibit pot smoking, but it’s not clear whether that would apply to the discreet growing of marijuana. Under general contract law, there must be some additional legal consideration to significantly amend a lease agreement and curtail a tenant’s rights. Thus, there is a question as to whether existing lease provision would apply to the tenant use/growing of marijuana. Courts will have to decide these issues going forward. I would imagine that most landlords would not want to take on the risk of hundreds of tenants each growing 12 marijuana plants in their apartments. As I explain below, it is incumbent upon landlords to get marijuana policies and lease riders in place now and going forward on new leases. 

Practice Pointer:  If you are a landlord and you want to have a strict marijuana use policy, you must act now and have your tenants sign a new lease addendum for recreational marijuana use. The addendum should, among other things, provide that smoking and growing of marijuana is strictly prohibited, while consumption of edibles is allowed, provided that it does not create a nuisance. There should also be indemnification language in the rider as well. My office can assist you with drafting a marijuana lease rider.

e-cigarettes-being-used-by-teenagers-for-vaping-marijuana-pot-weedVaping = Smoking?

Marijuana consumption technology has come a long way since your college dorm room. I’ve been told that many serious users use vaping technology which heats and vaporizes buds, giving the user a much cleaner and less toxic high. A question which may come up is whether vaping is equivalent to smoking. Not being an expert on marijuana technology, I will leave that to the experts. My brief Google research says that vaping does still produce a slight odor of marijuana but far less than traditional smoking of a joint or pipe. I think it will all depend on how vaping impacts neighbors in an apartment building.

Utility/Water Usage

If a tenant begins growing and cultivating up to 12 marijuana plants as allowed under the new law, how will that affect utility and water usage? Under the State Sanitary Code, the landlord is obligated to pay for electricity and gas in each dwelling unit unless it is separately metered and there is a written document that provides for payment by the tenant. See 105 Code Mass. Regs. § 410.354. Concerning billing a tenant for water use, under the Tenant Metering Law, a landlord can only bill the tenant water usage if he satisfies many onerous requirements such as getting local certification and installing low flow faucets and shower heads. If you allow growing of marijuana in your rental property, make sure that the tenant does not hose you with a huge water/electric bill. Again, your new marijuana lease rider should address this issue, among other items.

_________________________________

100316_photo_vetstein-2-150x150.pngIf you need assistance with creating a new Massachusetts Marijuana Lease Addendum/Rider, please contact me at rvetstein@vetsteinlawgroup.com or 508-620-5352, and we would be happy to create a customized one for you!

 

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A Step Back To Rent Control Or Solution To The Affordable Housing Crisis?

Citing skyrocketing rents and lack of affordable housing — and over the vociferous objections of property owners — Boston Mayor Marty Walsh has sided with pro-tenant groups and has formally submitted a home-rule petition to the Boston City Council to create wide-ranging “just cause” eviction protections for all Boston tenants. Harking back to the days of rent control, the petition, named the Jim Brooks Community Stabilization Act after a recently deceased Roxbury housing advocate, prohibits virtually all no-fault evictions in favor of evictions only for certain enumerated “just cause” grounds. The law also requires landlords to file a notice of termination with the newly formed Office of Housing Stability prior to starting an eviction. In a state which is already extremely pro-tenant, this new law will make evicting tenants even more difficult and cost prohibitive, and may also affect owners’ rights to raise rents and sell rental property in the City of Boston.

“Just Cause” Grounds for Eviction

The petition (embedded below) provides that landlords may only evict tenants for nine (9) specified reasons:

  • Non-payment of rent.
  • Violations of lease provisions
  • Nuisance/damage to unit
  • Illegal activity such as drug use
  • Refusal to agree to lease extension or renewal
  • Failure to provide access.
  • Subtenant not approved by landlord
  • Landlord requires premises for housing for family member
  • Post-foreclosure and occupant refuses to pay fair market rent

Middle Ground?

It’s not all bad news for property owners, however. The Walsh bill is a compromise from what tenant groups had pressed for. They wanted to require landlords to submit to mediation for rent hikes of more than 5%, but were not able to get support for it among city council members. Tenant groups also pushed for prohibitions on evicting elderly or disabled tenants and long term renters with children in the school system. The Mayor rejected those ideas as well.

Additionally, not all landlords are covered by the new law. Exempt are owners of 6 or fewer residential rental units, owner-occupants of multi-family dwellings, and Section 8/federally subsidized housing.

Landlord groups, meanwhile, remain skeptical of Walsh’s proposal. State law already has strong tenant protections, Greg Vasil, chief executive of the Greater Boston Real Estate Board told the Boston Globe. Adding more will only subject building owners to even-more-drawn-out legal fights with tenants, he said. And, Vasil added, Walsh’s restrictions may deter developers from building more apartments in Boston, which has been a top priority for the mayor, who has pledged to add 53,000 units by 2030 and combat high housing costs. “This would make it more difficult to develop housing for the middle of the market,” Vasil said. “We’ve been making good progress and I’d hate to see anything happen to that.”

Because the bill is a Home Rule Petition, it must be approved by the City Council then the entire State Legislature. The bill may also face court challenges because it fundamentally alters existing private contracts and the very nature of a tenancy at will relationship. If the petition becomes law, evictions in Boston will become even harder and more expensive.

Readers, what are your thoughts on this important development? Post below in the comments.

Boston Just Cause Eviction Home Rule Petition by Richard Vetstein on Scribd

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2669371_origI rarely get into politics on this Blog, but I have to make an exception for my colleague Attorney Robert Jubinville who is running for reelection for Governor’s Council in District 2 which covers Milton, Sharon and a good part of Metro South. The Governor’s Council is a little known political body, but it has a very important job — confirmation of all judicial nominations.

Bob Jubinville is one of the preeminent criminal defense lawyers in the state, with over 30 years of experience in the courtroom. A former State Police trooper, he is also the father of two adult daughters — one is a lawyer, the other a probation officer. He lives and works in his home office in East Milton Square on Adams Street next to the post office.

With all that real life experience, Bob has a keen eye as to which candidate would make a good judge.

Perhaps most impressive is Bob’s long standing advocacy on behalf of those suffering from addiction, particularly the heroin crisis ripping our communities apart. Bob has already ensured that our future judges have a working knowledge of addiction science and treatment and will allow people suffering from addiction to have access to treatment as opposed to incarceration.

For more info on Bob, here is a Boston.com article.

If your ballot shows Robert Jubinville for Governor’s Council, please consider voting for him.

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347New Smoke Detector Rules Go Into Effect On December 1, 2016

Catching many people by surprise, including me, a new change in Massachusetts smoke detector regulations will take effect Dec. 1. The new rules provide that when homes built before 1975 are sold, the house must be equipped with smoke detectors with a 10-year life span. These detectors are sold as 10 year sealed lithium battery power smoke alarms. They can be found at your local Home Depot or hardware store.

Also remember that current rules require photoelectric detectors covering the area within 20 feet of a kitchen or bathroom containing a bathtub or shower. The 10 year sealed detectors are sold with both photoelectric and the older ionization technologies. I found this Kidde 10 Year Kitchen Model at Home Depot selling for $49.97.

As part of this year’s Fire Prevention Week in October, State Fire Marshal Peter J. Ostroskey told the Boston Globe that “what we’ve seen in the past eight to 10 months across the state is that our fatal fires involve homes that have smoke alarms in them, but they are inoperative.” Ostroskey said that as investigators search charred wreckage of fatal fires, they have discovered that batteries have been removed or that the smoke alarms themselves have not been replaced even though they are no longer functioning properly because they are 10 years old or older.

Ostroskey said the 1975 cutoff date was chosen because homes built after that year were already required by the state building code to have hard-wired power supplies for smoke detectors. But even those hard-wired detectors need to have backup batteries replaced and the detectors should be replaced every 10 years, too, he noted.

A Fact Sheet from the State Fire Marshal is available here.

Thank you to Realtor Rona Fischman at 4 Buyers Real Estate for advising me of the new rules.

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