Landlords Could Be Held Responsible for Tenant Paralyzed Jumping from Trampoline into Kiddie Pool
I don’t write a lot about premises liability in this blog, but this tragic case out of my hometown of Framingham may be a classic example of the saying that “hard cases make bad law.” The Supreme Judicial Court has granted a new trial to a man paralyzed by jumping off a trampoline into a kiddie pool while playing with his small son. The case is Dos Santos v. Coleta(SJC – 11188). This is a case which will get all the tort-reformers screaming in protest, but it is evident that premises liability law in Massachusetts keeps on evolving and not in a good way for property owners.
The moral of this case for landlords and all homeowners is to not leave potentially dangerous contraptions in yards for tenants and kids to get injured on. Also, make sure you have liability insurance coverage for at least $1 Million, and look into getting an excess umbrella policy for up to $5 Million.
Summer Fun Goes Terribly Wrong
In the summer of 2005, Cleber Dos Santos lived with his wife and son in one unit of a two-family home in Framingham that he rented from the Coleta family. The landlords, who lived in the other unit, set up a trampoline immediately adjacent to an inflatable kiddie pool in the backyard. The landlord disregarded warnings printed on the side of the pool cautioning against jumping or diving into the pool. He knew that setting up the trampoline next to the pool might be dangerous but thought it would be “fun.”
The landlords moved to South Carolina on July 31, but they maintained ownership of the home and continued to rent the other unit to Dos Santos and his family. The landlords left the pool and trampoline in the backyard and understood that both items would continue to be used by their friends and family.
On the evening of August 2, 2005, Dos Santos, who had never before used the trampoline, came home from work and decided to play with his son on the trampoline while his wife recorded a video of them to send to their extended family in Brazil. He decided to entertain his son by flipping into the pool. He severely underrotated the flip, entered the water headfirst, and struck his head on the bottom of the pool. As a result of the impact, Dos Santos sustained a burst fracture of his C-5 vertebrae, and is permanently paralyzed from the upper chest down. He has been hospitalized ever since with medical bills exceeding $700,000.
SJC Clarifies Open and Obvious Danger Rule
Perhaps not surprisingly, the jury rendered a defense verdict on the basis that Dos Santos’ backflip from a trampoline into a kiddie pool was an “open and obvious” danger. But the SJC found the trial judge’s jury instructions lacking, holding that even if the jury believed that the danger present was open and obvious, the jury should have considered whether the absentee landlord should have removed or remedied the dangerous trampoline/pool setup from the backyard.
Having established that the existence of an open and obvious danger will not necessarily relieve a landowner of all duties to lawful entrants with regard to that danger, we set out to answer the following principal question: where the duty to warn has been negated, in what circumstances will the duty to remedy nevertheless exist–or, in other words, in what circumstances “can and should a landowner anticipate that the dangerous condition will cause physical harm to the lawful entrant notwithstanding its known or obvious danger”?
In plain English, Judge Cordy is basically saying that performing a backflip from a trampoline into a kiddie pool may be stupid and dangerous, but it’s also just as stupid and dangerous for a landlord to leave the deadly contraption out in the backyard for anyone to get injured on.
The justices ordered a new trial in the case, so this tragic 8 year legal saga will continue on. (Also remember that it appears that the landlords are covered by a liability insurance policy, the amount of which is unknown).
In sum, the SJC has now shown that Massachusetts premises liability law continues to shift towards even greater responsibility and liability for rental property owners.
Ruling Calls Into Question Boston Ordinance Prohibiting 5 or More Students In One Unit
Those screams you are hearing now on Comm. Ave. aren’t the students. They are the landlords who are undoubtedly rejoicing upon news that the Supreme Judicial Court just issued a major ruling in how student rentals occupancy limits — indeed all rentals — will be treated by housing inspectors and licensing authorities. This is an important decision which may have far-ranging implications across the state and not just to student housing.
The closely watched case is City of Worcester v. College Hill Properties (download link to case here) where the SJC has held that renting to 4 or more students in one apartment unit of a two and three family home is not a “lodging house” requiring a special license under the Massachusetts lodging housing law, provided that the apartment meets all other sanitary and building code square footage occupancy thresholds. The state code requires 150 s.f. of living space for the first occupancy and 100 s.f. for each additional person (3 occupants = 350 s.f. of living space), and 70 s.f. of bedroom space for the 1st person, plus 50 s.f. for additional person (120 s.f. for 2 persons in one bedroom). This decision applies state-wide and to every type of rental housing, including multi-families, buildings and townhouses.
For history buffs, the opinion is fun to read as it traces the Lodging House Law back to the days of brothels, houses of ill-repute and tenements. Using a common-sense analysis, Justice Lenk reasoned that lodging houses, which are essentially temporary rentals of rooms without such amenities as a separate kitchens and bathrooms, are quite different from the modern day apartment units with its more expensive amenities. The court ruled that if an apartment satisfies the state sanitary and building code provisions for the amount of living/sleeping space, utilities, egress, etc., then it would be not be deemed a lodging house despite the number of unrelated occupants.
City of Boston Undergrad Student Rule On the Chopping Block?
In the City of Boston, a new zoning ordinance went into effect in 2008 prohibiting 5 or more undergraduate students from living in one apartment unit. There is certainly a question as to whether the College Hill ruling effectively overrules this ordinance. We will have to see whether the ordinance is challenged in court.
The other impact of this ruling is we should see an push for even more increased density in apartment rental housing which is exactly what Mayor Menino and the City of Boston doesn’t want.
This story makes me sick to my stomach. Unfortunately, this practice is endemic in the Allston-Brighton area as local landlords frequently exploit the countless students in the area. You can expect the City of Boston ISD to start cracking down on these slumlords big-time.
As reported today on Boston.com, the owner of the Allston two family residence on Linden Street where a Boston University student died in a fire this weekend was cited today for operating an illegal rooming house because she allegedly allowed 19 people to live in a two-family home. Landlord Anna Belokurova was also cited for failing to obtain proper permits before creating bedrooms in the basement of the building at 87 Linden St., where a three-alarm fire Sunday killed Binland Lee, a 22-year-old BU marine sciences student from Brooklyn, N.Y.
A City of Boston ordinance also says that no more than four unrelated undergraduate students are permitted to live in a dwelling, while authorities say that at least six of the 19 residents were BU students.
The city last inspected the building in 1992 when it approved a prior owner’s plan to convert a single-family home into a two-family. Those modifications included a firewall that closed the internal stairway between the first and second floors, creating a maze-like path from one story to another, interrupted by a steel door that served as a divider between the units,the Globe reported today.
A quick search on the Suffolk County Registry of Deeds indicates that Ms. Belokurova was under financial distress, as several foreclosure and condo lien proceedings were filed against her in recent years. Perhaps this is why she attempted to pack tenants in her rental property like sardines.
The code violations are going to be the least of Ms. Belokurova’s concerns as the family of the deceased student is likely readying a wrongful death lawsuit. Again, there is just no excuse for flaunting the law like this, especially given the tragic end-result.
Largest Lead Paint Penalty On Record for Attorney General Coakley
Landlords with lead paint beware…enforcement of the state’s strict Lead Paint Law remains a priority for Attorney General Coakley’s office. The AG just hit a Boston area property owner with the largest fine on record — $75,000 — and ordered him to de-lead his rental units, resolving allegations that he engaged in a pattern of unlawful and retaliatory practices against tenants with young children in order to avoid his obligation to comply with state lead paint laws. The AG’s press release can be read here.
The offending landlord is Keith L. Miller, of Newton, who at the time owned and managed at least 24 residential rental units in Chelsea, Newton, Arlington, and Brighton. This is the largest fair housing settlement with a landlord that has been reached under AG Coakley.
The Massachusetts Lead Paint Law, one of the strictest in the U.S., imposes a mandatory obligation to de-lead if there is a child under 6 residing in the rental premises. A property owner or real estate agent cannot get around the law simply by refusing to rent to families with young children. They also cannot refuse to renew the lease of a pregnant woman or a family with young children just because a property may contain lead hazards. And property owners cannot refuse to rent simply because they do not want to spend the money to de-lead the property. Any of these acts is a violation of the Lead Law, the Consumer Protection Act, and various Massachusetts anti-discrimination statutes that can have serious penalties for a property owner or real estate agent.
With more heavy, wet snow in the forecast and roofs already covered in snow, the risk of roof collapse and ice dams remains very high. The Massachusetts Emergency Management Agency (MEMA) warns that fluffy snow piled high on roofs can act as a sponge, absorbing rain and adding additional stress to structures.
Relatively flat roofs are particularly vulnerable, MEMA says. In other cases, roof ice dams have formed causing water build-up, leading to interior damage. These conditions can accelerate the snowmelt.
Prevention of Roof Collapse
Be on the alert for large accumulating snow build-up or snowdrifts.
If roof snow can be removed with the use of a snow rake (available at most hardware stores), do so. Try to avoid working from ladders, as ladder rungs tend to ice up, snow and ice collect on boot soles, and metal ladders and snow rakes conduct electricity if they come into contact with a power line.
Flat roofs can be shoveled clear, but only if it is determined that the roof is safe to stand upon. Exercise care when on the roof to avoid potentially dangerous falls.
Flat roof drainage systems should be kept clear to minimize the risk of excess roof ponding in the event of subsequent heavy rainfall or melting.
Large icicles can form on roof overhangs, but do not necessarily mean ice damming is occurring. Icicles overhanging walkways can be dangerous and should be carefully removed.
All of the above actions should only be performed by able-bodied adults. The snow is heavy, and roofs and other surfaces may be slippery.
Protective headgear and eye protection is recommended.
Ice Dam Treatment & Prevention
Try to remove snow from the roof but only if it can be done safely. A roof rake or push broom can be used but may cause damage to the shingles. If it’s not possible to remove the snow safely, call a professional like I did.
Chisel grooves into the dam to allow the water behind it to drain off. This is a good emergency measure, especially if rain or a sudden thaw is coming. Be careful not to damage those shingles!
Fill an old pair of your wife’s pantyhose with calcium chloride snow melt and lay it across the dam. I’m not kidding! I did this over the weekend and it seemed to work. It will help to melt the dam and also keep that area of the roof clear. DO NOT USE ROCK SALT! It will stain the roof and siding. It is best for small dams or prevention. It’s also a good idea to scrape the snow off the roof first.
To prevent ice dams in the longer term, keeping warm air from escaping into the attic is the first course of action. In addition to helping resolve ice dam issues, it will result in a more comfortable and less expensive to heat home.
Ice Dam Insurance Coverage
Very few insurance policies cover ice dam or snow removal from your roof or anywhere else on your property for that matter. However, interior or exterior damage caused by an ice dam or roof collapse is typically covered. As with any insurance claim, call the claims department immediately and take photos of the damage.
The Boston City Council and Mayor Menino’s Office have passed a sweeping new rental property registration and inspection ordinance which is now effective for the year 2013. The new ordinance requires, among other things, that all rental property owners register with the Inspectional Services Department (ISD), and are subject to inspections every 5 years. Details of the new ordinance are summarized below.
Who is covered?
All rental property owners, regardless of state residence, must register their rental properties with ISD. This also includes condominium units which are rented out. Excluded from the inspection requirements (but not the registration requirements) are owner-occupied buildings containing no more than 6 units, licensed lodging houses, government owned or operated housing.
What are my registration obligations?
Landlords are required to register with ISD no later than July 1 of each year. A fee of $25/unit will be charged. All non-resident owners must designate a Boston-based resident agent to accept service of process on the owner’s behalf. You can now register online at Cityofboston.gov or download an application from the same site. The City has also posted a Frequently Asked Questions Page here.
When will my rental property get inspected?
ISD will inspect rental properties at least once every 5 years. ISD intends to first inspect the “problem” properties which have a history of code violations. Landlords will receive a notice from ISD about the inspection. Landlords have the option of having an outside “authorized inspector” perform the inspection at the owner’s expense. Annual inspections conducted by the Boston Housing Authority (BHA) and similar government programs will be accepted by ISD. For most buildings, the inspection fee is $75 for the first two units, and $50/unit thereafter.
Are there any new signage requirements?
Yes. A sign of not less than 20 square inches must be posted adjacent to the building’s mailboxes or other conspicuous location. The sign must contain the contact information of the landlord and property manager, if any.
My property has been cited for violations in the past. Will this be a problem?
It could be. The new ordinance has a new classification for “Problem Property” if:
the police have been called to the property at least 4 times in one year; or
4 or more noise complaints; or
4 or more ISD complaints for unsanitary conditions/code violations
Problem Properties must be inspected every year and the owner must submit a management plan to address the issues.
How do I coordinate the inspection with my tenants?
A tenant is entitled to “reasonable advance notice” before an inspection. If access is denied, the landlord must notify ISD within 7 days, and if ISD verifies same, the landlord will be exempted from inspection for 1 year. Tenants are entitled to a copy of all inspection reports.
I am buying a rental property. By when does the new owner need to register?
ISD must be notified of the sale of any rental property 30 days after the closing, and the new owner must register with ISD within this 30 day window. Within 90 days of closing, the new owner must complete any pending inspection or submit an application for approval of an alternative inspection plan.
Triple Damage Penalty for Willful Cutting Of Neighbor’s Trees
Neighbors typically get really mad when you chop down their trees. Really mad….and it can get the guy with the chainsaw into a lot of legal trouble. Can you say “triple damages”?
First enacted in 1698, the Massachusetts illegal tree cutting law (General Laws chapter 242, section 7) provides for up to triple damages for the malicious cutting, trimming, or destroying of another’s trees:
A person who without license willfully cuts down, carries away, girdles or otherwise destroys trees, timber, wood or underwood on the land of another shall be liable to the owner in tort for three times the amount of the damages assessed therefor; but if it is found that the defendant had good reason to believe that the land on which the trespass was committed was his own or that he was otherwise lawfully authorized to do the acts complained of, he shall be liable for single damages only.
That said, I always advise property owners who intend to cut trees near boundary lines to consult a survey or plot plan to ensure that the trees are not on their neighbor’s land.
Measure of Damages: Restoration Cost Value
The measure of damages for those harmed by the willful cutting of trees varies from case to case. The most common measure of damages is either the value of the timber cut, restoration cost, or the resulting diminution in value of the property. A claimant is entitled to assert a claim for either value, whichever is highest.
Where the trees cut are tall, hard to replace or have a particular function like screening, or all the above, it is wise to engage a certified arborist to perform a comprehensive restoration cost analysis. The restoration cost analysis takes into account the aesthetics, functionality, age, height, girth, and species of the trees, and formulates a restoration value for the replacement of the removed trees. The method, known as cost-of-cure, involves determining the cost of planting trees and the estimated time for the replacement trees to grow to the size of the destroyed trees (years to parity).
In recent cases, Land Court judges have awarded $30,000 (tripled) for the cutting of 10 mature oak trees and nearly $45,000 (tripled) for the clearing of an 800 square foot woodland area which provided privacy screening. In both of these cases, expert arborist testimony was offered on the restoration cost of the cut trees. And who can forget the case where a Somerset family recovered a $150,000 wrongful death settlement after a women dropped dead after her neighbor wrongfully cut down a swath of sentimental trees.
Branches Over The Property Line
Under Massachusetts common law, you may remove branches of a neighbor’s tree extending over your property line as long as you don’t kill or damage the tree. Also, the neighbor has no liability for roots growing into your yard and causing damage. Massachusetts law does not allow a person to cross or enter a neighbor’s property for these purposes without the neighbor’s consent, nor to remove any branches or other vegetation within the confines of the neighbor’s property. This is the “Massachusetts Rule.”
Utility Tree Cutting
I’ve been reading about many recent disputes between property owners and utility companies (Wayland v. NStar) over tree cutting within utility easements. The law provides a public utility the right to remove or trim your tree if it interferes with the necessary and reasonable operation of the utility. Furthermore, the utility is required to perform tree trimming as part of its program to maintain reliable service for its customers. The National Electric Safety Code requires utilities to trim or remove trees growing near power lines that threaten to disrupt service. Proper and regular tree trimming helps prevent the danger and inconvenience of outages.
Lastly, landscapers and tree cutting companies should get a signed directive from the homeowners and an indemnification prior to cutting trees, as my fellow real estate attorney Chris McHallam points out.
If your trees have been wrongfully removed by a neighbor or if you have mistakenly removed trees, you should consult an experienced Massachusetts property law attorney. Valuation of trees is a science, rather complicated, and best left to the professionals.
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Richard D. Vetstein, Esq. is an experienced Massachusetts real estate attorney who has handled numerous illegal tree cutting and boundary line disputes. Please contact him at [email protected] or 508.620.5352.
This post will provide you with frequently asked questions concerning Massachusetts snow and ice removal law.
I am a homeowner and rental property owner. Am I legally required to clear snow and ice after a storm?
The law now in Massachusetts is that all Massachusetts property owners and landlords are legally responsible for the removal of snow and ice from their property. In 2010, the Massachusetts Supreme Judicial Court overruled 125 years of legal precedent which protected property owners from “natural accumulations of ice and snow,” and announced this new rule. My prior post on the case can be read here. The rule applies across the board, to homeowners, landlords, commercial business owners, restaurants, everyone.
I am a landlord. How long do I have to shovel snow and ice on my rental property?
There is no clear cut answer to this question, and juries and courts will ultimately decide what is reasonable. The City of Boston’s policy is to give businesses 3 hours to clean snow, and 6 hours to residents. My advice is to shovel and treat snow and ice early and often. Even a thin coating of black ice can cause someone to slip and fall and seriously hurt themselves. (Admit it if you’ve dumped on your rear end like I have!). If you are an out-of-town landlord, you must hire someone to shovel your snow.
My lease states that the tenant is responsible for snow shoveling. Will that protect me from liability?
Probably not. A person who is injured due to untreated snow or ice will likely sue both the property owner and the tenant. The property owner must ultimately ensure that the property is safe for visitors. The landlord may bring a claim for contribution/indemnification against the tenant.
I live in Boston, and I heard I have to shovel the public sidewalk in front of my house after a storm. Is that true?
Yes. On top of their added responsibilities, property owners in several Massachusetts communities, including Boston, Cambridge, Newton, Lynn, and Worcester, are required by local ordinances to clear municipal sidewalks in front of their residences or businesses. The City of Boston mandates clean sidewalks within 6 hours of a storm; Worcester is 12 hours.
Will my homeowner’s or CGL insurance policy cover any injuries from slip and fall on snow/ice?
Yes, usually. The standard Massachusetts homeowners insurance policy and commercial general liability insurance policy (CGL) will have liability coverage for slip and falls on property. Make sure you have ample liability coverage of at least $500,000 to 1 Million. (You can never have enough insurance!). As with any insurance question, it’s best to contact your personal insurance agent.
If you have additional questions, please ask them in the comment forms below!
Richard D. Vetstein, Esq. is an experienced Massachusetts real estate attorney who advises property owners and landlords as to liability issues. Please contact him at 508-620-5352 or at [email protected].
Condo Construction Defect Claims Now Easier To Bring
In an important opinion which will make it easier for condominium associations to seek redress for faulty or defective construction, the Appeals Court has entered a $300,000 plus judgment against a Lowell based real estate developer. A link to the opinion can be found here.
Ayer Properties rehabilitated a vacant mill building on Market Street in Lowell, converting it into condominiums in the mid 2000’s. After the units were sold out, the new board of trustees discovered several aspects of faulty construction, including defective windows, deteriorating exterior brick masonry façade, and a leaky roof. At the end of an 11-day jury-waived trial, a Superior Court trial judge awarded compensatory damages of $140,000, but eliminated well over $100,000 of the association’s claimed damages based on a legal defense called the economic loss doctrine.
The economic loss doctrine provides that a claimant must suffer some sort of property damage or personal injury in a negligent construction claim before being able to recover compensatory damages. The strict application of the economic loss doctrine in condominium construction defects can be quite harsh, often eviscerating thousands of dollars in damages simply because of the peculiarity of condominium ownership – the legal division and separation between common element property and individual unit owner property.
Justice Mitchell Sikora of the Appeals Court used some much-needed common sense and dispensed with the economic loss doctrine in the condominium construction defect setting:
We therefore hold that a condominium unit owners’ association may recover damages in tort from a responsible builder-vendor for negligent design or construction of common area property in circumstances in which damages are reasonably determinable, in which the association would otherwise lack a remedy, and in which the association acts within the time allowed by the applicable statute of limitations or statute of repose.
The impact of this decision will make it less difficult for condominium associations and trustees to sue and recover all damages against developers for construction defects. We could also see an increase in construction defect claims over faulty construction in the future.
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Richard D. Vetstein, Esq. is an experienced condominium and construction litigation attorney. Please contact him at 508-620-5352 or [email protected].
With the economy and housing market on the upswing, builders are finally building again. I’ve seen a definite uptick in new construction purchases. Buying a new construction home, however, is very different and much more involved compared to buying a previously owned property. In this post, I want to cover the various aspects of purchasing a new construction home, from selecting a builder, financing, legal, through construction and to the closing. As the Beatles song goes, I also have a little help from my Realtor friends in this post who have graciously offered some of their expert guidance. Follow our advice, and hopefully you will avoid becoming Tom Hanks and Shelley Long in the hilarious movie, The Money Pit!
Selecting and Working with a Builder
Choosing the right builder is obviously critical. You can search for builder licenses and state disciplinary history at the Mass.gov site here. (Search under Construction Supervisor). If the builder is not a licensed Construction Supervisor, they may be licensed as a Home Improvement Contractor (HIC) which can be searched at the Office of Consumer Affairs website here. If they hold neither license type, that’s a red flag. Also, look up the builder’s name in the Mass. Land Records site, and check whether they have any mechanic’s liens filed against them. That is another red flag indicating they may be undercapitalized and don’t pay their subcontractors.
Get a list of the last 5 homes the builder has constructed, and try to talk to those homeowners. Don’t rely on the builder’s list of references as no intelligent builder would give out a bad reference.
Hire A Buyer’s Agent
Besides conducting a town-wide survey, one of the smartest things you can do is hire an independent buyer’s real estate agent, preferably one with lots of experience in new construction. While buyers today can do a lot of their own due diligence and research on prospective builders, an experienced Realtor knows all the local builders in town and knows who builds castles and who builds shanty-shacks. A buyer’s agent will also provide a much-needed buffer between the builder’s sales agents and listing agent, many of whom unfortunately engage in high-pressure sales tactics and fast-talking. As buyer agent, Marilyn Messenger advises,
“Many buyers don’t realize that if they visit a new construction site without a buyer agent, they run the risk of having to work directly with the builder’s agent whose job is to work in the best interest of the builder. A buyer’s agent will watch out for the buyer’s interests.”
Amenities, Allowances & Upgrades
The builder should provide you with a detailed specification sheet with a standard panel of features and options for flooring, appliances, paint, trims, HVAC, and lighting, etc. These will be built into the purchase price. Most builders also have allowances for things like additional recessed lighting, upgraded stainless steel appliances, decking, and fancy hardwood floors. As Cambridge area Realtor Lara Gordon notes, the buyers’ ability to select design elements is one of the major advantages of new construction.
It’s imperative that all allowances be spelled out in writing and attached to the purchase contract documents, which I will discuss later. Change orders are common during the construction process, and these too should be memorialized in writing. They will be added to the purchase price or paid in advance.
Contract Documents
New construction purchases in Massachusetts follow the same basic legal process as already-owned homes. The parties first execute an Offer to Purchase which spells out the very basics of the transaction: down payment and purchase price, closing date, and financing contingency. A lot of builders ask for more than the standard 5% deposit, but I would push back on that in this market.
After the offer is signed, the parties will sign the Purchase and Sale Agreement. As a buyer, the detailed specifications, amenities and agreed upon allowances must be incorporated into the contract, along with the floor and elevation plans, if any.
The proposed purchase and sale agreement will likely track the so-called “standard form,” but the builder will typically add a detailed rider, which is completely different than the usual seller rider seen in existing home contracts. The builder rider will have provisions dealing with how change orders are handled, that the builder is not responsible for cracking due to climatic changes, and may attempt to hold the buyer’s feet to the fire with respect to getting his financing in place. A lot of builders will try to limit the availability of holdbacks at closing. I would push back on this important item of leverage for buyers. Some of the large national builders such as Pulte will even claim that their contracts are “non-negotiable.” This is nonsense. Everything is negotiable these days.
Hiring an experienced real estate attorney will tip the balance back to the buyer, and the attorney should have a comprehensive buyer rider in place to protect you in case there are title issues or you suddenly lose your financing. Because there are often delays with new construction, one of the most important rider provisions for buyers is a clause which will give buyer’s protection in case they lose their rate lock due to a delay.
Mortgage Financing
Most new construction buyers in Massachusetts will take out a conventional mortgage loan, with the builder responsible for financing the actual construction through his own construction loan. Some builders, especially national ones, will have their own mortgage lending for their projects, but they often don’t offer the best rates and terms. Sometimes, buyers will finance the construction through a construction loan under which the borrower pays interest only through the construction process, and is then converted to a conventional mortgage once the home is completed. I would counsel buyers to avoid taking on the financial responsibility of a construction loan. As with all lending, shop around and compare apples to apples.
Inspections & Warranties
For new construction, home inspections must necessarily be delayed from the usual timeframe (7-10 days after accepted offer) where the home is not yet completed, and buyers should absolutely reserve their right to perform the usual comprehensive home inspection prior to closing. (If the home is already done, get in there with the home inspector). During the construction phase, builders don’t want buyers on the construction site, for obvious liability (and annoyance) reasons, so resist the urge to buy your own hard-hat and hang out with the construction guys. Metrowest area agent Heidi Zizza of mdm Realty retells a funny story about a Natick woman who literally broke a window trying to gain entry into her under-construction home.
Contrary to popular belief, Massachusetts law does not require a 1-year builder’s written warranty for new construction, however, most builders will provide one, albeit littered with exceptions to coverage. Fairly recent Massachusetts case law does impose a 3 year “implied warranty of habitability” for certain undiscovered construction defects. Again, selecting a reputable builder in the first place is “the ounce of prevention worth the pound of cure.”
Punch-Lists and Closing
There will inevitably be unfinished items right up to the closing. I’ve rarely seen a new construction transaction without a punch-list at closing. Some unfinished items will be serious enough to warrant an escrow holdback at closing (remember, I had said push back on this during P&S negotiations). Some lenders, however, will not allow a holdback, so the parties will have to negotiate and be creative at closing to ensure that all unfinished work is completed within a reasonable time after closing. If the home is part of a larger project/subdivision, this is usually not an issue. However, for “one-off” single site projects, getting the builder to come back and finish punch-list items after closing can be like pulling teeth. Again, having a real estate lawyer on your side and in control of the funds will give you leverage here.
Once papers are passed, the closing attorney will lastly ensure that there are no outstanding subcontractor liens on the property, which is one of most common hiccup at closings. For this reason and many others, it is imperative that buyers obtain their own owner’s title insurance policy, to ensure that title is clear, marketable and free of undiscovered defects and liens.
Buying new construction is often a long, drawn out, and stressful process for new buyers. Do your research. Be patient. And hire the best professionals on your side. Good luck!
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Richard D. Vetstein, Esq. is an experienced Massachusetts real estate attorney who often handles Massachusetts new construction home purchases. If you need assistance with a new construction purchase or sale, please contact him at 508-620-5352 or at [email protected].
Hazy Legal Landscape Providing Angst to Town Planners
Massachusetts voters overwhelmingly approved the Medical Marijuana Ballot Initiative/Question 3 (click for full text), opening the door to the opening of at least 35 medical marijuana dispensaries throughout the state in 2013. But, the bigger question is whether the same voters and town leaders will support the opening of dispensaries on their own street corners and downtown areas. Many towns and cities are already gearing up for a fight over the locations, as one marijuana law firm is already scheduling seminars on how to open up dispensaries in Framingham. In litigious Massachusetts, we can certainly expect aggrieved abutters to challenge the opening of what they call “pot shops” next to their residences and businesses. The actual opening of marijuana dispensaries could be years away due to litigation and opposition.
Up To 35 Marijuana Dispensaries in 2013
The ballot law authorizes the opening of up to 35 dispensaries in 2013, and the Department of Public Health retains authority to open more later if demand is there. The law requires that at least one dispensary must be located in each of Massachusetts’ 14 counties, but caps each county at no more than 5 locations. The law seeks an accelerated rollout of dispensaries. Treatment centers can file applications as early as January 1, 2013, and open up to 120 days later, subject to the rollout of regulations by the state Department of Public Health.
Possible Target Locations
Based on size, county seat, and demographics, likely locations for marijuana dispensaries in Eastern Massachusetts would include: ((This is my own opinion/analysis.))
Boston, Roxbury/Dorchester/Mattapan, South Boston (Suffolk County)
Cambridge, Lowell, Framingham, Marlborough, Waltham, Woburn (Middlesex County) ((The location of dispensaries in Middlesex county — Massachusetts’ most populous county — will be a huge battle.))
Lawrence, Salem, Peabody, Lynn (Essex County)
Dedham, Quincy, Brookline, Franklin (Norfolk County)
Brockton, Plymouth, Middleboro (Plymouth County)
Taunton, New Bedford (Bristol County)
Worcester (Worcester County)
A Smoky Legal Landscape
The ballot provision, however, is very murky as to how cities and towns are supposed to handle the potential influx of dispensaries. This is causing town leaders to scramble for legal guidance as to whether they should either attempt to block locations wholesale or enact special zoning districts regulating the placement of dispensaries.
As for any attempt to block the opening of marijuana centers, the question will have to be answered by the courts as the law is silent as to whether municipalities have this power. The legal issues surrounding municipal zoning and siting of medical marijuana dispensaries will likely follow similar cases involving methadone clinics, alcohol treatment centers/sober houses and even adult entertainment venues — all uses which are legal, yet subject to reasonable zoning governance. Additionally, treatment centers could seek protection from the American’s With Disabilities Act and other disability laws which protect cancer, HIV, glaucoma and other qualified patients who are entitled to receive medical marijuana.
I am of the opinion that a municipality cannot enact an ordinance or by-law which will block a marijuana dispensary from opening in town as long as the dispensary has complied with all DPH regulations. The town, however, can utilize its zoning powers to regulate where in town such a dispensary can be located, so long as the town does not enact illegal “spot zoning” in so doing.
While medical marijuana may have passed fairly easily on Election Day, it will probably be some time before Massachusetts sorts out all the legal issues as to where these dispensaries should go.
I am going to keep this post updated with news articles and posts about the new law and reaction to it, below.
Richard D. Vetstein, Esq. is an experience Massachusetts zoning and real estate attorney. If you are concerned or have questions about the new Medical Marijuana Law, please contact him at [email protected].
Concern Over 60 Day Supply Provision & Federal Ban On Pot
Burned up Massachusetts landlords are fuming with concern over the state’s newly passed but hazy medicinal marijuana law. The law — rolling out Jan. 1 — grants medical marijuana users the right to grow a two-month supply of weed at home if they cannot get to a marijuana dispensary because they are too sick or too broke. The new law also potentially opens landlords up to federal prosecution for violating the federal controlled substances laws.
Skip Schloming, executive director of the state’s Small Property Owners Association, expressed deep concern about the 60-day supply provision:
“You could have as many as 24 plants that are 6 feet tall,” Schloming told the Herald. “And that could cause all sorts of property damage, from water damage, to mold and humidity, to wiring issues that could cause a fire. … This has the potential to be a disaster.”
The SPOA called for a 6 month delay in implementing the law.
I hate to be a “buzz kill” for medical marijuana users, but I believe the landlords have a legitimate gripe. In the landlord-tenant context, landlords own the property and remain primarily responsible for what goes on in their apartment buildings. I’m no weed expert, but imagine a small studio apartment loaded with a veritable jungle of pot plants — a prospect which would frighten any residential landlord for a number of reasons.
First, a medical marijuana grower could be targeted for burglarization. If they are truly sick and broke enough to qualify as home growers, then they would be equally vulnerable to pot bandits stealing their stash.
Second, maintaining marijuana cultivation requires specialized equipment not necessarily compatible with close-knit apartment living. I did some research, and found this website dedicated to hydroponic growing equipment. Growing marijuana plants is fairly sophisticated. Growers need to monitor pH and moisture levels, carbon dioxide outputs and germination of seeds. Failure of this equipment could conceivably cause mold, mildew and other damage to interior units.
Bay State landlords are also concerned about running afoul of federal drug laws as marijuana remains a federally prohibited controlled substance. Landlords are begging Beacon Hill lawmakers to give them the right to refuse to rent to tenants who grow pot for medical use over fears their property could be seized. As reported in the Boston Herald, commercial and residential landlords are right to worry, drug forfeiture attorneys say, because landlords can be charged as conspirators if their tenants are targeted by the feds.
No matter landlords’ concerns, medical marijuana is here to stay in Massachusetts. It will be up to the state Department of Public Health — the same agency rocked by the highly publicized state crime lab fiasco — to enact sensible rules and regulations governing medical marijuana. Let’s hope that the DPH considers the practicalities and logistics for marijuana growing in tight-knit apartment buildings. Strict rules on home growing eligibility are a must. Same for the approval of safe, tested growing equipment. Immunizing landlords from liability for medical marijuana growing or use by tenants would be another good idea.
If you are closing on a property next week, you may want to consider pushing up the closing to before the hurricane makes landfall on early Tuesday. I realize that may not be possible at this point, but it’s worth a shot.
If you have not secured a homeowner’s insurance policy, you should probably wait until the storm passes as most carriers will not write new policies right now.
If you are closing on a purchase or refinance after the storm passes — and especially if the Federal Government declares a Federal Disaster Area –be prepared to have a re-inspection of the property before closing. A hurricane considered to be an Act of God and as a result the borrower will be required to pay for any re-inspection fee. These re-inspections range from $125 to $200. You will receive notice from your lender and re-disclosures prior to closing. This will also likely delay your closing
If there is substantial damage to a home you are purchasing, you’ll have to look to your purchase and sale agreement as to whether you have a right to pull out of the deal or proceed, provided you get the benefit of any insurance proceeds.
Plan an evacuation route to the nearest shelter or “safe” area and keep a map handy. During emergencies, shelter locations will announced on the radio.
Replenish emergency kits and supplies.
Get lots of batteries and flashlights!
Secure important documents from possible damage or move to a safe location.
Develop a list of important phone numbers.
Develop a plan to secure loose objects around the house; trim branches and trees.
Ensure that your pets have collars and identification tags.
Prior to the Hurricane:
Secure all loose objects outdoors.
Secure all windows using plywood.
Fill your vehicle with fuel.
Charge all batteries (i.e. phone, lamps, flashlights, radios, etc.)
Listen to the emergency broadcasts of the storm.
Be prepared to evacuate with emergency supplies to a predetermined location.
During the Hurricane:
Stay in doors and away from windows. Keep to the center of the building on the ground level.
Listen to the emergency broadcast on the radio or television.
Turn off all electrical devices and appliances that are not needed.
Stay away from coastal waters, rivers, streams or other flooding areas.
Do not try to cross flooded areas with your vehicle.
Listen for instructions from emergency officials when the storm is over.
Insured Gets The Short End Of The Insurance Coverage Stick For Parking Lot & Building Flooding
The Massachusetts Supreme Judicial Court has not been too kind to insureds these days. For the second time in 2 months, the SJC has upheld the denial of a property owner’s claim in connection with flooding, this time in the commercial setting. In Surabian Realty Co. v. NGM Insurance Co., the Court ruled that a commercial property owner’s claim for flooding caused by a blocked parking lot catch basin was not covered under an “all risk” commercial/business insurance policy.
Blocked Drain
Surabian Realty owned an office building in Foxborough. During heavy rains in 2009, rainwater stopped flowing down the parking lot drain. The drain had become clogged with debris. Rainwater then ponded in the lot and seeped under the door of the building, flooding its lower level. The flooding caused damage to the carpeting, baseboards, and walls, totaling approximately $34,000.
Surabian made a claim under its “all risk” commercial insurance policy which had a special indorsement for this type of situation, which provided, “The most we will pay for loss or damage caused by water that backs up or overflows from a sewer, drain or sump is $25,000 for any one occurrence.” The insurance company, however, denied the claim on the grounds that the flooding was still excluded from coverage as it was caused by “surface water.”
Court Rules For Insurance Company (Again)
The SJC took an electron microscope to the policy language, parsing the language almost to a fault and unfairly (in my opinion) against the insured. The Court held:
“Construing these clauses in combination, we interpret the insurance contract, as amended by the indorsement, to exclude damage caused by flood waters that spread over the surface of the ground without having entered a drain, but to cover damage caused by water that backed up after entering a drain.”
So basically, the court said that the rainwater has to actually enter the drain, then backup, while a blocked drain that doesn’t allow water to fall down the pipe won’t be covered. Um, ok…. A better rationale would have been that the claim wasn’t covered because maintaining and keeping the drain free of debris was really the responsibility of the insured property owner, not a risk that the insurance company assumed. But I’m not the judge.
This is also the second instance in the last few months where the Court has relied upon the policy’s “anti-concurrent” clause which excluded coverage where the damage results from the combination of a covered peril and an excluded peril.
Lessons For Property Owners
Aside from making sure catch basins are cleaned, the tough lesson for property owners here is that your supposed “all risk” insurance policy isn’t really “all risk” as you probably perceive it. It seems that these days a lot of insurance claims are denied or insureds are scared of even making a claim lest they get cancelled by the insurance company. It’s a tough predicament.
69 Year Old Woman Found Dead After Neighbor’s Handyman Cuts 30-foot Arborvitaes; Estate Recovers $150,000 Wrongful Death Settlement
In a tragic case out of Somerset, Massachusetts reported by Massachusetts Lawyers Weekly, a woman’s estate has recovered a $150,000 wrongful death settlement after she dropped dead when her neighbor cut down a row of trees which she and her husband planted 40 years ago.
According to Taunton lawyer Claudine A. Cloutier, who represented the woman’s estate, the neighbor hired a worker to remove some of the trees. When the woman discovered they had been cut down, she apparently became emotionally distraught. Her son found her dead in a chair the next day. There were no signs of trauma. Her estate brought negligence and tort claims against the neighbor, alleging wrongful death partially caused by stress arising from the destruction of the plants. The case went to mediation, and was settled before trial for $150,000.
Massachusetts Illegal Tree Cutting Law
Disputes over tree pruning and cutting are very common in Massachusetts. Indeed, Massachusetts has one of the oldest tree cutting and trimming laws on the books which provides for triple damages for any illegal cutting:
A person who without license willfully cuts down, carries away, girdles or otherwise destroys trees, timber, wood or underwood on the land of another shall be liable to the owner in tort for three times the amount of the damages assessed therefor; but if it is found that the defendant had good reason to believe that the land on which the trespass was committed was his own or that he was otherwise lawfully authorized to do the acts complained of, he shall be liable for single damages only.
Nevertheless, at common law, a neighbor may remove branches extending over a shared property line onto his or her own property. Also, the neighbor has no liability for roots growing into your yard and causing damage. Massachusetts law does not allow a person to cross or enter a neighbor’s property for these purposes without the neighbor’s consent, nor to remove any branches or other vegetation within the confines of the neighbor’s property. You can trim the branches and roots back, but you cannot kill the tree. This is the “Massachusetts Rule.”
Damages are assessed that either the market value of the timber or the replacement cost of the trees. Replacement cost typically requires the assistance of an expert arborist or landscaper. In a case out of Martha’s Vineyard, the appeals court upheld a $30,000 award for the replacement cost of 10 mature oak trees. Upon a finding of maliciousness under the tree cutting law, those damages were tripled.
Before cutting, trimming or pruning trees on or near your property line, it’s always a good idea to consult your plot plan or survey and speak to your neighbor before taking out the chain saws.
Utility Tree Cutting
I’ve been reading about many recent disputes between property owners and utility companies (Wayland v. NStar) over tree cutting within utility easements. The law provides a public utility the right to remove or trim your tree if it interferes with the necessary and reasonable operation of the utility. Furthermore, the utility is required to perform tree trimming as part of its program to maintain reliable service for its customers. The National Electric Safety Code requires utilities to trim or remove trees growing near power lines that threaten to disrupt service. Proper and regular tree trimming helps prevent the danger and inconvenience of outages.
Richard D. Vetstein, Esq. is an experience real estate attorney who has litigated numerous illegal tree cutting cases. If you are dealing with a Massachusetts unlawful tree cutting or trimming situation, please contact him at 508-620-5352 or via email at [email protected].
Real Estate Crash Has Resulted In Many More Forms and Disclosures
These days buyers are leaving closing rooms with not only their keys but a mild case of carpal tunnel syndrome! The reason for sore forearms and wrists is the voluminous stack of closing documents which are now required to be signed and notarized at every Massachusetts real estate purchase or refinance closing.
One of my opening “break the ice” lines at closings is to suggest that the buyers start massaging their writing hands. Then I show them the 2 inch stack of documents they must review and sign, and they usually say, “Are you serious? We have to sign all that?” Yep, I reply. You can thank Fannie Mae and the real estate collapse for that! All the new rules and regulations passed in the last 5 years have resulted in, you guessed it, more forms. Do you think the Feds and state ever eliminate old or out-dated forms? Nope.
Let me quickly go over some of the more important — and less important — documents signed at a typical Massachusetts real estate closing.
The Closing Documents
HUD-1 Settlement Statement. This is arguably the most important form signed at closing. It breaks down all the closing costs, lender fees, taxes, insurance, escrows and more. We did a full post on the HUD-1 and all the closing costs you can expect to pay here. Under the newer RESPA rules, most closing costs must be within 10% tolerance of the Good Faith Estimate provided by the lender (which you will also re-sign at closing).
Promissory Note & Mortgage. These two documents form what I like to call the “mortgage contract.” The promissory note is the lending contract between borrower and lender and sets the interest rate and payment terms of the loan. It is not recorded at the registry of deeds. The Mortgage or Security Instrument is a long (20+ page) document and provides the legal collateral (your house) securing the loan from the lender. The Mortgage gets recorded in the county registry of deeds and is available to public view. Read a full explanation of the Note and Mortgage in this post.
Truth in Lending Disclosure (TIL). The Truth in Lending should really be called “Confusion In Lending,” as the federal government has come up with a confusing way to “explain” how your interest rate works. This is a complex form and we’ve written about it extensively in this post. Your closing lawyer will fully explain the TIL form to you at closing.
Loan Underwriting Documents. With increased audit risk on loan files, lenders today are requiring that borrowers sign “fresh” copies of almost all the documents they signed when they originally applied for the loan. This includes the loan application, IRS forms W-9 and 4506’s.
Fraud Prevention Documents. Again, with the massive mortgage fraud of the last decade, lenders are requiring many more forms to prevent fraud, forgeries, and straw-buyers. The closing attorney will also make a copy of borrowers’ driver’s licenses and other photo i.d. and submit the borrower’s names through the Patriot Act database. They include Occupancy Affidavit (confirming that borrowers will not rent out the mortgaged property), and the Signature Affidavit (confirming buyers are who they say they are or previously used a maiden name or nickname).
Escrow Documents. Unless lenders waive the requirement, borrowers must fund an escrow account at closing representing several months of real estate taxes and homeowner’s insurance. This provides a cushion in case borrowers default and the taxes and insurance are not paid.
Title Documents. For purchase transactions, Massachusetts requires that the closing attorney certify that a 50 year title examination has been performed. Buyers will counter-sign this certification of title, as well as several title insurance affidavits and documents which the seller is required to sign, to ensure that all known title problems have been disclosed and discovered. Of course, we always recommend that buyers obtain their own owner’s title insurance which will provide coverage for unknown title defects such as forgeries, boundary line issues, missing mortgage discharges, etc.
Property Safety Disclosures. In Massachusetts, buyers and sellers will sign a smoke/carbon monoxide detector compliance agreement, lead paint disclosure, and UFFI (urea formaldehyde foam insulation) agreement. These ensure that the property has received proper certifications and will absolve the lender from liability for these safety issues.
Servicing, EOCA and Affiliated Business Disclosures. Chances are that your lender will assign the servicing rights to your mortgage to a larger servicer, like JP Morgan Chase or CitiMortgage. You will sign forms acknowledging this. You will be notified of the new mortgage holder usually within 30-60 days after closing. In the meantime, the closing attorney will give you a “first payment letter” instructing you where to send your first payment if you don’t hear from the new servicer. You will also sign forms under the federal and state discrimination in lenders laws and forms disclosing who the lender uses for closing services.
Well, those are most of the documents that buyers will sign at the closing. Sellers have a slew of their own documents to be signed at closing, and I’ll cover that in a future post. As I said, at your closing, massage your signature hand, grab a comfy pen, and sign your life away!
The old Robert Frost poem Mending Wall goes “Good fences make good neighbors.” But a neighbor can quickly turn from good to bad when a they maliciously construct a “spite fence” on the property line. And that includes Sarah Palin who installed this 14 feet monstrous fence at her Wasilla, Alaska home.
What Is An Illegal Spite Fence?
Spite fences are those which neighbors put up extremely close to the other neighbor’s property for the purpose of annoying or inconveniencing the neighbor, and not for any legitimate other reason. In certain circumstances in Massachusetts, courts can rule that certain types of fences are illegal “spite fences,” and order that they be taken down, decreased in height or award damages to the complaining neighbor.
Under the Massachusetts Spite Fence Law (Gen. Laws ch. 49, § 21) ((Interestingly, Massachusetts was one of the first states to enact a spite fence law in 1887)) a fence is an illegal “spite fence” if:
A fence or other structure in the nature of a fence which unnecessarily exceeds six feet in height and is maliciously erected or maintained for the purpose of annoying the owners or occupants of adjoining property….
Whether a fence is an illegal spite fence depends on the circumstances. Usually spite fences are erected where neighbors have been fighting or in a legal dispute of some kind, and the fence is installed as a form of revenge or pay-back. In the vast majority of towns and cities, fences are allowed to be up to 6 feet tall. If the fence in question is over 6 feet tall, and there is evidence that it was installed maliciously, it may be an illegal spite fence.
In a recent dispute on Concord Street in Wilmington (see photo right), a neighbor has installed a very ugly make-shift plywood spite fence with a blue tarp attached. This precipitated a proposal to pass a new fence by-law in Wilmington. I’m not sure of the circumstances surrounding this particular fence, but it is certainly borders on a classic spite fence. In another reported case, the Land Court ordered a neighbor to take down a makeshift fence with spray painted signs and no trespass warnings.
Most folks who erect spite fences will claim the fence is for privacy, but if the home faces an entirely different direction, you can debunk that as a cover for maliciousness. Neighbors may also try to get around the Spite Fence Law by installing a row of trees over 6 feet tall behind the fence. These, too, may be considered illegal.
What Can I Do If My Neighbor Puts Up A Spite Fence?
Under the Spite Fence Law cited above, you can sue your neighbor and ask the court to take down the fence and also seek damages. Under this law and upon a showing of “irreparable harm” the court has the power to impose an injunction ordering that the fence be taken down or reduced to 6 feet tall. Alternatively, the court can award damages.
The difficulty with these cases is that you need to prove you neighbor acted “maliciously” in installing the fence. You will need to marshal evidence to prove that, and that’s where an experienced Massachusetts real estate litigation attorney would add tremendous value. These cases are complex and judges will often require evidentiary hearings before imposing an order taking down a fence. It’s not a “do it yourself” type of situation!
If you are struggling with a boundary line issue or a potential “spite fence,” don’t hesitate to contact me at [email protected]. I have successfully litigated quite a lot of these cases.
Richard D. Vetstein, Esq. is an experienced Massachusetts real estate litigation attorney. Mr. Vetstein frequently represents Massachusetts residents in contentious boundary line, fence, and adverse possession cases.
Water Damage Originating From Exterior Of Home = Claim Denied
In one of the more important homeowner’s insurance cases decided in recent memory, the Massachusetts Supreme Judicial Court (SJC) considered what is covered under a standard Massachusetts homeowner’s insurance policy when rain, snow melt and runoff create water damage and dry rot to the inside of a home. The case is Boazova v. Safety Insurance Co., SJC-10908 (May 29, 2012).
The Court ruled there was no coverage under the homeowner’s insurance policy where significant hidden water seepage through foundation cracks caused a kitchen floor to turn into a “spongy and mushy” mess. Under the exclusion for damage caused by “surface water,” the court held, there is no coverage for loss covered by rain, flood waters or runoff originating from outside the home, rather than inside the home, like a burst pipe. This interpretation of the Mass. standard homeowner’s policy is not what most insured expect from their insurance coverage, but unfortunately it puts to rest what most homeowners who have suffered a water damage claim know already: a water damage claim will likely be denied if the source of water is from the natural accumulation of rain, snow melt or ice seeping into the ground, through a roof, or through the foundation.
Severe Wood Rot Discovered
While undertaking a kitchen renovation project, Ms. Boazova, an Arlington homeowner, discovered severe deterioration of the wooden sill plate that rested on top of the concrete foundation at the base of the home’s rear wall, as well as of the adjoining floor joists and wall studs. The kitchen floor and sub-floor was moist, spongy and falling apart. The homeowner’s expert engineer opined that because the concrete patio was poured directly against the house, water and moisture migrated down from the sill plate, below grade to the foundation, causing the water damage. There was no dispute that the origin of the water infiltration and seepage was from outside elements such as rain, sleet and snow melt. The insurance company denied coverage based on the policy’s exclusion for damage caused by “surface water,” and the homeowner sued.
No Coverage For Damage Caused By “Surface Water”
This case is the first in recent memory where the SJC has considered the interplay between the new Limited Fungi, Wet or Dry Rot, or Bacteria Coverage indorsement, the “hidden seepage” provision and the “anti-concurrent cause” exclusion for “surface water damage” in the standard Massachusetts homeowner’s insurance policy. Making sense of the Massachusetts standard homeowner’s policy coverages and exclusions is a bit like reading Egyptian hieroglyphics. Even the SJC justices had some difficulty, albeit they ultimately sided with the insurance company:
“Although the language of the policy and the indorsement is challenging to even the most careful reader because of the way it connects various coverages, exclusions and exceptions, we conclude that Boazova’s claimed loss — the deterioration and rotting of the wooden sill plat, adjoining floor joists, and wall studs — is excluded from coverage by unambiguous provisions in the policy.”
Take-Away: Exterior Surface Water Cause = Claim Denied
The key point is the Court’s conclusion that the surface water exclusion carried the day. Describing “surface water” as “waters from rain, melting snow, springs or seepage, or floods that lie or flow on the surface of the earth and naturally spread over the ground but to not form a part of a natural watercourse or lake,” the judges ruled that there was no coverage because the property damage was a direct result of rain and snow melt migrating down the foundation into the bellow grade kitchen floor. This covers just about every conceivable flooding scenario.
As far as what homeowner’s can take-away from this decision, well unfortunately they should keep an emergency capital reserve fund ready because any claims made for water damage arising out of exterior conditions will likely be denied. The only type of “flooding” claims which will be covered would be burst pipes and possibly overrun interior sump pumps or perimeter drain systems which cause flooding — and even those will likely involve a battle with the insurance company.
When you are considering purchasing a home in Massachusetts, the property may have the benefit or burden of an easement. Most easements and restrictions are quite “harmless” and standard, however, some can have a major impact on future expansion possibilities and the right to use portions of the property. In this post, I’m going to go through the most common types of easements and how they can affect property.
What Is An Easement?
In plain English, an easement is a right that another person or company has to use your property. They don’t own your property, but the easement gives them the legal right to use your property as specified in the easement instrument. The property that enjoys the benefit of the easement is sometimes referred to as the “dominant estate,” and the property over, under, or through which the easement runs is sometimes referred to as the “servient estate.” Easements are usually recorded in the registry of deeds, but sometimes they can arise from “implication” or “by necessity.” I’ll explain those later.
Utility Easements
The most common types of easements in Massachusetts are utility easements for such things as overhead and underground power lines, cable lines, gas lines, and water mains. These easements allow the utility companies to use portions of residential property to provide their respective utility services. Sometimes, the easements will show up on a plot plan or survey, and some will be found recorded in the title, usually when the lot was first laid out. The majority of these easements do not materially affect the use and expansion of your property, however, the one type of easement to take note of are high pressure gas line easements. For obvious safety reasons, these easements usually carry with them strict restrictions on what can be built on or near them.
Driveway or Access Easements
Another common type of easements that are found in Massachusetts are access easements for driveways and the like. Properties with shared driveways will often have easements enabling such sharing– or they should! These easements should also provide for common maintenance and upkeep responsibilities and expense. Other types of access easements include walking and bike paths and beach access – very common down the Cape and on the Islands.
Drainage Easements
Another common type of easements are drainage easements which are typical for newer subdivisions. Drainage easements allow for one lot to drain its storm water onto another or into a detention pond.
Prescriptive Easements
If you have heard of adverse possession, then you know what a prescriptive easement is all about. An easement by prescription is an easement acquired through adverse possession – which is the hostile adverse use of someone else’s property for 20 or more continuous years. Prescriptive easements arise where people have acted as though an easement has existed but there is no instrument of easement recorded at the registry of deeds. For example, a prescriptive easement can arise if a neighbor’s family has used a walking path on the neighbor’s property for over 20 years. twenty years. I’ve written extensively on adverse possession in this post.
Easements by Implication and by Necessity
An easement by implication is found in the law when there is no recorded easement, but where the circumstances show an easement was intended to exist. It usually exists where there is common ownership of a lot, the seller conveys a portion of the land under current ownership, and both parties intended to create an easement at the time of conveyance. If someone claims an easement by implication which negatively affects one’s property, the owner’s title insurance policy, if any, will typically cover that situation. Easements by necessity occur when a property is sold in a land-locked configuration without any legal access. An easement is therefore created “by necessity” to prevent the land-locking. An adverse easement by necessity would also be covered by an owner’s title insurance policy.
I’ve recently become aware that some Massachusetts landlords are requiring that tenants procure their own policy of renter’s insurance as a condition of leasing. In fact, MSN Real Estate did a nice write up about the practice here. But I am also hearing about a dark side to this practice where some landlords have a kickback arrangement with the insurance provider where the landlord receives compensation for any policy taken out by a tenant.
Renter’s insurance is almost always a good idea, but under Massachusetts law, can a landlord require that a tenant get a policy (if the tenant doesn’t want one) and must it disclose a referral relationship with the insurance provider?
Landlords Should Be Careful About Renter’s Insurance Requirement
In light of recent court decisions, landlords should re-examine the legality of a mandatory renter’s insurance policy requirement. In the recent Hermida v. Archstone class action ruling, which considered amenity fees under the Massachusetts security deposit statute, the court held that landlords can only charge first and last month’s rent, a security deposit, and a lost key fee at the beginning of a tenancy, and no other types of fees. Any other type of fee or financial obligation required to be paid by the tenant at the beginning of the lease could be deemed illegal under the Mass. Security Deposit law, Mass. Gen. Laws ch. 186, sec. 15B. Accordingly, landlord must be very careful about what and how much they charge tenants at the inception of leases, over and above the standard rent deposits and new key fee. At the very least, renter’s insurance should be optional, and any affiliate or kickback arrangement should be fully disclosed to the tenant. This still may not prevent a landlord from getting sued over a mandatory renter’s insurance requirement.
Renter’s Insurance Still Smart Choice
That said, I always recommend that tenants get their own renter’s insurance policy. It’s fairly inexpensive and provides protection to your personal belongings. Massachusetts law does provide for a minimum of $750 per unit for tenant relocation assistance due to fire displacement. However, that is not nearly enough for the average renter.
Has your landlord required that you purchase renter’s insurance? Have they disclosed any referral relationship? I’d like to hear from you. The practice may well be illegal.
Richard D. Vetstein, Esq. is regarded as one of the leading real estate attorneys in Massachusetts. With over 25 years in practice, he is a four time winner of the "Top Lawyer" award by Boston Magazine, a "Super Lawyer" designation from Thompson/West, and "Best of Metrowest." For Rich's professional biography, click here. If you are interested in hiring Rich or have a legal question, email or call him at [email protected] or 508-620-5352.
Landlords Could Be Held Responsible for Tenant Paralyzed Jumping from Trampoline into Kiddie Pool
Richard Vetstein is an experienced Massachusetts landlord tenant attorney. You can contact him at [email protected] or 508-620-5352.
Largest Lead Paint Penalty On Record for Attorney General Coakley
