Safety

Landlord Held Strictly Liable For Intoxicated Tenant’s Fall Through Defective Porch Guardrail

by Rich Vetstein on March 12, 2012

in Insurance, Leasing, Massachusetts Real Estate Law, Premises Liability, Real Estate Litigation, Rental Housing, Safety

Another Expansion Of Massachusetts Landlord Liability

In yet another case demonstrating Massachusetts’ inhospitable legal environment towards residential landlords, Northeast Housing Court Judge David Kerman has ruled that an owner of a mixed used residential – commercial building is “strictly liable” for a drunk tenant’s fall through a defective porch guardrail. The 17-page ruling is Sheehan v. Weaver, and is embedded below. The imposition of strict liability, sometimes called absolute or no-fault liability, makes landlords 100% liable for the injuries of tenants where there is a building code violation, regardless of whether the tenant was equally at fault for the accident. This is a troubling ruling and another reason supporting the notion that Massachusetts is landlord unfriendly!

Faulty Porch Guardrail

The landlord, David Weaver, owned a building with three residential apartments located above a commercial establishment. None of the apartments were owner-occupied. One of Weaver’s residential tenants, William Sheehan, fell through a porch guardrail, several stories onto the asphalt pavement below, suffering serious injuries. There was evidence that Sheehan was intoxicated, however, the connection of the guardrail to its post gave way because it was defective and in violation of the Building Code.

After a four-day trial in the Housing Court, a jury found for the tenant on the negligence claim, awarding approximately $145,000 after a 40% reduction for the plaintiff’s own negligence. The jury also found the landlord strictly liable, assessing $242,000 in damages.

Building Code Violation At Issue

The Massachusetts State Building Code provides for strict (100%) liability for any personal injuries caused by any building code violation at any “place of assembly, theatre, special hall, public hall, factory, workshop, manufacturing establishment or building.” The landlord argued that the primarily residential structure was not sufficiently commercial to be considered a “building” within the meaning of the Building Code’s strict liability provision. But Judge David D. Kerman disagreed:

“[T]he structure in this case may well be at the outer margin of the class of structures that fall within the ambit of the term ‘building’ in the strict liability law,” wrote Kerman. “However, it is my opinion that the mixed residential-commercial four-unit non-owner-occupied structure in this case is ‘commercial’ and ‘public’ enough to fit within the term ‘building’ in section 51.”

The imposition of strict liability resulted in the landlord being hit with the full amount of the $242,000 judgment with no reduction for the tenant’s comparative negligence due to his intoxication. Ouch.

Commentary: Bad Decision

As I stated to Massachusetts Lawyers Weekly, this is a troubling ruling. The Building Code provision, passed in the late 1800’s, was clearly intended to cover structures with a distinctively commercial nature, i.e., “public hall, factory, workshop, manufacturing establishing or building.” The law was not intended to cover a predominantly residential apartment building with commercial/retail on the ground floor, in my opinion.

This ruling will now expand liability for residential developers who have built quite a number of mixed-use residential projects in the last few years. This decision can be read as providing strict liability for anyone injured due to any type of building code violation, however minor. Property managers and commercial insurers should be aware of this ruling, and ensure that there are no building code issues which could cause harm to tenants.

Given the concerning expansion of liability in this case, look for this ruling to get appealed. Judge Kerman is a well-respected judge, and this decision is a close call, but I think he went a bit too far outside the legislative intent behind the law.

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Richard D. Vetstein, Esq. is an experienced Massachusetts real estate attorney. For more information, please contact him at 508-620-5352 or [email protected].

Sheehan v. Weaver

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Mandatory Upgrade Required For Home Oil Heating Systems Under New Massachusetts Law

by Rich Vetstein on January 13, 2012

in Environmental Law, Green Technology, Massachusetts Real Estate Law, Safety

Under a new Massachusetts oil heating law which went into effect on September 30, 2011, every homeowner with an oil heating system is required to install an oil safety valve or an oil supply line with protective sleeve in their system. The cost is approximately $150 to $350 depending on the system. The required upgrade is to prevent leaks from tanks and pipes that connect to your furnace. The upgrade will reduce the risk of an oil leak so by making a relatively small expenditure now, you can prevent a much greater expense in the future.

Who Must Upgrade?

Owners of 1- to 4-unit residences that are heated with oil must already have or install an oil safety valve or an oil supply line with a protective sleeve. Installation of these devices must be performed by a licensed oil burner technician. Technicians are employed by companies that deliver home heating oil or are self-employed. It is important to note that heating oil systems installed on or after January 1, 1990 most likely are already in compliance because state fire codes implemented these requirements on new installations at that time.

Who Is Exempt?

Homeowners are exempt from taking these leak prevention steps if:

  • the oil burner is located above the oil storage tank and the entire oil supply line is connected to and above the top of the tank OR
  • an oil safety valve or oil supply line with protective sleeve was installed on or after January 1, 1990, AND
  • those changes are in compliance with the oil burning equipment regulations; a copy of the oil burner permit from the local fire department may be used to demonstrate compliance.

Why Comply?

Not only is complying with the new law required, it makes good financial and environmental sense. Homeowners who take these preventive measures can avoid the disruption and expense that can be caused by heating oil leaks. A leak may result in exposure to petroleum vapors in your home. If the leak reaches the soil or groundwater beneath your house, then a cleanup must be performed to restore your property to state environmental standards. Such a leak can cost many thousands to clean up. Leaks that affect another property or impact drinking water supply wells can complicate the cleanup and increase the expense. Each year, several hundred Massachusetts families experience some kind of leak.

What will an upgrade cost?

The typical cost of installing either an oil safety valve or oil supply line with a protective sleeve ranges from $150 – $350 (including labor, parts, and local permit fees).

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Richard D. Vetstein, Esq. is an experienced Massachusetts real estate attorney. Please contact him if you need assistance with a home purchase or sale.

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From Asbestos to Radon: The Massachusetts Home Inspection Process, A Legal Perspective

by Rich Vetstein on January 13, 2012

in Condominium Law, Construction Law, Disclosures, Home Inspections, Lead Paint, Massachusetts Real Estate Law, Offer To Purchase, Purchase and Sale Agreements, Realtors, Safety, Septic/Title V

The home inspection is one of the most critical aspects of every Massachusetts real estate transaction. Virtually every buyer in a standard purchase transaction (meaning not a short sale, foreclosure, or bank-owned property) will opt to perform a home inspection, and for good reason. You need to know whether there are any serious structural, mechanical or other defective conditions in the home before you close.

As always, I’m going to focus on the legal aspects of the home inspection as it impacts the overall transaction.

Buyer Beware

Let’s start out with the legal framework for what, if anything, a seller and his real estate agent are required to disclose to a prospective buyer. Surprisingly to most buyers, a private seller has no legal duty in Massachusetts to disclose any type of information, good or bad, about the property (except for the presence of lead paint). This is called caveat emptor, or buyer beware. Real estate agents stand on a heightened legal footing. Under Massachusetts consumer protection regulations governing real estate brokers, a broker must disclose to a buyer “any fact, the disclosure of which may have influenced the buyer or prospective buyer not to enter into the transaction.”

Nevertheless, I always advise buyers not to rely or trust anything the seller or his/her agent says about the property. This is exactly the reason why most buyers will choose to get an independent home inspection.

Inspection Contingencies

The standard form Offer to Purchase (click for form) will include several inspection related contingencies: the general home inspection contingency, radon, lead paint, and pest contingencies. The buyer typically has between 5 and 10 days to complete these inspections. If the inspections reveals any problems requiring repair or remediation, the parties will negotiate repairs during this inspection period, and the agreement will be reflected in the standard purchase and sale agreement or sometimes a separate repair agreement which is signed around 14 days after the accepted offer. Typically, the Realtors do the heavy lifting on home inspection negotiations, and by the time it gets to the attorneys, there is an agreement in place.

The attorneys can craft the language for repairs. I always insist that repairs are performed by licensed contractors with evidence of completion provided prior to or at closing. Also, buyers should know that repairs provided in the purchase and sale agreement may trigger a second property inspection by the lender’s underwriters which could add another layer of oversight into the deal.

If the problems are so serious that the buyer wants to walk away from the deal, there is a mechanism for where the buyer provides notice to the seller and a copy of the inspection report. It’s very important to provide proper notice in order to get the buyer’s deposit returned. An attorney should be consulted for this situation.

Home Inspector License Requirements

Since 1999, Massachusetts has required that home inspectors be licensed by the state Board of Registration of Home Inspectors. You can search for home inspector licenses here: Massachusetts Home Inspector License Search.

Buyers should recognize the limits of the home inspection. The state regulations requires inspection of “readily accessible” components of a dwelling. Most modestly priced inspections are visual inspections of the property. The inspector is trained to identify defects in the systems of a house but cannot be expected to have x-ray vision. Moreover, property inspectors are not generally trained civil engineers. Structural defects and weaknesses may not be readily apparent, and may require follow up by a licensed structural engineer. In many cases, however, evidence of inappropriate settling or structural failure can be observed during a visual inspection. An experienced inspector will summarize the “big picture,” but inspectors are not required to identify the exact nature and extent of structural deficiencies. Regulations specifying the elements of a dwelling to be observed and reported on by the home inspector may be found here at 266 C.M.R. § 6.00.

Condominiums

When you buy a condo, you not only buy the unit, but the common areas such as the common roof, mechanical and HVAC systems, grounds, etc. Good home inspectors will ensure that the inspection of a condominium includes the common areas as well as the unit itself. The common area inspection may reveal deferred maintenance needs and inadequately performed repairs that may result in increased condominium fees and special assessments.

Radon

The Environmental Protection Agency (EPA) has established an “action level” of 4.0 pico-curies per liter (4.0 pCi/l) of radon present in indoor air. Although not established as an unsafe level, this figure has been established as the point at which protective measures are recommended. Prospective purchasers and home inspectors frequently use commercially available canisters to collect radon data. This method is cost-effective but may not give accurate results. The canisters are ordinarily placed for twenty-four to forty-eight hours in the basement and on the first floor of the dwelling. The canisters must be placed away from drafts and should not be disturbed. After the test period, the canisters are sealed and forwarded to a testing laboratory. Sometimes, the radon results are not ready by the time the purchase and sale agreement has to be signed. In this situation, the parties can either agree to extend the deadline or agree to a radon contingency.

If the radon results come back over 4.0 pCi/l, depending on the language of the radon contingency, the buyer can typically opt out of the deal altogether or require the seller to install a radon remediation system. Often the sellers will attempt to cap the cost of the system.

Pests

Most home inspectors are also qualified to perform inspections for wood-boring insects, such as termites, powder post beetles, and carpenter ants. All properties should be inspected for such pests. Properties financed by certain government-sponsored loan programs, such as the Federal Housing Authority, require a pest inspection as a condition of obtaining a loan. It’s a good idea to ask the sellers if they have an existing pest control contract that can be transferred to the new buyers.

Lead Paint

The Massachusetts Lead Law requires the buyer to be given the opportunity to inspect for lead paint. The seller or broker is required to provide potential purchasers of homes built before 1978 with the notification package prepared by the Massachusetts Department of Public Health.

Sellers and real estate agents are required by law to disclose any information about known lead paint hazards in their properties, and to provide copies of any documentation relating to the lead paint status of the properties (i.e., a lead inspection report or risk assessment report). The seller must grant a ten-day contingency period from the date the buyer receives the property transfer notification to conduct a lead paint inspection. If the buyer discovers lead paint in the dwelling during the inspection period, the contingency required by the statute permits the buyer to withdraw from the agreement without further obligation.

Although a seller is under no obligation to actually abate the lead paint, a lead-free house may be more valuable and marketable. This is particularly true for multi-family properties where tenants with children under six years of age may trigger the abatement requirements of the law. Sellers are required to provide any documentation they have of the estimated costs to abate the lead paint. Should a seller refuse to make a price concession based on the presence of a lead paint hazard, a buyer could argue that any subsequent buyer also should be made aware of the hazards and related costs. As a result, the availability of a lead paint inspection and cost estimate can become a powerful negotiating tool for the buyer.

Lead paint testing is typically not done as part of a standard home inspection, and must be separately arranged by a certified lead paint assessor.

Mold and Mildew

Mold and mildew are tricky subjects for home inspectors. The presence of excessive amounts of mold spores has been linked to asthma and other respiratory ailments and is claimed to cause permanent injuries. Mold grows in warm, moist environments and can be present behind walls and ceilings, in heating and cooling ducts, and in other difficult-to-inspect parts of a house or condominium building. As noted, although a building inspector cannot peer behind walls, a thorough inspection can detect water penetration, which is the precursor and necessary condition for a mold problem. Where mold is suspected, a buyer can always request that his home inspector be allowed to drill small exploratory holes to test for the presence of mold/mildew.

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Richard D. Vetstein, Esq. is an experienced Massachusetts real estate attorney. Please contact him if you need assistance with a home purchase or sale.

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No Trespassing! Judge Evicts Occupy Boston Protesters From Taking Over Dewey Square

by Rich Vetstein on December 7, 2011

in Massachusetts Real Estate Law, Premises Liability, Safety, Trespass

Judge Rules That Occupy Movement Protesters Are Common Trespassers

Today, Massachusetts Superior Court Justice Frances A. McIntyre issued a ruling clearing the way for the eviction of the Occupy Boston protest which has taken over Dewey Square in downtown Boston. Judge McIntyre had originally granted the protesters a temporary restraining order sustaining the protests, but after reviewing evidence and hearing legal argument, she has changed her mind.

For interest to our real estate readers, the Judge balanced the City’s property rights vs. the protesters First Amendment speech rights. The judge ultimately concluded that the “occupation” as practiced by the Occupy Boston protesters — physically taking over the public park from the City and to the exclusion of others — was a classic trespass and not a First Amendment right.

“To the extent that the act of occupation, as defined, communicates, it speaks of boldness, outrage, and a willingness to take personal risk. But the plaintiffs’ occupation of Dewey Square to the effective exclusion of others is the very antithesis of their message that a more just and egalitarian society is possible. It does not send the message the plaintiffs profess to intend.” — Judge Francis McIntyre

Analysis: Sound Decision But Quite Expansive

This is a solid, well-reasoned judicial opinion that may be difficult to overcome on appeal. However, the judge’s reasoning on “occupation” is new and perhaps ground-breaking, so it could be susceptible to a different opinion on appeal. This case will surely make its way up to the Supreme Judicial Court, and we’ll blog about it here of course.

As the judge found, the First Amendment is not absolute. Yes, the protesters have a right to assembly, but that right must be peaceful and not permanent as to constitute a seizure of public land or present a grave public safety risk. The First Amendment, by its own language, protects speech, not physical occupation of public land. That’s called eminent domain.

Furthermore, the possibility of real public safety tragedy is virtually guaranteed at some point the longer this encampment is allowed to fester with its flammable tarps, fire sources, auto batteries, extension cords and no sanitary facilities on site. Most of the protesters were not born for the terrible Cocoanut Grove Fire in 1942. A fire would quickly swallow up the tent camp and kill dozens. Health, sanitary and fire codes were not intended to abridge the protester’s speech rights.

The judge went much further than she had to though, and this is where her reasoning could be challenged on appeal:

 “Little in the way of expression is outlawed under the United States Constitution, but an act which incites a lawful forceful response is unlikely to pass as expressive speech.”

One need only turn to the Civil Rights Marches in Alabama in 1963 to see the flaw with this argument. The protesters in Alabama, simply by marching, incited a forceful response by the Alabama police and their water guns. Using Judge McIntyre’s reasoning, therefore, the Civil Rights Marches are not protected by the First Amendment simply because they elicited a police response. This is illogical as many expressive marches in turbulent times have resulted in police reaction. It doesn’t make the marches or speech any less entitled to constitutional protection.

I’ve posted the ruling below. What are your thoughts on the legal issues?

Occupy Boston Decision

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Trick or Tree! Fallen Tree and Downed Power Line Questions After Halloween N’or Easter

by Rich Vetstein on October 31, 2011

in Boundaries, Massachusetts Real Estate Law, Premises Liability, Safety

Tree Damage At My House, Sudbury MA

It was only 3 months ago I was blogging about fallen trees and downed power lines in the wake of Hurricane Irene. Well, here we go again with the Halloween N’or Easter Storm 2011 with the same questions and answers. As you can see to my right, I woke up to a huge limb across my front lawn, which luckily didn’t snap my lines or hit my house! For those less unfortunate, I will outline the law again.

Who Is Responsible If My Neighbor’s Tree Falls On My Property?

The short answer is that, legally speaking, your neighbor is not liable for a healthy tree falling down during a major storm event. That is considered an “Act of God” for which no one is legally liable (except God of course, but I think he enjoys some type of legal immunity–I’m not sure, I’ll have to research that one). So, you will have to make a claim under your homeowner’s insurance policy for the damage caused by the neighbor’s tree.

As the court stated in the 1983 case of Ponte v. DaSilva:

The failure of a landowner to prevent the blowing or dropping of leaves, branches, and sap from a healthy tree onto a neighbor’s property is not unreasonable and cannot be the basis of a finding of negligence or private nuisance. Of course, a neighbor has the right to remove so much of the tree as overhangs his property. To impose liability for injuries sustained as a result of debris from a healthy tree on property adjoining the site of the accident would be to ignore reality, and would be unworkable. No case has been brought to our attention in which liability has been imposed in such circumstances

On the other hand, if the neighbor’s tree was diseased or decayed, was known to be at risk of falling and the neighbor ignored it, there could be negligence and liability. Either way, if you have homeowner’s insurance, the insurance companies will sort out fault and blame.

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Irene Cleanup Mailbag: Who Is Responsible If My Neighbor’s Tree Fell On My House, Car, Shed, Or Swingset?

by Rich Vetstein on August 29, 2011

in Insurance, Safety

Tree down in Andover, Mass. Courtesy Boston.com

Read our post on Hurricane Sandy Aftermath Here

Massachusetts Fallen Tree Law

Given all the trees and branches which fell across New England, the pressing question of the day is, clearly, who is responsible if my neighbor’s tree or tree branch fell on my house, car, shed, patio, grill, etc. during the storm?

The short answer is that, legally speaking, your neighbor is not liable for a healthy tree falling down during a major storm event. That is considered an “Act of God” for which no one is legally liable (except God of course, but I think he enjoys some type of legal immunity–I’m not sure, I’ll have to research that one). So, you will have to make a claim under your homeowner’s insurance policy for the damage caused by the neighbor’s tree.

As the court stated in the 1983 case of Ponte v. DaSilva:

The failure of a landowner to prevent the blowing or dropping of leaves, branches, and sap from a healthy tree onto a neighbor’s property is not unreasonable and cannot be the basis of a finding of negligence or private nuisance. Of course, a neighbor has the right to remove so much of the tree as overhangs his property. To impose liability for injuries sustained as a result of debris from a healthy tree on property adjoining the site of the accident would be to ignore reality, and would be unworkable. No case has been brought to our attention in which liability has been imposed in such circumstances

On the other hand, if the neighbor’s tree was diseased or decayed, was known to be at risk of falling and the neighbor ignored it, there could be negligence and liability. Either way, if you have homeowner’s insurance, the insurance companies will sort out fault and blame.

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Massachusetts Hurricane Homeowner’s Insurance Coverage: Cleaning Up After Irene

by Rich Vetstein on August 28, 2011

in Insurance, Massachusetts Real Estate Law, Safety

Hurricane Irene Damage, Maryland (courtesy David Yarkin)

If It’s Wet, It’s Probably Not Covered. If It’s Wind, It Is Probably Covered.

What Type of Hurricane Damage Is Covered Under A Massachusetts Homeowners Insurance Policy?

I’m writing this post as I watch Hurricane Irene bore down on Massachusetts, scattering my lawn with tree branches and flickering my lights. My Facebook stream is filling with reports of power outages and basement flooding, but luckily I’ve been spared (for now). *Check that–we’ve had no power since 11am on Sunday, a live wire down on our street, and not an NStar crew to be found anywhere!

Being the dorky real estate attorney that I am, I naturally thought to myself, what type of hurricane damage, if any, is covered under a standard Massachusetts homeowner’s insurance coverage? Well, after some research the short answer is that if it’s wet, it’s probably not covered, but if it’s wind, it is probably covered.

Flooding and Water Damage

Flooding — defined by insurers as any water that rises from the ground or from the sky, including tidal waves, as well as destruction from rapid snow melts — aren’t covered by Massachusetts homeowner’s insurance policies. So the flooded basements from all this rain is likely not covered.

To get reimbursed for water damage, homeowners would need additional flood insurance, which is provided by the federal government but can be purchased through an agent or insurance company. The average flood premium is about $600 annually, but rates go up to nearly $6,000 for the highest-risk coastal properties, according to the National Flood Insurance Program.

Homeowners who live in flood zones probably have flood insurance already: Many lenders won’t provide these home buyers with a mortgage unless they’ve signed up for flood coverage. These homeowners can rest (relatively) easy; if their home floods, flood insurance will pay for that damage. Those unlucky homeowner’s in the interior parts of the state aren’t so lucky.

Wind Damage/Downed Trees

Basic homeowners insurance policies do, however, typically pay for damage caused by winds — including broken windows, torn roofs and any interior damage from water falling into the home. Likewise, if strong winds blow tree limbs or entire trees onto a home, garage or shed, it’s likely covered. (If a tree falls onto a car, many comprehensive auto policies will cover the damage.)

But in many states on the East Coast, homeowners may have to pay a hefty deductible before homeowners’ insurance policies kick in for wind damage — often 1% to 5% of the total amount the home is insured for.

Serious Damage

If a home becomes so damaged that it’s uninhabitable, most standard homeowner policies will pay for a family’s living expenses — including lodging and food — while the house is being repaired.

Making A Claim

As with any insurance damage claim, my advice has always been document, document, document. Take photos and video of the damage. Keep all receipts for fans, blowers, wet vacs, sump pumps, repairs, new windows, etc. Be prepared to wait for the insurance companies to process the thousands of claims arising from Hurricane Irene. And of course, stay safe!

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(Updated) Hurricane Irene Predicted To Hit New England Sunday: Safety & Claims Info

by Rich Vetstein on August 24, 2011

in Insurance, Safety

Weather.com 8/26/11 7:00am

Important Insurance Claims Information: Cleaning Up After Hurricane Irene (click here).

Hurricane Preparedness Bulletin

Reports are now saying that Hurricane Irene is potentially tracking for a direct hit on New England in the wee early morning hours of Monday.

Should you be closing on a purchase or refinance after the storm passes and the Feds declare a Federal Disaster Area, be prepared to have a re-inspection of the property before closing. This is 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.

Here is some safety information and insurance claims in preparation for the storm surge.

When a Hurricane is Headed Your Way

Careful preparation and planning before a storm arrives will help minimize damage, loss and grief.  The following is a short listing of what could be done to prepare yourself and your family during this season.

Pre-Planning:

Obtain information on flood zones and evacuation shelters.  in some area, these can be found in your telephone book or online.

  • Plan an evacuation route to the nearest shelter or “safe” area and keep a map handy.  During emergencies, shelter locations be also be announced on the radio.
  • Replenish emergency kits and supplies.
  • 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.

Emergency Supplies and Kits:

First aid kit and personal medications

  • Drinking water
  • Ice Chest
  • Lighter, matches and candles
  • Clothing, personal toiletries
  • Sleeping bags and blankets
  • Portable radio and flashlight
  • Extra batteries
  • Non-perishable foods
  • Manual can opener
  • Important documents
  • Quiet games, books, or toys for children

Here are the carrier’s phone numbers:

Acadia Insurance (800) 691-4966
AIG (Global Energy) (877) 743-7669
Chartis (formerly AIG) Private Client Group 888-760-9195
Andover Companies: Cambridge Mutual & Merrimack Mutual (800) 225-0770
Chubb Group (800) 252-4670
Commerce (800) 221-1605
Fireman’s Fund (888) 347-3428
Great American (888) 882-3835
Guard Insurance Group (888) 639-2567
Hanover Insurance (800) 628-0250
Hartford Insurance (800) 327-3636
Hingham Mutual (After hours claims) (800) 972-5399
Mass. Property Insurance Underwriting (800) 851-8978
Trident (After hours claims) (800) 288-2502
Tower (877) 365-8693
Quincy Mutual (800) 490-0047
Safety Insurance (800) 951-2100
Selective Insurance (866) 455-9969
Splash Program (Emergency Pollution related claims) (866) 577-5274
Splash Program (Emergency Non-Pollution related claims) (800) 746-3835
Travelers Personal lines:
(877) 425-2466
Commercial:
(800) 832-7839
Utica National (800) 216-1420
Vermont Mutual (After hours claims) (800) 445-2330
Zurich/Maryland (800) 565-6295

 

If you do not currently have homeowner’s insurance please do not call today to get any, as the carriers will not write coverage until after the storm passes.

Here is the latest forecast from NECN.

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Appeals Court Resurrects Toxic Mold Claim Against Admiral’s Hill Condominium

by Rich Vetstein on August 16, 2011

in Condominium Law, Construction Law, Insurance, Massachusetts Real Estate Law, Premises Liability, Safety

mold_houseApplication of “Discovery Rule” Enables Toxic Mold Claim To Survive Dismissal

Toxic mold is a dangerous condition that can arise in buildings with untreated water leaks and penetration. The most common form of “toxic mold” is Stachybotrys chartarum, a greenish-black mold. It can grow on material with a high cellulose and low nitrogen content, such as fiberboard, gypsum board, paper, dust, and lint. Growth occurs when there is moisture from water damage, excessive humidity, water leaks, condensation, water infiltration, or flooding. Constant moisture is required for its growth. According to the Centers for Disease Control, toxic mold causes upper respiratory tract symptoms, cough, and wheeze in otherwise healthy people; with asthma symptoms in people with asthma; and with hypersensitivity pneumonitis in individuals susceptible to that immune-mediated condition. The CDC also found limited or suggestive evidence linking indoor mold exposure and respiratory illness in otherwise healthy children.

Roof Leaks Lead To Toxic Mold

According to the August 15, 2011 case of Doherty v. Admiral’s Flagship Condominium Trust (see below), Denise Doherty owned a condominium unit at the Admiral’s Flagship Condominium in Chelsea. (If you are driving into Boston northbound on the Mystic Bridge, these are the condominium units on Admiral’s Hill under the bridge.) In 2004, a roof leak led to ceiling cracks and loosening plaster in Doherty’s unit, and she requested that repairs be made. Any repairs made were either untimely or inappropriate. In February, 2006, Doherty noticed mushrooms and water infiltration on the same threshold and notified the condominium management company. It replied that the threshold was rotted, and required replacement. The management company did a shoddy job repairing the damage.

A month later a mold remediation company found hazardous mold in unsafe levels in Doherty’s unit caused by water infiltration and chronic dampness. Following this discovery, the condominium management promised to repair the leaks, and that the mold would be removed. A mold remediation was attempted, but failed, and mold remains in the unit. In 2008, Doherty’s doctor ordered her to vacate her unit due to the presence of the mold. Although Doherty has continued to request repairs of the leaks and chronic dampness, and a full remediation of the mold, no further action has been taken. She filed suit against the condominium and its manager on February 13, 2009, claiming that due to the defendants’ failure to repair, she has suffered severe, permanent health problems, lost income, loss of her personal property, and loss of the value of her condominium unit.

Limitations Period Begins When Toxic Mold Symptoms First Arise

Doherty’s personal injury claims are governed by a 3 year statute of limitations. A statute of limitations is the time period set by law by which a person is allowed to file a lawsuit. If you sleep on your rights, you lose them.

The condominium claimed that the stopwatch for Doherty’s claims started in 2004 when the water leak occurred, and that she filed her lawsuit 2 years late. The lower court agreed and dismissed the lawsuit.

The Appeals Court overturned that ruling, holding that under the “discovery rule” the statute of limitations for a toxic mold claim starts when the injured person becomes aware of the existence of toxic mold through investigation or some physical manifestation of being exposed to toxic mold, such as respiratory symptoms, asthma and the like. In Doherty’s case, she first became aware of the toxic mold when the lab results came back in March 2006 which was within the 3 year limitations period. The court reasoned:

We agree with the foregoing cases that without some indication of a hazardous contamination, the plaintiff could not have been aware that she was being exposed to toxic mold, regardless of when the leak began. Contrary to the defendants argument, it is not a certainty that all water infiltration will eventually evolve into toxic mold. To conclude otherwise would encourage, and possibly even require, a plaintiff to preemptively file suit the moment water starts to infiltrate a dwelling or other building, before any mold or mold-related injury has even occurred.

According to the judges themselves, this decision is the first Massachusetts appellate case dealing with the statute of limitations for toxic mold, so it’s quite important. The case will make it easier for toxic mold victims to sue wrongdoers in state court. The case also highlights the importance of addressing water leaks in condominiums quickly and professionally. If the condominium management had properly dealt with the roof leaks in the first place, perhaps Ms. Doherty would not have been exposed to toxic mold in the first place!

Doherty v. Admiral’s Condo Case

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Is “Buyer Beware” Alive and Well? An Overview of Massachusetts Real Estate Disclosure Law

by Rich Vetstein on June 21, 2011

in Condominium Law, Construction Law, Disclosures, Massachusetts Real Estate Law, Offer To Purchase, Purchase and Sale Agreements, Realtors, Safety

iStock_000003014021XSmal.jpgCaveat Emptor: “Let The Buyer Beware”

Caveat Emptor is an old common law rule which means “Let the Buyer Beware.” In plain English, it means that home buyers are on their own when it comes to the condition of the property. If there is a defect of any kind, it becomes the buyer’s problem, not the seller’s.

Most home buyers are unaware that in Massachusetts, with a few exceptions, the rule of Buyer Beware is still alive and well. That is why in the vast majority of transactions, buyers choose to have the property inspected by a licensed home inspector. And it’s also why there is a contingency in the offer or purchase and sale agreement giving the buyer the right to opt out of the agreement if there are serious issues.

But what happens if the home inspector misses a broken A/C unit, or the sellers concealed that the basement flooded, or the Realtor didn’t tell the buyers there was a Level 3 sex offender next door? These are all thorny disclosure issues.

Private Sellers: No Duty to Disclose

A private seller has no legal duty in Massachusetts to disclose anything about the property (except for the presence of lead paint). Yes, you read that correctly. He doesn’t have to say boo. Will that assist the buyer in selecting the home for purchase? Maybe not. But if the basement floods, the seller does not have to say anything about it.

A seller, however, cannot affirmative misrepresent a material fact about the property. That is, if the seller is asked a direct question, such as “has the basement ever flooded?” and he answers “never” when it has, he has lied and can be held liable for that.

Most agents will insist that Sellers fill out a Statement of Property Condition (see below) which will fully disclose just about every conceivable condition of the premises. However, the standard form does contain small print language purporting to limit the agent and seller from disclosure liability.

Real Estate Agents: Heightened Duty

Under Massachusetts consumer protection regulations governing real estate brokers, a broker must disclose to a buyer “any fact, the disclosure of which may have influenced the buyer or prospective buyer not to enter into the transaction.” This is somewhat of a subjective standard; what may matter to one buyer may not matter to another. If a broker is asked a direct question about the property, she must answer truthfully, accurately, and completely to the best of her knowledge. Further, a broker cannot actively avoid discovering the details of a suspected problem or tell half-truths. This is why most Realtors err on the side of full disclosure, as suggested in Bill Gassett’s blog.

As for that Level 3 sex offender living next door, I would advise the listing agent to disclose that fact. The Massachusetts Supreme Judicial Court has held that off-site physical conditions may require disclosure if the conditions are unknown and not readily observable by the buyer and if the existence of those conditions is of sufficient materiality to affect the habitability, use, or enjoyment of the property and, therefore, render the property substantially less desirable or valuable to the objectively reasonable buyer. I think a dangerous sex offender would be something a buyer would want to know about, wouldn’t you?

Home Inspectors

In 1999, Massachusetts joined a growing number of states that require home inspectors to be licensed. There is now a state Board of Registration of Home Inspectors. Home inspectors are now required to carry at least $250,000 of errors and omissions insurance. The board is empowered to suspend licensed home inspectors for violations of the statute or regulations and to impose civil penalties on persons purporting to conduct a home inspection without the required license.

A home inspector is one of the most important referrals your Realtor will give you. Most agents know which inspectors are great and which are terrible. If you are the unfortunate victim of an incompetent home inspectors, they can be sued civilly for breach of contract or negligence.

Massachusetts Sellers Disclosure//

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Massachusetts Tornado Disaster: Hope For The Best, Plan For The Worst In Your Purchase and Sale Agreement

by Rich Vetstein on June 2, 2011

in Closings, Insurance, Massachusetts Real Estate Law, Purchase and Sale Agreements, Safety

What happens if the property you have under agreement is wiped out by a tornado, burns down or is otherwise subject to a casualty?

Yesterday’s horrific tornadoes — which leveled parts of Springfield and Central Massachusetts — demonstrate the power and fury of Mother Nature and how little control we have over natural disasters. Our thoughts and prayers go out to everyone affected by the tornadoes….

The tornadoes were also a stark reminder to me that an extremely important part of my job as a real estate attorney is disaster planning. Although most buyers and Realtors don’t like to think pessimistically (and neither do I), we always have to plan ahead for the worst case scenario.

Which bring us to the topic of this post. What happens if the property you have under agreement is wiped out by a tornado, burns down or is otherwise subject to a casualty?

The Standard Form Casualty & Insurance Provisions

Let’s start with the basic concept that the buyer does not own the property until the closing occurs, money is exchanged and the deed/mortgage is recorded with the registry of deeds. The purchase and sale agreement is there to govern the parties’ relationship and the property from the time the offer is signed until the closing. The seller retains ownership and control over the property during this period of “under agreement.”

Seller Must Keep Property Insured

The standard form Massachusetts purchase and sale agreement contains two important provisions dealing with homeowner’s insurance and casualty. First, the standard form provides that the seller must keep the existing homeowner’s insurance coverage in place. A good buyer’s attorney will insert language that the “risk of loss” remains with the seller until the transaction closes, to ensure that if a tornado levels the home, that loss is the seller’s responsibility.

Opt Out/Election

Second, the standard form spells out what happens if there is a casualty. If the house is deemed a causualty loss, the buyer has the option of terminating the agreement and receiving his deposit monies back. However, the buyer has the option of proceeding with the transaction and can require the Seller to assign over to the buyer all of the insurance monies available. Depending on the amount of coverage available and the cost to re-built, this may not be a bad situation, but it’s the buyer’s call.

As a “belt and suspenders” measure, I also add the following provision to my purchase and sale rider to ensure that the buyer is protected in case of a disaster:

Notwithstanding any provisions of this Agreement to the contrary, in the event that the dwelling and/or other improvements to the Premises are destroyed or substantially damaged by fire or other casualty prior to the delivery of the deed, the cost to repair which exceeds $10,000.00, BUYER may, at BUYER’S option, terminate this Agreement by written notice to SELLER, whereupon all deposits made hereunder shall be forthwith refunded, all obligations of the parties hereto shall cease, and this Agreement shall become null and void without further recourse to the parties hereto.

Although natural disasters are rare, a certain amount of disaster planning must be done for every Massachusetts real estate transaction. Think of a real estate attorney as part of your insurance policy to protect you in a worst case scenario.

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Spring Cleaning: Repairing Waters Stains & Mold From Ice Dam Damage

by Rich Vetstein on April 18, 2011

in Construction Law, Safety

1471403_10203128432314745_4869425574151873063_nA Guest Post by George Lonergan, Owner of Lonergan Construction, Inc. a licensed Massachusetts general contracting company servicing the Metrowest Massachusetts area including Framingham, Natick, Wayland, Sudbury and Hopkinton.

This winter caused a substantial amount of ice dam damage in the Massachusetts area. The water on your roof that pools above ice dams and then seeps down onto your ceilings and between your inner and outer walls typically causes two related problems: 1) ceiling stains and 2) mold, which is a serious health risk.

Treating Ceiling Stains and Mold

If the stain is yellow, it’s dry and can be treated, but only if there’s no mold behind it. Look at the entire floor of the storage area or attic above the stained ceiling. If there’s mold, you’ll probably see it. Don’t disturb it. Spray the affected area with bleach, but don’t soak it.

Next, apply paint blocker to the stained area, let it dry, and apply a coat of white ceiling paint. (If on first inspection the ceiling stain hasn’t yellowed, it’s not dry, and there is still a leak. Find out where the water is coming in, repair the “port of entry,” wait for the stain to dry, and then refinish.

Paint the repaired area with the original color that you had left over, if it still matches the rest of the ceiling, and if you’re not working in a bathroom—where there is too much moisture, which affects wall and ceiling colors—or in a kitchen, where ceilings, due to cooking vapors, lose color more quickly over time than elsewhere in the house. If you need to repaint the entire ceiling, used painter’s tape on the wall where it meets the ceiling. And it’s always a good idea to remove the furniture, or at least move it to the center of the room and cover it with plastic, especially if you have a sand-textured ceiling, which tends to splatter paint.

Treating Mold Between Walls

Begin to determine if the ice dam leak has caused mold to form between your inner and outer walls by looking to see: 1) if there are stains on the interior wall; 2) if there is peeling paint on that wall; or 3) if there is a pool of water on the floor (formed as the ice dam melts). If you see any of these conditions, you had best look between the walls because, where there is moisture, mold usually forms.

The least invasive way to check for mold between the walls is to call in a company that uses special instruments to measure moisture. This is expensive, and won’t tell you what you want to know about mold if the moisture has dried up by the time of testing. A second way is to remove the baseboard molding where the leaking has occurred, exposing the sheetrock or blueboard (plaster) behind it, and check for mold. At the same time, check the backside of the baseboard molding.

If neither procedure provides signs of mold, a more invasive procedure is necessary. Remove the sheet rock that’s just behind the molding, usually 3-4 inches—the height of the molding—and about a foot laterally. Do you see mold?

If it’s determined you have mold between the walls, hire the contractor to perform mold remediation, which includes: 1) removal of the baseboard molding, sheetrock or plaster wall, and insulation; 2) treatment of the exposed studs (whether wood or metal); 3) reconstruction of the wall; and 4) application of a finish to match the color of the rest of the wall.

Never paint over mold in an attempt to mask it! If you do, it will continue to grow and spread. Mold must be removed in order to eliminate the health risk.

Health note: Mold above the ceiling is usually in full view, so you don’t have to disturb it to find it. But the invasive procedures needed to deal with mold between walls means that you have to “encapsulate” the work area, because any mold you encounter, once disturbed, will become airborne and pose a health risk. That’s why you also have to wear a filtering facemask. Mold can cause illness not only in the person doing the work, but also to the rest of the household, whether or not any of them suffer from pre-existing respiratory problems. So it’s best to bring in a qualified contractor to check for mold and take a sample for a controlled test. He’ll identify the strain of mold, too, which is important to know if any of the residents suffer from respiratory problems.

Lonergan Construction, a licensed Massachusetts corporation, builds new homes and remodels existing ones. We offer design and architectural services as well as work in concrete, general construction and demolition, plumbing and electrical systems, heating-ventilation-air conditioning (HVAC), septic systems, roofing, painting, cabinetry, and flooring (wood and ceramic), as well as residential (home) and commercial (office) repairs and remodeling.

Our business comes almost exclusively through referrals, and our only advertising is word of mouth.

Lonergan Construction

508-875-0052

www.lonerganconstruction.com

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Spring Forward, Change Your Smoke/CO2 Detector Batteries & Upgrade To Photoelectric Technology

by Rich Vetstein on March 13, 2011

in Safety

Daylight Savings Time has started which is always a great reminder to change the batteries on your smoke and carbon monoxide detectors.

You should also consider replacing old detectors with the new photoelectric smoke detectors for the kitchen and bathroom areas which are now required by law in new homes under the Massachusetts smoke detector regulations which went into effect last year. Photoelectric smoke detectors are not as prone to false alarms as older ionization based detectors especially in steam filled areas like kitchens and bathrooms.

The new smoke detector law specifically requires photoelectric detectors covering the area within 20 feet of a kitchen or bathroom containing a bathtub or shower. The older ionization detectors are prohibited in these places due to their tendency to be set off by steam.

Home Depot sells a Kidde brand combination photoelectric/ionization smoke detector for $22.97.

Here’s a great Guide to the smoke detector law put out by the Department of Fire Services. Click here for my prior post about these changes.

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What’s That Smell? From Cesspools to Septic Systems: An Overview of Massachusetts Title 5 (V) Rules

by Rich Vetstein on March 4, 2011

in Massachusetts Real Estate Law, Safety, Septic/Title V

Nearly 30% of homes in Massachusetts are dependent upon Septic Systems, rather than municipal sewer systems. Sudbury, Wayland, Dover, Hopkinton, and many towns down the Cape are serviced by private septic systems.

Septic systems are governed by what’s commonly known as “Title V” or “Title 5” which is Title V of the state Environmental Code administered by the Massachusetts Department of Environmental Protection (DEP). These complex regulations administer the design, construction and operation of septic systems, and are of great importance to homeowners, real estate developers, lenders, Realtors, and attorneys. The rules affect as many as 650,000 Massachusetts homeowners with on-site subsurface sewage disposal systems.

Frequently Asked Questions About Title V

I am selling my home. What is the first thing I must do with my septic system?

The first thing that must be done is to have a Title V inspection, completed by an inspector who is licensed by the state and your town. A list of licensed inspectors is available at your local Board of Health office. Here is a Board of Health roster for Massachusetts. The BOH must be notified 24 hours in advance to any inspection, so that the Health Agent may attend the inspection, if his schedule allows. Any inspection completed without prior notification is not accepted and considered invalid.

According to Sudbury, Mass. Realtor Gabrielle Daniels Brennan, unless you have a very recently installed system, do not hire a company who also repairs and replaces the systems to conduct your Title V inspection. They only pump systems and inspect, and have no interest in anything else.

The inspector will determine whether your system “passes,” “fails” or “conditionally passes” (i.e., requires repairs).

How long is the Title V inspection valid?

A Title V inspection is considered valid for 2 years. However, if the homeowner has his septic system pumped every year, it is valid for 3 years.

My septic system Title V failed. What do I do now!?

If the inspection fails, your septic system must be repaired or replaced. If ownership of the house is not being changed, the homeowner may have up to two years to complete the repair. However, if the Health Agent deems the failure to be a health hazard, the homeowner can be required to begin the process of repairing it immediately.

Failed septic systems can be handled in a real estate sales transaction in two ways. First, the seller can undertake the work and complete it prior to closing, with a full sign off from the Board of Health. This is often the preferable course for all parties and the lender. Alternatively, the parties can agree to an escrow holdback to cover the cost of the septic repair plus a contingency reserve, and the work is undertaken after the closing. Some lenders don’t allow septic holdbacks, however.

What are the steps and permitting fees to install a new septic system?

The first step in beginning a septic repair is to hire an engineer to evaluate your land and to design a system that would be appropriate for your property. Once the engineer is hired, a percolation or “perc” test is scheduled. The perc test measures the rate at which water is absorbed into the ground and determines whether the soil is suitable for a septic system. Based on the results of the perc test, the size of your lot, and the number of bedrooms in your home, the engineer designs a septic system to serve the property. Once the plans have been drawn, four copies of the plans, two copies of the soil analysis, and a check for $175.00 must be submitted to the Board of Health office. The BOH has 45 days to review the plans and to either approve or reject them. If the plans are approved, the plans can be picked up and the installation of the system can begin. If the plans are rejected, the plans must be revised and an additional fee of $75.00 is charged to have them reviewed again. If the designed system requires state variances (done by the Department of Environmental Protection), an additional 90 days must be allotted for the review process.

When the job is completed is there any form of certification that it has been done and that it meets Title V standards?

At the completion of the job, (that is, when all work has been done according to the plans; when the engineer has submitted an “as-built” plan as to where the system was installed; and when the installer has submitted a certification statement), the Health Agent signs a Certificate of Compliance, (COC), which is issued to the installer. Upon payment for the work, the installer gives the COC to the homeowner.

How long does the process for repairing a septic system take, from beginning to end?

A homeowner should allow approximately 3 to 4 months for the installation of a septic system. The length of time can vary from system to system. There are a number of variables involved. The availability of the Health Agent to witness a “perc “ test is one. Because of the amount of work that has to be completed, engineers and installers are often busy for months in advance. In addition, if the designed system requires either local or state variances, time must be allotted for public / variance hearings. A system that is installed in less than 2 months (from start to finish) is the exception to the rule.

What is an average cost for the system?

New septic systems can range from $25,000 to $40,000. The type of system designed, the size of the lot, the number of bedrooms, the engineering fees, the requested variances, the type of soil, and the proximity of the system to water, all contribute to the cost of the system.

If I am required to replace my failed system and I do not have the money, what do I do?

Homeowners who cannot afford to repair their failed septic systems made apply for financial aid with the Massachusetts Home Septic Loan Program. Here is the MassHousing Web site. Here is the PDF for the Homeowner Septic Loan Repair program. Applications for this program are available at most local banking institutions. The loans are low interest and repayable over an extended period of time.

The state also provides a tax credit of up to $6,000 over 4 years to defray the cost of septic repairs to a primary residence. Forms are available from the Department of Revenue (DOR) to allow homeowners to claim up to $6,000 in tax credits for septic upgrades. The credit cannot exceed $1,500 in any year and may be spread out over 4 years. The tax credit is limited to work done on a primary residence only. Tax Form Schedule SC is the correct form for the tax credits. MassDOR Web site

I have a cesspool. Will that pass Title V?

You may be wondering how this all applies to cesspools. Cesspools are much harder to pass in Massachusetts. Does every single one automatically fail? No.

Only those cesspools that exhibit signs of hydraulic failure, are located very close to private or public water supplies, or otherwise do not protect or pose a threat to the public health, safety or the environment will need to be upgraded. Also, cesspools must be upgraded prior to an increase in design flow (e.g., the addition of a bedroom to a home.

________________________________________

For any questions concerning Title V and the  septic rules and regulations, please contact me at [email protected].

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Ice Be Damned! Massachusetts Homeowner’s Insurance Coverage For Ice Dam Damage, Freezing Pipes & Other Winter Disasters

by Rich Vetstein on February 7, 2011

in Insurance, Massachusetts Real Estate Law, Safety

ice-dam.jpgHaving spent the entire weekend in a feeble attempt to shovel the snow and bludgeon the one foot thick ice dams off my roof, I’ve bit the bullet and hired a professional. No use risking life and limb, and doing a third rate job. I also have a nice one inch crack along my family room ceiling, no doubt caused by the huge ice damn above it.

My Facebook stream is filled with pleas from homeowners about ice dams and related winter snow and ice damage. I’m also hearing stories about price gouging on roof snow and ice removal. (According to Sudbury Realtor Gabrielle Daniels Brennan, you should be paying only between $300-$800, max.)

So, time to call in the professionals, and dust off my trusty Massachusetts homeowner’s insurance policy to see what’s covered and what’s not.

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 on your roof is typically covered. As with any insurance claim, call the claims department immediately and take photos of the damage.

Ice Dam Treatment & Prevention

In the short term, there are a couple things you can try.

  1. 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.
  2. 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!
  3. 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.

Frozen Pipes Insurance Coverage

Not all companies pay to have frozen pipes thawed by professionals. Some will though. Most policies cover pipe replacement and water damage. The coverage may not apply if you turned the furnace off for the winter without winterizing the house and its contents.

Frozen Pipe Prevention

Frozen water in pipes can cause water pressure buildup between the ice blockage and the closed faucet at the end of a pipe which leads to pipes bursting at their weakest point. Pipes in attics, crawl spaces and outside walls are particularly vulnerable to freezing in extremely cold weather. Holes in outside walls for TV, cable or telephone lines allow cold air to enter the house.

To keep water in the pipes from freezing, take the following precautions:

• Fit exposed pipes with insulation sleeves or wrapping to slow the heat transfer. The more insulation the better.

• Seal cracks and holes in outside walls and foundations near water pipes with caulking.

• Keep cabinet doors open during cold spells to allow warm air to circulate around pipes, particularly in the kitchen and bathroom.

• Keep a slow trickle of water flowing through faucets connected to pipes that run through and unheated or unprotected space. Drain the water system especially if your house will be unattended during cold periods.

Interruption of Services

If you lose power during a storm, an all-risk homeowner’s policy usually pays for spoiled food, repairs to damage caused by loss of power, and appliances damaged by the outage. Many policies also will pay for shelter when you lose power for extended periods during the winter. If you lose heat and fail to take steps to prevent pipes from freezing, your policy may not cover the resulting damage.

Additional Resources

Nadine Heaps, Purple Ink Insurance. Nadine is an experienced homeowner’s insurance agent who can answer your questions on coverages.

I’ll Be (Ice) Dammed, The Massachusetts Mortgage Blog by David Gaffin

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First Snow Brings Questions On Change In Snow Removal Law

by Rich Vetstein on December 21, 2010

in Condominium Law, Landlord Tenant Law, Massachusetts Real Estate Law, Premises Liability, Safety

Ice-slip-drinkProperty Owners Need To Clear Snow & Ice After Storms

As I was slipping and sliding in the first real snow yesterday, this blog got a spike in traffic about Massachusetts snow removal law. Back when we were sunning in 80 degree weather, the Massachusetts Supreme Judicial Court overruled 125 years of snow removal law and announced a new rule of law that all Massachusetts property owners are legally responsible for the removal of snow and ice from their property. The old rule was that owners could leave natural accumulations of snow and ice intact and escape liability for slip and falls. No longer.

The case is Papadopoulos v. Target Corp. and can be read here. You can read my prior post on the case here.

Impact To Massachusetts Property Owners: Shovel Early & Often

What this change in Massachusetts snow removal law means for all property owners, both residential and commercial, is that they need to be extra vigilant after snow and ice storms, and clear areas in which the public and visitors have access–early and often. Whether a property owner takes reasonable steps in removing snow and ice will be determined by judges, juries and later cases on an individual basis. If you cannot clear the snow and ice, hire a private company to do it.

Important: speak with your insurance agent about increasing the limits of your liability coverage. I recommend Nadine Heaps at Purple Ink Insurance out of Ashland, MA.

Read More: Shoveling Ruling May Face First Test–Boston Globe (12.25.10).

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New Saftey Measures Required Under Massachusetts Home Oil Heating Systems Upgrade & Insurance Law

by Rich Vetstein on December 19, 2010

in Construction Law, Massachusetts Real Estate Law, Safety

Our insurance contributor, Nadine Heaps of Purple Ink Insurance, is back to talk about recent changes to the Mass. home oil heating law.

Massachusetts Homeowner Oil Heating System Upgrade and Insurance Law (click for Fact Sheet)

By September 30, 2011, you must upgrade your home heating system equipment to prevent leaks from tanks and pipes that connect to your furnace. By making a relatively small expenditure now, you can prevent a much greater expense in the future.

The new rules:

Residential property owners of 1-4 units who heat with oil must:

  • Enclose fuel lines that lead to and from the tank in a continuous non-metallic sleeve, or
  • Install a safety valve (or other Board approved release prevention method) at the tank-end of the supply line.
  • Get the work done by a licensed oil burner technician, whether an independent or one employed by your oil supplier.

The law applies to both above and underground tanks and to any fuel supply or return lines in direct contact with concrete, earth, or other floor surface.

Are you exempt from the new law?

You’re exempt if:

  • Your oil burner is above the storage tank and the entire supply line is connected to, and is above, the top of the tank, or
  • A safety valve or supply line with protective sleeve was installed on or after January 1, 1990, as long as those changes comply with oil burning regulations (proved by an oil burner permit from the local fire department, or a certificate from a licensed technician).
  • The law does not allow for grandfathering.

Why take required preventive measures?

It makes financial and environmental sense because:

  • You’ll avoid the disruption and expense that can be caused by leaks.
  • You and your family will not be exposed to petroleum vapors in your home.
  • The soil or groundwater beneath your house will not be contaminated.
  • You won’t face a costly cleanup to restore your property—and possibly nearby property and drinking water supplies—to state environmental standards.

Cleanup costs for a “simple” leak can be as much as $15,000, but if the leak affects the groundwater, or is more extensive, costs can reach $250,000 or more.

You can be covered!

Your insurance company must now offer you oil spill coverage if you’re already in compliance with the new law or you make the modifications needed to achieve compliance. Many companies already provide coverage; others will add it for an additional premium.

Please contact Nadine Heaps at 508-881-6680 for assistance.

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The Great Condominium Smoke-Out: Associations Enacting Anti-Smoking Bans

by Rich Vetstein on November 23, 2010

in Condominium Law, Landlord Tenant Law, Massachusetts Real Estate Law, Safety

A Man’s Condo Unit May Not Be His Castle For Smoking…

As anti-smoking restrictions become increasingly widespread, smokers find the last place they can indulge freely is within the confines of their home. However, the saying that a man’s home is his castle may not extend to condominiums where condo associations are enacting bans against smoking in common areas and even individual units.

In Chicago, the 1418 N. Lake Shore Drive Condominium Association recently banned smoking in interior common areas and inside the units. Smoking is permitted in a unit, however, if it is restricted to a single room that has been equipped with an association-approved, self-contained air-treatment system. Last year, a Cape Cod condominium considered a smoking ban in living areas.

Smokers will surely cry foul over this, but condominiums are a special kind of property. As Massachusetts courts have ruled, “central to the concept of condominium ownership is the principle that each owner, in exchange for the benefits of association with other owners, must give up a certain degree of freedom of choice which he might otherwise enjoy in separate, privately owned property.” Condominium trustees are empowered to enact rules that are “reasonably related to the promotion of the health, happiness and peace of mind of the unit owners.”

With smoking, however, the issue become quite cloudy. Without legal precedent that smoking constitutes a private nuisance – which would give associations a green light to enact indoor smoking bans – an anti-smoking rule which is not made into a formal condominium document amendment may not be enforceable. Recorded amendments typically require 75% unit owner approval, and also give prospective buyers fair warning before they decide to buy a unit. For those associations that can muster a 75% vote, they may on their way to smoke free living bliss…

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Daylight Savings Time Ends: Upgrade to Photoelectric Smoke & Carbon Monoxide Detectors

by Rich Vetstein on November 6, 2010

in Safety

Daylight Savings Time ends tonight, so don’t forget to set your clocks back 1 hour. Changing the clocks is always a good reminder to change the batteries on all smoke and carbon monoxide detectors.

This year, please consider purchasing a new photoelectric smoke detectors for the kitchen and bathroom areas which are required in new homes by the Massachusetts smoke detector regulations which went into effect on April 5, 2010. The new regulations require that new construction be equipped with the latest photoelectric smoke detectors which are not as prone to false alarms as older ionization based detectors. Click here for my prior post about these changes.

The law specifically requires photoelectric detectors covering the area within 20 feet of a kitchen or bathroom containing a bathtub or shower. The older ionization detector is prohibited in these places due to their tendency to be set off by steam.

The new regulations only apply to single family homes sold on or after January 1, 2010. But why run the risk? The safety of your family and children should be paramount.

Here’s a great Guide to the smoke detector law put out by the Department of Fire Services.

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Hurrican Earl To Hit Eastern Massachusetts Hard: Safety and Insurance Claims Information

by Rich Vetstein on September 2, 2010

in Insurance, Safety

Reports are now saying that Hurricane Earl’s track has changed and will hit Massachusetts and especially Cape Cod & the Islands harder than expected. David Gaffin, of Greenpark Mortgage and the Massachusetts Mortgage Blog, is kind enough to let us re-post this article about safety information and insurance claims in preparation for the storm surge.

When a Hurricane is Headed Your Way

Careful preparation and planning before a storm arrives will help minimize damage, loss and grief.  The following is a short listing of what could be done to prepare yourself and your family during this season.

Pre-Planning:

Obtain information on flood zones and evacuation shelters.  in some area, these can be found in your telephone book or online.

  • Plan an evacuation route to the nearest shelter or “safe” area and keep a map handy.  During emergencies, shelter locations be also be announced on the radio.
  • Replenish emergency kits and supplies.
  • 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.

Emergency Supplies and Kits:

First aid kit and personal medications

  • Drinking water
  • Ice Chest
  • Lighter, matches and candles
  • Clothing, personal toiletries
  • Sleeping bags and blankets
  • Portable radio and flashlight
  • Extra batteries
  • Non-perishable foods
  • Manual can opener
  • Important documents
  • Quiet games, books, or toys for children

Here are the carrier’s phone numbers:

Acadia Insurance (800) 691-4966
AIG (Global Energy) (877) 743-7669
AIG (Private Client Group ) (866) 642-5246
Andover Companies: Cambridge Mutual & Merrimack Mutual (800) 225-0770
Chubb Group (800) 252-4670
Commerce (800) 221-1605
Fireman’s Fund (888) 347-3428
Great American (888) 882-3835
Guard Insurance Group (888) 639-2567
Hanover Insurance (800) 628-0250
Hartford Insurance (800) 327-3636
Hingham Mutual (After hours claims) (800) 972-5399
Mass. Property Insurance Underwriting (800) 851-8978
Trident (After hours claims) (800) 288-2502
Tower (877) 365-8693
Quincy Mutual (800) 490-0047
Safety Insurance (800) 951-2100
Selective Insurance (866) 455-9969
Splash Program (Emergency Pollution related claims) (866) 577-5274
Splash Program (Emergency Non-Pollution related claims) (800) 746-3835
Travelers Personal lines:
(877) 425-2466
Commercial:
(800) 832-7839
Utica National (800) 216-1420
Vermont Mutual (After hours claims) (800) 445-2330
Zurich/Maryland (800) 565-6295

I would like to thank Gary Nagle (781)-235-0502 of Corcoran and Havelin Insurance in Wellesley, MA for sending me the following Hurricane Safety and Preparedness list along with the telephone numbers of the major Homeowner Insurance carriers for Massachusetts.

If you do not currently have homeowner’s insurance please do not call today to get any, as the carriers will not write coverage until after the storm passes.

Please use this well and be safe on this long holiday weekend.

By the way readers, should you be closing on a purchase or refinance after the storm passes and the Feds declare a Federal Disaster Area, be prepared to have a re-inspection of the property before closing.  This is 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.

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