Whose Property Line Is That Anyway? Understanding Massachusetts Boundary Line Disputes and Surveying Law

by Rich Vetstein on March 15, 2026

in Boundaries, Deeds, Land Court, Massachusetts Real Estate Law, Real Estate Litigation, Title Defects, Title Insurance

How Surveyors and Courts Determine Property Lines in Massachusetts (Part I of a Multi-Part Series)

If you’ve ever looked at your property line and thought, “Wait, does that fence belong to me or my neighbor?” — you’re not alone. Boundary and property line disputes are surprisingly common in Massachusetts, especially where deeds and plans often date back to the 1800s.

I’ve handled many of these cases and most follow a common fact pattern. A property owner discovers that a fence, shed, pool, or even a house may sit over the property line, or neighbors are mistaken as to where the property line is located. Sometimes entire subdivisions or neighborhoods are infected with survey errors which have been passed down from owner to owner for decades. The end result is often a big legal mess, with neighbors upset with each other and unable to agree on where the property line actually sits.

These disputes often boil down to conflicting surveys, ancient deeds, old stone bounds and monuments, and a legal set of rules called the “hierarchy of priorities” that Massachusetts courts and surveyors use to decide who owns what. It can get very complicated, very fast. With that said, here’s what every Massachusetts homeowner and real estate professional should know about Massachusetts boundary line disputes and surveying law.

Overview of Massachusetts Surveying Law

When a boundary dispute arises, one of the first questions homeowners ask is: “How does a surveyor actually determine where the property line is?” Contrary to popular belief, a professional boundary survey is not simply a matter of measuring distances with modern GPS equipment. Determining a property line in Massachusetts requires historical research, legal interpretation of deeds, and field investigation that may reach back more than a century.

Boundary Line Determination: What Does The Surveyor Do Exactly?

A licensed Massachusetts Professional Land Surveyor (PLS) typically follows a series of steps known as boundary retracement—the process of locating the original boundary established when the property was first created.

Step 1: Title Research

The first step usually happens before the surveyor even goes to the property. Surveyors conduct title research at the Registry of Deeds to examine:

  • The current deed for the property
  • Prior deeds in the chain of title
  • Deeds of neighboring properties
  • Historic plans
  • Easements and rights of way

Often, this research goes back 100 years or more, especially in older Massachusetts towns where lots were created in the 1800s or even earlier. The purpose is to understand how the property was originally created and how its boundaries were described in historic documents.

Step 2: Analyze Deed Descriptions: Plan Reference or “Metes and Bounds”

Most Massachusetts lots are laid out either referencing a plan recorded in the registry of deeds or what is called a “metes and bounds” description in their deed. When a deed references a recorded plan, the analysis relatively straightforward. The recorded plan has been drawn up by a licensed surveyor using standard survey equipment and technology available at that time. Lot lines are demarcated on the plan and referenced with boundary markers in the field, typically metal survey markers or pins, or stone bounds or other “monuments.” Recreating and marking the lot in the field requires the surveyor to retrace those lines on the ground using the bearings, distances, and monuments shown on the plan. Sometimes there are discrepancies with how the plan was drawn up versus markers or bounds in the field. Surveyors are human and sometimes they make mistakes. If that happens, surveyors may have to research older plans or deeds pre-dating the recorded plan and figure out the original creation of the lot and its evolution over time. I’ll explain how that works in a little bit.

How a “Metes and Bounds” Deed Description Works

The other type of deed description is called metes and bounds. Metes means “measure” or “measured distances” (how many feet along each side). Bounds means “boundaries” or “directions” (the compass bearings or angles that tell you which way to go).

A typical deed using a metes and bounds description might read:

A certain parcel of land with the buildings thereon situated in Framingham, Middlesex County, Massachusetts, being shown as Lot 10 on a plan entitled “Plan of House Lots in Framingham on a Proposed Street Being School Street” dated December 15, 1879, recorded with Middlesex South District Registry of Deeds in Book 1569, Plan 64, and more particularly bounded and described as follows:

Beginning at a point on the northerly side of School Street at the southeasterly corner of the granted premises;

Thence running North 48° 01′ 23″ East by land now or formerly of Smith eighty-two and 00/100 (82.00) feet to a stone bound;

Thence running North 41° 58′ 37″ West by land now or formerly of Jones seventy and 00/100 (70.00) feet to an iron pipe set;

Thence running South 48° 01′ 23″ West by land now or formerly of Brown eighty-two and 00/100 (82.00) feet to a point on the northerly sideline of School Street;

Thence running easterly by said School Street seventy and 00/100 (70.00) feet to the point of beginning.

To calculate the lines, the surveyor starts with the “Point of Beginning” (POB) — usually a specific, identifiable spot such as a stone bound, iron pipe, or intersection with a road. Then, following the deed description of the angle and distance, the surveyor walks the entire perimeter of the property in a clockwise or counterclockwise direction. For each side, the metes and bounds description gives:

  • A bearing (direction, e.g., “North 44° East” or “S 56½° West”)
  • A distance (e.g., “84.3 feet”)
  • A monument (e.g., “to a stone bound” or “along land of Brennan”)

When the deed reaches the last side, the description may say “to the point of beginning” — closing the loop. Once the surveyor has mapped out the metes and bounds description, they will mark the lot corners in the field, mark the lot lines, and from there, they should draw up a new survey plan to assist the homeowner.

Step 3: Field Investigation and Monument Search

After the research and analysis phase, the surveyor visits the property to conduct field work. This may include searching for physical boundary markers such as:

  • Stone bounds
  • Iron pipes
  • Drill holes
  • Concrete monuments
  • Old fence lines
  • Walls or historic structures

Sometimes these monuments have been in the ground for more than a century. Even if partially buried, damaged, or displaced, these markers can provide critical evidence of the original boundary.

Modern surveyors often use advanced equipment such as:

  • Robotic total stations
  • GNSS RTK GPS systems
  • Digital data collectors

Step 4: Compare Field Evidence with Historical Plans

Surveyors then compare what they find in the field with:

  • historic subdivision plans
  • older surveys
  • deed descriptions
  • neighboring property lines

This process helps determine whether monuments line up with the historic layout of the lot. If the physical evidence and historical documents align, the surveyor can usually reconstruct the original boundary with a high degree of certainty.

Step 5: Prepare the Survey Plan

Finally, the surveyor prepares a survey plan or boundary plan showing:

  • the lot lines
  • the location of monuments
  • buildings and improvements
  • encroachments (if any)
  • measurements and bearings

This plan becomes the primary evidence used in court if a boundary dispute results in litigation. Instrument survey plans prepared for litigation are often far more detailed than standard mortgage or plot plans.

Step 6: Resolve Conflicts and Apply the Hierarchy of Priorities

But what happens when two property owners and their surveyors come to different conclusions about where the boundary line is located? When there is a legal dispute over a boundary line, surveyors and courts follow a well-established legal set of rules known as the hierarchy of priorities. Think of it as a pecking order of evidence used to determine the true boundary when different measurements or descriptions in deeds conflict.

Gunter’s Chain circa 1890

In my experience, the hierarchy of priorities often arises when we are looking at older properties, which can have errors or ambiguities. Back in the 1800’s, surveyors used a device called a Gunter’s Chain, a measuring device which was exactly 66 feet long, made of 100 metal links, with each link measuring 7.92 inches, and the links were connected with rings so the chain could be stretched out along the ground. Surveyors would stretch the chain between two points to measure distance.

With a Gunter’s Chain, distances shown in older deed and plans may be off by a few feet, angles may have been measured with other older tools, and survey plans may not line up exactly. The hierarchy of priorities helps resolve those conflicts by answering a simple question: What evidence should we trust the most when determining the original boundary?

The Hierarchy of Priorities Explained

So, faced with conflicts and disputes concerning the boundary line, how does a surveyor or the attorney resolve those disputes? This is where the hierarchy of priorities comes in. Massachusetts law generally prioritizes boundary evidence in the following order:

  1. Senior rights (earlier conveyances)
  2. Natural monuments (streams, rivers, shorelines)
  3. Artificial monuments (stone bounds, pipes, drill holes)
  4. Record monuments (abutter boundaries or street layouts)
  5. Bearings or courses
  6. Distances
  7. Coordinates
  8. Area

A lot of this may not make much sense to a person without legal training. The basic idea is simple: courts and surveyors give greater weight to evidence higher on the list because it is generally considered more reliable than evidence lower on the list.

Let me give you a real world case study. In a recent boundary dispute in Lexington between two neighboring property owners, both sides hired licensed surveyors and the surveys differed by about 2 feet as to where the property line should run. One surveyor relied primarily on measurements and calculations taken from surrounding lots and distances shown on plans. The other surveyor relied on a stone bound that had been placed in the ground in the late 1800’s and was referenced directly in the deed describing the property. The other surveyor claimed that the stone bound was erroneously placed in that location. Under the hierarchy of priorities (#3 – Artificial Monuments), the physical monument of an old stone bound would generally take precedence over distances or calculations written in a deed or found in deeds or plans of abutting or nearby properties. In other words, when there is a conflict, courts usually trust the object that was actually placed in the ground to mark the boundary rather than numbers written on paper that may have been measured with less precise tools over a century ago.

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By now, you probably have eye fatigue from reading this long post. Don’t fret. I’ve decided to turn this into a series and the next post I’ll discuss what happens if you have to litigate one of these cases. I’ll also do a post on how to select a surveyor.

For now, I’ll say don’t wait for a dispute to hire a surveyor or an attorney. And don’t try to resolve it with a measuring tape and a friendly chat over the fence – boundary disputes rarely end that way. These cases can get nasty fast.

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If you are dealing with a Massachusetts boundary line or property line dispute, you can contact me at [email protected] or 508-620-5352 for a consultation. I’ve handled scores of these cases through trial and appeal, both in Superior Court and Land Court, and on appeal.

Richard D. Vetstein, Esq. is a Massachusetts real estate attorney and author of the Massachusetts Real Estate Law Blog. He handles boundary disputes, adverse possession, and title cases across Massachusetts.

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LANDLORD ADVISORY: Preparing for Statewide Rent Control in Massachusetts (2026 Ballot Initiative)

by Rich Vetstein on November 25, 2025

in Landlord Tenant Law, Leasing, Massachusetts Property Values, Massachusetts Real Estate Law, Rent Control, Rental Housing, Tax Credit

I just read a very alarming Suffolk U/Boston Globe poll which indicates 62.6% statewide voter support of the statewide rent control ballot initiative. With the first round of signatures obtained, the statewide rent-control ballot measure is well on its way to appearing on the ballot for the November 2026 election. The proposal — which could be the strictest in the country — would cap annual residential rent increases at the lower of the Consumer Price Index or 5%. While the measure must still complete several additional procedural steps, I have no doubt that it will be up for statewide vote next November 2026 — and, if passed, it would likely immediately become law; and that would, in my opinion, be like dropping a nuclear bomb on the entire Massachusetts rental housing market. Yes, there are exemptions but they are quite limited (4 or less unit buildings but only if owner occupied, subsidized units (Sec. 8), and buildings less than 10 years old). There is limited data out, but the measure will easily impact over 50% and perhaps up to 75% of the entire MA rental housing stock. This ballot measure is quickly sneaking up on the entire industry, especially because the new law would cap rents in effect as of Jan. 31, 2026 – which is only 2 months away. Accordingly, all rental property owners need to begin planning right now.

TRIGGER DATE FOR RENT CONTROL CAP CALCULATION – JAN. 31, 2026

The most critical point — which requires IMMEDIATE ACTION FROM LANDLORDS — is that the rent control cap will be calculated based on rents in effect AS OF JANUARY 31, 2026. Yes, you read that correctly. As of this writing, that date is only 2 months away, and really one rent cycle away in terms of providing procedurally valid rent increase notices to tenants. That means that whatever rent landlords are charging in their leases or if there is a tenancy at will in effect on Jan. 31, 2026 will be used to calculate the rent control cap. If your lease is under market as of Jan. 31, 2026 – too bad, that rental amount will be used forever and can only increase up to the current CPI or 5%, whichever is lower. If you have a lease which does not expire until after Jan. 31, 2026, too bad. The rent control cap will be calculated based on the rent in effect as of Jan. 31, 2026. If you have a tenancy at will or early termination provision in your lease, you need to act NOW, and provide a proper and lawful rent increase notice by November 30, 2025 – yes this is only merely days away.

WHAT ELSE SHOULD LANDLORDS DO IN ANTICIPATION OF RENT CONTROL PASSING?

1. Evaluate Financial Impact & Cash Flow

  • Run 5–10 year pro forma’s assuming rent growth capped at 3–5%.
  • Compare capped revenue to rising property taxes, insurance, utilities, and capital-expense cycles.
  • Identify buildings that may become break-even or negative under rent caps.

2. Complete Capital Improvements Now

Most rent-control systems restrict recovery of major capital expenditures.

  • Prioritize roofs, boilers, HVAC, plumbing, electrical, and safety/code upgrades.
  • Document all work with receipts, photos, and contractor invoices.

3. Strengthen Lease Forms

  • Add CPI-based rent adjustments (even if capped later).
  • Incorporate utility pass-throughs in compliance with the law, and clear maintenance responsibilities.
  • Tighten subletting, occupancy, early-termination, and inspection provisions.

4. Improve Recordkeeping & Compliance Systems

Expect annual registration, rent-level documentation, and potential municipal oversight.
Landlords should maintain:

  • Digital lease files and rent histories
  • Capital-improvement logs
  • Maintenance and inspection records
  • Tenant-communication logs

Cloud systems like Buildium, AppFolio, or structured Google Drive folders are strongly recommended.

5. Review Financing & Consider Strategic Refinancing

Rent caps often reduce appraised value and underwriting strength.

  • Evaluate refinancing options before caps affect valuations.
  • Explore fixed-rate loans, interest-only periods, or credit lines for future CapEx.

6. Consider Long-Term Strategy

Depending on the portfolio, landlords may also consider:

  • Condo conversion
  • Redevelopment benefiting from the 10-year new-construction exemption
  • Disposition of assets likely to underperform under rent caps
  • 1031 like kind tax free exchanges into non-regulated markets

7. Prepare for Increased Tenant Legal Activity

Rent-controlled jurisdictions often see more tenant complaints and retaliation claims.

  • Document all repairs promptly
  • Conduct annual inspections
  • Maintain written responses to maintenance requests

Conclusion

While the 2026 ballot measure is not yet law, prudent preparation now can significantly reduce risk. Landlord groups and attorneys (myself included) are, of course, evaluating and planning for a legal challenge to the Rent Control measure, but there is no guarantee of success. We saw this with the Covid-19 Eviction Moratorium. Rent control, however, is far worse than the Covid-19 moratorium for landlords. The text of the ballot measure is embedded below for your reference.

For legal guidance or a portfolio review, contact:
Richard D. Vetstein, Esq.
Real Estate & Landlord-Tenant Counsel
(508) 620-5352 | [email protected]
www.VetsteinLawGroup.com

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Massachusetts Bans Home Inspection Waivers…Well, Sort Of

by Rich Vetstein on October 17, 2025

in Closings, Condominium Law, Disclosures, Home Inspections, Massachusetts Real Estate Law, Offer To Purchase, Purchase and Sale Agreements, Realtors

Everything Buyers, Sellers, and Agents Need to Know: New Disclosure Form, As-Is Sales Still OK, Exemptions, and Other Changes to Current Practice

Starting October 15, 2025, Massachusetts joined a small handful of states that ban sellers and agents from forcing homebuyers to waive their right to a home inspection. The new regulation — 760 CMR 74.00 — Residential Home Inspection Waivers (PDF) — was adopted by the Department of Housing and Community Development to crack down on the increasingly common practice of pressuring buyers into waiving inspections just to “win” a bidding war.

What the New Law Says

  • No Forced Waivers. A seller (or their agent) cannot condition acceptance of an offer on the buyer agreeing to waive or restrict a home inspection.
  • No Back-Door Waivers. Sellers also cannot accept an offer if they know — directly or indirectly — that the buyer intends to waive an inspection.
  • Buyer’s Choice. Importantly, buyers can still decide, on their own, after signing and receiving the disclosure, to waive or limit an inspection. The difference is: sellers can’t demand it up front. An inspection waiver provision can be included in the Purchase and Sale Agreement but should be drafted carefully and should reference 760 CMR 74.00 and the fact that the buyer waives it voluntarily and willingly after receipt of the required disclosure form.
  • Mandatory Disclosure. At the time of the first written contract (Offer to Purchase or P&S), the seller must give the buyer a new Massachusetts Mandatory Residential Home Inspection Disclosure Form signed by both parties, confirming the buyer’s right to an inspection.
  • As-Is Sale Still Allowed. Sellers can still insist on an “as-is” sale provision in a purchase and sale agreement which effectively bars a buyer from making a property condition claim after the closing. Nothing in the new law requires a seller to agree to make repairs or improvements, or agree on a price reduction, based on the results of a home inspection. Of course, the parties can still negotiate and agree on these matters as we have always done.
  • Meaningful Inspections Only. Contract clauses that make an inspection effectively impossible — for example, giving only 24 hours to schedule one or preventing a buyer from backing out after major defects are found — are prohibited.

Who’s Covered
The regulation applies to most residential real estate sales — single-families, condos, co-ops, and multi-family homes up to 4 units.

Exemptions include:

  • Family or related-party transfers
  • Foreclosures, deeds-in-lieu, and auction sales
  • Certain new construction sales (if the builder provides a one-year written warranty)

Why This Matters
If you’ve bought or sold a home in the last few years, you know the drill: in a competitive market, listing agents would flat-out tell buyers, “If you want this property, you’ll need to waive your inspection.” That left buyers vulnerable to hidden defects — structural, environmental, or safety — with no recourse.

Now, that practice is over. Well, kind of. Sellers who ignore the law risk violating M.G.L. c. 93A (the Consumer Protection Act), exposing themselves (and their brokers) to lawsuits, triple damages, and attorney’s fees. However, the market will adapt to these new changes, and I still see buyers agreeing to waive their right to a home inspection – which they can still do so long as they sign the required disclosure form and the offer itself makes no mention of an inspection waiver.

Practical Tips

  • For Buyers: You don’t have to feel bullied into skipping inspections anymore. But remember: you can still waive if you truly want to — it just has to be your choice.
  • For Sellers/Agents: Build this new disclosure into your workflows. Do not include waiver language in Offers.
  • For Attorneys: Watch for boilerplate clauses in older templates that might “render the inspection meaningless.” Those will now be risky under Chapter 93A.

Bottom Line
Massachusetts is taking a strong consumer-protection stance: buyers should have a fair shot at protecting themselves with an inspection. The days of “no inspection, no deal” are gone. Well, sort of…

I’ll be monitoring how this plays out in practice — especially in competitive markets like Greater Boston. If you’re a buyer, seller, or broker with questions about how the new regulation impacts your deal, feel free to reach out to me at [email protected].

Helpful Sources:

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From Success! to Arrest: Stephen Webster, CEO of Success Real Estate Indicted On $11.6 Million Embezzlement Charges

by Rich Vetstein on October 1, 2025

in Closings, Realtors

Plymouth County Prosecutors Outline Egregious Case of Embezzlement and Fraud by Stephen Webster, former CEO of now defunct Success! Real Estate

Finally, the law caught up with Stephen Webster of Success! Real Estate, who I am suing for fraud on behalf of a former Success! top agent.

High roller casino suites and thousands of dollars gambling at Encore Boston Harbor Casino, Florida rentals, jet ski’s, and a new BMW and Tesla. These are just some of the purchases that a longtime South Shore real estate broker-owner Stephen Webster of Success! Real Estate made with buyers’ and employees’ funds, according to Plymouth County prosecutors. Today, a grand jury indictment was unsealed, revealing a sordid and shocking tale that Mr. Webster allegedly embezzled over $11.6 Million in escrow deposits, broker commissions, and personal loans from agents, in order to fund a lavish and extravagant lifestyle. The charges detail “business” trips to Florida, Hawaii, Encore, Harrah’s and Seminole casinos where he withdrew over $88,000 cash from ATM’s, a $8,250/month South Florida intercoastal rental property, jet ski’s, and the purchase of a $70k BMWi along with two Tesla’s. Except the source of these funds were innocent victims – buyers, lenders, his agents and others. Mr. Webster went so far as to create a counterfeit letter from his bank in order to throw off the trail of state regulators, prosecutors alleges.

Mr. Webster was just arrested in Palm Beach, Florida, and is reportedly being extradited to Massachusetts to face these charges. Prosecutors are seeking $100,000 in bail due to Webster being a flight risk. The charges include fiduciary embezzlement, larceny, witness intimidation and publishing a false financial statement.

I wrote about this case back in January 2025 when Webster suddenly closed shop, leaving buyers and agents scrambling to recover their deposits and commissions.

Since Mr. Webster abruptly closed his company last year, he and his company have been sued by a slew of agents and buyers who are scrambling to recover millions in unpaid commissions, deposits on pending transactions, and even personal loans given by agents to Webster in an attempt to keep the firm afloat. One of these lawsuit is one that I filed in Norfolk Superior Court on behalf of a top agent.

More detail on the charges can be found below. I’ll have updates once Mr. Webster appears in court.

Commonwealth of Mass. v. Stephen Webster, Plymouth Superior Court by Richard Vetstein

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Success Real Estate’s Sudden Closing and Owner’s Alleged Embezzlement Leaves Agents and Buyers Scrambling To Recover Commissions and Deposits

by Rich Vetstein on January 11, 2025

in Massachusetts Real Estate Law, Purchase and Sale Agreements, Real Estate Litigation, Real Estate Market, Realtors

BREAKING NEWS Update (Oct. 1, 2025):  Stephen Webster Indicted and Arrested On Embezzlement and Larceny Charges

Owner Stephen Webster Accused Of Pilfering Over $1 Million In Escrow and Firm Funds

As you may have seen on Boston 25 News or read in the papers, Success Real Estate, Inc., a 140 agent real estate firm based on the South Shore, suddenly closed on December 14, 2024, surrounded by allegations that its owner, Stephen Webster embezzled over $1 Million in escrow deposits, broker commissions, and personal loans from agents. Since then, Success and Webster have been sued by over 15 agents and buyers who are scrambling to recover hundreds of thousands in unpaid commissions, deposits on pending transactions, and even personal loans given by agents to Webster in an attempt to keep the firm afloat. One of these lawsuits (embedded below) is one that I filed in Norfolk Superior Court on behalf of a top agent, where the judge granted real estate attachments against Webster and Success’ properties and assets. The Success Real Estate debacle has renewed focus on lax state regulation of broker escrow deposit accounts.

Perfect Storm of Personal Greed, Market Downturn, and Financial Mismanagement

The Success Real Estate debacle appears to have been caused by a deadly combination of financial mismanagement, the turndown in the real estate market, and the extravagant lifestyle and personal greed by Webster. The writing was on the wall when over the last year, Webster could not obtain traditional financing and was left to ask for over $300,000 in personal loans from the very agents whom he supervises. As alleged in the lawsuits, Webster fraudulently procured these loans by falsely representing to each lending party that he had the financial ability to repay the loan in full and that it would benefit them, as agents of Success.  In actuality, Webster obtained these loans no different than a “Ponzi” scheme as he was simultaneously embezzling over $1 Million from Success’ coffers in order to fund business operations and jetting between Boston and his $10,000/month Florida home on the intercoastal, as claimed in the litigation. The Attorney General’s Office is now conducting an active and ongoing investigation into the matter, and I will not be surprised if and when Webster is charged with a slew of felonies.

Renewed Focus on State Oversight of Broker Escrow Accounts

One of the worst parts of this debacle is that Webster allegedly pilfered his firm’s escrow account which holds the earnest deposit funds of buyers on pending transactions. Rumors are swirling that the exposure is well over $1 Million in the escrow account alone. This is arguably the worst thing a broker could ever do because these down payment deposits are often the life savings of innocent families. So this begs the question: Where was the state Board of Registration of Real Estate Brokers and Salespersons which has oversight over broker escrow accounts? The Board is supposed to conduct periodic audits of broker escrow accounts, but based on discussions I’ve had with people with knowledge of the Board’s operations, these audits are nothing more than a 10 minute check-in and do not examine the account inflows and outflows and bank records which could spot irregularities. When was Webster’s last audit and what did it show, if anything? Furthermore, the state required bond for escrow accounts that brokers must obtain only covers $5,000 in losses, which is insane. One can easily conclude that the inadequate state oversight of Success contributed to this debacle. State legislators and regulators should take a hard look at the Board of Registration audit operations and bond amount in order to prevent something like this from happening again. 

I’m sure there will be many more claims filed against Success and Webster in the near future. I will keep readers updated with any developments. If you have any information you would like to share or if you are a victim of Success and Webster and want to file a claim, please contact me at [email protected]. 

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Massachusetts Homestead Exemption Increased to $1 Million

by Rich Vetstein on September 27, 2024

in Deeds, Homestead, Massachusetts Real Estate Law, Taxes

New Increase Included In Recently Passed Affordable Homes Act

Flying under the radar in the recently passed Affordable Homes Act is that the amount of protection offered by a recorded Declaration of Homestead has increased from $500,000 to $1 Million. This is great news for homeowners. The increase to $1 Million applies retroactively to any valid Declaration of Homestead that is currently on record at the Registry of Deeds and to any future recorded Homesteads. This means homeowners who have a valid homestead on record do not need to file a new homestead to gain the benefit of the recent increase.

A Declaration of Homestead is a written instrument recorded at the registry of deeds by a homeowner which provides protection against certain creditor claims. Think of it as an umbrella insurance policy against a claimant or creditor coming after the equity in your house. For example, let’s say you get into a really bad car accident and don’t have enough insurance to cover the loss. A personal injury attorney could try to file an attachment against your primary residence for those damages to his client. A declaration of homestead would shield your property from those claims, now up to $1M.

As noted by Norfolk County Register of Deeds William P. O’Donnell: “If you own a home, and it is your primary residence, you have an automatic homestead exemption of $125,000. However, if you file a Declaration of Homestead at the Registry of Deeds, the exemption increases to $1,000,000. The Homestead Law provides a homeowner with limited protection against the forced sale of their primary residence to satisfy unsecured debt up to $1,000,000 if they have filed. This is especially important when you consider that for most of us, a home is our most valuable asset. Consumers should take steps to protect that asset.”

Another feature of the Homestead Law is the Elderly Homestead Declaration, for those who are 62 years of age or older and provides protection of $1,000,000 for each qualified person.

The Register further noted, “In March of 2011, the Homestead Law was updated so that a valid Homestead is not terminated when refinancing a mortgage. Other changes that took place back in 2011 state that a Homestead can provide protections for a primary home even if it is held in a trust. The definition of a primary residence was also expanded to include a manufactured or mobile home.” 

A Declaration of Homestead also protects the sale proceeds if the home is sold for up to one year after the date of the sale or on the date when a new home is purchased with the proceeds, whichever comes first. Additionally, if the home is damaged by a fire, for example, the insurance proceeds are protected for two years after the date of the fire or on the date when the home is reconstructed or a new home is purchased, whichever is earlier.

While the Homestead Statute provides important protections for homeowners, it is important to note that certain debts are exempt from protection under the Homestead Act. These include federal, state, and local tax liens, as well as mortgages contracted for the purchase of a primary home and nursing home liens. Most other mortgages, debts, and encumbrances existing prior to the filing of the Declaration of Homestead, along with probate court executions for spousal and child support, are also not covered under the Homestead Protection Statute.

Declarations of Homestead can be recorded at the Registry of Deeds for a only a state-imposed fee of $36.00.

For more information concerning Massachusetts Homestead Declarations, visit the Mass.gov Homestead Law page or if you want to record a new Homestead Declaration contact me at [email protected].

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A Counterfeit South Carolina Driver’s License, Forged Deed, and a UPS Store In Philadelphia: The Anatomy Of A Title Theft Scam

by Rich Vetstein on September 12, 2024

in Closings, Construction Law, Deeds, Massachusetts Real Estate Law, Real Estate Litigation, Title Defects, Title Insurance

FBI Investigation: Scam Artists Use Forged Deed and Counterfeit ID’s to Steal Concord, MA Property; Local Real Estate Agent, Developer, and Attorneys Caught Up In Fraudulent Transaction

Using a counterfeit driver’s license and passport (shown at right), fake e-mail address impersonating the real owner, and a forged deed and notary stamp, scam artists were somehow able to dupe a local real estate agent and two seemingly experienced real estate attorneys, and get to the closing table, where a Concord, MA lot was fraudulently sold to a local developer, and the scammers getting away with nearly $500,000 in stolen sale proceeds. The transaction had red-flags all over the place, yet all the purported professionals seemed to have buried their head in the sand and ignored the clear warnings of fraud, according to a lawsuit recently filed by my office on behalf of the victims. With a looming FBI financial crimes investigation and active federal grand jury proceeding in Boston, my clients are seeking to restore their title and ownership and recover damages for this title theft scam.

Title Theft:  A Brief History

With the proliferation of publicly searchable land records, internet search capabilities, and reliance on electronic communications, “title theft” has become an increasingly prevalent criminal scheme to transfer properties from unsuspecting owners and steal millions of dollars. Property owners across the country have been targeted by scammers who prepare deeds purporting to convey title to property the scammers do not own. Sometimes, the true owners are entirely unaware of these bogus transfers. In other instances, the scammers use misrepresentation to induce unsophisticated owners to sign documents they do not understand.

Massachusetts is no stranger to the wave of title theft schemes.  In 2018, convicted felon Allen Seymour and accomplices orchestrated a complex scheme using forged documents, bogus notary stamps, and fake driver’s licenses to defraud several innocent home owners, buyers and lenders in connection with fraudulent sales of properties in Cambridge, Brookline and Somerville, resulting in over $1.5 Million in losses. I represented several victims in those cases which were successfully prosecuted by the Attorney General’s Office, with Seymour sentenced to 6-8 years in prison. 

Scam Artists Target A Vacant Lot in Mattison Farms Subdivision in Concord

My clients are an older married couple now living in South Carolina. Back in 1991, they purchased a 1.8 acre lot in the Mattison Farms subdivision in Concord. They originally intended to build a home on the lot, however, the husband’s practice as a cardiologist took the family out of state for several decades. The couple kept the property and paid the real estate taxes all along, hoping at some point maybe they would move back to Massachusetts or gift the lot to one of their three adult sons so they could someday build a home here. The lot is now likely worth north of $1 Million.

At some point in 2023, using a fake email account, the scam artist contacted a local real estate agent, and convinced him that she was the true owner of the Concord lot and interested in selling it.  Successful, the broker placed the Property on the Multiple Listing Service with a list price of $699,900, advertising that it was “a great opportunity to build your dream home in the ultra-exclusive, sought after and prestigious Mattison Farm neighborhood. One of the only remaining lots and nestled on a 1.84 acre parcel. Close proximity to Concord & Nashawtuc Country Club.” The broker quickly found an interested buyer in a local real estate agent and developer who had his sights set on building a new luxury home on the Property. Using a fake electronic signature, the imposter signed an offer and purchase and sale agreement with the buyer, agreeing to sell the lot for $525,000 – hundreds of thousand of dollars less than the fair market value of the lot.

Red Flags:  Counterfeit South Carolina Driver’s License, U.S. Passport, an Apartment in Dallas, Texas

One of the keys to this successful scam was that the scam artist provided the players involved with a copy of a fake South Carolina driver’s license and US Passport (shown above). However, both identifications display tell-tale signs of counterfeit. The driver’s license and passport both use the same photograph – which is impossible because the state registry of motor vehicles and U.S. Passport Office work off independent systems. The driver’s license layout is clearly fake when compared to a real South Carolina ID, and there’s no evidence of a hologram.

Even more suspicious, despite the ID’s showing a South Carolina residential address, the scam artist suspiciously instructed the seller attorney to send the deed and power of attorney to a nondescript apartment in Dallas, Texas. And when those “signed” documents came back to the seller attorney there were other tell-tale signs of forgery and fraud. Critical portions of the notary clause were left blank; the county of notarization is misspelled as “Tourrant,” instead of Tarrant County, Texas; the notary’s signature is clearly bogus; and the notary stamp was lifted from other documents and transposed using a PDF editing program.

Town Permits and Access

With the real owners blissfully unaware and the professionals apparently not picking up on the fraud, the transaction proceeded forward with the buyer applying for various town approvals for construction. Using a fake digital signature, the scam artist signed various applications for those approvals, which were submitted by the buyer to the Town of Concord. The real owners got a certified letter about the town approvals, and immediately contacted the Concord Natural Resource Director who informed them that the Property was “up for sale.” My client told the director that they absolutely did not list the Property for sale and had no knowledge of any pending sale, and sent her an email demanding that all proceedings be terminated. After that, according to our lawsuit, the director informed the buyer team of my client’s call, however, nothing was done to investigate the potential fraud and stop the approval process. Shockingly, the Town approved the permits without any further inquiry.

Despite All The Red Flags for Forgery and Fraud, the Closing Goes Forward

As of late March into April 2024 – months prior to the scheduled closing – all parties and their attorneys knew or should have known of the existence of irregularities, fraud and/or forgery in this transaction, according to our lawsuit. Yet, none of them put the transaction on pause in order to further investigate whether in fact the transaction involved forgery or fraud, as would be reasonable to do in the circumstances. Despite all of the visible red flags, notice of the true owner’s claim of ownership and likely forgery, the closing of the transaction went forward on May 13, 2024, with the seller attorney executing the closing documents pursuant to the forged power of attorney.

The final and perhaps most telling red flag came at the very end of the closing process with the scam artist instructing the attorneys to send the nearly $500,000 seller proceeds check to a UPS Store address in Philadelphia, PA. So at this juncture we have a South Carolina address on the driver’s license and passport, a Dallas, Texas apartment address for the deed and power of attorney delivery, and UPS storefront in Philly for the proceeds check. As the saying goes, “make it make sense.”  

The scam artist received the check, deposited it into a Charles Schwab account, and the money is now gone, along with the title to my client’s property.

To make matters far worse, there is now a $1.8 Million construction loan mortgage on my client’s title, and the “buyer” is well into site work and construction on the Property. The land has been cleared and graded with numerous trees cut down, a foundation poured and a large house framed out, portions of the septic system installed, and utility service brought in, as shown above.

The Aftermath: FBI Investigation And Superior Court Lawsuit

When my client ultimately discovered that their property had been officially sold and that a house was being built on the land, she started shaking and screaming, and then fainted, spending the next days and weeks riddled with anxiety and nightmares. My clients then went to the FBI, Concord Police and the Middlesex District Attorney’s Office to report the matter. The FBI Financial Crimes Squad in Boston is conducting an active investigation of this matter, and FBI agents have already interviewed the two attorneys involved in the transaction who are cooperating. Grand jury subpoenas have also been issued. The scam artists have not been found as of yet.

On September 11, 2024, we filed the lawsuit below for quiet title, trespass, civil conspiracy, and negligence against the buyers, the developer and the attorneys involved in the transaction. My clients are hopeful that they can restore their ownership to their property and get some measure of compensation for this ordeal, which should have never happened. I will keep you posted as to developments. This story is a painful warning to all real estate professionals to be on the look out for title theft scammers from out of state who target vacant properties or unsophisticated owners. And needless to say, always purchase owner’s title insurance when you buy any real estate! There are also “Title Lock” services which claim to monitor your title and ownership but I cannot vouch for them at all.

The CBS 4 Boston I-Team recently did a segment on the case, below.

Verified Complaint Halla Shami v. Geesey, Middlesex Superior Court (Mass.) CA 2481CV02412 by Richard Vetstein on Scribd

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Massachusetts Eviction Record Sealing Bill Signed Into Law

by Rich Vetstein on August 7, 2024

in Housing Court, Housing Discrimination, Landlord Tenant Law, Leasing, Massachusetts Real Estate Law, Rental Housing

Tenants Given Presumptive Right to Seal Certain Eviction Records; Strict Rules Imposed On Credit Reporting Agencies; Landlords May Lose Invaluable Tenant Screening Tool

After years of lobbying, tenant advocates finally got a long-sought after eviction sealing measure through the Legislature and signed by Governor Healey as part of the recently passed Affordable Homes Act. Gov. Healey signed the measure into law on August 6. Under the bill, tenants will have the right to seal eviction records from public view (and landlord screening efforts) and get them removed from their credit reports. Additionally, credit reporting agencies will face strict rules and stiff penalties for disclosing sealed eviction records, which may put them out of the business of tenant screening altogether. Advocates say this will help tenants obtain housing without the chilling effect of an eviction record typically caused by economic hardship. Housing providers counter that eviction records are a crucial screening tool for landlords, and without it they may ask prospective renters to show a higher credit score or income in order to qualify. The key with this new measure is that in the vast majority of cases, the burden is on the tenant to initiate the court record sealing process – if they don’t do that, then the record will remain publicly available. But if they do file a petition to seal, it will typically be a very quick and easy process to get the record seal and removed from credit reports, and in many cases, the landlord will not even realize that it happened.

With a 270 waiting period, the law goes into effect on May 5, 2025. There are different court record sealing procedures for different types of eviction cases, outlined below, and the Housing and District Courts will need to create new forms under this law. I’ve posted the new bill at the end of this article.

No Fault Cases

No-fault cases are defined as evictions when a landlord terminates a tenancy at will or after a lease expires where no unpaid rent or material violation of a lease provision is claimed by the landlord. No fault cases also include an “action brought after termination of a tenancy for economic, business or other reasons not constituting a violation of the terms of the tenancy.” This situation would typically involve a decision by the landlord to sell the leased property.

In a no-fault case, a tenant may file a petition to seal the eviction record, with notice provided to the landlord. If no objection is filed within 7 days of filing the petition, the Housing or District Court will approve the petition administratively without a hearing. It will be interesting to see how the courts verify whether the landlord has been properly notified, if at all. My sense is that enforcement here will be quite lax.

Non-Payment of Rent Cases

Eviction sealing is available in non-payment of rent cases where a tenant has a clean eviction record for the last 4 years. The tenant must certify that the nonpayment of rent was due to economic hardship which rendered them unable to satisfy the judgment. Notice of record sealing must be provided to the landlord, and an objection must be filed within 7 days of the petition filing. If no objection is made, the court will presumptively order sealing of the record. If an objection is filed, the court must conduct a hearing to determine whether the nonpayment is due to economic hardship and may require the tenant to file a financial statement.

In cases where the tenant has paid up under a payment agreement or judgment, landlords are obligated to file with the court a satisfaction of judgment within 14 days of full payment. If the landlord doesn’t file the satisfaction, the tenant may petition for the entry of a satisfaction of judgment. Upon entry of the satisfaction, a tenant may petition immediately for sealing of the court record under the process above.

At Fault/For Cause Cases

In so-called at-fault and for cause cases (including nuisance/drug/criminal cases brought under Chapter 139, section 19), a tenant may petition for court record sealing if he or she has a clean eviction record for 7 years. At-fault/for cause cases typically involve serious violations of a lease or tenancy, such as drug or criminal activity, excessive noise, smoking, housekeeping, and behavioral problems. The filing procedure is the same as described above, with at fault/for cause cases presumptively approved where the landlord does not file an objection within 7 days of the petition filing. However, for Chapter 139, sec. 19 cases, a court hearing is required to determine whether the tenant has been charged with any crimes and sealing is in the interests of justice and public safety.

Dismissed Cases/Judgments In Favor of Tenant

In cases which have been dismissed or where the tenant wins and receives a judgment in their favor, the tenant may file a petition to seal the court record immediately without any notice to the landlord. These petitions will be administratively granted without a hearing.

I’ve flagged this provision as problematic because non-payment cases are often dismissed if a tenant moves out voluntarily, or shortly after a payment plan is completed or if the case is old. Tenants may be able to use this loophole to get cases sealed even if they do not presumptively qualify are able to skirt the 4 or 7 year waiting period.

Credit Reporting Agencies

In a far-reaching provision, Consumer Reporting agencies will need to comply with very strict limitations on using sealed (and un-sealed) eviction records in consumer credit reports. Credit agencies cannot disclose sealed records “unless the court record was available for inspection with the court within 30 days of the report date.” This provision is unclear and confusing, but I think the intended policy is that sealed records should not be available on credit reports. Credit agencies must remove from a credit report any information related to a sealed eviction court record within 30 days of sealing. (I’m not sure how agencies are going to monitor this). But the bill goes even further, requiring credit agencies, who collect non-sealed eviction court records, to list the exact type of eviction action on the credit report (i.e., no-fault, nonpayment, or for cause). This would require that credit agencies actually pull the court docket and make a determination of the type of case, which they are essentially incapable of doing unless they hire a small army of lawyers (which they likely won’t do). Tenants can recover actual damages and attorneys’ fees against credit agencies for violations of these new rules, and the Attorney General also has oversight jurisdiction. The net effect of these new rules will likely be that credit report agencies doing business in Massachusetts will stop collecting eviction records all together.

Rental Application Disclosure Language

The new measure also mandates that all tenant rental applications contain the following new language: “An applicant for housing or credit with a sealed record on file with the court pursuant to section of chapter 239 of the General Laws may answer ‘no record’ to an inquiry relative to that sealed court record.”

What’s Next?

As mentioned above, the measure does not go into effect until May 2025, and that’s probably a good thing because the courts need to create new forms, and the credit agencies have a lot of internal changes they will need to make. Same for landlords and rental agents. While I was writing this up, a colleague asked me this question: “If a record is sealed, does that prevent it from being a “hit” on the 4 or 7 year look-back periods when/if a tenant petitions for a record to be sealed?” My answer (as least right now) is that if a record is sealed, it appears that there should be no “hit” at all for any of the look back periods. Now this is in theory, and I think what will actually happen is either credit agencies will remove all eviction “hits” altogether from their MA reports, or there will be a big lag between what’s on the reports and what’s supposed to be sealed, and the onus will likely be on the tenants (or the courts ….good luck with that) to fix that. Since it’s Massachusetts, I’m sure it will be the usual mess! So we’ll see how this will shake out once the law goes live.  

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If you are a landlord and have any questions about this new Massachusetts tenant screening law, please contact me at [email protected].

Massachusetts Eviction Sealing Bill New GL c. 239 s. 16 by Richard Vetstein on Scribd

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A Ticking Time Bomb: HOA Covenants Across Massachusetts May Have Silently Expired

by Rich Vetstein on July 13, 2024

in Condominium Law, Deeds, Land Court, Massachusetts Property Values, Massachusetts Real Estate Law, Title Defects, Title Insurance

Hundreds of Massachusetts Homeowner’s Association (HOA) Covenants, Conditions and Restrictions (CCR’s) May Be Void and Unenforceable

After a homeowner balked about paying a late fee, I was recently asked by a local homeowner’s association down the Cape to review their Homeowner’s Association Covenants. To my surprise, I discovered that in light of an under-the-radar 2017 Appeals Court ruling, the covenants had silently expired and gone into void and unenforceable status, with no legal ability to resurrect them. Upon further research, I learned that hundreds of HOA covenants across the state may be unwittingly facing the same situation.

Background: Declaration of Restrictive Covenants

In my situation, a “Declaration of Restrictive Covenants” for a subdivision of some 40 lots was recorded back in 1977 with the Barnstable County Registry of Deeds. The Covenants created the homeowner’s association to govern the subdivision, assess HOA fees, and imposed numerous rules and regulations on what could be done by homeowners, including regulating exterior house design and changes, installation of fences, parking of trailers and boats, and trash/recycling. The Original Restrictive Covenants did not specify a duration for which they were effective.  Accordingly, by default under Massachusetts law (Mass. Gen. Laws ch. 184, §§ 26-30), the restrictions could only be in place for 30 years, with an option to extend for an additional 20 years upon an owner vote and recording of a formal extension. (Note that the restriction statute does not apply to condominiums). Although the Original Restrictive Covenants provided that the original developer, his successors and assigns reserved the right to “waive, alter, or amend” the restrictions, the document critically failed to provide a clear mechanism for if and how the restrictions could be extended in the future. In my situation, the HOA tried to extend the term of the covenants by the additional 20 years, but unfortunately did so well after the original covenants had already expired.

Berger v. 2 Wyndcliff LLC, Appeals Court (2017)

Based on my analysis of current Massachusetts law, especially new case law considering similar restrictive covenants to the one here, I concluded that the original covenants had expired and that the attempt to extend them was futile. The issue is controlled by a 2017 Appeals Court decision, Berger v. 2 Wyndcliff, LLC, 92 Mass.App.Ct. 517 (2017) which holds that restrictive covenants cannot be extended unless the original covenants contain a clear mechanism for such extension.  

In Berger, in the course of developing land in Acton, a developer executed an agreement of protective covenants and easements for the benefit of future mortgagees, buyers, and owners of the land. As is common, the covenants expressly provided that they are to “run with the land” and bind the parties claiming under them “for a period of thirty (30) years from the date these covenants are recorded.” The covenants limited construction on each lot to one single-family dwelling, with a two– or three-car garage.  The agreement provided that they “may be amended or revoked, in whole or in part, by an instrument signed by two thirds or more of the then owners of the lots covered hereby, said amendment or revocation to be effective upon recording thereof at the … Registry of Deeds.”

Twenty one (21) years after the original restrictions were recorded, the owners filed an amendment to provide specifically that the original duration would be thirty years from the date the original agreement was recorded, plus that the restrictions could be extended for further periods of not more than twenty (20) years upon a sufficient vote by owners.  Shortly thereafter, the owners recorded an extension document purporting to extend the restrictions for the additional 20 years.  

In Berger, a disgruntled owner challenged the validity of the restrictions on the basis that they did not clearly provide for a mechanism or right to extend past the 30 year term. Both a Land Court judge and an Appeals Court panel of three justices agreed.  As the Appeals Court summarized, the applicable law on restrictions governing subdivisions (referred to also as a “common scheme”) is as follows:  “Restrictions on land are generally disfavored, and the Legislature has established procedures by which a landowner may remove or prevent the enforcement of obsolete, uncertain or unenforceable restrictions. At the same time, the Legislature has not precluded landowners from bargaining for, and enforcing, beneficial land use restrictions that contain a lengthy, but definite term of duration. One method the Legislature has employed to address these competing interests is to limit enforcement of restrictions to 30 years generally and, while freely allowing longer durations, requiring landowners to comply with certain specific steps should they desire to impose restrictions lasting more than thirty years.  Even restrictions that contain an express durational limitation in excess of 30 years may not be enforced for more than 30 years unless certain steps are taken.”

As noted above, Mass. General Laws provides a “sunset” requirement for all restrictions and extensions as a part of subdivisions:  “No restriction imposed after December [31, 1961,] shall be enforceable . . . (b) after thirty years from the imposition of the restriction, unless (1) the restriction is imposed as part of a common scheme applicable to four or more parcels . . . and provision is made in the instrument or instruments imposing it for extension for further periods of not more than twenty years at a time by owners of record, at the time of recording of the extension, of fifty per cent or more of the restricted area in which the subject parcel is located, and an extension in accordance with such provision is recorded before the expiration of the thirty years or earlier date of termination specified in the instrument . . . .” See Mass. Gen. Laws. Ch. 184, § 27. 

In the Berger case, the Appeals Court ruled that under the above statute, in order to impose a restriction for more than 30 years, the instrument originally creating the restriction must include a provision for extensions, and this one critically did not. The Court also added that “where extension provisions are not contained in the original instrument, the statutory scheme does not allow subsequent amendments to add new provisions for extensions.” The Court found the original language wholly lacking as to the right to extend where it only provided that the restrictions “may be amended or revoked” and nothing more. Thus, the covenants were now void and unenforceable.

Impact and What Now?

This is a great question. We are now in 2024, so the 30 year period under G.L. c. 184, § 26 would take us back to 1994.

Accordingly, any HOA Declaration of Restrictive Covenants recorded before 1994, which was not properly extended before expiring or contained the fatal defect of not having an extension mechanism at all, is now at risk of having expired unwittingly under the Berger ruling.

This situation likely affects hundreds of HOA’s in Massachusetts, with a fair amount of them being down the Cape, it appears. (Remember condominiums are excluded from the restriction statute, otherwise this would be a complete disaster across the state).

My clients were quite shocked to learn that most of their HOA covenants were now void and unenforceable. When I say “most” I mean that the rules that actively restrict use of property, i.e, design and construction rules, parking, rentals and the like, cannot be enforced. Annual dues and assessments, common area maintenance, etc. likely can be enforced as an “equitable servitude.”

Can a new set of restrictive covenants be recorded and implemented? I’m not so sure of that, given the state legislative policy of setting a hard sunset expiration period. I’m sure some HOA’s will try to get lot owner votes in place and record a new set of covenants as if they were original to the subdivision. We will have to see how this plays out at the registries of deeds and in the courts if these HOA covenants are challenged. I welcome the comments from other conveyancing attorneys and title insurance counsel.

If your homeowner’s association is facing this issue or you need further guidance on this topic, please feel free to reach out to me at [email protected].

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The Massachusetts Lis Pendens: The Definitive Guide For Lawyers and Clients

by Rich Vetstein on January 21, 2024

in Land Court, Massachusetts Real Estate Law, Offer To Purchase, Purchase and Sale Agreements, Real Estate Litigation, Title Defects, Title Insurance

A Massachusetts Real Estate Litigator Talks About Lis Pendens Basics, Strategy, and Pro Tips.

Recently, I gave a well attended webinar for the Real Estate Bar Association on a subject that is near and dear to my real estate litigator’s heart — The Massachusetts Lis Pendens. The webinar was an introductory presentation which I called “Lis Pendens 101,” and covered essentially all the basics from what is a lis pendens, how to get one, how to defend against one, and everything in between. I’m basically going to convert my presentation into this blog post. I’m going to write it for both lawyers and the general public, so some of it may seem basic while other parts may seem complex. Ok, let’s do this.

What Is A Lis Pendens?

Well, let’s start with the Latin translation of the term “lis pendens.” It means “a suit pending.” Here in Massachusetts, a lis pendens is a notice of a lawsuit recorded at the registry of deeds against the title to the particular property at issue in that lawsuit. A lis pendens must be approved by a judge who must find the lawsuit “affects the title to real property or the use and occupation thereof or the buildings thereon.” Once recorded at the registry of deeds, a lis pendens can effectively stop a purchase or sale of real estate from closing, create a “cloud” on title, and otherwise prevent a party from taking adverse action involving the subject property. Additionally, title insurance companies routinely decline to insure a title with a lis pendens on title. The lis pendens really earns its well-deserved reputation as deadly arrow in a real estate litigator’s quiver.

For Which Type of Case Can You Get a Lis Pendens Issued?

The lis pendens procedure is governed by statute, Mass. Gen. Laws ch. 184, sec. 15, and practitioners should be intimately familiar with it. The statutory standard for obtaining a lis pendens is that the lawsuit “affects the title to real property or the use and occupation thereof or the buildings thereon.” Ok, so what does that mean? Some examples of cases that are covered are:

  • Real Estate Contract Disputes/Specific Performance
  • Boundary Line/Easement Disputes and Adverse Possession
  • Quiet Title Actions 
  • Restrictive Covenants

Please note that under the statute, in Zoning/Wetlands Appeals cases, you are not entitled to a lis pendens — this was enacted to keep real estate development permitting from being railroaded by abutter appeals.

How To Get a Lis Pendens

First off, you need an experienced real estate litigation attorney because the process is complicated. The attorney will draft a Verified Complaint which must be signed by the plaintiff client under the pains and penalties of perjury attesting that all facts are true and accurate, and no material facts have been omitted. The “no material facts have been omitted” requirement was added in 2002, and I’ll discuss this below as there has been recent case law on it. The complaint must name as defendants all owners of record and any party in occupation under a written lease. Along with the Verified Complaint, the attorney will file a Motion for Issuance of Lis Pendens, a proposed Memorandum of Lis Pendens, and Motion for Short Order of Notice.

You also have to pick your venue, which is between Superior Court and Land Court. There are a lot of factors which will go into that calculation, including how complex your case is, whether you want a jury trial, and whether you want your case in Boston (Land Court).

The way I handle a lis pendens is that I will file the case in person in the afternoon and seek what’s called a “short order of notice,” which accelerates the time schedule for getting the motion for lis pendens heard by the judge. You get to pick a hearing “return date” and then you must serve a Summons and Order of Notice along with all the other pleadings on the defendant(s) by sheriff or constable. Then you wait a couple weeks until the hearing date and any opposition or special motion to dismiss from the opposing side (which I’ll cover below). If there is a clear danger that the other party will convey or encumber the subject property, you can file the motion “ex parte” – that is, without the other side being notified in advance, however, you have to make that factual showing there is an emergency.

At the hearing on the motion for lis pendens, both sides and their attorneys will argue before the judge whether the case qualifies for the issuance of a lis pendens. In theory, the standard for getting a lis pendens is quite low. There should not be any debate over the merits of the claims; the only issue is whether the case qualifies for a lis pendens. However in practice, especially if the defendants are opposing the lis pendens or have filed a special motion to dismiss, you’ll get deep into the merits of the case at that hearing.

Defending The Lis Pendens

With the 2002 amendments to the lis pendens statute, there are now several ways to attack a motion for lis pendens. When I was first practicing back in the late 1990’s, judges would give out lis pendens like candy. Not anymore.

A party defending a lis pendens may now file a “special motion to dismiss.” If a judge allows the special motion to dismiss, any claim affecting title will be dismissed AND the plaintiff will have to pay the defense’s attorney’ fees and costs. Additionally, the case is basically frozen in place until the special motion is ruled upon. So this remedy has a lot of teeth. However, getting a judge to grant a special motion to dismiss is not easy. You must demonstrate that the action is frivolous because (1) it is devoid of any reasonable factual support; or (2) it is devoid of any arguable basis in law; or (3) the action or claim is subject to dismissal based on a valid legal defense such as the statute of frauds. In my 25 years, I’ve only had a handful of cases thrown out on a special motion to dismiss.

Another way to attack a motion for lis pendens is to focus on what may have been left out of the plaintiff’s lawsuit. Under recent case law, a party’s failure to include all material facts in its complaint or required certification may result in denial of lis pendens and dismissal of that party’s claims where the omitted facts establish that those claims are devoid of reasonable factual support or arguable basis in law.  Some cases detailing this strategy are: McMann v. McGowan, 71 Mass. App. Ct. 513 (2008); Galipault v. Wash Rock Invs., LLC, 65 Mass. App. Ct. 73 (2005); DeCroteau v. DeCroteau, 90 Mass. App. Ct. 903 (2016). I’ve used this strategy several times successfully resulting in the judge declining to issue a lis pendens where the plaintiff left out critical facts in his complaint.

The Memorandum of Lis Pendens

If you have the good fortune of convincing the judge to issue a lis pendens in your case, your attorney will have the judge endorse a Memorandum of Lis Pendens form which then is recorded at the registry of deeds. The Memorandum must contain the caption of the case, the record owners, address, and deed reference to the subject along with the judge’s endorsement that: “It is hereby found and ordered that the subject matter of this action constitutes a claim of a right to title to real property or the use and occupation thereof or the buildings thereon within the statutory definition of G.L. c. 184, § 15.” A certified copy of the Memorandum of Lis Pendens along with Affidavit of Service (service by certified mail) must be recorded either in person or through the e-record system.

The lis pendens stays on record (and creating a cloud on title) during the entire pendency of the case, which can go on for many years. That’s what makes it so powerful, and in many cases, can force a party into a favorable settlement or resolution.

Appeals

Ok, you’ve either got your lis pendens or you may have lost and had a lis pendens issued against you. Can I appeal? The answer is maybe, and it’s complicated. An “interlocutory appeal” is available to a Single Justice of the Appeals Court available under G.L. c. 231, s. 118, first and second paragraphs for “any party aggrieved by a ruling [under the statute].” A full panel appeal to the entire Appeals Court is also available. There is a hard 30 day appeal period for both. An appeal covers the denial/grant of lis pendens and a grant of a special motion to dismiss, but not the denial of a special motion to dismiss. Practicioners should review the statute carefully and DeLucia v. Kfoury, 93 Mass. App. Ct. 166 (2018); Citadel Realty LLC v. Endeavor Capital North, 93 Mass. App. Ct. 39 (2018). The best practice is to file single justice appeal and notice of appeal in lower court for full panel appeal. 

Dissolution

Once a lis pendens goes on record, it doesn’t go away unless it is properly dissolved. If the parties are fortunate enough to settle the case, dissolving the lis pendens is fairly easy with the attorneys signing and recording a formal Dissolution of Lis Pendens, or a Stipulation of Dismissal, then certified copy of Judgment of Dismissal. If you get the lis pendens dissolved by the court or even better, the entire case dismissed prior to judgment, you’ll need to record certified copy of Order Dissolving Lis Pendens and/or Certificate of Judgment.

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I often refer to the lis pendens as a real estate litigator’s best friend and worst enemy. It can make the difference between winning and losing your real estate case, and most often creates the leverage needed to secure a favorable resolution. If you have any questions regarding the lis pendens process, feel free to email me at [email protected].

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Tenant Rental Assistance Eviction Protection (Chapter 257) Re-enacted By Legislature and Gov. Healey

by Rich Vetstein on September 8, 2023

in COVID-19, Housing Court, Landlord Tenant Law, Massachusetts Real Estate Law, Rental Housing

Non-payment Evictions Put On Hold Until Tenant RAFT Applications Are Denied/Approved

Ignoring strong opposition from property owners, the Legislature and Gov. Healey have re-enacted a Covid-19 era tenant protection law (Chapter 257 of the Acts of 2020) which puts an indefinite hold on any non-payment eviction where the tenant has applied for rental assistance (RAFT) until such time as the application is approved or denied. This was part of the FY24 budget signed by Gov. Healey in early August, and fell under the radar of many folks in the rental property community.

As the saying goes, justice delayed is justice denied. The net effect of this reenacted policy will be delay, delay, delay for all landlords filing non-payment of rent eviction cases, on top of the already hefty delay caused by the pandemic backlog of cases. When this law was originally put in place in 2020, landlords saw their time in court triple, according to Housing Court statistics. We can expect that to remain the same, or even worse.

Even more problematic, the limit for RAFT assistance in any 12 month period has been reduced to $7,000 — barely enough to cover a few months rent in the Greater Boston area. Most housing providers do not start evictions until tenants are behind several months, so by the time they get to court, arrearages are typically in the many thousands, and often well over the $7,000 cap. Furthermore, understaffed state agencies handling RAFT applications can be hit or miss. During the pandemic, tens of thousands of rental assistance applications “timed out” without explanation. Tenants will be able to further drag out the eviction process, resulting in many landlords being forced to negotiate huge unpaid rent concessions just to gain back possession of their units. I see this in court on a daily basis.

The “new” Chapter 257 law provides as follows:

In an action for summary process for nonpayment of rent, a court having jurisdiction over said action for summary process shall:

(i) grant a continuance for a period as the court may deem just and reasonable if, either at the time the answer is timely filed or on the date the trial is scheduled to commence: (1) the tenancy is being terminated solely for non-payment of rent for a residential dwelling unit; (2) the non-payment of rent was due to a financial hardship; and (3) the defendant demonstrates, to the satisfaction of the court, a pending application for emergency rental assistance; provided, however, the court may consider any meritorious counterclaim brought in said action for summary process;

(ii) issue a stay of execution on a judgment for possession if the requirements in clauses (1) to (3), inclusive, of paragraph (i) are met; and

(iii) not enter a judgment or issue an execution before the application for emergency rental assistance has been approved or denied.

The “new” Chapter 257 only applies to non-payment cases; it does not apply to no-fault, for cause, or post foreclosure cases. The law also contains some language which would allow a landlord to challenge whether the nonpayment of rent is actually due to a legitimate financial hardship. This would most likely require some type of evidentiary hearing. I will keep you informed as to any further developments with the new Chapter 257.

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Housing Court To Speed Up Eviction Cases and Shift To More In-Person Events

by Rich Vetstein on April 3, 2023

in Housing Court, Landlord Tenant Law, Massachusetts Real Estate Law, Rental Housing

New Rules Aimed At Reducing Pandemic Era Case Backlogs and Delays

Are the old days of packed Thursday morning summary process sessions coming back? They just may be. With the expiration of a pandemic era law called Chapter 257 and the end of the Covid-19 emergency, the Massachusetts Housing Court just released an important new Standing Order 1-23 which will speed up cases and move to more in-person hearings and less virtual appearances. The new Standing Order should be welcome news to housing providers whose cases have been delayed due to Chapter 257 and the backlog of post-moratorium pandemic era cases.

Expiration of Chapter 257

With the expiration on March 31 of Chapter 257 of the Acts of 2020, there is no longer an automatic hold on cases where there is a pending rental assistance application filed by the tenant. However, while a case with a pending RAFT application will continue to move forward, that is not to say that a judge would evict a tenant who expects to receive rental assistance covering an arrearage. The problem has always been that since the RAFT limit decreased to $10,000, many landlords are owed more than that, so those landlords will not be penalized by the Chapter 257 delay any longer.

More In-Person Events

Second, all “Tier I” mediations, evidentiary hearings, and trials will be held in-person going forward, unless there are extraordinary circumstances for a virtual appearance. Virtual/Zoom will continue for all case management, pretrial and status conferences, emergency motions on short notice, and certain non-evidentiary hearings. I have mixed feelings about this. Having virtual Tier I mediation events saves legal fees for represented parties and is much better for a busy lawyer’s scheduling. Now a landlord will be charged 3+ hours of lawyer time as opposed to 30 minutes if we are forced to drive to Boston, Worcester or Lawrence for mediation dates. Evictions are already a lose-lose financial abyss for landlords, so I would hope that judges will routinely grant attorneys’ motions for a virtual Tier I hearing.

New Modified Two-Tiered System

For cases filed after June 5, 2023 and certain cases in progress, there is a new modified Two-Tiered System, which should move cases far quicker than current practice. The Tier I court event (mediation/case management) will be scheduled between 30-60 days from the case’s filing. In a change to prior practice and one that will add expense to landlords, the notice of the first court event must be served by constable/sheriff by the plaintiff or its attorney. I was quite disappointed to see this, although local constables will be happy undoubtedly.

Quicker Trial Dates

In a much welcome change, if the case does not resolve at the Tier I event, trials will scheduled 2 weeks later. Currently, the wait for a trial date, especially a jury trial, can be several months. This is great news, and hopefully the Court can implement this despite the huge case backlog and staffing issues. Cases which were filed before June 5, 2023 and have already been scheduled for the Tier I event, shall stay on the prior “slow” track.

Agreements

For agreements for judgment with a self-represented party, the new rules provide that such agreements must be approved by a Housing Specialist, Clerk or Judge who shall determine that the terms are fair and reasonable and that it was entered into voluntarily.

New Notice to Quit Affidavit of Compliance

Lastly, in all non-payment cases, a new affidavit of compliance with the Notice to Quit Attestation Form under G.L. c. 186, section 31 must be filed.

As always, if you have any questions about Massachusetts Evictions, please feel free to contact me at [email protected].

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Boston Rent Control Bill Will Wreak Havoc In City’s Housing Market

by Rich Vetstein on March 9, 2023

in Massachusetts Real Estate Law, Rent Control, Rental Housing

Wu Administration Misled Public On Details Of Plan: Corrupt Local Rent Control Boards Can Override Rent Increases, Lifetime Leases Allowed, Small Housing Providers Unfairly Targeted

The Boston City Council just passed Boston Mayor Michelle Wu’s controversial rent control measure by a 11-2 vote. Wu marketed her plan as some sort of reasonable compromise where rents would be capped between 6 – 10% annually. Her PR team also attempted to re-brand rent control as “rent stabilization,” which again implies something softer than traditional rent control, which Massachusetts voters rejected back in the 1990s — because it was always a disastrous failure. The problem with all this is that Michelle Wu flat out misled and lied to the public about the details of her rent control plan. The devil is always in the details, and when you actually read the bill (embedded below), it will become abundantly clear that this is the most extreme rent control policy ever proposed in Massachusetts history. That is not an exaggeration. This plan will wreak havoc in the Boston housing market. It will only take me 5 minutes to explain why below.

The Return of Local Rent Control Boards Which Can Override and Lower Rent Caps

Mayor Wu in her letter transmitting her Rent Control Proposal states, “The maximum allowable rent increase would be set at the Boston Metro Consumer Price Index (CPI) + 6 percent, but in no event could rent for a unit exceed 10% in a year.” This is false. Hidden in the proposal (Sec. 2e-g) is a provision authorizing the return of local rent control boards, filled with political appointees, who have the authority to override the 6-10% cap, and lower the rent control cap on annual increases, or veto rent increases altogether. The bill provides: “The City may provide for fair return standards for the regulation of rent, which may including but are not limited to, changes to permissible rental rates based upon certain maintenance and capital costs and rapid increases in property taxes. . . The City may establish or designate an administrator or board, to promulgate regulations pursuant to this section and govern local rent regulation.”

The 6-10% cap was always a bait-and-switch. The Wu administration and local political rent control boards can simply lower the annual cap whenever they want based on an amorphous “fair return” standard. Depending on the circumstances, a local rent control board could also veto any proposed rent increase. Do you know what happens when housing providers cannot increase the rent while inflation, real estate taxes and maintenance costs are soaring in this weak economy? Take a wild guess. We saw this in the 1970s and 1980s — before left progressives like Mayor Wu were even born. Without enough rental income, small owners cannot afford to make repairs or do renovations, and their properties fall into disrepair. They will be forced to sell to big corporate investors who treat tenants even worse. Neighborhood property values sink, and crime goes up. After rent control was lifted in the mid 1990s, we saw the single greatest housing and development boom in the history of Boston. The Seaport neighborhood was created. Southie because a place for young professionals. Roxbury, Dorchester and Mattapan saw huge public investments in housing and infrastructure. Today, we are seeing entire areas turned around — near the TG Garden, Allston-Brighton, SoWa, Mission Hill, and on and on. That’s not a coincidence.

Rent Control Building Cambridge 1980s

The return of notorious rent control boards is also a huge problem. If you are old enough, you may remember the stories of out of control, corrupt rent control boards in Boston, Cambridge and Brookline doling out rent controlled units to college professors, doctors, and even state supreme court justice Ruth Abrams, who had a rent controlled apartment in Cambridge. Who will sit on these rent control boards under Wu Control? There are no standards or guidelines in place, and you can bet that ultra left activist Friends of Michelle will be sitting on these powerful boards, accountable to no one, certainly not housing providers or voters.

In all of their many press conferences, TV interviews, and “listening” sessions, which were dominated by tenant and housing activists, you never heard Michelle Wu say a word about the rent control boards or the “fair return standards.” That was intentional, and it was done to mislead the public and play down this proposal as fair and reasonable. Don’t be fooled by the smoke and mirrors. Read the fine print. This is a fugazi.

“Just Cause” Eviction Protections Enacted — Neverending Leases and Lifetime Tenancies Created

If rent control were not bad enough, the bill also includes “just cause eviction” protections for tenants which — and I’m not exaggerating — allows tenants to claim never-ending leases and lifetime tenancies. Now this is the 4th or 5th time that the City has tried to pass “just cause” eviction protections, the latest being the Jim Brooks Act, all of which failed to get enough votes. But somehow now, this incredibly one-sided measure has wound up in the Rent Control bill, and no one even blinked an eye.

The bill gives tenants an unlimited legal right to a lease renewal (even if there is no right of renewal in the lease) for an equivalent term of like duration at the rent controlled rate. Tenants at will have the same unlimited right to renew. There is no limit on the number of times a tenant can request a renewal, so this essentially creates a Never-Ending Lease with the applicable Rent Controlled Cap. Total insanity.

Furthermore, under the “Just Cause” measure, all “no-fault” evictions are prohibited in Massachusetts. These are essentially any eviction other than a non-payment situation, a serious lease violation, or some type of criminal activity. As has been the law for centuries in Massachusetts, a landlord may end a month-to-month tenancy at will with a 30 day notice to vacate. Landlords may also evict tenants who stay on after a lease has expired, or tenants who have refused a renewal request raising the rent. These situations come up all the time — owners want to sell the property; the landlord-tenant relationship has deteriorated beyond repair; a tenant is squatting after the lease expires. In all of these situations, the housing provider is stuck with the tenant. No eviction is permitted. Does that sound crazy to you? It does to me. Even in the case where an owner wants to move back into a rental unit or lease to a family member, the bill requires the payment of a relocation benefit to the tenant, set by the City. This would likely be thousands of dollars.

They call this “Just Cause”? Well, I call it illegal and unconstitutional. These provisions would essentially allow the government to force a housing provider to house a person against their will, indefinitely. Sounds like a violation of the Fifth Amendment Takings Clause and Contracts Clause of the U.S. Constitution. I can assure my readers that I, along with the legal team who challenged the Covid Eviction Moratorium, are looking very closely at the legality of this, as well as the the entire bill. Stay tuned for more developments there.

Small Housing Providers Are Unfairly Targeted

Wu Control unfairly targets smaller “mom and pop” housing providers, excluding large corporate landlords who have built projects within the last 15 years. Small housing providers account for 90% of the housing stock in Boston, according to WGBH Public Broadcasting. All stand alone rental properties built after 2008 would be rent controlled unless one of the units is owner-occupied and has six or fewer units. Units less than 15 years old are exempt. So while newer projects in the Seaport or Back Bay would be exempt from rent control, the family who rents out their condominium or owns a couple rentals in Southie or Dorchester or Roxbury would be subject to rent control. Does this sound fair to you?

Wu Misled Public About Smaller Multi-family Buildings

The Wu administration kept saying their rent control measure does not apply to smaller building with 6 or less units, so to the small landlords, nothing to worry about here. That is another lie. Read the bill. The exclusion on rent control only applies to a 6 or less unit building where the owner lives in the building. A stand alone 2, 3, or 4 family decker house, or a one or two unit condominium building and any other smaller rental property where the owner does not live there WILL BE SUBJECT TO RENT CONTROL.

Condominium Conversion Restrictions

The Wu Control Bill also allows the City to enact a condominium conversion ordinance which would impose a myriad of restrictions on your right to convert a two-three family house or other building into a condominium. Mandatory tenant relocation payments, and notification requirements (up to 1-2 year delays) would be imposed. This, in and of itself, would significantly discourage the creation of new housing units. Condominium units create new tax revenue for the City, and they also allow long time and elderly residents to tap into the equity value of their homes, but this would go by the wayside if there are too many impediments to conversion. It’s just another stupid policy decision by the Wu administration.

Rent Control Is Terrible Public Policy; Studies Show It Backfires

As I have written here, the great thing about the 1994 statewide vote banning rent control is we now have empirical data and a reliable study from prominent economists which has compared the Cambridge housing market during rent control vs. after rent control. We also have data and a similar study out of San Francisco. Both studies (and many others from the past) have found that rent control did not work at all, and actually had the exact opposite effect — contributing to gentrification, displacement of tenants and income inequality. Rent controlled owners typically defer repairs and capital improvements, because they aren’t getting enough rental income to make the numbers work. With more run-down rentals, rent control also lowers property values overall in neighborhoods.

Moreover, a recent new National Apartment Association report analyzing the impact if a 3% annual cap on apartment rents in Boston concluded that:
● New apartment supply will drop by more than 700 units per year;
●  Apartment property values will drop by more than $260 million; and
●  Property tax revenue to the City of Boston will drop by more than $2 million annually.

What far left progressives like Mayor Wu fail to appreciate is the basics of micro-economics and supply vs. demand. There is far too little affordable housing in Massachusetts, due in large part to burdensome zoning, lack of available buildable land, and NIMBY neighborhood groups. Imposing an artificial government price control does nothing to address the critical supply issue. To the contrary, it will just make it worse, as studies show rent control results in deferral of landlord repairs and capital improvements and depression of nearby housing stock. If Wu is serious about tackling housing, she must have the City build its own affordable housing projects and incentivize developers to do the same. Otherwise, she’s just playing politics.

On To the State House

I have not seen one article in the media which has raised the above problems with the new rent control boards, their ability to veto rent increases, the just cause eviction measures, the lifetime leases, and the targeting of small housing providers. Not one. PSA to reporters: Do Your Job, and Do It Better. This disaster of a bill now goes to the State House and requires a majority vote and Gov. Healey’s approval. I sincerely hope that legislators take the time to truly review this proposal and get everyone’s input on it. Don’t exclude the rental property owner side like the Wu administration did. In fact, MassLandlords, the leading housing trade association, had to sue the Wu administration to get them to turn over public records and emails concerning how the Mayor’s Rent Stabilization Advisory Committee were selected. Certainly not the transparency Mayor Wu touted in her election campaign….

If you are interested in joining the fight against Rent Control, consider joining MassLandlords. The Small Property Owner’s Association (SPOA) is also engaged in this. The Greater Boston Real Estate Board issued a statement following Wu’s introduction of her plan saying, “rent control, also known as rent stabilization, is a proven failure. It increases housing costs, discourages upkeep and maintenance and disincentivizes construction. We strongly oppose Mayor Wu’s plan to bring government price controls on housing to Boston because it would make the region’s housing crisis even worse. Instead, the city – and all of Massachusetts – should focus on passing pro-housing policies that reduce red tape, encourage construction and lower overall costs.”

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Worcester Area Couple Evicted For 14th Time, Leaving Trail of Unpaid Judgments and Moving Bills For Local Property Owners

by Rich Vetstein on February 2, 2023

in Housing Court, Landlord Tenant Law, Massachusetts Real Estate Law, Rental Housing

In my 25 years of law practice, I’ve seen a lot of crazy stuff, but this recent eviction case may top my list of “Professional Tenants.” With 14+ evictions, a slew of larceny charges on their record, and thousands in past rent owed in judgments, a husband and wife team from Shrewsbury have perfected an alleged pattern of fraud on local landlords. In my client’s case, they provided him with a bogus credit report and then proceeded to bounce a $13,500 deposit check for a 4 bedroom rental house in Shrewsbury. They failed to make good on the bad check, and squatted in the house for five months without paying a dime in rent, forcing the owner to evict them in Worcester Housing Court. After an 11th hour attempt to delay the move out where the husband lied in front of the judge, we completed a forced move out of the 3,000 sf home. The moving company president said this was the 4th time he has evicted this couple. With the lost rent and mandatory moving and storage fees, my client now faces a $30,000 loss. Before this, court records indicate the couple allegedly engaged in a similar pattern with other local landlords, jumping from one property to another, leaving a trail of unpaid judgments, attorney fees, and moving/storage bills.

So here in tenant-friendly Massachusetts we have these type of cases which essentially go undeterred, while tenant advocates and local politicians try to impose “just cause” legislation making it even harder to evict tenants. These are not isolated instances. Take a look at the Housing Court dockets and you’ll see hundreds if not thousands of massive (and worthless) judgments for unpaid rent.

The only saving grace in my case is that we were able to have criminal charges for larceny by check brought against the husband who passed the bad check. And the eviction *only* took three months start to finish, which is light speed these days. If you are a Worcester area rental property owner, please watch out for these people!

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Rent Control: Coming To A Boston Rental Property Near You?

by Rich Vetstein on January 19, 2023

in Affordable Housing/40B, Rent Control, Rental Housing, Senior Housing

Boston Mayor Michelle Wu Preparing To File Comprehensive Rent Control and Just Cause Eviction Bill

Update (3/8/23): Learn About The Disastrous Rent Control Bill Passed By Boston City Council

Yesterday all the major Boston news outlets reported that City of Boston Mayor Michelle Wu is readying a proposal to bring back rent control to Boston. Voters statewide rejected the controversial idea three decades ago in 1994, and several new economic studies, including out of Cambridge, MA, have definitively proven it is a failed policy. Wu’s rent control ordinance would cap annual rent increases between 6% – 10% depending on the Consumer Price Index and Inflation Index. While very small owner-occupied buildings are exempt from the law, this may be negated by Wu’s “just cause” eviction protections, which make it nearly impossible for landlords to bring “no-fault” evictions and remove “at will” tenants.

Under the Home Rule Amendment, “Wu Control” would need full approval from the entire state Legislature and Gov. Maura Healey. According to the Boston Globe, House Speaker Ronald Mariano has “questions” about the policy, including fears that it could discourage investments in housing. “It’s been voted down a number of times,” the Quincy Democrat noted. Gov. Healey, meanwhile, avoided taking a position on Wu’s proposal, saying, “It’s something I have to look at and review.” Similarly, a spokesperson for Senate President Karen Spilka said only that she would review “any finalized proposal” that came before the Legislature.

Predictably, property owners are vehemently opposed to bringing back rent control. As I have written here, the great thing about the 1994 vote banning rent control is we now have empirical data and a reliable study from prominent economists which has compared the Cambridge housing market during rent control vs. after rent control. We also have data and a similar study out of San Francisco. Both studies (and others from the past) have found that rent control did not work at all, and actually had the exact opposite effect — contributing to gentrification, displacement of tenants and income inequality.

If Wu is successful in getting rent control passed in Boston, rest assured that lawyers like myself will be seriously contemplating lawsuits challenging the measure, perhaps even all the way up to the U.S. Supreme Court, which showed a willingness to strike down overreaching eviction moratoria laws during the Covid pandemic. The same rationale could easily apply to rent control.

What far left progressives like Mayor Wu fail to appreciate is the basics of micro-economics and supply vs. demand. There is far too little affordable housing in Massachusetts, due in large part to burdensome zoning, lack of available buildable land, and NIMBY neighborhood groups. Imposing an artificial government price control does nothing to address the critical supply issue. To the contrary, it will just make it worse, as studies show rent control results in deferral of landlord repairs and capital improvements and depression of nearby housing stock. If Wu is serious about tackling housing, she must have the City build its own affordable housing projects and incentivize developers to do the same. Otherwise, she’s just playing politics.

I spoke to Dan Rea on his “Nightside” show on WBZ Radio about Mayor Wu’s rent control proposal. Listen HERE.

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SJC Gives Country Club A Mulligan From $5 Million Jury Award In Errant Golf Ball Case

by Rich Vetstein on January 17, 2023

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

High Court Rules That Trial Judge Improperly Instructed Jury On Golf Course Property Easement, Covenants and Restrictions

Credit: Boston Globe

In a case which has received national attention and a People Magazine article, the Supreme Judicial Court has overturned a jury’s award of $5 Million to a family whose home overlooking the 15th hole at the Indian Pond Country Club in Kingston was pelted by hundreds of errant golf balls. Erik and Athina Tenczar brought the lawsuit against the Indian Pond Country Club in Plymouth Superior Court, claiming that duffers shanked over 700 wayward golf balls off the 15th tee, peppering their home, breaking windows, and tormenting their family for years without an acceptable solution from the club. A jury agreed, awarding the couple an eye dropping $3.4 Million in emotional distress damages, plus another $1.6M in property damage with interest.

The massive jury verdict had many real estate attorneys and golf enthusiasts scratching their 9-irons, with online comments ranging from “what did they expect living next to a golf course” to “the club did not do enough.” In an eagerly awaited decision, a unanimous Supreme Judicial Court struck down the jury verdict. The justices ruled that the trial judge misinterpreted the covenants and restrictions governing the golf course home community, and that he incorrectly instructed the jury on those rules which gave the club an easement allowing for the “reasonable and efficient operation” of a golf course in a “customary and usual manner.”

Justice Scott L. Kafker, who wrote the opinion, acknowledged that golf is a game of misses and errors:

“Errant golf balls are to golf what foul balls and errors are to baseball. They are a natural part of the game. They demonstrate the difficulty and challenge of the sport even for the very best players,” Kafker wrote. “Despite practice, instruction, technological improvements, and even good golf course design and operation — disputed in [this] case — golf shots go awry, as a matter of course.”

It’s hard to say whether the jury, if properly instructed on the scope of the covenants, restrictions and easements, would have come to the same result. The Tenczar’s presented the jury with evidence that over 700 flying balls shattered windows in their house with such force they sent glass spraying into the next room; the siding on the house was peppered with circular dents. The couple say they anticipated putting up with some amount of sound and distraction from living along a golf course. But they were not prepared for the extent, frequency, and intensity of all of it . . . Honestly, if you have all these houses on a course, I assumed it was safe,” Athina Tenczar told the Boston Globe. The club made several modifications to the 15th hole to encourage golfers to hit shots away from the Tenczer home, but they did not install protective netting.

While owning a home on a golf course comes with the inherent risk that errant golf balls will come onto property, the Tenczars will get to tee up their case another time before a jury. That is, if they aren’t able to settle the case with the club. Perhaps that’s the best way to an “even par” result. The case is Tenczar v. Indian Pond Country Club, Inc., 491 Mass. 89 (Dec. 20, 2022), embedded below.

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Double Dipping By Cummings Properties Not Allowed In Commercial Lease Dispute

by Rich Vetstein on December 7, 2022

in Commercial Leasing, Commercial Real Estate, Landlord Tenant Law, Leasing, Massachusetts Real Estate Law, Real Estate Litigation

Appeals Court Rules That Liquidate Damages Clause Is Unenforceable Where It Allowed For Recovery of Rent For Remaining Term On Top of Rent Received From New Tenant

If you enjoyed the famous Seinfeld episode where George Costanza was accused of “double dipping” his chips and dip at a family funeral, then you’ll appreciate this post. The case is Cummings Properties LLC v. Hines (Mass. Appeals Court Dec. 6, 2022) where the Appeals Court struck down a liquidated damages clause in a commercial lease which purported to allow the landlord to recover a large financial penalty even though it was able to re-lease the premises.

The case is a good example of what can happen where a party can get a bit too greedy in seeking damages in a commercial lease case. Cummings Properties, one of the largest commercial real estate firms in the Greater Boston area, has a well deserved reputation of being an overly litigious commercial landlord (in my humble opinion). I’ve dealt with them several times, and I can tell you a few stories offline. Anyways, in this case, Cummings leased office space to Darryl Hines, who owned a constable/process serving business. Hines had just secured a lucrative contract with the Mass. Dept. of Revenue and needed a larger office for the new business. The lease was for 5 years at around $16,000 annually. Unfortunately, only a month into the new lease, the DOR abruptly cancelled the contract with Hines, leaving him in severe financial distress. Hines tried to work out a resolution with Cummings but it refused to release him from the lease obligations. Hines then defaulted. A year later, Cummings was able to find a new tenant and signed a 4 year lease. Cummings sued Hines, who signed a personal guaranty, for some $82,000 in damages representing the entire balance of the 5 year lease.

The lease provided for a rather common acceleration and liquidated damage provision: 

"In the event that . . . LESSEE defaults in the observance or performance of any term herein, and such default is not corrected within 10 days after written notice thereof, then LESSOR shall have the right thereafter, without demand of further notice, to declare the term of the lease ended, and/or to remove LESSEE's effects, without liability, including for trespass or conversion, and without prejudice to any other remedies.  If LESSEE defaults in the payment of any rent, and such default continues for 10 days after written notice thereof, and, because both parties agree that nonpayment of said sums is a substantial breach of the lease, and, because the payment of rent in monthly installments is for the sole benefit and convenience of LESSEE, then, in addition to any other remedies, the net present value of the entire balance of rent due herein as of the date of LESSOR's notice, using the published prime rate then in effect, shall immediately become due and payable as liquidated damages, since both parties agree that such amount is a reasonable estimate of the actual damages likely to result from such breach."

There has been a fair share of litigation in the last several decades over the enforceability of liquidated damage penalty clauses. These clauses are generally enforceable as long as it is not so disproportionate to anticipated damages as to constitute a penalty. Courts will generally enforce these clauses if (1) at the time the agreement was made, potential damages were difficult to determine, and (2) the clause was a reasonable forecast of damages expected to occur in the event of a breach. Massachusetts used to have a “second look” rule where judges could consider the state of events at the time of the breach, however, the SJC stopped that practice in 1999 in favor of a “single look” approach which only accounts for the circumstances present at contract formation.

The fatal problem for Cummings in this case was that its liquidated damage provision permitted it to have its cake and eat it too. That is, it allowed Cummings to re-lease the premises, collect rent from the new tenant without credit or offset to Hines, then on top of that, pursue all of the rent owed by Hines through the end of the 5 year term. This is akin to the “double dipping” perpetrated by said George Costanza in Seinfeld. The Appeals Court ruled that the clause allowed for such double dipping and was therefore an unfair penalty.

So what are the take-aways from this case? The obvious one for commercial landlords is don’t be a pig and chase a small business owner for tens of thousands of dollars over and above what you received in new lease funds. As far as drafting these clauses, it’s a tough one because so far humans have been unable to accurately predict future outcomes. I would say that your liquidated damage clause should have some type of caveat that the tenant will get credit for any rent received from a new tenant and be liable for the differential in rent through the end of the term. Hopefully that would work.

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Evictions Remain A “Lose-Lose” For Massachusetts Landlords: A Case Study

by Rich Vetstein on June 2, 2022

in Housing Court, Landlord Tenant Law, Massachusetts Real Estate Law, Real Estate Litigation, Rental Housing

Suffolk Sheriff Deputies Enforcing Eviction Order

Recent Case Shows Fundamental Flaws Remain In The Housing Court Eviction System

I recently concluded an eviction with a forced moved out in Dorchester, MA, which epitomizes everything that is wrong with the system here in Massachusetts. For the privacy of the parties, I will not divulge the names or docket number of the case.

I represented the property owner, a young woman who grew up low income in Worcester and put herself through college, then law school, and is now working at a law firm. She bought a condo unit in Dorchester, but then had to relocate for work, so she rented it out to four people, including the defendant-tenant. The tenant, a young male, had a very hard time getting along with the other housemates so the three other tenants moved out, leaving this tenant there alone. Initially my client said that if he found new roommates, he could stay, but it was apparent that he was not going to do that, so we issued a notice to quit back in January 2021. He also stopped paying any rent.

When he failed to move out, we filed the eviction in Eastern (Boston) Housing Court in March 2021. The tenant was savvy and knew how to work the system. He took advantage of free legal services attorneys at every juncture in the case. We had two mediation sessions, where initially he appeared willing to enter into a move out agreement only to pull the rug out at the very last minute. We even dangled a cash-for-keys deal, which he rejected.

The tenant then tried to claim a jury trial after the deadline to do so, so we had a motion hearing on that issue, which thankfully Judge Kelleher denied that motion, but this also delayed the case. There was a snowstorm cancellation on the original trial date thrown in as well. We finally received a firm bench trial date in March 2022 — a full year after the case was filed. The tenant also refused to apply for RAFT aid (and we did not want to pursue that because we would be required to dismiss the case). Believe me, I tried to push the case forward as fast as I could, but with the pandemic case backlog it is very difficult.

My client came in from California for the trial which took all of 20 minutes, and went in our favor on all issues. Meanwhile, the tenant had still not paid a penny in rent, and the rent balance had ballooned to over $40,000 by that point. Judgement for possession entered for the landlord, and an execution for possession (move out order) issued in April 2022.

Due to the pandemic caused backlog of cases, the Suffolk Sheriff’s Office is extremely backed up in scheduling eviction move-out’s. We did not receive a firm date for our move out until June 1. We tried to negotiate a voluntary move out with the tenant but he would not budge. After all, he was living rent free himself in a 4 bedroom condo unit — why would he move out?

On June 1, a team of Suffolk Sheriff deputies, movers and a locksmith (all paid for by the landlord) conducted the move out. The tenant was completely non-cooperative and refused to open the door. A supervising lieutenant and Boston police officers were called as back up because you never know what could happen in this day and age. After about a 90 minute stand off, the deputies breached the door and gained entry. Not surprisingly, the unit was absolutely trashed, rugs destroyed, bottles of liquor everywhere, walls damaged, etc. Huge thanks to the Suffolk Sheriff deputies who were unbelievably professional and a pleasure to deal with.

After 16 months since the notice to quit was issued, here are my client’s losses: Lost rent ($55,000), attorneys’ fees ($10,000 range), court costs and eviction move out costs ($6000 range), clean up restoration costs ($5000+ range).

It’s these type of cases which should be highlighted when state legislators push the Right to Counsel and Just Cause Eviction bills. Massachusetts remains one of the worst states for landlords in the country. That much is undisputed.

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Boston Eviction Moratorium Will End On February 28, 2022, Appeals Court Single Justice Rules, But Questions Remain

by Rich Vetstein on February 15, 2022

in COVID-19, Housing Court, Landlord Tenant Law, Massachusetts Real Estate Law, Rental Housing

Justice Joseph M. Ditkoff

Appeals Court Justice Joseph M. Ditkoff Rules Boston Eviction Moratorium Must End On February 28, 2022, But Questions Remain Whether City Will Enact New Tailored Moratorium

The legal challenge to the Boston Eviction Moratorium just took an interesting turn on appeal. After Housing Court Justice Irene Bagdoian struck down the moratorium in a scathing opinion, Appeals Court Justice Joseph Ditkoff, considering an appeal along with a motion to stay by the Boston Public Health Commission, ruled that the moratorium must end no later than February 28, 2022. In an unusual move, he then commented in dicta (observations which do not hold the force of legal precedent), that the City could revise and narrow the moratorium based the current state of Covid-19 in the City. While landlord attorneys view the ruling as a win, a lot of attorneys who practice in the Housing Court are scratching their heads, trying to navigate the impact of this ruling on whether eviction move outs can proceed now, after February 28, or in the future. Certainly, if the City attempts to revise the moratorium, this would likely result in further litigation (in this case or others) over whether the current Covid-19 pandemic warrants further suspension of evictions in the city.

Take Away From Ruling

In drawing take-away’s from this ruling, the procedural posture is important. Back in November 2021, landlords and constables won a declaratory judgment from Justice Bagdoian that the moratorium exceeded the powers of the BPHC. She declined to stay that ruling, and the commission appealed to a single justice of the Appeals Court and sought a stay with Justice Ditkoff. A seeking a stay pending appeal must ordinarily meet four tests: (1) the likelihood of appellant’s success on the merits; (2) the likelihood of irreparable harm to appellant if the court denies the stay; (3) the absence of substantial harm to other parties if the stay issues; and (4) the absence of harm to the public interest from granting the stay.

On the first prong of the test, Justice Ditkoff disagreed with Judge Bagdoian. He felt that the moratorium was a “reasonable health regulation” enacted by the BPHC. But, he noted that under relevant Supreme Judicial Court legal precedent, an eviction moratorium of six months was reasonable. (The current moratorium has no stated termination date). As such, he ruled in this case only that the moratorium would stay in place through February 28, 2022 (which is 6 months from when it was enacted).

What’s Next? It Is Unclear

So what will happen next? There are several scenarios in play. Justice Ditkoff stated in dicta: “That is not to say that evictions necessarily must resume on March 1, 2022. The moratorium . . . could be extended for up to an additional six months upon a showing of hardship. In light of the rapidly changing situation arising from the COVID-19 pandemic, I have no occasion to consider at this time whether, at the end of February, the commission could enact a tailored and time-limited extension of the moratorium on the basis of the then-current COVID-19 hospitalizations and community positivity rates.” Thus, Mayor Wu’s office could come out with a revised moratorium order, more narrowly tailored and limited in duration. Or, she could extend the current order. Whatever she decides, further litigation will certainly follow. I know that the plaintiff/landlords are considering an appeal Justice Ditkoff’s ruling, which in my opinion would be warranted given the his faulty reasoning and the huge importance of the issue to landlords. That appeal could wind up before the entire Appeals Court or the Supreme Judicial Court. It is unclear at this point, and the timeline is unpredictable.

More Confusion

There is also a question as to the applicability of this ruling outside the parties in the case. The ruling was made in connection with a motion to stay — it is not supposed to be a decision on the merits — although Justice Ditkoff went far past that procedural limitation and said a lot of things about the merits of the moratorium. Justice Ditkoff also stated: “It should be stressed that I have considered only the legal rights of the city and the tenant, landlords, and constable before me. No doubt other tenants, landlords, and constables could raise different arguments regarding the validity of the moratorium, and due process requires that every such party be heard before a determination of that party’s rights are made. Nothing in this order should be construed as limiting or adjudicating the rights of parties not before me.” So this indicates that further challenges to the City moratorium could be raised in individual cases in the Housing Court. Which is odd because Ditkoff ordered that the moratorium would end no later than February 28. We’ll have to wait and see how this plays out. All of this, no doubt, cries out for a final and conclusive ruling from either the full Appeals Court or SJC.

As always, I’ll keep you posted on further developments. Check back here at the end of the month. I’ve posted Justice Ditkoff’s ruling below.

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Joint Housing Committee To Hear Controversial Housing Stability Act, Rent Control, And Other Tenant Protection Bills On Jan. 11

by Rich Vetstein on January 6, 2022

in COVID-19, Housing Court, Housing Discrimination, Landlord Tenant Law, Rental Housing

LINK TO VIRTUAL HEARING LIVESTREAM CLICK HERE

The Massachusetts Legislature’s Joint Committee on Housing will hold a virtual hearing and take testimony on 20 controversial Landlord-Tenant bills on Tuesday, January 11, 2022 at 11 a.m. These bills include some of the most controversial and radical measures ever to reach Beacon Hill, including a return to rent control, the Housing Stability Act, Just Cause Evictions, Rent Cancellation, and many others.

Members of the public can register to testify by filling out this FORM by 5 p.m. on Friday, January 7, 2022.

Despite the large number of controversial bills, testimony will be limited to three minutes per individual, and the committee reserves the right to call public officials out of turn.

The bills which will be heard are the following (click Bill number for link to bill text):

H.1374 — An act relative to senior and non-elderly disabled housing (Rep. Biele)
H.1378 — An Act enabling local options for tenant protections (Rep. Connolly)
H.1380 — An act relative to capital relief in a counterclaim (Rep. Coppinger)
H.1381 — An act relative to reducing barriers in housing (Rep. Coppinger)
H.1401 — An act relative to provide tenant ownership in government assisted housing Rep. González)
H. 1429 — An act relative to the use of credit reporting in housing (Rep. Malia)
H. 1440 — An act relative to the stabilization of rents and evictions in towns and cities facing distress in the housing market (Rep. Rogers)
H. 1443 — An act requiring notice to landlords relating to gas or electric shutoffs (Rep. Roy)
H. 3721 — An act relative to avoiding senior homelessness and maintaining senior housing-stabilization of rents (Rep. DuBois)
H.4057 — An Act facilitating local approval of condominium conversion ordinances (Rep. Connolly)
H.4148 — An Act canceling the rent and providing relief to all impacted by the COVID-19 emergency (Rep. Connolly)
H.4208 — An Act authorizing the city of Somerville to enact Right to Purchase Legislation (Rep. Uyterhoeven)
H.4229 — An Act to restore Boston’s governmentally-involved housing protection (Rep. Elugardo)
S.863 — An Act relative to the disclosure of smoking within a multi-residence building by lessor (Sen. Brownsberger)
S.866 — An Act relative to homes for all (Sen. Chang-Diaz)
S.869 — An Act relative to reducing barriers to housing (Sen. Crighton)
S.884 — An Act to reduce the financial barriers to renting homes (Sen. Eldridge)
S.886 — An Act enabling local options for tenant protections (Sen. Gomez)
S.889 — An Act relative to the stabilization of rents and evictions in towns and cities facing distress in the housing market (Sen. Jehlen)
S.894 — An Act relative to the use of credit reporting in housing (Sen. Lesser)

Please contact Luke O’Roark at [email protected] for questions or inquires or to submit written testimony.

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