Kenney v. Brown: First Reported Decision Under Act Clearing Title to Foreclosed Properties
In a ruling applauded by the conveyancing bar and title underwriters, Land Court Justice Robert Foster has dismissed a borrower’s challenge to a 2007 foreclosure sale even though the borrowers recorded an affidavit reflecting the alleged title defect within the time period set by the Act. This is the first court ruling that I am aware of interpreting the new Act Clearing Title to Foreclosed Properties.
The Title Clearing Act, now codified in Mass. General Laws Chapter 244, section 15,was enacted by Gov. Baker last year in an effort to minimize the impact of several troublesome SJC rulings which cast doubt on titles coming out of foreclosures, including the seminal case of U.S. Bank v. Ibanez. The Act establishes a three-year deadline to bring a legal challenge to a foreclosure. To timely bring a challenge, an aggrieved homeowner must file lawsuit challenging the validity of the foreclosure sale, and must also record a copy of the lawsuit in the registry of deeds before the limitations period expires.
The plaintiffs argued that even though the Act expressly calls for the timely filing of a copy of the complaint challenging a foreclosure sale with the Registry of Deeds, the timely recording of their affidavit provided sufficient notice of their claim to satisfy the intent of the statute.
But Judge Robert B. Foster found the plain language of §15 controlled. “The language of the Statute is conjunctive,” Foster ruled. “It requires both the commencement of an action in court and the recording of the complaint or pleading with the registry before the deadline. The recording requirement is not surplusage. It is not simply a notice provision, but rather an additional requirement necessary to file a timely suit.”
Because the plaintiffs failed to comply with §15’s requirement to record their amended complaint within one year of the effective date of the act, Dec. 31, 2016, the judge concluded that their wrongful foreclosure claims were barred.
This is a great ruling for the conveyancing bar. Judge Foster’s decision furthers the underlying purpose of the statute to provide clarity of title in the wake of the foreclosure crisis and the Supreme Judicial Court’s 2011 decisions on wrongful foreclosure in Bevilacqua v. Rodriguez and U.S. Bank National Association v. Ibanez. The whole purpose of the act is to slowly clear away these defective foreclosure titles. It was also important for Judge Foster to clarify that so-called “5B affidavits” do not satisfy the act’s recording requirements. I have seen an increased prevalence of borrowers and attorneys recording bogus 5B affidavits in an attempt to cloud titles and shake down third party buyers and title insurance companies.
By Richard P. Howe, Jr., Registrar, Middlesex North Registry of Deeds
As young people who have known nothing but digital commerce enter the home ownership market, the conveyancing community in Massachusetts will face increased pressure to leave paper behind in favor of purely electronic closings. The statutory basis for this technological transition has been in place since 2004 with the adoption of MGL c.110G, the Massachusetts Uniform Electronic Transactions Act. Since then, all registries of deeds in the commonwealth have implemented electronic recording systems. Still, some uncertainly remains, especially regarding acknowledgements.
Earlier this year I wrote about electronic acknowledgement statutes in other jurisdictions in “Remote electronic acknowledgments,” published in the March 2017 edition of REBA News. In the same article, I explained why registries of deeds in Massachusetts should record documents electronically acknowledged outside of Massachusetts, but not record those electronically acknowledgement within Massachusetts. The primary basis for that opinion was that Massachusetts law requires a notary to affix a notary stamp to an acknowledgement, and that our law provides no electronic equivalent of that notary stamp.
With the demand for electronic acknowledgements looming but not yet fully upon us, now is the time to amend our notary statute to accommodate new technological practices. The starting point for such an amendment should be a shared understanding of the purpose of an acknowledgement, particularly with regard to real estate documents.
In colonial Massachusetts, registries of deeds and the requirement that real estate documents be acknowledged arose simultaneously. The purpose of the registry was to provide a public record of who owned what land as a means of curtailing secret sales that muddled ownership and created uncertainty in real estate transactions. The purpose of requiring deeds to be acknowledged before recording was meant to curtail fraud, either in the guise of a forged signature or of an actual signature that was later denied by its maker.
Conceived in the seventeenth century, the rationale for these rules, and the rules themselves, persist today. Registries of deeds perform the same core function of making public real estate ownership records, using new technology to do it.
So what is the core function of an acknowledgement? Primarily, it is to assure the public that the person who signed a document is who he or she purports to be. In Massachusetts, a notary does this by personally witnessing the signing of the document while positively identifying the person who signed it. The notary attests to this by signing the acknowledgement clause, printing his name and the expiration date of his notary commission underneath his signature, and then affixing his notary stamp to the document.
MGLc.222, s.8 requires a notary stamp to include “the notary public’s name exactly as indicated on the commission; the words ‘notary public’ and ‘Commonwealth of Massachusetts’ or ‘Massachusetts’; the expiration date of the commission in the following words: ‘My commission expires _____’; and a facsimile seal of the commonwealth.”
Not to minimize the importance of the facsimile seal of the commonwealth, but I am not sure how including that on an inked stamp that anyone, anywhere may purchase in any name from multiple vendors adds appreciably to the authenticity of a document or the signature upon it. To me, the basic reason for requiring a notary to include identifying information such as a printed name and a commission expiration date in the acknowledgement clause is to help identify and locate the notary if questions arise about the document.
While the notary stamp does require those two bits of information, so does the notary clause itself, which seems to make the notary stamp superfluous. Perhaps it would be more useful to assign each notary public a unique identifying number, much like an attorney’s BBO number, and require that number to be included in the acknowledgement clause in lieu of a stamp. Such a unique number would expedite the identification of the notary and his whereabouts. It would also be easy and inexpensive to implement, both on paper and in electronic form.
In reviewing electronic acknowledgement statutes already adopted elsewhere, it seems that many states have created a dual commission regime, one for regular notaries, the other for electronic notaries. Other places require notaries to invest in sophisticated (and presumably expensive) technology that renders the electronic document being acknowledged tamper-proof. Perhaps the tasks assigned notaries in other jurisdictions are more complex than those in Massachusetts, but both of these practices – a dual commission system and requiring sophisticated software of electronic notaries – greatly exceed anything now required or expected of notaries in this commonwealth.
In crafting rules for electronic acknowledgements in Massachusetts, we should strive to duplicate the functions now being performed by our notaries while allowing those functions to be performed on tablets and computer screens, not just on paper. Complex and expensive systems are not needed to do this, and such additional requirements would needlessly delay our ability to keep pace with the evolving expectations of those we serve.
Dick Howe has served as register of deeds in the Middlesex North Registry since 1995. He is a frequent commentator on land records issues and real estate news. Dick can be contacted by email at [email protected].
Strawbridge v. Bank of NY Mellon: Appeals Court Justice Peter Agnes Gives Judicial Blessing to MERS Assignment System, Rejects Other Foreclosure Challenges
The most recent foreclosure case heard by a Massachusetts appellate court should allow title underwriters and foreclosing lenders to sleep better at night. In Strawbridge v. Bank of NY Mellon, No. 16-P-1244, embedded below, Appeals Court Justice Peter Agnes upheld the MERS system of holding and assigning mortgages in Massachusetts as a “nominee.” Judge Agnes also ruled that the borrower lacked standing to raise defects in the pooling and servicing agreement by which the bank created a securitized mortgage trust, because she is not a party to that intra-lender agreement. This ruling should simultaneously benefit the housing market, while taking away a major weapon for foreclosure defense attorneys.
The case was brought by well-respected foreclosure defense attorney Glenn Russell, Esq. who represented the borrower, Sandra Strawbridge. Attorney Russell’s cases are typically on the cutting edge of foreclosure defense law, and thus, should always be read with interest.
Foreclosure Challenge
Strawbridge challenged the foreclosure on the grounds that the Bank did not comply with Massachusetts foreclosure law after the SJC’s decision in Eaton v. FNMA which held that a foreclosing lender must establish it holds both the promissory note and the mortgage. (Title companies have issued comprehensive underwriting guidelines after the Eaton ruling). Strawbridge also claimed that MERS’s assignment of her mortgage to the Bank was void because the assignment occurred after a date established in the pooling service agreement (PSA) of the securitzed trust.
Countrywide-MERS Assignment System
In 2007, Strawbridge obtained a $370,000 mortgage from Countrywide Home Loans. The mortgage designated Mortgage Electronic Systems, Inc. (MERS) as the nominee for Countrywide. In 2009, Strawbridge defaulted on her note by failing to keep up with her mortgage payments. In February, 2010, MERS assigned Strawbridge’s mortgage to Bank of New York Mellon which held the mortgage as part of a securitized trust. A MERS “Assistant Secretary and Vice President” executed the assignment, which was notarized and recorded at the appropriate registry of deeds. Later, in March, 2015, a “Second Assistant Vice President” at the Bank’s loan servicer executed an “Affidavit Regarding Note Secured by Mortgage Being Foreclosed.” That affidavit states that the Bank is the holder of the note. In addition, in April, 2015, the Bank’s loan servicer executed a “Certificate Relative to Foreclosing Mortgagee’s Right to Foreclose Pursuant to 209 C.M.R. 18.21A(2)(c),” which certified that the Bank is the “holder of the Mortgage” and “the holder of the Note or is authorized agent of the Note holder with the specific authority to enforce payment and pursue foreclosure of the Mortgage on behalf of such Note holder.” Finally, in July, 2015, the Bank sent Strawbridge a notice of foreclosure sale, informing her that a foreclosure sale would take place in August. The borrower challenged the sale in the Superior Court which ruled against her.
Appellate Rulings
On appeal, Judge Agnes ruled that “MERS’s nominee status does not preclude it from validly assigning the mortgage, or does it limit MERS’s power to exercise a right of [foreclosure] sale.” The Court also rejected the borrower’s argument that the Bank is required to provide a complete chain of assignments of the mortgage, opting instead to hold the Bank to a less onerous standard of merely producing a single assignment directly from MERS, the last holder of record. Lastly, the judge ruled that the borrower lacked standing to raise defects in the pooling and servicing agreement because she is not a party to that intra-lender agreement.
Take Aways
The impact of this decision is a reaffirmation that the MERS system of assigning mortgages remains legal and binding in Massachusetts. MERS mortgages account for the vast majority of conventional mortgage financing in Massachusetts. This ruling will also make it more difficult for distressed homeowners to challenge foreclosures, clearing the way for banks to sell REO property. I spoke to Attorney Russell about the case, and he indicated that he is considering taking an appeal up to the Supreme Judicial Court. So this may not be the last word on the matter.
Proposal: 5%-10% Tax, Plus Comprehensive Regulations
Like Uber and Lyft, is the law finally catching up with the new economy-disrupting technologies for the real estate industry like Airbnb? The answer is yes if Massachusetts legislators have their way. Today, Massachusetts House legislators are holding a hearing on a new bill which would tax and regulate Airbnb and other short term rentals. The proposal is House Bill 3454 (click to read). The proposal would impose a new excise tax between 5% – 10% on short term rentals, depending on whether the host rents his/her own residence, is a “commercial host,” or the rental is professionally managed.
According to a recent Boston Globe article, Airbnb, the largest of such rental sites, reports that it logged about 592,000 guests in Massachusetts last year. Had those stays been subject to the state’s hotel tax rate of 5.7%, that would have added an estimated $15 million to the Commonwealth’s coffers. The availability of such easy tax revenue may be too much for legislators to pass up this year, although a similar effort failed at the last minute last year.
Airbnb is happily sharing these calculations because it wants to be taxed, and this week it’s airing a new TV commercialabout the issue. Now don’t think for a second that this is some kind of benevolent new-economy thing. Guests, not Airbnb, pay the tax! Taxation is also a form of legitimization for these online portals.
The House proposal would also establish a comprehensive regulatory and safety scheme on Airbnb rentals, similar to that imposed on bed and breakfasts and other small local lodging facilities. Local towns and cities would be permitted to restrict certain types of short term rentals, the number of rental days allowed, require business licenses and a housing registry, and make the host obtain liability insurance of at least $1M in coverage. Violations of the new law carry a stiff fine of up to $1000/day for the illegal rental period.
The proposal has received much attention in recent months as hearings have been held across the state. The Massachusetts Association of Realtors has come out in opposition to the bill, as with many Airbnb hosts who rely on this source of additional income.
I will keep up with developments, so check back here from time to time.
Quiet title cases are lawsuits typically brought in the Land Court in order to resolve complex title defects — often as a last resort for property owners when conveyancing attorneys and title insurance companies cannot cure title issues using traditional methods. Usually quiet title cases involve missing interests in the chain of title such as unknown heirs or relatives of the property owner who cannot be found. Other times they can involve easements, missing mortgage discharges, or adverse possession. The statute governing quiet title actions is M.G.L. chapter 240, section 6.
The Curious Case of the Two Sisters
Let me give you an example of one of my recent quiet title cases. My client, “Mr. Jones,” is trying to sell his childhood home in Cambridge where his mother lived. The mother recently passed away. Unknown to everyone, title to the property was originally held by the mother and her sister back in 1947, but the deed mistakenly referred to them as a married couple. As a result of this drafting error and the age of the deed, they are considered tenants in common, so when the sister died, her interest went to her family (rather than to her sister, the surviving joint owner). When my client’s mother died, he only inherited a 1/2 interest in the property, with the other half following the sister’s heirs. Murphy’s Law — the sister has no known heirs. She had no children, her husband passed away, and no probate or will can be found for either of them. Oh, and the sister and her husband lived in Queens, NY all their lives! So I’ve brought a quiet title action in the Land Court to have the judge decree that my client is the rightful owner of the property. We have published a legal notice in the local Queens, NY newspaper and will need to file affidavits demonstrating that my client’s side of the family owned and cared for the property for decades.
Cost and Time
Quiet title actions are not for the faint of heart or inexperienced attorneys. Only a handful of lawyers in Massachusetts do these on a regular basis, and I happen to be one of them. Fortunately, the Land Court judges are very experienced with the subject matter and quite helpful in guiding attorneys along in the process. It can take up to 6 months to get a final judgment in a quiet title case. If it is a contested case, throw that out of the window. In terms of cost, it is not cheap. A client can expect to pay at least $5,000 in legal fees and expenses. But the alternative is not being able to sell the property, so it’s usually money well spent!
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If you need assistance with a potential Massachusetts Quiet Title Case, please email me at [email protected] or call me at 508-620-5352.
Many Titles Automatically Cleared As Of Dec. 31, 2016
While 2016 may have been a tough year for some, the new year brings some relief to those affected by foreclosure related title defects. For some homeowners saddled with bad titles due to improper foreclosures, when the Times Square ball dropped, their titles defects magically disappeared under The Act Clearing Title to Foreclosed Properties. They are now free to sell or refinance after waiting many years in most cases.
The Act, now codified in Mass. General Laws Chapter 244, section 15, was enacted by Gov. Charlie Baker last year in an effort to minimize the impact of several troublesome SJC rulings which cast doubt on titles coming out of foreclosures, including the seminal case of U.S. Bank v. Ibanez. The Act, which I testified in support of at the State House, establishes a new three year statute of limitations for challenging foreclosures and clears titles with foreclosures conducted prior to Dec. 31, 2013, unless the homeowner brought a lawsuit and records it with the Registry of Deeds.
Practice Pointer: Under the Act, any defective title stemming from a foreclosure completed prior to Dec. 31, 2013 is now cured, provided there is no legal challenge filed and complaint recorded with the Registry of Deeds and no other statutory exemption applies. Speak to your title underwriter or consult an attorney for guidance.
Covered Time Period
The Act establishes a three-year statute of limitations period to bring a challenge to a foreclosure. To timely bring a challenge, an aggrieved homeowner must file lawsuit challenging the validity of the foreclosure sale, and must also record a copy of the lawsuit in the registry of deeds before the limitations period expires. The Act reaffirms the mortgagee affidavit requirements of the foreclosure law, including the provision that the recording of a valid affidavit is “evidence that the power of sale was duly executed.” The Act also provides that after three years from the date that the foreclosing lender records a validly executed affidavit, the affidavit serves as “conclusive evidence” that the power of sale was duly executed.
Retroactive Application
The Act applies retroactively. To address constitutionality concerns, for mortgagee affidavits recorded prior to December 31, 2015, the statute of limitations period is the longer of the full three-year period or one year from the effective date of the Act, December 31, 2015. Thus, by the terms of the Act, for all foreclosures completed prior to December 31, 2013, the deadline to assert and record a challenge was December 31, 2016. For foreclosures completed between January 1, 2014 and December 31, 2015, the three year statute of limitations runs from the date of the foreclosure.
No Relief to REO/Fannie Mae Owned Properties, But….
The Act does not apply to mortgagees, noteholders, servicers, their affiliates, or government entities like the Federal National Mortgage Association (Fannie Mae) and the Federal Home Loan Mortgage Corporation (Freddie Mac) that continue to hold title to properties following foreclosure sales. The Act only applies “arm’s length third party purchasers for value,” defined as a party who either (1) purchased the property directly at the foreclosure sale, or (2) purchased the property from the bank or another entity at some point after the foreclosure sale, to the extent the power of sale was not duly exercised.” While foreclosing parties, noteholders, and mortgagees will not benefit directly from the Act on properties that they own or service, they will benefit from the resolution of title disputes, the insurability of properties they formerly owned or foreclosed, and the validity of mortgages that they currently service.
Broader Applicability?
The Legislature clearly intended for the Act to resolve title defects arising out of the Ibanez case. But the Act, as drafted, is not limited to just Ibanez defects. It could also be applied to defects arising out of other SJC rulings, including Eaton (promissory note status), Pinti (cure notice) and Schumacher (cure notice). Because the Act is retroactive and silent as to what specific title issues it resolves, a recorded mortgagee affidavit could cure many other issues aside from Ibanez issues. We will see how title underwriters and the courts apply the Act in the months to come. As always, the best practice is to get your title underwriter’s opinion in an email and place in your file.
Property Owners Should Get New Marijuana Policies and Lease Riders In Place Now
On December 15, 2016, the recreational use of marijuana became legal in the Commonwealth of Massachusetts, after voters approved Ballot Question 4 The Regulation and Taxation of Marijuana Act. Driving down the Pike this morning on my way to Boston Housing Court, I did not see any “Cheech and Chong” scenes in vehicles. That said, the new law will no doubt affect the legal relationship between landlords and tenants and will likely result in disputes as to what can and cannot be done with respect to cultivating, growing and using marijuana in and around rental property.
What is Legal and Illegal Generally?
Adults (21 or over) may possess up to 10 ounces of marijuana in their primary residence. A person may cultivate up to 6 marijuana plants for personal use, and up to 12 plants per household are allowed if more than one adult lives on the premises. Marijuana growing at home must be done discreetly and securely. Marijuana plants cannot be plainly visible from the street or any public area and must be cultivated someplace where there is a security device.
Outside the home, adults 21 or over can possess up to 1 ounce of marijuana.
Recreational marijuana cannot be sold in any form in Massachusetts without a retail license. A Cannabis Control Commission, yet to be named, will be responsible for issuing retail licenses.
Marijuana cannot be possessed, purchased, grown or used by anyone under age 21 (unless they have a valid medical marijuana permit), and it’s against the law to give away marijuana to someone under 21.
Using marijuana is illegal in any public place. You can’t, for example, walk down the street smoking a joint the way you would a cigarette. It’s also illegal to use marijuana in any place where tobacco is banned.
Possession of any amount of marijuana remains illegal on school grounds, public housing, and government buildings.
Can Tenants Use or Cultivate Marijuana In Rental Property?
The key provision in the Act provides that it is illegal to:
“prevent a person from prohibiting or otherwise regulating the consumption, display, production, processing, manufacture or sale of marijuana and marijuana accessories on or in property the person owns, occupies or manages, except that a lease agreement shall not prohibit a tenant from consuming marijuana by means other than smoking on or in property in which the tenant resides unless failing to do so would cause the landlord to violate a federal law or regulation.”
As I read the new law, landlords have the ability through a lease agreement to regulate the smoking and cultivation of marijuana in rental property, except that landlords cannot prohibit the consumption of marijuana edibles or any other form of non-smoking consumption.
New Marijuana Lease Addendums Should Be Implemented
Now, here’s the rub. Most current leases in effect right now do not have specific provisions dealing with marijuana use. Some leases have anti-smoking and nuisance provisions, which would arguably prohibit pot smoking, but it’s not clear whether that would apply to the discreet growing of marijuana. Under general contract law, there must be some additional legal consideration to significantly amend a lease agreement and curtail a tenant’s rights. Thus, there is a question as to whether existing lease provision would apply to the tenant use/growing of marijuana. Courts will have to decide these issues going forward. I would imagine that most landlords would not want to take on the risk of hundreds of tenants each growing 12 marijuana plants in their apartments. As I explain below, it is incumbent upon landlords to get marijuana policies and lease riders in place now and going forward on new leases.
Practice Pointer: If you are a landlord and you want to have a strict marijuana use policy, you must act now and have your tenants sign a new lease addendum for recreational marijuana use. The addendum should, among other things, provide that smoking and growing of marijuana is strictly prohibited, while consumption of edibles is allowed, provided that it does not create a nuisance. There should also be indemnification language in the rider as well. My office can assist you with drafting a marijuana lease rider.
Vaping = Smoking?
Marijuana consumption technology has come a long way since your college dorm room. I’ve been told that many serious users use vaping technology which heats and vaporizes buds, giving the user a much cleaner and less toxic high. A question which may come up is whether vaping is equivalent to smoking. Not being an expert on marijuana technology, I will leave that to the experts. My brief Google research says that vaping does still produce a slight odor of marijuana but far less than traditional smoking of a joint or pipe. I think it will all depend on how vaping impacts neighbors in an apartment building.
Utility/Water Usage
If a tenant begins growing and cultivating up to 12 marijuana plants as allowed under the new law, how will that affect utility and water usage? Under the State Sanitary Code, the landlord is obligated to pay for electricity and gas in each dwelling unit unless it is separately metered and there is a written document that provides for payment by the tenant. See 105 Code Mass. Regs. § 410.354. Concerning billing a tenant for water use, under the Tenant Metering Law, a landlord can only bill the tenant water usage if he satisfies many onerous requirements such as getting local certification and installing low flow faucets and shower heads. If you allow growing of marijuana in your rental property, make sure that the tenant does not hose you with a huge water/electric bill. Again, your new marijuana lease rider should address this issue, among other items.
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If you need assistance with creating a new Massachusetts Marijuana Lease Addendum/Rider, please contact me at [email protected] or 508-620-5352, and we would be happy to create a customized one for you!
A Step Back To Rent Control Or Solution To The Affordable Housing Crisis?
Citing skyrocketing rents and lack of affordable housing — and over the vociferous objections of property owners — Boston Mayor Marty Walsh has sided with pro-tenant groups and has formally submitted a home-rule petition to the Boston City Council to create wide-ranging “just cause” eviction protections for all Boston tenants. Harking back to the days of rent control, the petition, named the Jim Brooks Community Stabilization Act after a recently deceased Roxbury housing advocate, prohibits virtually all no-fault evictions in favor of evictions only for certain enumerated “just cause” grounds. The law also requires landlords to file a notice of termination with the newly formed Office of Housing Stability prior to starting an eviction. In a state which is already extremely pro-tenant, this new law will make evicting tenants even more difficult and cost prohibitive, and may also affect owners’ rights to raise rents and sell rental property in the City of Boston.
“Just Cause” Grounds for Eviction
The petition (embedded below) provides that landlords may only evict tenants for nine (9) specified reasons:
Non-payment of rent.
Violations of lease provisions
Nuisance/damage to unit
Illegal activity such as drug use
Refusal to agree to lease extension or renewal
Failure to provide access.
Subtenant not approved by landlord
Landlord requires premises for housing for family member
Post-foreclosure and occupant refuses to pay fair market rent
Middle Ground?
It’s not all bad news for property owners, however. The Walsh bill is a compromise from what tenant groups had pressed for. They wanted to require landlords to submit to mediation for rent hikes of more than 5%, but were not able to get support for it among city council members. Tenant groups also pushed for prohibitions on evicting elderly or disabled tenants and long term renters with children in the school system. The Mayor rejected those ideas as well.
Additionally, not all landlords are covered by the new law. Exempt are owners of 6 or fewer residential rental units, owner-occupants of multi-family dwellings, and Section 8/federally subsidized housing.
Landlord groups, meanwhile, remain skeptical of Walsh’s proposal. State law already has strong tenant protections, Greg Vasil, chief executive of the Greater Boston Real Estate Board told the Boston Globe. Adding more will only subject building owners to even-more-drawn-out legal fights with tenants, he said. And, Vasil added, Walsh’s restrictions may deter developers from building more apartments in Boston, which has been a top priority for the mayor, who has pledged to add 53,000 units by 2030 and combat high housing costs. “This would make it more difficult to develop housing for the middle of the market,” Vasil said. “We’ve been making good progress and I’d hate to see anything happen to that.”
Because the bill is a Home Rule Petition, it must be approved by the City Council then the entire State Legislature. The bill may also face court challenges because it fundamentally alters existing private contracts and the very nature of a tenancy at will relationship. If the petition becomes law, evictions in Boston will become even harder and more expensive.
Readers, what are your thoughts on this important development? Post below in the comments.
I rarely get into politics on this Blog, but I have to make an exception for my colleague Attorney Robert Jubinville who is running for reelection for Governor’s Council in District 2 which covers Milton, Sharon and a good part of Metro South. The Governor’s Council is a little known political body, but it has a very important job — confirmation of all judicial nominations.
Bob Jubinville is one of the preeminent criminal defense lawyers in the state, with over 30 years of experience in the courtroom. A former State Police trooper, he is also the father of two adult daughters — one is a lawyer, the other a probation officer. He lives and works in his home office in East Milton Square on Adams Street next to the post office.
With all that real life experience, Bob has a keen eye as to which candidate would make a good judge.
Perhaps most impressive is Bob’s long standing advocacy on behalf of those suffering from addiction, particularly the heroin crisis ripping our communities apart. Bob has already ensured that our future judges have a working knowledge of addiction science and treatment and will allow people suffering from addiction to have access to treatment as opposed to incarceration.
Mortgage Lender Wins Stunning Ruling Challenging $103 Million Fine
Characterizing Director Richard Cordray of the Consumer Financial Protection Bureau as the “single most powerful official in the entire U.S. Government, other than the President,” a federal appeals court ruled yesterday in the case of PHH Corporation v. CFPB, that the CFPB’s organizational structure and authority to impose fines violates the due process provisions of the U.S. Constitution. The surprising 101-page ruling called into question the Director’s authority to impose certain fines and the agency’s authority to enact rules and regulations, although future appeals are likely. The agency, the pet project of Sen. Elizabeth Warren, has long been criticized by the banking industry and congressional Republicans as wielding too much power.
PHH, a mortgage lender, made national headlines when it challenged Director Cordray’s decision to tack on a $103 million increase to a $6 million fine initially levied against PHH for allegedly illegally referring consumers to mortgage insurers in exchange for kickbacks in violation of the Real Estate Settlement Procedures Act. The case was one of the first times that a company fought back against the CFPB, the governmental agency championed by Elizabeth Warren and congressional liberals after the Bush era financial crisis and the Dodd-Frank Act.
In a unanimous decision, a three judge panel of the federal appeals court governing Washington D.C. ruled that the CFPB’s current structure allows the director to wield far too much power, more than any other agency in the entire U.S government. “Because the Director alone heads the agency without Presidential supervision, and in light of the CFPB’s broad authority over the U.S. economy, the Director enjoys significantly more unilateral power than any single member of any other independent agency,” the judges reasoned.
The fallout remains unclear, but certainly this ruling gives opponents of the CFPB heavy ammunition to challenge the agency on its decisions and rule-making authority. The Mortgage Bankers Association welcomed the decision and the clarification the decision presents for RESPA. “MBA is gratified that the court has issued an extremely thoughtful opinion. It addresses all of the key issues raised by the PHH case, including the proper interpretation of the Real Estate Settlement Procedures Act, the need for due process including reasonable statutes of limitations and the very constitutionality of the CFPB itself,” MBA President and CEO David Stevens said.
The National Association of Realtors also welcomed the decision’s clarity surrounding marketing service agreements, which are clearly a target of the CFPB. “Today’s decision offers much-needed clarity on the legality of marketing service agreements, and makes clear that MSAs are compliant with RESPA provided that payment for goods and services actually furnished or performed are made at fair market,” said NAR President Tom Salomone. “We’re hopeful this will address any uncertainty moving forward and offer a clear road ahead for any of our members who have entered into MSAs with settlement service providers,” Salomone continued. “We will continue to monitor this case and the further appeals that are likely, and continue to communicate to Realtors on what this means for them and their business.”
I have been a vocal critic of the CFPB’s massive revision to the closing and settlement disclosure statements which went into effect last year. While there is no indication that the new Closing Disclosure and Loan Estimate will go away, this ruling will hopefully make the agency think twice about going over the top with future rules and regulations.
1970’s Groovy, Retro Framingham Home Proves to be Tough Sell
File this post under “Just For Fun.” Most Realtors have stories about trying to sell that outdated, 1970’s style home. Well, last night, I ran into Framingham Realtor Matt Cuddy who told me the amazing story of his now famous listing at 3 Hickey Drive, Framingham, MA.
This home is a preserved time capsule of the 1970’s, complete with shag rugs, a lime green kitchen, vintage, 1970s built-in Thermador can opener, a built-in, stainless steel toaster that magically pops out from the wall, and an authentic, 1970s 8-track that’s built into the wall. All this home needs is John Travolta to walk through the door doing The Hustle!
To say that marketing this home is a challenge would be a huge understatement. But Matt has done a job which would make Mike and Carol Brady proud. Matt has gotten free press coverage in the Boston Magazine, Good Morning America, the Boston Globe, and even millennial favorite Buzzfeed. Despite receiving countless inquiries and over 4 million clicks on the various articles, a buyer has remained elusive for this groovy property.
Matt has even been exploring creative ideas such as selling or leasing the home to movie production companies for shoots. My own personal idea was to convert the home into a music studio!
This home is a great example of how Realtors are often faced with challenging homes to market and must come up with innovative solutions to find buyers.
If you have any good stories of your own, feel free to post them in the comment section below! And check out these groovy shindigs!
All photographs courtesy of Matt Cuddy – Century 21
Now that the summer is over, it’s time to get back to blogging! During the quiet summer months, the Supreme Judicial Court issued an important decision for real estate attorneys and the title community in Bank of America v. Casey(June 16, 2016) (link to case). The SJC confirmed that a statutory curative attorney’s affidavit may be recorded with the registry of deeds correcting a defective notary acknowledgment on a mortgage which otherwise could have invalidated the instrument. This is a very helpful decision, and should result in more titles (and properties) being cleared and sold.
Defective Notary Acknowledgment
In 2005, Alvaro and Lisa Pereira refinanced their New Bedford property with Bank of America, N.A. The Pereiras individually initialed the bottom of each page of the mortgage agreement except the signature page, on which the full signature of each appears. Attorney Raymond J. Quintin, the closing attorney, also signed this page, as the notary to the Pereiras’ execution of the mortgage. The mortgage agreement contains a certificate of acknowledgment (acknowledgment) on a separate page. The Pereiras individually initialed the acknowledgment page at the bottom, but the acknowledgment itself is blank in the space designated for the names of the persons appearing before the notary public, and the Pereiras’ names do not appear elsewhere on the page. Quintin notarized the acknowledgment, affixing his signature and his notary public seal.
Seven years later (which is unexplained in the ruling), Attorney Quintin signed and recorded an “Attorney’s Affidavit, M.G.L. Ch. 183, Sec. 5B” stating that he properly witnessed the Pereiras signing the mortgage and that “through inadvertence, the names of the parties executing this mortgage, Lisa M. Pereira and Alvaro M. Pereira, were omitted from the notary clause.” Parenthetically, these curative affidavits are quite common in the industry.
Approximately six months later, Mr. Pereira filed for bankruptcy and sought to be released from responsibility under the mortgage on the ground that the mortgage contained a material defect — the omission of the mortgagors’ names from the acknowledgment.
SJC–Attorney Affidavits Pursuant to G.L. c. 183, sec. 5B May Cure Defective Notary Acknowledgment
The Court first went over the general rule that a defective notary acknowledgment is usually grounds to void any recordable instrument altogether. Mass. General Laws chapter 183 section 5B provides a cure to this problem by providing that “an affidavit made by a person claiming to have personal knowledge of the facts therein stated and containing a certificate by an attorney at law that the facts stated in the affidavit are relevant to the title to certain land and will be of benefit and assistance in clarifying the chain of title may be filed for record and shall be recorded in the registry of deeds where the land or any part thereof lies.”
The Court then ruled that the curative affidavit recorded by the closing attorney cured the defect and validated the mortgage. The Court said the attorney’s affidavit must comply with the formal requirements of § 5B, attests to facts that clarify the chain of title by supplying information omitted from the originally recorded acknowledgement, and references the previously recorded mortgage. As long as it does that, the problem is solved.
This isn’t a “sexy” opinion, but it is nevertheless important to the real estate bar and community.
Rule Prohibits No More Than 4 Undergraduate Students Per Rental Unit
With thousands of college students set to invade Boston in the next week, the Chief of Boston’s Inspectional Services Department is letting local landlords know that he intends to enforce an eight year old ordinance barring no more than four undergraduate students from living together in off-campus apartments and houses.
Feeling pressure from local residents and in reaction to the tragic death of 22-year-old Boston University senior Binland Lee, who got trapped in an overcrowded Allston apartment house, ISD Chief William Christopher has had enough, saying “we’ve found a way to make this punitive, and we think this will take it to another level.” City officials want landlords to report the number of undergraduates living in each unit. Landlords would report that information when they register each unit annually, which is a requirement the city established in 2013.
Mr. Christopher and I discussed the “No More Than 4” rule on the WHGH-PBS Greater Boston show this week. The video of the show can be seen below. I have always had major problems with this rule, both its legality and on a public policy level. The state sanitary and building codes provide maximum occupancy levels based on the square footage of the unit, as the Supreme Judicial Court held a few years ago striking down a similar action by Worcester Housing officials. The city should enforce the rules already on the books rather than painting all undergraduate students as potential troublemakers or artificially creating more demand which increases rents. If ISD starts fining landlords, look for the no more than 4 rule to face a legal challenge which could be successful.
Energy Savings Law Would Have Required Energy Score On Homes for Sale
The 22,000-member Massachusetts Association of Realtors® (MAR) has successfully lobbied against a controversial provision within proposed energy saving legislation which would impose a new government energy inspection and labeling system on every home listed for sale. The Realtor group argued that one of the unintended consequences of the proposed labeling law is the negative impacts on Massachusetts’ old housing stock. Realtors assert that this especially would hurt low- and moderate-income communities where the homeowners cannot afford to make upgrades. The ratings could cause depressed values of those older homes as well, agents argued.
As reported on their Facebook page, MAR said that on July 31, legislators removed this language before releasing an updated version of the bill.
“Realtors® support energy efficiency and voluntary home improvement programs like Mass Save, which we already pay for through our utility bills. But if these mandatory energy inspections become law, the bill causes more harm than good,” said 2016 MAR President Annie Blatz, branch executive at Kinlin Grover Real Estate on Cape Cod. “This comes down to the unintended consequences of trying to mandate a one-size-fits-all approach. It will hurt the housing market for all homeowners, especially those low-income homeowners with older homes who can’t afford to improve their score prior to selling their home.”
“The idea that requiring a government energy label on your home is the same as a miles-per-gallon (MPG) rating on a new car that comes off an assembly line by the millions is a poor comparison,” said Blatz. “Every home is different and our Massachusetts housing stock generally is older, which makes that argument even weaker. Especially hard-hit will be homeowners who can’t afford to make upgrades, especially during such a complicated process as a home sale. Entire older communities could be stigmatized and lose value.”
From a market perspective, the bill as drafted would have further complicated an already complex process of buying and selling a home. Requiring an energy audit prior to listing a home will lead to home buying delays. Currently, the Massachusetts housing market is starved for homes for sale and Realtors feel that this bill would put one more roadblock in the way of needed inventory reaching the market. In addition, a home inspection is customarily not performed until the buyer is under contract to purchase a home.
Eisai, Inc. v. Housing Appeals Committee: Master Plan Conflict Does Not Trump Need For Affordable Housing
Chapter 40B — the state’s so-called “anti-snob” affordable housing law — has pitted developers vs. towns and neighbors in contentious fights over affordable housing projects. It’s one of the most controversial laws in the state, with opponents seeking to reform or repeal the law in recent years. In my home town of Sudbury, for example, there are “Oppose Sudbury Station” signs all over town, in opposition to a planned 200+ unit development in the middle of the historic town center.
While battles rage on the local level, Massachusetts courts have been rather tough on 40B opponents and boards who oppose projects. Last month, in another setback to Chapter 40B opponents, the Massachusetts Appeals Court in Eisai, Inc. v. Housing Appeals Committee (June 20, 2016), allowed a controversial Andover 40B project to proceed over the local ZBA’s denial of the permit on grounds that the town master plan is a local concern that trumps the need for affordable housing.
In the Eisai case, an Andover developer filed a 40B Comprehensive Permit application to build a 248-rental-unit project within an existing office and industrial park. The local zoning board of appeals denied the application on the ground that the “proposed project is inconsistent with decades of municipal planning, economic development strategies, and planning with owners and tenants of the abutting industrial properties[,] . . . most notably, the rezoning of the locus and abutting properties to accommodate and develop a modern, competitive, and viable industrial park and industrial center.” On appeal by the developer, the state Housing Appeals Committee, a state agency which hears appeals of 40B permits, reversed and ordered the local board to issue the Comprehensive Permit. The case was further appealed to the Superior Court, which upheld the permit, then to the state Appeals Court.
The important aspect of the appellate ruling was the Court’s endorsement of a new reformulated four factor test announced by the HAC under which the ZBA must offer more evidence of local concerns to outweigh the regional need for affordable housing. On its face, the reformulated test requires boards to provide a greater amount of more specific, higher quality information in order to tip the scale in favor of upholding the master plan and denying a 40B project.
Project opponents must now demonstrate the following:
The extent to which the proposed housing is in conflict with or undermines the specific planning interest.
The importance of the specific planning interest, under the facts presented, measured, to the extent possible, in quantitative terms . . . .
The quality . . . of the overall master plan (or other planning documents or efforts) and the extent to which it has been implemented. A very significant component of the master plan is the housing element of that plan (or any separate affordable housing plan). The housing element must not only promote affordable housing, but to be given significant weight, the Board must also show to what extent it is an effective planning tool. . . .
The amount [and type] of affordable housing that has resulted from affordable housing planning.
Faced with the new, reformulated test, my prediction is that local boards and 40B opponents are going to have a much tougher time opposing 40B projects.
On June 23, the Warren Group will host its widely attended Midyear Mortgage Update & Conference at the Verve Hotel in Natick, MA. The Midyear Update, for the mortgage and real estate industry, recaps the first 6 months of 2016, in addition to forecasting the remainder of the year.
Featured speakers include Middlesex North Registrar of Deeds Richard (Dick) Howe, Paul T. Pouliot, First Vice President, Mortgage Manager, Federal Home Loan Bank of Boston, Robert Triest, Vice President and Economist, Federal Reserve Bank of Boston, Annie Blatz, President, Massachusetts Association of REALTORS®, and Timothy Warren, Jr., CEO, The Warren Group.
I am honored to be speaking on a panel with Kimberly Allard, former President of the MAR. As a panel speaker, I am able to offer my readers and guests 50% of the admission for an all event pass costing $37.50. You can register by clicking this LINK. Your discount code is: SPEAKERGUESTMA
When:
June 23, 2016
8:00 a.m. – 12:00 p.m.
Where:
The VERVE Crowne Plaza – Natick
1360 Worcester Street
Natick, MA 01760
The full schedule is below:
8:30 AM General Session Speakers
Paul T. Pouliot, First Vice President, Mortgage Manager, Federal Home Loan Bank of Boston FHLB System Your One stop Shopping Partner for the Secondary Market Come and listen to what the Federal Home Loan Bank of Boston is doing about providing liquidity for the Housing Finance Industry, new initiatives that will promote job growth and new or enhancements to the Mortgage Partnership Finance program.
Bio: Paul Pouliot joined the Federal Home Loan Bank of Boston in May 2000 as Vice President/Mortgage Manager. In December 2001 he was promoted to First Vice President. Paul has responsibility for the marketing and overall approval process of prospective Participating Financial Institutions (PFIs). He currently serves on the MPF Partnership Committee for the FHLB System. He has dedicated more than 40 years to the mortgage banking industry and holds a Master Certified Mortgage Banker designation from the Mortgage Bankers Association of America. He co-founded Colonial Mortgage, Inc and helped direct its operations until CFX Mortgage (which was subsequently acquired by Peoples Heritage Savings Bank) acquired the company.
Annie Blatz, President, Massachusetts Association of REALTORS® The Massachusetts Association of REALTORS® is a professional trade association for licensed real estate practitioners and serves in a federated relationship with the state’s 13 local REALTOR® associations. Membership in the organization is voluntary and consists of both residential and commercial agents and brokers as well as industry affiliates. MAR’s membership currently consists of approximately 20,500 real estate licensees, and only MAR members are authorized to use the trademark term, REALTOR®. The state association’s headquarters is located in Waltham, MA
Timothy Warren, Jr., CEO, The Warren Group As one of New England’s foremost real estate thought leaders, Tim Warren will take you through The Warren Group’s extensive sales and property data. By combining the most up-to-date real estate statistics, framed with an in-depth historical perspective, you will start to see a one-of-a-kind illustration of the current marketplace. Mr. Warren’s session will address pressing questions, including when the significant effects of the foreclosure crisis will subside and how inventory levels will replenish themselves in the coming years.
Bio: Timothy M. Warren Jr., CEO of The Warren Group, is the fourth generation of family ownership and management. A graduate of Bowdoin College, Tim joined the family business in 1973, rose to president in 1988, and CEO in 2004. He has played a vital role in extending the company’s comprehensive real estate database, growing its publishing and events business and expanding public relations efforts.
Mr. Warren is a regularly shares his analysis of real estate issues to major news outlets, including The Boston Globe and Boston Herald; radio stations WBUR and WBZ; and television, including appearances on Fox 25 News, NECN Business, The Chronicle (WCVB) and the Emily Rooney Show (WGBH). Tim serves on the advisory board of the Rappaport Institute for Greater Boston and the Family Business Association Advisory Council.
10:00 AM – 11:00 AM Concurrent Sessions – choose from one of two
Panel 1 Panelists will touch upon cutting edge technology and media, provide legal perspective, discuss life after TRID and pitfalls in your communications.More details coming soon.
Kimberly Allard, Past President of MAR, Century 21 With over 17 Years of Real Estate Experience, Kimberly Allard’s dynamic approach to sharing and presenting information will help refresh your professional development offerings. Kimberly is a very active Selling Broker/Owner and that’s not likely to change. She is excited about taking her 15 years of hospitality management experience, 30 years of training experience and real estate experience and combining it ( with her usual humor) to get your programs on the fast track for success!
Richard Vestein, President, Vestein Law Group, P.C.
Richard D. Vetstein, Esq. is a nationally recognized real estate attorney, helping people buy, sell, and finance real estate. Mr. Vetstein is the past Chair of the Boston Bar Association’s Title & Conveyancing Committee and was also named as one of Inman News’ Most Influential People in Real Estate. Mr. Vetstein has testified before the state legislature on landlord’s rights and title clearance legislation. Mr. Vetstein’s popular Massachusetts Real Estate Law Blog has won several awards including the American Bar Association’s Top Legal “Blawg” award. Mr. Vetstein also gives legal seminars to Realtor and property owner groups across the state. When he is not practicing law, Rich enjoys boxing workouts, arguing politics on Facebook and hanging out with his two kids.
William Pastuszek, Principal, Shepherd Associates, LLC – Real Property Valuation and Consulting The principal of Shepherd Associates is William J. Pastuszek, Jr., MAI, SRA, MRA. He has been involved in real estate appraising for more than 25 years and is licensed in several New England states. His license number as a Massachusetts General Certified Real Estate Appraiser is #10. Bill has a background in banking and property management/development. His appraisal experience includes residential and commercial practice areas His clientele includes financial institutions, attorneys, accountants, governmental entities, corporations and private individual. He has qualified as an expert witness in many jurisdictions.
Panel 2 Panelists will discuss best practices, how to achieve and sustain grown and provide lenders perspective. More details coming soon. Amy Slotnick, Branch Manager, Fairway Independent Mortgage Amy Slotnick utilizes over 33 years of industry experience in her daily function as Branch Manager and Loan Originator at Fairway Independent Mortgage Corporation. She joined the company in 2007 and quickly became the company’s number one producing loan originator, a title she held for six years. In 2014 Amy became a Branch Manager and over the past two years has grown the office three-fold and added a satellite office in Hingham, MA to her existing branches in Newton and Holden, MA.
Brian Sousa, Chief Lending Officer, Jeanne D’Arc Credit Union Brian Sousa is Senior Vice President and Chief Lending Officer at Jeanne D’Arc Credit Union, a 1.1 billion dollar organization with over 75,000 members, located in Lowell, MA. Mr. Sousa’s twenty-five years of experience in the lending and real-estate industry crosses retail and wholesale mortgage sales, residential and commercial mortgage appraising, and residential and commercial real-estate sales and leasing. Mr. Sousa was the founder of First Team Mortgage Corporation a Chelmsford, MA organization that he built from the ground up and ran for twelve years. As a well-established mortgage professional, he was hired by the credit union in 2012 as Vice President/Residential Lending to create opportunities and expand its product base. His strong leadership and management skills have led to a 63% increase in the residential loan portfolio and a 25% increase in the total loan portfolio since being named Chief Lending Officer in April of 2015. Brian has always shared the credit union philosophy of people helping people through his community involvement and support of many local charities. He currently serves on the Board of Directors for the Boys and Girls Club of Greater Lowell, the Senior Advisory Board for the Lowell Community Health Center, and is an Advisory Board Member of Catie’s Closet, Inc.
Chip Poli, Owner, Poli Mortgage Chip has 20 years of experience in the real estate industry and has been consistently ranked in the top 1% of mortgage originators in the country. His expertise is broad-based, with a strong foundation in real estate sales, extensive experience in recruitment and management of highly successful brokers and sales teams, and exemplary leadership abilities which have enabled him to quickly achieve phenomenal success at Poli Mortgage Group, Inc.
11:15 AM General Session Speakers
Geoffrey F. Cooper, Vice President Product Development, Mortgage Guaranty Insurance Corporation (MGIC)
Mortgage Credit Trends in the Post-Crisis Era
It’s been almost 7 years since the end of the Great Recession and the US single-family residential mortgage market’s recovery from the historic foreclosure crisis is almost complete. In this post-crisis era, the US has experienced a slow, rolling economic recovery and a bounce-back in home price growth. What has happened to the state of mortgage credit in this time? MGIC addresses this question, highlighting industry efforts to prudently expand the credit box, and identifying product trends in the market place. MGIC will also explore the fundamentals of mortgage credit risk, revisiting critical risk factors and their interrelation in layer-risk scenarios both pre- and post-crisis.
Bio: Geoffrey F. Cooper is Vice President Product Development at Mortgage Guaranty Insurance Corporation (MGIC). He recently returned to MGIC after serving for six years as Director – Single Family at the Wisconsin Housing and Economic Development Authority (WHEDA), a state HFA. Prior to leaving MGIC to join WHEDA in June 2008, Cooper held several positions over 14 years, most recently servicing as Director – Emerging Markets where he oversaw MGIC’s HFA business initiatives.
Richard P. Howe, Jr., Registry of Deeds – Middlesex North
Electronic Recording in Massachusetts After a decade of experience with electronic recording which now accounts for 50% of all documents and 65% of all mortgages recorded at the Middlesex North Registry of Deeds, Register of Deeds Richard Howe will review the successes and challenges of electronic recording in Massachusetts and will share plans for the future including electronic recording of registered land, ways in which state and local government might increase efficiency through electronic recording; and the recording of purely electronic documents that never exist on paper.
Bio: Richard P. Howe Jr. is the Register of Deeds of the Middlesex North District where he has been a leader in the implementation of new technology and improved customer service. Middlesex North was the first registry of deeds in Massachusetts to fully implement electronic recording which now accounts for nearly 50% of all filings. It was also the first registry to become entirely paperless, with all land records from 1629 to the present available in digital form, both at the registry and online.
Prior to becoming Register of Deeds, Mr. Howe practiced law in Lowell, concentrating in real estate and criminal defense. In the early 1980s, he served as a U.S. Army intelligence officer in West Germany. He holds a BA from Providence College, an MA in History from Salem State, and a JD from Suffolk University Law School.
Richard Howe is the author of Lowell: Images of Modern America and the co-author of Legendary Locals of Lowell. He is the founder and primary author of www.richardhowe.com, a hyper-local blog about the history and politics of Lowell. He lectures frequently on real estate law, Lowell history, and many other topics.
Robert Triest, Vice President and Economist, Federal Reserve Bank of Boston
Regional Economic Update Dr. Triest will present regional economic trends and discuss recent monetary policy actions. Bio: Robert K. Triest is a vice president and economist in the research department at the Federal Reserve Bank of Boston, where he leads the macroeconomic applications and policy studies section. Prior to joining the Boston Fed in 1995, Triest was a member of the economics faculties at the University of California, Davis and at The Johns Hopkins University. He has also been a visiting scholar at the Center for Retirement Research at Boston College and has taught in the economics department at M.I.T. and Northeastern University and at the Kennedy School of Government at Harvard University. He currently serves on the Universal Pre-Kindergarten Advisory Committee convened by Mayor Walsh to make recommendations for a strategic framework and action plan to expand pre-kindergarten programs in Boston. Triest’s research has been mainly on topics in labor economics and public sector economics, with recent work focusing on the interaction of economic circumstances and educational outcomes. He earned a B.A. degree in economics from Vassar College and an M.S. and a Ph.D. in economics from the University of Wisconsin at Madison.
Text Messages Enforceable As Written Contract, Court Rules
With the proliferation of email and texts as the primary method of communications in real estate negotiations, it was just a matter of time before Massachusetts courts were faced with the question of whether and to what extent e-mails and texts can constitute a binding and enforceable agreement to purchase and sell real estate. In a ground-breaking case, Land Court Justice Robert Foster ruled in a case of first impression that text messages may form a binding contract in real estate negotiations–even where a formal offer has not been signed by the seller. This is huge wake up call for the remaining industry people who still believe that electronic communications are not legally binding.
St. John’s Holdings LLC v. Two Electronics, LLC
The case (embedded below) involves a commercial real estate deal between two businesses both represented by commercial real estate brokers for the purchase and sale of an industrial park property in Danvers. Two Electronics, as seller, and St. John’s Holdings, as buyer, negotiated for several weeks exchanging two “Binding Letters of Intent” spelling out all material terms of the proposed purchase of $3.2 Million. Towards the culmination of the negotiations, the real estate brokers exchanged several emails and texts, with the seller’s agent sending an email that his client was “ready to do this,” then a text that —
“[the seller] wants you to sign first, with a check, and then he will sign. Normally, the seller signs last or second. Not trying to be stupid or to the contrary, but that’s the way it normally works. Can Rick sign today and get it to me today? Tim”
The buyer signed four copies of the final Letter of Intent and tendered the deposit check with the buyer broker, after which the buyer’s broker sent the seller’s agent another text — “Tim I have the signed LOI and check. It’s 424 [PM]. Where can I meet you?” Shortly thereafter, the two agents met, and the buyer’s broker tendered the buyer signed Letter of Intent along with the deposit check.
Unbeknownst to the buyer, that same day, the seller had received another offer on the property, and proceeded to sign that offer. The seller then refused to sign the Letter of Intent with St. John’s. St. John’s sued, claiming that the series of letters of intent, emails and text messages constituted a binding and enforceable contract.
Intersection of 17th Century Statute of Frauds with 21st Century Text Messages
In Massachusetts, the Statute of Frauds requires that contracts for the sale of real state must be in writing signed by the party (or agent) to be charged. In the old days of pen and paper, application of the Statute was quite simple. If there wasn’t a written agreement signed in wet, ink signatures, there was no binding contract. With the proliferation of e-mail and text communication, application of the Statute of Frauds has become much more nuanced.
In the case discussed here, Judge Robert Foster noted several recent judicial decisions holding that emails may be binding as well as the Uniform Electronic Transactions Act, under which parties may impliedly consent through their actions to make email and text transmissions binding and enforceable. Emphasizing the fact that the seller’s agent signed his name “Tim” at the end of the critical text message, the judge found that the text message was sufficiently “signed” under the Statute of Frauds to constitute a binding agreement at the culmination of the previous communications and unsigned letters of intent. The judge also found persuasive that the seller’s agent told the buyer’s agent to have the buyer sign the letter of intent first, and that’s exactly what the buyer did. Finding in favor of the buyer, the judge denied the seller’s motion to dismiss and issued a restraining order against the seller’s conveyance of the subject property.
Take Away: IMO, Watch What You Say!
This area of the law is really becoming a dangerous minefield. After the e-mail ruling came out a few years ago, I advised my clients to use the following disclaimer: “Emails sent or received shall neither constitute acceptance of conducting transactions via electronic means nor shall create a binding contract in the absence of a fully signed written agreement.”
The problem, however, with text messages is that they are so short and informal. It’s not practical to use a legal disclaimer on texts, and there’s no technology that I’m aware of that would insert one into every text. You could always start off a negotiation with the caveat that electronic communications will not create a binding contract until a formal offer is executed. Also, it’s always a good idea to end every email/text with “subject to seller/buyer review and approval” when negotiating an offer. But, such boilerplate language can always be waived by subsequent conduct or actions.
This case reminds me of Lomasney’s First Rule of Politics: “Never write if you can speak; never speak if you can nod; never nod if you can wink.” — and by winking that does not mean an emoji. ?
And always take screenshots of important texts…just in case.
This post is sponsored by Brian Cavanaugh, Senior Mortgage Banker, Mortgage Network
Widespread Racial Disparities In Criminal Justice System Justifies New Policy
Last week the Obama administration released new controversial Fair Housing guidelines telling the nation’s landlords that it may be discriminatory for them to refuse to rent to those with criminal records. The U.S. Department of Housing and Urban Development (HUD) says refusing to rent based on a criminal record is a form of racial discrimination, due to racial imbalances in the U.S. justice system, despite the fact that criminal history is not a protected class under the federal Fair Housing Act.
“The Fair Housing Act prohibits both intentional housing discrimination and housing practices that have an unjustified discriminatory effect because of race, national origin, or other protected characteristics,” say HUD’s newly-released guidelines. “Because of widespread racial and ethnic disparities in the U.S. criminal justice system, criminal history-based restrictions on access to housing are likely disproportionately to burden African-Americans and Hispanics. While the Act does not prohibit housing providers from appropriately considering criminal history information when making housing decisions, arbitrary and overbroad criminal history-related bans are likely to lack a legally sufficient justification.” About 25 percent of Americans have some kind of criminal record, which can range from felony convictions to arrests that never led to charges.
HUD says that landlords may be allowed to bar those with criminal records, but they will have to prove that such a policy is necessary for protecting the safety of other tenants, and designed to avoid illegal discrimination. The new guidance recommends that landlords consider factors such as the severity of the criminal history and how long ago it occurred.
Practice Pointer: Blanket prohibitions denying applicants with criminal histories will get landlords into major trouble under the new HUD policy.
Evaluating whether the criminal history policy or practice has a discriminatory effect
Evaluating whether the challenged policy or practice is necessary to achieve a substantial, legitimate, nondiscriminatory interest
Evaluating whether there is a less discriminatory alternative
Policy Places Burden On Small Landlords
I’m all for giving people a second chance at life, but the major problem with this policy is that it puts the onus and burden on the small landlord to do the criminal history check and then figure out how severe the offense is and what the underlying circumstances are. Also the policy does not advise a landlord exactly how old a crime is to be considered “too old.”
In Massachusetts, a CORI (Criminal Offender Record Information) report contains only the basic of information of the offense such as the date of arrest/conviction, disposition, court and sentence, if any. There is nothing in the CORI report showing the underlying facts of the crime and it does not include police reports. Thus, for a charge of open and lewd conduct, a landlord does not know whether this is a serious offense or just a college kid urinating in an alley. Under the new HUD policy, landlords now have the burden of playing criminal investigator and assessing whether a crime is not truly serious.
Also, please remember that under the so-called Mrs. Murphy exemption, the federal Fair Housing Act does not apply to owner-occupied rental properties of up to 4 units.
What Now?
So how are landlords going to navigate this new policy? Well, first I would expect that risk-adverse landlords will cut down or stop requesting criminal history information all together. Of course, this puts landlords in a dilemma because they retain a legal duty to keep residents safe, and if they rent out to a known sexual offender, for example, who attacks another resident, they can be sued for millions.
For those who still ask for criminal record information, they will have to offer an applicant the opportunity to explain the circumstances of their arrest/conviction before making a final decision. As with all rental application decisions, it’s best to make the decision rest on financial considerations such as credit, income, and employment.
If you need guidance navigating this new policy, feel free to contact me at [email protected].
In a ruling which reaffirms Massachusetts’ place as one of the most landlord-unfriendly jurisdictions in the country, the Supreme Judicial Court ruled yesterday that a landlord’s minor security deposit law violation over failing to pay $3.26 in interest can be a complete defense to an eviction case even where the tenant owed thousands in rent. After this ruling, tenants will have another powerful tool to avoid eviction in both no-fault and non-payment cases. A change in this ruling would only come about through legislative action — which is usually a non-starter on Beacon Hill.
Rich’s Legal Advice: I have long advocated to my landlord clients that they NOT take security deposits. This ruling should be the nail in the coffin on that issue.
Garth Meikle v. Patricia Nurse
The Massachusetts Security Deposit Law provides a three month penalty, including payment of the tenant’s legal fees, against landlords who don’t follow its strict requirements. One of the requirements of the Security Deposit Law is that annually the landlord must pay the tenant any accrued interest on the deposit. That’s what got landlord Garth Meikle in trouble with his tenant who was three months behind in rent. Meikle brought a no-fault eviction case in the Housing Court, but the tenant raised the counterclaim and defense that she did not receive interest on the security deposit. Ruling that the landlord’s minor violation of the security deposit was not a complete defense to the eviction, the Housing Court Judge Marylou Muirhead allowed the eviction to proceed, ordering the tenant to pay the past due rent, but deducting the security deposit plus the $3.26 in unpaid interest. However, the tenant, represented by Harvard Legal Aid Bureau, appealed her case all the way up to the Supreme Judicial Court.
Statutory Interpretation
The issue on appeal was the distinction between a counterclaim and a defense for a security deposit violation. Everyone agrees that the tenant can raise a security deposit violation as a counterclaim (entitling the tenant to up to triple damages), but the question was whether such a violation could be a complete defense to an eviction, preventing the landlord from regaining possession of the rental unit. Landlords and yours truly argued that a security deposit is a separate financial matter between the landlord and tenant which has nothing to do about whether the tenant owes rent or the condition of the property.
Justice Geraldine Hines, writing for SJC, disagreed and found that a security deposit violation was within the list of defenses to an eviction. Despite quite unclear and murky statutory language, the justice was persuaded that the Legislature’s historical tightening of penalties and sanctions against landlords was indicative of the legislative intent to include a deposit violation among the list of available defenses to eviction.
So we’ll have to thank the SJC and the Legislature for sticking it to Massachusetts landlords once again. With tenant activist groups pushing “Just Cause Eviction” i.e, rent control and the Legislature’s continual failure to enact any sensible landlord-tenant reform, no wonder Massachusetts has a well-deserved reputation as one of the most tenant-friendly states in the union.
Many Massachusetts landlords are unaware that before charging tenants for hot water and sewer service, they must comply with the numerous and onerous requirements of the Massachusetts Water Sewer Sub-Metering Law, General Laws chapter 186, chapter 22. These requirements include having separate water meters for each unit, installation of low flow faucets and toilets by a licensed plumber, and certification with the local health board, among other requirements outlined below. Non-compliance with this law may result in a three month rent penalty to the landlord plus payment of the tenant’s attorneys fees.
A landlord can only charge a tenant for water/sewer service under the following conditions:
1. The tenant’s unit must be separately submetered by a separate water meter installed by a licensed plumber. A separate water meter measures the amount of water supplied to a particular unit, and enables the landlord to charge the tenant for the tenant’s own water usage. So, for example, if a building contains 4 dwelling units and a basement where water is utilized for the entire building, a landlord would need to have 5 submeters installed in addition to the primary meter that measures the building’s water use in its entirety. If the building does not have separate meters for each unit, the tenant may not be charged for water service.
2. The tenant’s obligation to pay for water usage must be contained in a signed lease, in an obvious place, and not in the fine print. Each bill for submetered water usage must clearly set forth all charges and all other relevant information, including the current and immediately preceding submeter readings and the date of each such reading, the amount of water consumed since the last reading, the charge per unit of water, the total charge and the payment due date. If the landlord bills the tenant on a monthly basis, payment of the bill by the tenant must be due 15 days after the date the bill is mailed to the tenant, but if the landlord bills the tenant at intervals greater than 1 month, payment of the bill by the tenant is due 30 days after the date the bill is mailed to the tenant.
3. A landlord may not charge the tenant for water supplied through a submeter unless the a licensed plumber has installed fully functional water conservation devices for all faucets, showerheads and water closets/bathrooms in the unit (low-flow shower heads and faucets and low-flush toilets)
4. The landlord must provide a certification under the penalties of perjury, with the board of health or health department, that the appropriate submeters and water conservation devices were installed by a licensed plumber.
5. A landlord cannot charge a tenant for water/sewer service mid-way through a tenancy or lease. A landlord can only charge a tenant for water/sewer upon the start of a new tenancy in the unit; and only if the unit is being occupied for the first time, or if the previous tenant left voluntarily, or was evicted for non-payment of rent or other breach of the lease.
6. A landlord who engages in self-help by willfully failing to furnish water or directly or indirectly interfering with the furnishing by another of water, or transferring responsibility for payment for water to the tenant without their knowledge or consent, is punishable by a fine of not less than $25.00 nor more than $300.00 , or by imprisonment for not more than 6 months and is liable for actual and consequential damages or 3 month’s rent, whichever is greater, and the costs of the action, including a reasonable attorney’s fee.
Given these onerous requirements, my advice to landlords is to never charge the tenant for water/sewer! Just pay the bill and make it “hot water included” in the rent.
Richard D. Vetstein, Esq. is regarded as one of the leading real estate attorneys in Massachusetts. With 25 years in practice, he was voted a "Super Lawyer," a "Top Lawyer" by Boston Magazine and "Best of Metrowest." For Rich's professional biography, click here. If you are interested in hiring Rich or have a legal question, email or call him at [email protected] or 508-620-5352.
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