Massachusetts real estate litigation attorney

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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Contract Deadlines Can Be Waived and Other Cautionary Tales From the Real Estate Trenches

by Rich Vetstein on November 6, 2019

in Closings, Condominium Law, Massachusetts Real Estate Law, Offer To Purchase, Purchase and Sale Agreements, Real Estate Litigation

Parties Who Negotiated Past Purchase and Sale Agreement Deadline Waived It, Court Rules

The Massachusetts Appeals Court just came down with a ruling which should be a cautionary tale to everyone in the residential real estate business. It’s an interesting fact pattern, but not necessarily unusual. For those with short attention spans, the Court held that the standard deadline to execute the purchase and sale agreement is not necessarily a hard deadline. Rather, the deadline can be waived by the parties if they negotiate beyond the date, even without a formal extension in place. The Court also held that where the property is owned by several individuals, even if only one of those individuals sign the offer, this is not necessarily fatal to the deal.

Ferguson v. Maxim, Mass. Appeals Court, 18-P-1081 (Nov. 6, 2019)

In the case, the buyer, David Ferguson, and the seller, Joyce Maxim, signed the standard form Offer to Purchase put out by the Massachusetts Association of Realtors for the sale of residential property in Leominster. (For my post comparing the MAR form with the Greater Boston Real Estate Board, click here). It turns out that title to the property was actually held by a group of five individuals including Maxim, but we will get to that in a few. As is standard, the Offer provided that the parties would enter into a standard form purchase and sale agreement by a specific deadline. However, the seller’s attorney did not sent out a draft PSA until after the deadline, and negotiations continued well past the deadline without any issue raised by the parties or their attorneys. Both attorneys had suggested formalizing an extension of the PSA deadline at various times, but a formal extension agreement was never signed. At some point the seller’s attorney tried to cease the negotiations acknowledging that “we are well beyond our [PSA] date.” A week later, the buyer’s attorney tried to resurrect negotiations and save the deal. Further negotiations ensued between the parties, but they were abruptly stopped by the seller’s attorney who stated that the deal was for all intents and purposes dead.

Mr. Ferguson, the buyer, was naturally upset, and sued, seeking an order of “specific performance” to enforce the deal, based on well established law that an offer to purchase is a legally binding contract for the sale of real estate. (Read the case if you want to learn about various procedural issues that arose in the case with respect to the buyer’s obtaining a lis pendens and the seller’s special motion to dismiss under the lis pendens law.).

Two Important Take-Aways

The important take-aways from the ruling were twofold. First, the Court ruled that the typical deadline to execute the purchase and sale agreement is not always a hard deadline. Some people may be surprised to here that, but under Massachusetts law, a deadline in any contract can be “waived” by the parties words, actions, or conduct. Here, the Court said that a waiver of the deadline could be found where the seller’s attorney didn’t provide the draft PSA until after the deadline and the parties freely negotiated well past the deadline, even without a formal extension in place. Second, the Court also held that where the property is owned by several individuals, only having one of those individuals sign the offer is not necessarily fatal to the deal. If there is evidence that the signatory had apparently authority to sign for the others, or that the sellers ratified the offer, then the contract could be enforced. So now the buyer’s case will continue on for trial. Interestingly, during the pendency of the case, the sellers sold the property to another party. If the buyer is successfully, that new buyer is going to be very unhappy because his transfer will be voided! He may want to lawyer up himself.

Let’s Play Monday Morning Quarterback!

Now, what could have been done differently in this case to avoid the bad result for the seller? For starters, the seller’s attorney should have delivered the draft PSA on time. Once the parties started negotiations after the PSA deadline, they were in “no man’s zone” and that can only come back to hurt the sellers. Deadlines need to be taken very seriously, and sharp lawyers will always send out emails or other written reminders of them, and reserve their rights to terminate an agreement if the parties blow past a deadline without a written extension in place. The buyer’s attorney played this correctly, and didn’t push on the deadline issue because the law would favor his client on the waiver issue (which it ultimately did).

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Sellers Hit With $500,000 Judgment For Torpedoing Closing

by Rich Vetstein on May 30, 2014

in Closings, Massachusetts Real Estate Law, Purchase and Sale Agreements, Real Estate Litigation

how to handle criticismAttorney’s Obnoxious Conduct At Closing Factor in Large Award

Every now and then I have a contentious deal where I should be wearing a black and white referee’s shirt instead of a shirt and tie. I’m usually successful in getting everyone to calm down and close the transaction. The case of KGM Custom Home Builders v. Prosky (embedded below) recently decided by the Massachusetts Supreme Judicial Court is an example of how really bad behavior at a real estate closing can get a party into big legal trouble.

45 Acres in Mansfield for Sale

The Prosky family of Mansfield entered into an agreement to sell 45 acres of developable land to KGM Custom Builders. The sale price was linked to the number of buildable lots that KGM could permit. After spending over $300,000 in 5 years including weathering an appeal, KGM was able to obtain permits for 60 residential units. However, the Proskys received a better offer for the land and a dispute over calculation over the purchase price arose. Nevertheless, KGM was not willing to back down, and scheduled a closing. Repudiating the contract, the Prosky’s attorney informed KGM that it should calculate the liquidated damages provision in the contract because the sellers were not going to sell.

Closing Shenanigans

A closing was nevertheless scheduled at which the Prosky’s attorney showed up with a professional videographer as “defense strategy.” The parties’  attorneys started yelling at each other, and KGM’s attorney shut off all electricity to the building, but the videographer was able to tape with battery power. KGM’s attorney demanded that the Prosky’s attorney produce the closing documents he was supposed to have drafted. The Prosky’s attorney waived the documents in the air, and when the buyer’s attorney went to grab them, he pulled them back and asked if could read them from 2 feet away. KGM, with funds on hand, was ready, willing and able to close, and took the Prosky’s attorney’s antics at the closing as not engaging in good faith, and walked out. At the end of the closing, one of the sellers asked the videographer, “can you explain to me what just happened”? (I would love to see this videotape!).

Anticipatory Repudiation, Breach of Good Faith and Fair Deal, or Both?

Naturally, KGM sued the sellers. The trial judge ruled the sellers had engaged in anticipatory repudiation but he calculated the sales price in favor of the sellers at over $1M, giving the buyer the option of going forward with the deal or taking the liquidated damages because the buyers had also breached the covenant of good faith and fair dealing with their attorney’s antics at the closing. The buyer elected damages, and the judge awarded nearly $500,000 in permitting costs and attorneys’ fees. The sellers weren’t happy with this, so they appealed.

On appeal at the SJC, the legal issue was whether the law allowed the trial judge to provide the buyer with this favorable election of remedies. With few exceptions, outside of the commercial law context, Massachusetts has not generally recognized the doctrine of anticipatory repudiation, which permits a party to a contract to bring an action for damages prior to the time performance is due if the other party repudiates. One such exception occurs where a seller of land informs the “holder of an enforceable option” to purchase that he plans to sell the land to a third party. The high court ruled that this case fit within this exception and upheld the award of damages to the buyer. Naturally, the court seemed particularly upset about the behavior of the seller’s attorney at the closing. In fairness, the SJC did slash the attorneys’ fee award by $120,000, but with statutory interest accruing for several years now, the end result will likely be the same — the sellers are out a lot of cash.

Fortunately, these types of antics are very much the exception rather than the rule at Massachusetts closings. There is really no excuse for this type of unprofessional behavior at a closing, no matter how contentious the dispute. If a party is going to elect to terminate a deal, go ahead and do it without the theatrics. After all, what you say and do at a real estate closing may come back to bite you and your client.

KGM Custom Home Builders v. Prosky (MA SJC 5/30/14)

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Think Before You Hit Send: Emails May Constitute Binding Real Estate Agreement Without Signed Offer

by Rich Vetstein on June 30, 2012

in Electronic Closings, Massachusetts Real Estate Law, Offer To Purchase, Purchase and Sale Agreements, Real Estate Litigation, Realtors

Feldberg v. Coxall: First Case To Apply New UETA (Uniform Electronic Transactions Act) To Real Estate Transactions

“This case involves the intersection between the seventeenth century Statute of Frauds and twenty-first century electronic mail.” –Justice Douglas Wilkins

Massachusetts courts have been grappling with the question of “when is a deal a deal” for a long time. With the vast majority of communication in real estate now done via email and other electronic means, it was just a matter of time before a court was faced with the question of whether and to what extent e-mails can constitute a binding and enforceable agreement to purchase and sell real estate. The real estate community has been waiting a few years for a case like this to come down, and now it’s here.

In Feldberg v. Coxall (May 22, 2012), Superior Court Justice Douglas Wilkins ruled that a series of e-mail exchanges between the buyer’s and seller’s attorney, the last one attaching a revised, but unsigned, offer to purchase, arguably created a binding agreement entitling the buyer to a lis pendens (notice of claim). This is also one of the first cases applying the new Massachusetts E-Sign law to preliminary negotiations in real estate deals.

This is a very interesting and important decision for anyone dealing in residential real estate in Massachusetts. The immediate take-away is that now anything sent in an e-mail can potentially create a binding deal, even if no offer or purchase and sale agreement is ultimately signed.

Vacant Lots In Sudbury

Feldberg, the buyer, was interested in purchasing 2 undeveloped lots in Sudbury owned by Coxall, the seller. The parties’ attorneys, via email, began negotiating the terms of the deal. (Apparently, brokers were not involved in the offer stage).

The buyer’s attorney e-mailed the seller’s attorney and attached a “revised offer with changes to reflect the conversations we have had today.” The revised offer appeared to be comprehensive inasmuch as it contained an agreed upon purchase price of $475,000 and a firm closing date. The email ended with the suggestion that both attorneys work “to have the final offer form finalized in time for my client [the buyer] to sign it and get deposits checks to you before the end of the day tomorrow.”

The seller’s attorney emailed back the next day, stating that “we must have a written approval letter from the bank today by 5pm and I think we are ready to go (I assume they will provide a closing date with the approval).  We are almost there.” That same afternoon, the buyer’s attorney provided a commitment letter from Village Bank with standard conditions.

Apparently, before the seller signed the offer, he backed off and refused to proceed with the transaction. The buyer sued, and sought a lis pendens, which is a notice of claim filed with the registry of deeds. In most cases, a lis pendens will prevent a seller from conveying litigated property to another buyer.

Statute Of Frauds Intersects With E-Mail

As Judge Wilkins eloquently noted, this case involves the “intersection between the seventeenth century Statute of Frauds and twenty-first century electronic mail.” The Statute of Frauds is the genesis of the saying “always get it in writing.” The ancient law, originating in England, provides that all real estate contracts must be in writing signed by the party (or agent) to be charged. In the “old” days, application of the Statute was quite simple. If there wasn’t a written agreement signed in wet, ink signatures, there was no binding deal. Now with e-mail it’s much more complicated.

As the judge noted, this is uncharted territory for the courts as there has been a dearth of precedent on point. The Massachusetts Uniform Electronic Transactions Act (UETA) provides that parties to a real estate transaction may consent to conduct the transaction electronically via email or electronic signature technology if they use such technology in their dealings (which everybody does these days). They even may even switch to a traditional hard copy agreement at the end of negotiations like Feldberg and Coxall did here. The UETA requires some form of “electronic signature.” The judge ruled that an email signature block or even the “from” portion of the email may constitute a valid electronic signature. Accordingly, the judge found that the buyer had made a sufficient case that a binding deal had been reached, despite the seller refusing to sign the hard copy offer. (Update: the case was settled out of court by the parties).

Take-Away: Emails May Come Back To Bite You

I think that some Realtors and even some attorneys have assumed that negotiations by email leading up to an offer are preliminary and not binding until the offer is actually signed by both parties. This ruling throws that conventional wisdom out the window.

What can you do to prevent your emails from creating binding obligations? Well, apart from not using email in the first place, one thing you can do right now is to insert a disclaimer in your email signature. Here’s one that I just came up with:

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 contract.

Feel free to use it. Other than that, you need to watch what you say in your emails, especially when you represent a seller who is considering multiple offers. Make it clear and in writing from the outset that there is no deal until an offer is signed by both buyer and seller.

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Richard D. Vetstein, Esq. is an experienced Massachusetts real estate attorney who’ specializes in real estate litigation. Please contact him if you need legal assistance purchasing residential or commercial real estate.

Feldberg, Et Al. v. Coxall ORDER on Plaintiff’s Emergency Motion for Endorsement of Memorandum of Lis Pende…

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Condominium Bait and Switch Scheme Nets First Time Buyers Big Recovery

by Rich Vetstein on February 14, 2012

in Closings, Condominium Law, Disclosures, Massachusetts Real Estate Law, Real Estate Litigation, Realtors

Six Year Litigation Odyssey Ends With $872,000 Payout

After six years of litigation over a deceptive bait-and-switch condominium purchase scheme, a Cambridge couple has forced the listing broker in the deal to pay them $872,000 in compensation. The case is Oleg Batishchev v. Brenda Cote and others (click to download).

The case started in 2005, after the first time home buyers paid $683,385 for a condominium unit from Perception Ventures LLC. The couple believed they were buying a newly renovated unit on the right side of the building. Victimized by what the trial judge called a “preposterous fraud,” the developer, the listing broker and the seller’s attorney tricked them into buying a unit on the left side of the building which was beset with such substantial and egregious workmanship defects as to render it virtually uninhabitable.

After a two week jury trial by Attorneys John Miller and Jonathan W. Fitch of the Boston firm Sally & Fitch, the developer and his agents were held liable under the Massachusetts Consumer Protection Act, Chapter 93A. The case dragged on through two appeals, and was finally concluded with the payment of $872,000 from the listing broker.

The couple had previously settled with the sellers’ lawyers for $150,000 and, following a one week jury trial on damages, had also received a damage award of more than $425,000 against their own closing attorney for her malpractice.

What troubles me most about this case is that the attorneys got caught up in this scheme, either intentionally (in the case of the seller’s attorney) or by failing to recognize the shenanigans going on (in the case of the buyers’ attorney). The lesson to be learned is that if there’s smoke, there’s usually fire.

For more information about the case, read Sally & Fitch’s press release here.

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Richard D. Vetstein, Esq. is an experienced Massachusetts Real Estate Litigation Attorney who has litigated hundreds of cases in the Massachusetts Land and Superior Courts. For further information you can contact him at [email protected].

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Massachusetts Real Estate Litigation: What You Can Expect Going To Trial, Part 2

by Rich Vetstein on December 20, 2011

in Adverse Possession, Condominium Law, Landlord Tenant Law, Massachusetts Real Estate Law, Permitting/Zoning, Real Estate Litigation

Part 2 of a two part series. For part 1 on filing the Complaint, Venue and Discovery click here.

Expert Testimony

We left off in our last post at the discovery state of litigation. We covered fact discovery of witnesses, but we didn’t address an important component of most real estate litigation cases: experts.

Expert testimony is required when you need to explain to a judge or jury a technical area of the case which is outside the general knowledge of a “regular” person. Experts in a Massachusetts real estate lawsuit can range from appraisers, construction experts, land surveyors, title attorneys, land use planners, civil and wetlands engineers, traffic planners, and handwriting experts. Needless to say, experts are expensive, charging several hundred dollars per hour on an engagement. But they are vitally important. In Massachusetts state court litigation, parties must disclose before trial an expert’s qualifications and a general summary of what the expert will testify to at trial, including his methodology. For litigators like myself, preparing and cross-examining experts is often quite an intellectual challenge and one of the “fun” parts of a trial.

Dispositive Motions

Often in real estate litigation, the case can be decided by way of a “dispositive motion” by the judge prior to trial. In this procedure, called a motion to dismiss or summary judgment, the important facts of the case are undisputed, and the judge can decide the case based on the law. The lawyers will prepare detailed motions, affidavits, and legal briefs, and there will usually be a lengthy hearing before the judge. This procedure will also avoid the need for a trial, saving litigants a much expense. Judges, however, can take a long time deciding a dispositive motion. Months to even a full year is not unheard of.

Pretrial Conference

If the facts of the case are hotly disputed, the case will be set down for a trial date at the pre-trial conference. At the pre-trial conference, the attorneys meet with the judge to discuss readiness for trial, witness lists, expert testimony, unusual legal or evidentiary issues, and the status of settlement talks, if any.

Obtaining a firm trial day these days is pretty much a moving target. It really depends on the county. Middlesex Superior is pretty good at giving firm trial dates, while Norfolk County is not, in my experience.  The Land Court gives out firm trial dates, but has no juries. Prepare to wait several months after the pre-trial conference to get a trial date, which will probably be rescheduled at least once. Massachusetts courts have been beset with budget cuts which has negatively impacted the speed of the courts’ docket. Justice moves slowly in the Commonwealth.

Settlement/Mediation

Given the huge costs and delays of litigation, this is a good place to talk about settlement and mediation. I always explore settlement possibilities of a case early on. If a case can be settled early, both litigants can avoid significant legal expenses and can usually craft a better resolution than a judge or jury can. But clients often come to me very upset and emotional about the situation, so talking settlement may be perceived as “caving in” to the other side. It is not, and clients usually see the light once they get a bill or two from my office.

Mediation is a non-binding settlement process where a neutral mediator (usually a retired judge or experienced attorney) will mediate the dispute between the parties in a structured manner. Both sides get to tell their sides of the story, then the mediator will usually separate the parties into different rooms, shuttling back and forth attempting to broker the peace. There is a cathartic and healing process that often occurs during mediation where parties have a chance to express their anger, resentment, and feelings which can greatly assist the settlement process. Also, the settlement itself often can be much more flexible and creative than what a judge or jury can render after a trial. If mediation does not work out, the case goes back on the trial list. There is no obligation to settle.

Trial

Less than 1% of all civil cases in Massachusetts get to the end of a trial. If your case is in this 1%, prepare yourself for an experience. Jury trials are not for the faint of heart. They are incredibly labor intensive, with the attorneys spending hours upon hours preparing for trial, and burning the midnight oil during the trial itself. The more lawyer time required, the higher the legal bill.

If you are selecting a Massachusetts litigation or trial attorney, ask him or her how many civil jury trials they have done. I’m not talking about former district attorneys who have done a bunch of criminal trials. Complex, civil trials are a totally different animal and call for a lawyer who has done a significant amount of civil trial work. Be wary of any lawyer who claims to have won every trial he has done. There is a saying that a trial lawyer who has never lost a case hasn’t tried many in the first place. Don’t be afraid of small law firm attorneys. In my experience, they are much better trying cases than big firm lawyers who spent the greater part of their careers doing document review and depositions.

Appeals

In the American judicial system, litigants can pretty much appeal anything with impunity. Filing an appeal will usually stop a final judgment from issuing, but in some cases the winning party can ask the losing party to post a bond.

Appeals requires a special skill set, great research, and writing by an experienced Massachusetts appellate attorney. The appeals process can take at least a year or even more to complete. The trial record must be assembled by the trial court. If there was a trial, transcripts need to be ordered from the court reporters or digital tapes and then transcribed. This can take quite a bit of time. Then, the attorneys file lengthy appellate briefs, after which the case is scheduled for oral argument before a panel of appellate justices. After oral argument is held, the court will issue its written opinion, which will either uphold the lower court’s decision, reverse it, or remand it back for a new trial or other action. Appellate opinions are released to the general public and become what is known as the common law of Massachusetts, to be cited as precedent in other cases.

Well, that’s it for now. Remember, litigation should be a last resort, once all attempts at an amicable, reasonable resolution fail.

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Richard D. Vetstein, Esq. is an experienced Massachusetts Real Estate Litigation Attorney who has litigated hundreds of cases in the Massachusetts Land and Superior Courts. For further information you can contact him at [email protected].

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Four Toed Salamanders and SLAPP Suits

by Rich Vetstein on March 9, 2010

in Massachusetts Real Estate Law, Permitting/Zoning

spotted-salamander_721_600x450The recent case of Brice Estates v. Smith where an abutter trespassed on a developer’s land to photograph endangered female four toed salamanders got me thinking about the frequent convergence of developer’s rights vs. citizen’s free speech rights in real estate disputes. In the case, the abutter sought refuge under the pro-free speech anti-SLAPP law, but the court said that he was still trespassing.

A SLAPP is an acronym for Strategic Litigation Against Public Participation. Before being legislatively outlawed, real estate developers would often use SLAPP lawsuits to muzzle abutters who would organize and complain during town meetings and sue to stop real estate projects. The abutters couldn’t afford to defend against the SLAPP suits, so they would back down.

Concluding that citizens’ free speech rights were being suppressed by SLAPP suits, the Massachusetts Legislature in 1994 outlawed them in what’s now referred to as the “anti-SLAPP Act.” The law protects such free speech activities such as filing zoning appeals, reporting violations to state agencies, and lobbying. The anti-SLAPP Act has been one of the most litigated pieces of legislation within the last 15 years.

Anyways, back to the four toed salamanders. Proving the existence of endangered wildlife (spotted frogs, diamond backed terrapins, barn owls, you get the picture) is a sure fire way to get a real estate project derailed, or at least subject to much stricter permitting, delays and scale downs. And that’s exactly what the abutter did in the Brice Estates case when he tip-toed onto the developer’s land with his Nikon to do his best National Wildlife photo-essay. So naturally, the developer sued the abutter for trespassing.

Arguing that the trespass claim was really a SLAPP suit, the abutter said that the developer sued him just for reporting the salamander to the state. The court disagreed, ruling that trespassing wasn’t a constitutionally protected right.

So the moral of the story is that a quest to find a female four toed salamander can get you into some legal trouble.

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