Massachusetts Local Counsel Available for Businesses, Individuals, and Attorneys

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By Robert Nislick

If you are businessperson with a corporate dispute in Massachusetts but you are headquartered outside of the Bay State, or you own real estate or a rental property in the Commonwealth but live elsewhere, or you are an attorney for a company that has just been sued in Massachusetts, you may need to find and hire local counsel to represent you in Massachusetts.

Attorney Robert Nislick is a Massachusetts lawyer who is admitted to practice in all Massachusetts state courts, and also in the United States District Court for the District of Massachusetts, and also in the United States Bankruptcy Court for the District of Massachusetts.

Over the course of my legal career, I have worked with businesses, individuals, and attorneys located outside of Massachusetts, who have had a need for a lawyer in Massachusetts, including from California, Colorado, Connecticut, Florida, Iowa, Maine, Michigan, Nevada, New Hampshire, New Jersey, New York, Rhode Island, South Carolina, Texas, Utah, Vermont, the United Arab Emirates and the United Kingdom.

Call or e-mail Massachusetts lawyer Robert Nislick when you need to team up with an experienced local Massachusetts attorney to help with a business matter, a real estate dispute or transaction, or a lawsuit.

Stays of Execution in Massachusetts Landlord and Tenant Cases

By Robert Nislick

You are a Massachusetts landlord and you are trying to evict your tenants. You have already terminated their tenancy, served them with a summons and complaint, entered the case in the Housing Court or District Court, and appeared on the day of trial.

You tried your case and the court found that you are entitled to a judgment and execution for possession, or perhaps you entered into a Summary Process Agreement for Judgment with your tenants, which requires them to vacate by a certain date.

A couple of weeks pass and the tenants still have not moved out. They have no intention of leaving. In fact, the tenants want to stay even longer. The tenants file a Motion to Stay Execution. Essentially, the tenants are asking the court to give them even more time to move.

Do the tenants have any grounds for seeking more time, even though they have already lost their case?

If the eviction was a no-fault eviction, rather than an eviction for nonpayment of rent, then the court can grant the tenant a six-month stay, or if the tenant is handicapped or at least 60 years old, then the court can grant the tenant a twelve-month stay. See G. L. c. 239, § 9.

The tenant must demonstrate that he, “cannot secure suitable premises for himself and his family elsewhere within the city or town in a neighborhood similar to that in which the premises occupied by him are situated; that he has used due and reasonable effort to secure such other premises; that his application is made in good faith and that he will abide by and comply with such terms and provisions as the court may prescribe; or that by reason of other facts such action will be warranted”. See G. L. c. 239, § 10.

How can the landlord oppose the tenant’s efforts?

Let me first digress to say that, in my opinion, a landlord should always hire an attorney to handle the eviction from start to finish. I have heard way too many stories from landlords who thought they could save a few bucks by doing it themselves, only to find that they have made mistakes that cost them time and money. The experienced lawyer can anticipate obstacles that may arise, and also avoid traps for the unwary.

Primarily, the landlord will want to point out that if the eviction was brought for nonpayment of rent, the tenant is not entitled to a stay, as a matter of law. If the eviction was a no-fault eviction, however, the landlord will need to counter the tenant’s arguments that he meets the criteria for a stay.

In any event, if the court grants a stay, G. L. c. 239, § 11, requires essentially that a stay shall be conditioned upon the tenant’s depositing into court for occupation of the premises during the stay the amount he was paying for rent previously, any additional amount the court deems reasonable, and all unpaid rent prior to the stay. The statute also provides that the court to shall pay to the landlord the amounts deposited into court.

Robert Nislick is a Massachusetts landlord-tenant lawyer who practices in Boston Housing Court, Worcester Housing Court, Northeast Housing Court, Southeast Housing Court, Western Housing Court, and the summary process session of the District Court.

Trustees’ Responsibilities and Unit Owners’ Right of Access to Condominium Books and Records in Massachusetts

By Robert Nislick

When a dispute starts to arise between and a unit owner and a board of condominium trustees, the unit owner may ask to review the financial records of the condominium. The unit owner may suspect that the trustees are expending money wastefully or improperly.

What records must the condominium trustees maintain? What rights does the unit owner have to access the books and records of the condominium? How can the condominium trust satisfy its obligations to the unit owner?

Pursuant to G. L. c. 183A, § 10 (c), the organization of unit owners or the condominium’s managing agent shall keep a complete copy of: (1) the master deed, (2) the by-laws, (3) the minute book, to the extent such minutes are kept, and (4) financial records, including and relating to: (i) all receipts and expenditures, invoices and vouchers authorizing payments, receivables, and bank statements, (ii) the replacement reserve fund or any other funds, (iii) audits, reviews, accounting statements, and financial reports relating to the condominium’s finances, (iv) contracts for work to be performed for or services to be provided, and (v) all current insurance policies, or policies which name the organization as insured or obligee. The statute requires that these records be kept in an up-to-date manner within the commonwealth.

Additionally, any unit owner and first mortgagee has a right of reasonable inspection of these records during regular business hours. Access to said records includes the right to photocopy said records at the expense of the person or entity making the request.

If a unit owner requests to inspect the books and records of the condominium, the trustees or the property manager should be willing to set up an appointment for the unit owner to view the records, or photocopy the records and provide them to the unit owner. The association risks getting sued by the unit owner if the trustees fail or refuse to provide reasonable access to these records. Even if it seems like an inconvenience, the condominium association should make every effort to comply with the unit owner’s request in a timely and efficient manner.

About the author: Robert Nislick is a Massachusetts condominium lawyer and former law clerk at the Land Court.   He represents condominium trustees and unit owners. For more information, contact him at (508) 405-1238, or by e-mail.

Land Use Restrictions in Massachusetts

By Robert Nislick

You are a Massachusetts landowner, possibly a homeowner in a residential subdivision. When the developer planned your community, it may have for example, sought to impose a set of building restrictions or restrictive covenants, for the stated purpose of protecting the value, attractiveness and pleasant living quality of the lots within the subdivision.

In particular during the building and marketing phase of the community, the real estate developer may have considered it important to maintain a degree of control over how homebuyers in the neighborhood could use or make changes to their property.

Let’s say you have purchased a home in such a subdivision. Your deed will state the names of the seller and buyer, the consideration paid, and contain a description of the property. Your deed may also contain language that states that the premises are conveyed subject to a certain declaration of building restrictions.   If so, your deed should also provide a reference to the book and page where the document imposing the restrictions is recorded in the registry of deeds.

Anyone who is contemplating buying land subject to a set of restrictions or covenants or easements should review those instruments carefully and also seek the advice of a competent attorney, in order to fully understand what limitations, if any, have been imposed on the use of the property.

Once you own your property, at some point, you may find that a neighbor is doing something on his land that may be in violation of a restriction. You want to compel this neighbor to stop. Or perhaps, someone is accusing you of doing something on your land that may be in violation of the restrictions, and you need to defend against such a claim and ensure your ability to use your property as you see fit.

A restriction on the use of land is a right to compel the person entitled to possession of the land not to use it in specified ways. Labounty v. Vickers, 352 Mass. 337, 347 (1967). Restrictions on land are disfavored and doubts concerning the rights of use of an easement are to be resolved in favor of freedom of land from servitude. Martin v. Simmons Props., LLC, 467 Mass. 1, 9 (2014). Restrictions in a deed are to be strictly construed against the party seeking to enforce those restrictions. Walker v. Gross, 362 Mass. 703, 706 (1972).

Massachusetts cases interpreting the restrictions statutes, G. L. c. 184, §§ 26-30, make it difficult to enforce land use restrictions. Accordingly, great care must be taken to draft them correctly. Under certain circumstances, courts will even refuse to enforce a land use restriction due to lack of precision in drafting, even if the parties’ intent is otherwise clear.

Land use restrictions are distinguishable in part from condominium master deed restrictions, the latter of which are generally construed more liberally in favor of the party seeking enforcement. However, in a recent case, Boston Redevelopment Auth. v. Pham, 88 Mass. App. Ct. 713 (2015), the Appeals Court ruled that a condominium unit owner did not violate an affordable housing restriction which required him to maintain the unit as his principal residence, and which prohibited him from leasing his unit for business or investment purposes, even though he traveled extensively for work, and even though he had brought in a succession of roommates to defray the costs of the unit. The Court applied the rule that where a person’s right to use his or her own property is involved, any ambiguity in an asserted restriction should be construed in favor of the freedom of the property from that restriction. See Johnson v. Keith, 368 Mass. 316, 320 (1975).

If you are involved in a dispute concerning a land use restriction or a condominium restriction, contact Robert Nislick, a Massachusetts real estate lawyer, and former law clerk at the Land Court, to discuss your rights and remedies. For more information, contact him at (508) 405-1238, or by e-mail.

Condominium Restrictions, By-Laws, and Rules and Regulations in Massachusetts

By Robert Nislick

As part of a condominium board’s authority to manage and control the common areas of a condominium, the trustees often adopt by-laws and rules and regulations which govern how the unit owners can use the common areas and their units.

Typical by-laws and rules and regulations cover topics such as parking, pets, personal property, and noise, to name a few.

Unit owners are obligated to comply with the condominium’s by-laws and rules and regulations. “Each unit owner shall comply with the by-laws and with any administrative rules and regulations adopted pursuant thereto, as either of the same may be amended from time to time . . . .” G. L c. 183A, § 4(3).

A board has the authority to enforce the by-laws and rules and regulations by levying fines. “Such corporation, trust or association shall have, among its other powers, the following rights and powers:—(5) To . . . levy reasonable fines for violations of the master deed, trust, by-laws, restrictions, rules or regulations of the organization of unit owners.” G. L c. 183A, § 10 (b) (5).

Additionally, if the trust incurs expenses as a result of the unit owner’s failure to abide by the by-laws and rules and regulations, it can assess that expense against him or her. “If any expense is incurred by the organization of unit owners as a result of the unit owner’s failure to abide by the . . . by-laws, restrictions, rules or regulations, . . . the organization of unit owners may assess that expense exclusively against the unit owner and such assessment shall constitute a lien against that unit . . . and such assessment shall be enforceable as a common expense assessment under this chapter.” G. L c. 183A, § 6 (a) (ii).

Let’s say the board has adopted a certain by-law or rule and regulation, and a unit owner wants to challenge it. The unit owner argues that the by-law or rule is invalid. How will a court review the by-law or rule?

In Johnson v. Keith, 368 Mass. 316 (1975), a condominium unit owner sought a declaration against a board of managers of a condominium that a rule prohibiting the keeping of animals in condominium units or the common areas was not valid and enforceable against her with respect to her dog.

Such a rule was not enforceable against the unit owner in this case because it sought to regulate the unit owner’s conduct in her unit. The Court stated: “[B]y statute administrative rules and regulations may govern the details of the use and operation of common areas and facilities. G. L. c. 183A, Section 11 (d).” Johnson v. Keith, 368 Mass. 316, 319 (1975) (emphasis added). The rule at issue purported “to regulate the keeping of animals not only in common areas but also ‘in any Unit.’ Thus as an administrative rule or regulation [it] undertakes to regulate conduct in individual units without statutory authorization.” Id.

The Johnson Court made a key distinction between by-laws, on the one hand, and rules and regulations, on the other. Although the condominium trustees argued that the rule was or should be treated as a by-law, the Court disagreed, in part because the procedures set forth in the by-laws for adopting by-laws had not been followed.

“[T]he by-laws of the organization of unit owners shall provide . . . for . . . (d) The method of adopting and of amending administrative rules and regulations governing the details of the operation and use of the common areas and facilities.” G. L. c. 183A, § 11 (d).

“[T]he by-laws of the organization of unit owners shall provide . . . for . . . (e) Such restrictions on and requirements respecting the use and maintenance of the units and the use of the common areas and facilities, not set forth in the master deed, as are designed to prevent unreasonable interference with the use of their respective units and of the common areas and facilities by the several unit owners.” G. L. c. 183A, § 11 (e).

The Johnson Court cited both of these statutes, and they should be instructive on the need for a condominium board to follow the by-laws themselves when adopting a new by-law or rule or regulation.

In another case, which also involved a rule concerning the keeping of a pet in a unit, the Court interpreted G. L. c. 183, § 11 (d), as meaning that, “rules and regulations may only apply to common areas of the building and not to individual units.” Trustees of the Beacon on the Charles Condominium Trust v. Adler, Suffolk Superior Court Civil Action No. SUCV2010-00793.

Adler underscores the need to analyze whether by-laws or rules and regulations which purport to restrict conduct within a unit have been unambiguously incorporated into the by-laws, and also that a condominium that seeks to amend its by-laws and rules should follow the proper procedure. The decision notes that: “Mere statements of incorporation of rules and regulations are not sufficiently unambiguous.” That particular condominium’s by-laws required that a by-law amendment required approval of at least a 75% beneficial interest in the trust, and that rules and regulations could be amended by the trustees.

In Noble v. Murphy, 34 Mass. App. Ct. 452 (1993), a condominium trust filed suit against unit owners to compel the removal of two dogs from a unit. An actual by-law, not just a rule, banned all pets from units and common areas. The unit owners counterclaimed and challenged the validity of the pet restriction. The Court ordered the removal of the dogs. In analyzing the by-law, the Noble Court noted that, “the most common standard of review of condominium use restrictions is equitable reasonableness.” See Noble v. Murphy, 34 Mass. App. Ct. 452, 457 (1993).

“[T]he test is reasonableness. If a rule is reasonable the association can adopt it; if not, it cannot. It is not necessary that conduct be so offensive as to constitute a nuisance in order to justify regulation thereof.” Id. The Noble Court highlighted that a condominium has authority to act concerning matters “that are reasonably related to the promotion of the health, happiness and peace of mind of the unit owners.” See id.

In Trustees of Muzzey High Condominium Trust v. Lexington, Middlesex Superior Court Civil Action No. MICV1999-5682 (Neel, J.) (June 6, 2002), a former school building was converted into a 71-unit residential condominium. The first floor of the building was a unit which was operated by the town of Lexington as a senior center. On various occasions, when large numbers of people visited the senior center, there were not enough available parking spaces for the residential unit owners. To deal with this problem, the condominium adopted a rule setting aside parking spots for unit owners only. The Court adopted the reasonableness standard and held that where the “parking rule restricts use of the common area parking lot, not use of units . . . the Trustees did not act outside their authority by enforcing the parking rule without first causing it to be incorporated into the Master Deed or By-laws.” See Trustees of Muzzey High Condominium Trust v. Lexington, Middlesex Superior Court Civil Action No. MICV1999-5682 (Neel, J.) (June 6, 2002).

In Woodvale Condominium Trust v. Scheff, 27 Mass. App. Ct. 530 (1989), a master deed restriction provided that each of the units were intended to be solely for residential dwelling purposes. The condominium trust sought to enjoin unit owners who had been operating a family day care in their unit. Where the master deed specified that units could be used “solely” for residential purposes, the Court stated that the condominium trust was entitled to prevent the operation of a family day care in a residential unit. See Woodvale Condominium Trust v. Scheff, 27 Mass. App. Ct. 530, 535 (1989).

In Franklin v. Spadafora, 388 Mass. 764 (1983), a by-law limiting to two the number of units which may be owned by any one person was not an unreasonable restraint on alienation, and did not deny the unit owner equal protection of the laws or due process of law. The Franklin Court held: “If a by-law amendment serves a legitimate purpose, and if the means the condominium association adopted are rationally related to the achievement of that purpose, the amendment will withstand constitutional challenge.” Franklin v. Spadafora, 388 Mass. 764, 774 (1983). The Court noted that: “Reasonable restrictions concerning use, occupancy, and transfer of condominium units are necessary for the operation and protection of the owners in the condominium concept.” Id. at 772.

In Board of Managers of Old Colony Village Condominium v. Preu, 80 Mass. App. Ct. 728 (2011), held that while rules are reviewed for “equitable reasonableness”, “such regulations are subject to invalidation if they violate a right guaranteed by ‘any fundamental public policy or constitutional provision.’” See Board of Managers of Old Colony Village Condominium v. Preu, 80 Mass. App. Ct. 728, 730 (2011), quoting from Noble, 34 Mass. App. Ct. at 760.

The Preu Court held that the First Amendment to the United States Constitution applies to a claim that a unit owner’s speech and expressive conduct constitutes a violation of “‘the requirements of the master deed, trust, by-laws, restrictions, rules or regulations [of the condominium], or . . . misconduct’ within the meaning of G. L. c. 183A, § 6.” See Preu, 80 Mass. App. Ct. at 728.

In Preu, the unit owner placed dog feces in a common area, placed a fan in a common area, wedged open fire doors that should have been closed, and closed doors that should have been open. The Court determined that this conduct violated various by-laws and rules of the condominium, and constituted misconduct.

Additionally, the unit owner also had posted signs in the trash area regarding the cleanliness of the common areas, and left a note on a neighbor’s door. A superior court judge ruled that these forms of communication were pure speech, conduct that was protected by the First Amendment, and if a condominium by-law were read to prohibit this conduct, it was not “equitably reasonable.”

The Court noted that, “a condominium association does not have as free a hand in restricting the speech of unit owners in the common areas in which those owners share an undivided property interest as another property owner might in dealing with a stranger on his or her property.” See Preu, 80 Mass. App. Ct. at 732.

About the author: Robert Nislick is a Massachusetts condominium lawyer and former law clerk at the Land Court.   He represents condominium trustees and unit owners. For more information, contact him at (508) 405-1238, or by e-mail.

The Rights of an Easement Holder to Improve a Right of Way or Paper Street in Massachusetts

By Robert Nislick

You are a Massachusetts homeowner. Your property abuts a street that may never have been paved. It could be a dirt road that is hard to navigate in wet weather and dusty and bumpy when it is dry.

Alternatively, your property abuts a street that exists only on paper. The way exists in a deed or on a plan. But in reality, no road has ever been built, and the area is completely covered with trees.

It is possible that you own land that is set back from a public way. In order to get to the property, you need to cross over a paper street, which is actually someone else’s yard.

Whatever the situation on the ground has been in the past, you want to improve the right of way. Assuming you have rights to use this way, what rights do you have as an easement holder to use and improve this right of way or paper street?

A holder of a right of way typically has the right to make it passable and usable for its entire width. See Guillet v. Livernois, 297 Mass. 337, 340 (1937). The right of anyone entitled to use a private way to make reasonable repairs and improvements is well established in cases where the way is already in use. The right exists even more clearly where without improvement the way is impassable and useless. See id.

Where an easement grants the “right to pass and repass” that right has been found to include all rights reasonably incidental to the enjoyment of the right to pass, including the right to make reasonable repairs and improvements to the right of way. See Farber v. Chatham Conservation Found., 56 Mass. App. Ct. 584, 589 (2002).

“Such reasonable repairs include paving the easement and such other improvements as would be consistent with principles of safety.” Barlow v. Chongris & Sons, Inc., 2 LCR 22, 23 (1994), aff’d, 38 Mass. App. Ct. 297 (1995). “Clearing limbs from a roadway, smoothing the surface of a way, placing gravel on a road, or even paving a road have been condoned as reasonable repairs, if necessary to enjoyment of the easement.” Glenn v. Poole, 12 Mass. App. Ct. 292, 296 (1981).

Additionally, G. L. c. 187, § 5, states in part: “”The owner or owners of real estate abutting on a private way who have by deed existing rights of ingress and egress upon such way or other private ways shall have the right by implication to place, install or construct in, on, along, under and upon said private way or other private ways pipes, conduits, manholes and other appurtenances necessary for the transmission of gas, electricity, telephone, water and sewer service, provided such facilities do not unreasonably obstruct said private way or other private ways”. G. L. c. 187, § 5.

“Courts have found that private utilities fall within a broad spectrum of rights given to easement holders by G. L. c. 187 § 5.” Shawkemo Ducklands LLC v. Nantucket Planning Board, Land Court Miscellaneous Case No. 07 MISC 355356 (AHS), slip op. at 52 (Sands, J.) (Oct. 26, 2012). The installation of private septic systems and drainage systems have been deemed permissible pursuant to the statute.

Additionally, the statute applies to persons hold easement rights not only by deed, but also “when rights in a way arise by implication or necessity based on the parties intent,” and also to “an easement by estoppel.” See Post v. McHugh, 76 Mass. App. Ct. 200, 206 (2010).

About the author: Robert Nislick is a Massachusetts real estate lawyer and former law clerk at the Land Court.  For more information, contact him at (508) 405-1238, or by e-mail.

The Doctrine of Tacking in Massachusetts Adverse Possession Claims

By Robert Nislick

In order for one Massachusetts landowner to establish title by adverse possession to land owned of record by another, the claimant must prove “nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years.” Lawrence v. Concord, 439 Mass. 416, 421 (2003).

Frequently, a person who is adversely possessing another’s land may not be able to establish that he personally has used his neighbor’s land for twenty years. This might be because the adverse possessor only recently purchased his property. Alternatively, it might be because he inherited the property he now owns.

The twenty-year requirement is strictly construed. For example, in one case, the court ruled that a claim of adverse possession that continued for “nineteen years, eleven months, and five days” was insufficient, and did not bar the record owner from retaking possession of a disputed strip of land. See Hewitt v. Peterson, 253 Mass. 92, 93-94 (1925).

“[A]lthough the time period is often described as the time necessary to achieve title by adverse possession, it actually is a limitations period, after which the true owner may not recover possession of the land from the adverse possessor.” In re Colarusso, 382 F.3d 51, 58 (1st Cir. 2004).

Even if the claimant has not personally used the land for twenty years, he may satisfy the requirement by tacking on “several periods of successive adverse use by different persons provided there is privity between the persons making the successive uses.” See Ryan v. Stavros, 348 Mass. 251, 264 (1964). Privity exists when there is “some relation between the successive users of such a nature that the use by the earlier user can fairly be said to be made for the later user, or there must be such a relation between them that the later user can be fairly regarded as the successor to the earlier one.” See id.

For example, the case of AM Properties, LLC v. J&W Summit Ave, LLC, Land Court Miscellaneous Case No. 13 MISC 479776 (AHS), (Sands, J.) (Jul. 2, 2015), involved a small strip of land located along a common boundary between the parties’ properties and two passageways to access the strip. The plaintiff purchased its property in 1999 from a trust, which had purchased the property in 1934. The trust had leased the property to a tenant in August 1993. The tenant soon began improving the strip on the defendant’s property.

The court noted that privity of estate exists between lessor and lessee. Additionally, the court noted that, “the adverse possession of the tenant maybe tacked to that of the landlord”. See Holmes v. Turner’s Falls Co., 150 Mass. 535, 547 (1890). Therefore, the court found that plaintiff could tack its use of the strip onto that of the trust for purposes of establishing adverse possession. Accordingly, even though plaintiff itself was adversely possessing defendant’s strip for less than twenty years, it was able to add on, or tack, its predecessor’s tenant’s use onto its claim.

In Perry v. Nemira, Land Court Miscellaneous Case No. 11 MISC 457157 (AHS), (Sands, J.) (Jan. 15, 2015), plaintiff acquired title to his property in early 1996. Plaintiff was required to demonstrate adverse use since 1991. Plaintiff proffered no evidence to suggest that his predecessors ever adversely possessed the disputed area. Moreover, plaintiff’s predecessor in title had essentially abandoned the property in late 1994 when she was incarcerated. Thus, the court found that even if the plaintiff’s predecessor intended to adversely possess the disputed area, there was a break in adverse use from late 1994 to early 1996. This prevented plaintiff from establishing continuous adverse use for the requisite twenty-year period.

In Giombetti Clue Props., LLC v. DiFronzo, Land Court Miscellaneous Case No. 10 MISC 443972 (HMG), (Grossman, J.) (Nov. 7, 2014), plaintiff sought a prescriptive easement over a portion of a paved driveway that encroached onto the neighboring property. The defendant argued that plaintiff’s claims failed because one of plaintiff’s predecessors sought permission to pave the driveway. The court noted that the plaintiff could not seek to tack its own adverse use onto a period of adverse use by an earlier predecessor, thereby “leap-frogging” over a period of permissive use.

If you have a claim or need to defend against a claim for adverse possession or prescriptive easement, contact Robert Nislick, a Massachusetts real estate lawyer.  He can be reached at (508) 405-1238, or by e-mail at rob@nislick.com.

Love Your Neighbor, Et Cetera – A Holiday Wish

By Robert Nislick

“You shall love your neighbor as yourself.” Leviticus 19:18.

In the world of real estate litigation, however, not everyone abides by this commandment.

During this holiday season, as we celebrate miracles and pray for peace, I offer the following wish:

Love your neighbor, landlord, tenant, easement holder, servient estate owner, licensee, trespasser, adverse possessor, condominium trustee, homeowner’s association, planning board, zoning enforcement officer, health inspector, building department, conservation commission, architectural commission, assessor, public works department, home improvement contractor, real estate developer, surveyor, harbormaster, state agency, title examiner, insurance company, tree warden, fence viewer, judge, clerk’s office, court officer, and all persons engaged in trade or commerce.

And if your heart will allow, then love your lawyer too!

About the author: Robert Nislick is a Massachusetts real estate lawyer.  He can be reached at (508) 405-1238, or by e-mail.

Contracts Law and Attorney’s Fees Provisions in Massachusetts

By Robert Nislick

Contracts. Everyone enters into them. Most people fulfill their contractual obligations. Some people do not. There may be a good explanation for why someone has not satisfied his or her contractual obligations. Most of the time, however, there is no good excuse to evade your duties under an agreement.

For the most part, the most prudent advice an attorney can give to a client is to live up to the agreements you have made. This may mean paying for services rendered, or frequently it may mean, doing something you agreed to do.

A large part of the attorney’s job is to bail people out of problems that arise, either when the other person breached a contract, or when the client has allegedly breached a contract and has been sued.

Another large part of the attorney’s job is to help prevent the client from getting into a bad deal to begin with. A client may tell her lawyer about a great business opportunity she is contemplating to undertake with someone else, only to have the lawyer throw a wet blanket over it.

The attorney should anticipate all of the worst-case scenarios that may arise and point them out to the client ahead of time. Maybe everything will work out great. However, business relationships fall off the rails all the time.

When I am drafting a contract for someone, I try to protect the client as best as possible, and I look for ways to get the client out as cleanly as possible if the business relationship goes sour. I have reviewed contracts drafted by other lawyers, including some which have placed one side at such a disadvantage that I cannot believe the lawyer would ever have let the client sign on the dotted line.

In thinking about what can happen when a business venture falls apart, the prospect of having to engage in long, uncertain, expensive, and torturous litigation should not come as a surprise.

Based on the language contained in some contracts, the prevailing party may be entitled to an award of his attorney’s fees. In other words, if there is an attorney’s fees provision in the contract, the loser in the case may have to pay the winner’s attorney’s fees.

Does it always work this way? No.

“The usual rule in Massachusetts is to prohibit successful litigants from recovering their attorney’s fees and expenses except in a very limited class of cases. This rule is known as the ‘American Rule.’ See Waldman v. American Honda Motor Co., 413 Mass. 320, 321-323 (1992). Our traditional approach has been to prohibit recovery of attorney’s fees and expenses in a civil case in the absence of either an agreement between the parties, or a statute or rule to the contrary, and this principle has been applied to deny recovery of attorney’s fees and expenses in declaratory judgment actions.” Preferred Mut. Ins. Co. v. Gamache, 426 Mass. 93, 95 (1997).

“As a general rule in Massachusetts, a litigant must bear his own expenses including attorney’s fees, except where a statute permits the award of costs, a valid contract of stipulation provides for costs, or rules concerning damages permits recovery.” Judge Rotenberg Educational Ctr., Inc. v. Commissioner of the Dept. of Mental Retardation, 424 Mass. 430, 468 (1997).

When drafting a contract, is it a good idea to include an attorney’s fees provision? It is hard to give a definitive answer because every situation is different. I have had clients benefit from contractual attorney’s fees provisions.

But I am not always a fan of attorney’s fees provisions in contracts. One reason is that the specter of having to pay the other side’s lawyer may deter a party from pressing what may actually be a meritorious claim. Another reason is that a party with greater resources may feel emboldened to litigate over a small dollar amount against a weaker opponent, when it might not otherwise be worthwhile to expend resources on such a claim.

Similarly, the expectation of winning an attorney’s fee award may deter the parties from negotiating in good faith to solve their problems. Such a situation may also occur where statutes, like the Consumer Protection Act, G. L. c. 93A, or the Condominium Act, G. L. c. 183A, or Massachusetts’s anti-discrimination law, G. L. c. 151B, may obligate one party to pay the other’s attorney’s fees. The issue of attorney’s fees may end up dominating the litigants’ decision making, and actually prevent the resolution of a dispute.

Assuming a party prevails in a case where an attorney’s fees provision is at play. How does the court determine what constitutes a reasonable award of attorney’s fees? “While the amount of a reasonable attorney’s fee is largely discretionary, the judge . . . should consider the nature of the case and the issues presented, the time and labor required, the amount of damages involved, the result obtained, the experience, reputation and ability of the attorney, the usual price charged for similar services by other attorneys in the same area, and the amount of awards in similar cases.” Linthicum v. Archambault, 379 Mass. 381, 388-389 (1979).

The prevailing party should not expect that the court will require the other side to compensate him every last cent in attorney’s fees that he expended. The court has a lot of discretion to make substantial cuts to the amount of attorney’s fees sought by a party, and often does.

About the author: Robert Nislick is a Massachusetts business and contracts attorney. He can be reached at (508) 405-1238, or by e-mail at rob@nislick.com.

Specific Performance of Real Estate Contracts

By Robert Nislick

You have been searching endlessly for that perfect new home. After spending countless weekends attending open houses, and hours visiting properties with your broker, you have finally found the right place. You are a solid buyer and you have made a very strong offer.

The seller agrees and accepts your offer. He signs it and his broker sends it back. YES!!! Everything is looking good.

Until, . . . no, . . . wait, . . . what, . . . no, . . . how could this be?

The seller has just changed his mind. Another buyer made a higher offer only twenty minutes after the seller said yes to you. You have learned that your deal is now off.

This is infuriating. You want to buy the property at the agreed upon price. You feel it is wrong for the seller to back out. As a matter of principle, you are willing to fight to buy this property, and you want stand up to the seller’s unvarnished greed.

What can you do? There is a good chance that when you made your offer, you used the Greater Boston Real Estate Board Offer to Purchase Real Estate pre-printed form. The Offer To Purchase describes the property to be sold and the price to be paid. It states further that the parties shall “execute the applicable Standard Form Purchase and Sale Agreement recommended by the Greater Boston Real Estate Board or any form substantially similar thereto, which, when executed, shall be the agreement between the parties hereto.”

It is highly likely that under the bellwether case McCarthy v. Tobin, 429 Mass. 84 (1999), the buyer and seller have a binding contract, and the seller’s acceptance of the buyer’s offer binds the seller to sell and the buyer to buy the property. “If . . . the parties have agreed upon all material terms, it may be inferred that the purpose of a final document which the parties agree to execute is to serve as a polished memorandum of an already binding contract.” McCarthy v. Tobin, 429 Mass. 84, 87 (1999), quoting Goren v. Royal Invs., Inc., 25 Mass. App. Ct. 137, 140 (1987). This means that the execution of a purchase and sale agreement is not necessary to bind the parties, but nevertheless, its execution is required by the offer to purchase. See id. at 88.

An aggrieved buyer may consider filing a complaint which seeks the remedy of specific performance. The buyer essentially asks the court to order the seller to sell the house, condominium unit, or land, at the already agreed upon price. “A judge generally has considerable discretion with respect to granting specific performance, but it is usually granted in disputes involving the conveyance of land. Raynor v. Russell, 353 Mass. 366, 367 (1967), and cases cited. ‘It is well-settled law in this Commonwealth that real property is unique and that money damages will often be inadequate to redress a deprivation of an interest in land.’ Greenfield Country Estates Tenants Ass’n, Inc. v. Deep, 423 Mass. 81, 88 (1996).” McCarthy, 429 Mass. at 89.

The buyer will probably also want to obtain a lis pendens against the seller’s property, and this should have the practical effect of deterring any other potential buyer from purchasing the property.

The aggrieved buyer should recognize that while McCarthy is established law which has been followed consistently by Massachusetts courts, no one’s case is a slam dunk. The seller may have legitimate reasons not to capitulate to the buyer’s demands. For example, the seller may have valid affirmative defenses to a claim for specific performance based on unfair conduct, misrepresentation, or fraud by the buyer. “As to the claim for specific performance, it is axiomatic that one must have behaved equitably in order to obtain equitable remedies.” Galipault v. Wash Rock Invs., 65 Mass. App. Ct. 73, 85 (2005).

Any buyer and any seller in a similar situation should seek the advice of experienced counsel. Based on the particularities of any given situation, I might advise my client to fight, or alternatively to re-negotiate, or simply to fulfill a clear and unambiguous contractual obligation.

Contact Massachusetts Real Estate Lawyer Robert Nislick directly, or ask your broker, or your transactional attorney to contact me to discuss the best options for you.