Divorce and Real Estate in Massachusetts

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What happens to a couple’s real estate after a divorce is determined by their separation agreement.

Almost every divorce is settled through a “separation agreement” made by the parties. These agreements are typically prepared by the parties’ attorneys. However, Massachusetts Probate & Family Court will provide couples with a separation agreement template if they are handling the divorce without lawyers.

The separation agreement becomes binding after it is reviewed by the court and the presiding judge signs a judgment.

This judgment (referred to as a NISI judgment) has two dates: (1) the date the judge signs the document and (2) the date the judgment becomes absolute, i.e., final and enforceable.

If you are buying real estate that has been the subject matter of a divorce, it’s important that you review the terms of the separation agreement and make certain that they have been fully satisfied before taking title to the property.

It’s also essential to wait until the court’s judgment is “absolute” rather than taking title to the real estate immediately after the judge signs the document.

If you have questions about real estate law, please contact me at justin@jrmccarthy.com.

How to File a Lawsuit in Massachusetts

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Generally, three things are needed to file a lawsuit in Massachusets.

  1. A cover sheet which provides the basic information about the case, e.g., the parties’ names and addresses, the claims at issue, and the amount in controversy. In Superior Court this form is called a “Civil Action Cover Sheet”. In District court it is a “Statement of Damages”. Both forms are available online.
  2. A complaint which gives a detailed description of the facts and laws at issue as well as a demand for relief from the court.
  3. Finally, you need a check for the filing fee and the summons. It usually costs $195 to file in District Court and $295 to file in Superior Court. Summons cost $5 each. You should call the court you are filing in to confirm the cost.

Landlord Isn’t Liable for Tenant’s Pit Bull Attack: Appeals Court Ruling

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The Massachusetts Appeals Court has ruled that a landlord is not liable for his tenant’s pit bull after the dog ran from the landlord’s property and attacked a pedestrian.

The plaintiff was riding his bike past the landlord’s house with his dog jogging along side him on a leash.

The pit bull ran into the street and attacked the leashed dog while knocking the plaintiff to the ground. The plaintiff suffered injuries due to the fall.

He sued the landlord for negligence and the trial court judge dismissed the lawsuit through summary judgment. The plaintiff appealed and the Appeals Court issued a ruling affirming the trial court’s decision.

According to the Appeals Court

As a general rule, a landowner does not owe a duty to take
affirmative steps to protect against dangerous or unlawful acts
of third persons…There is an exception to this general rule where there is a special relationship between the landowner and a plaintiff in which a plaintiff would reasonably expect a landowner to take steps to protect the plaintiff from harm…We have previously held that such a special relationship exists between a residential landlord and a tenant, such that a landlord has a duty of reasonable care to protect a tenant from harm by another tenant’s pit bull on the premises…However, no Massachusetts appellate court has extended such a duty to a passer-by injured by a tenant’s dog after the dog leaves the landlord’s property. We decline to do so here.

Robinhood Lawsuit

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Earlier this month an online Reddit community known as wallstreetbets banded together to purchase stocks that elite hedge funds had bet against.

Their collective action caused GameStop stock to skyrocket from $17 on January 1 to an incredible $469 on January 28.

The community’s actions will likely result in a tremendous loss for the hedge funds that bet against the stock.

Much of the trading done by wallstreetbets was facilitated by an online brokerage firm called Robinhood.

A few days ago Robinhood inexplicably froze trading on GameStop stock.

This action immediately prompted a class-action lawsuit against Robinhood and its subsidiaries in US District Court for the Southern District of New York.

According to the complaint:

On or around January 11, 2021, stocks in GameStop Corp. (“GME”) began to rise.

At that time, Robinhood allowed retail investors to trade GME on the open market.

On or about January 27, 2021 Robinhood, in order to slow the growth of GME and deprived their customers of the ability to use their service, abruptly, purposefully, willfully, and knowingly pulled GME from their app. Meaning, retail investors could no longer buy or even search for GME on Robinhood’s app.

Upon information and belief, Robinhood’s actions were done purposefully and
knowingly to manipulate the market for the benefit of people and financial intuitions who were not Robinhood’s customers.

Since pulling the stock from their app, GME prices have gone up, depriving investors of
potential gains.

Additionally, in the event GME goes down, Robinhood has deprived investors of
“shorting” GME in the hopes the price drops.

In sum, Robinhood has completely blocked retailer investors from purchasing GME for no legitimate reason, thereby depriving retailer investors from the benefits of Robinhood’s services.

The complaint argues that Robinhood violated rules established by the Financial Industry Regulatory Authority, particularly Rule 5310 which states that brokerage firms like Robinhood “must make every effort to execute a marketable customer order that it receives promptly and fully.”

The plaintiffs allege that Robinhood’s actions constitute (1) a breach of contract, (2) a breach of the implied covenants of good faith and fair dealing, (3) a breach of fiduciary duty, and (4) negligence.

They are asking the court for an immediate injunction ordering Robinhood to allow trading of GameStop stock and monetary and punitive damages for the financial harm Robinhood has allegedly done to its customers.

Harassment Prevention Orders in Massachusetts

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If you are being harassed in Massachusetts, you can apply for a “harassment prevention order” in district court. The application form is on the state’s website along with guidelines for what constitutes harassment. Applicants will usually go before a judge within hours of filing the application. If the judge decides to issue the order, a copy will be sent to the police and served on the person who is harassing you.

Need legal help? Email justin@jrmccarthy.com

Parler v. Amazon: Case Summary

Parler–the new social media alternative to Twitter and Facebook–filed a lawsuit against Amazon earlier this week after Amazon abruptly removed the company from its cloud service platform.

Amazon’s actions essentially killed the rapidly growing app and Parler wasted no time filing a lawsuit for injunctive relief and money damages.

According to the complaint filed in the United State District Court for the Western District of Washington, Parler contracted with Amazon as its cloud service provider when the site was formed. Parler saw its membership grow exponentially after the November 2020 election. The complaint states

less than a week after Election Day, between November 3rd and November 8th, Parler’s app experienced nearly on million downloads…This resulted in Parler rocketing to be the #1 free app in the iOS App Store, up from #1,023 just a week earlier…Likewise, in that same week the Parler app went from 486th to 1st in the Google Play rankings.

Parler’s membership surged again in 2021 when President Trump was banned from Twitter. On that day alone, Parler membership increased in the United States by 355%.

Amazon, which just last month signed a multi-year deal with Twitter to provide cloud servicing, withdrew its platform from Parler with only a single day’s notice. As justification for its actions, Amazon claimed that Parler was used to facilitate protests on the Capitol on January 6.

Parler’s complaint asserts that Amazon’s actions violate Section 1 of the Sherman Act which prohibits businesses from conspiring to retain trade or commerce. The complaint also claims that Parler’s contract with Amazon required at least 30 day’s notice before the servicing agreement could be terminated. Amazon allegedly breached its contract with Parler by ending its service agreement without proper notice. Finally, Parler claims that Amazon’s actions amount to tortious interference with the contracts formed between Parler and its members.

Parler is asking for an order from the court directing Amazon to maintain Parler’s site according to the terms of their contract and for money damages for the financial harm Amazon’s actions have caused.

Title Fraud Insurance in Massachusetts

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Over the past year or two I’ve seen a growing number of high-budget ads for “title fraud insurance.” As with all forms of insurance, its persuaive sales people tell you nightmare stories about what might happen to you if you don’t buy their product. But are these stories true? Can someone really “steal” ownership of your home? In this video I discuss title fraud insurance and whether its worth the investment.

Need legal help? Email justin@jrmccarthy.com

Mass. Real Estate Law: How to Avoid Trustee Self-Dealing

Trusts often cause more legal problems than they avoid. This is especially true when real estate is transferred into or out of a trust. One of the most common problems arises from a trustee’s “self dealing” which can occur when a homeowner puts his real estate into a trust and then transfers it back to himself for nominal consideration.

Here’s an example. A homeowner goes to an attorney to have an estate plan drafted. As part of this plan, the attorney has the homeowner transfer his real estate into a trust with the homeowner acting as trustee. The lawyer usually says that the trust will help the homeowner’s heirs avoid probate or inheritance taxes or maybe the trust will help the homeowner qualify for MassHealth assistance with nursing home bills. Whatever the reason may be, the credulous homeowner listens to the attorney and gives legal ownership of his home to the trust. A few years later the homeowner wants to refinance his home. The bank refuses to lend to the trust and therefore the homeowner must transfer his home back into his name. This transfer is usually done for “nominal consideration”, in other words for no money or just $1.

In many cases, such a transfer is defective because it breaches a trustee’s fiduciary duty not to “self deal” with trust property. The beneficiaries of the trust could, in theory, invalidate the transfer and have the property put back into the trust. (The fact that the trustee is often the sole beneficiary of the trust is irrelevant.)

To avoid “self dealing”, one of four things must happen:

  1. the trust must expressly authorize the trustee to engage in self dealing or
  2. a court of competent jurisdiction most authorize or ratify the transfer or
  3. a period of 30 years must lapse from the time the defective deed was recorded without any challenges being made against the transfer or
  4. the trust must not contain spendthrift provisions and (i) all beneficiaries must assent to or ratify the transfer or (ii) barring a prohibition against self-dealing, the recorded trust must state that third parties may rely on the trustee’s actions without iniquity.

To record such a deed in Land Court a certificate must be signed by at least one of the trustees certifying that all the beneficiaries have assented to the conveyance.

For more information see REBA Title Standard No. 23 and Massachusetts Land Court Guideline No. 53.

If you need legal help, please contact me at justin@jrmccarthy.com

MA Real Estate Law: Municipal Lien Certificates

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If you’re buying a home in Massachusetts, your attorney will most likely get a document known as a municipal lien certificate (MLC) from the city or town’s tax collector prior to the closing.

According to M.G.L. c. 60, section 23, MLC must show “the amounts then payable on account of all such taxes and assessments” that affect the property you are purchasing.

The document is the only reliable way to confirm the correct amounts owed to the tax collector for municipal fees.

By paying the fees shown on the MLC and recording the document at the registry of deeds (which costs $85) the new homebuyer can “discharge the parcel of real estate specified from the liens for all taxes, assessments, or portions thereof.”

A tax collector has ten days to provide the MLC after receiving a request for the document. Collectors usually charge between $25 and $50 for the service. An MLC is good for 60 days.

Need legal help? Email justin@jrmccarthy.com

New Executive Order Promoting Classical Federal Architecture

Last Friday President Trump signed an executive order requiring all new federal buildings to be built according to the principals of Classical architecture.

The order states,

It is time to update the policies guiding Federal architecture to address these problems and ensure that architects designing Federal buildings serve their clients, the American people. New Federal building designs should, like America’s beloved landmark buildings, uplift and beautify public spaces, inspire the human spirit, ennoble the United States, command respect from the general public, and, as appropriate, respect the architectural heritage of a region. They should also be visibly identifiable as civic buildings and should be selected with input from the local community.

The order seeks to eliminate or minimize “Brutalist” and “Deconstructivist” architectural styles that came into use in the second half of the 20th century and replace them with Classical architecture which the order describes as follows:

“Classical architecture” means the architectural tradition derived from the forms, principles, and vocabulary of the architecture of Greek and Roman antiquity, and as later developed and expanded upon by such Renaissance architects as Alberti, Brunelleschi, Michelangelo, and Palladio; such Enlightenment masters as Robert Adam, John Soane, and Christopher Wren; such 19th-century architects as Benjamin Henry Latrobe, Robert Mills, and Thomas U. Walter; and such 20th-century practitioners as Julian Abele, Daniel Burnham, Charles F. McKim, John Russell Pope, Julia Morgan, and the firm of Delano and Aldrich. Classical architecture encompasses such styles as Neoclassical, Georgian, Federal, Greek Revival, Beaux-Arts, and Art Deco.

To achieve its aims, the order also establishes a “President’s Council on Improving Federal Civic Architecture” and requires that any building plans contradicting the order must be brought to the President’s attention.