Lawyers and the Mortgage Lending Process

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When you get a mortgage to purchase a house in Massachusetts, your bank will require you to employ an attorney as the “settlement agent” or “escrow agent.”

Essentially, the lawyer reviews the title to the property you’re purchasing and certifies to the bank that there are no legal problems that will arise after the closing.

The lawyer also handles the loan money on behalf of the bank, writing checks to everyone involved in the closing process–the seller, the surveyor, the real estate agents, etc.

Before the closing, the lawyer prepares a commitment letter for the lender title insurance policy that you’re required to buy at the closing. He or she also relays the real estate tax information from the tax collector’s office to the bank and has a survey done of the land to ensure there are no boundary line problems.

Most banks allow borrowers to choose their own closing attorney. A small minority of banks require their customers to use a pre-selected lawyer.

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

Forgiving Bad Deeds: When Are Errors in Deeds and Other Real Estate Documents No Longer a Problem?

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Many errors or omissions made in deeds and other real estate documents affecting land ownership are no longer a problem after the paperwork has been on record at the registry of deeds for at least ten years. This rule is set out in M.G.L. c. 184, Section 24 entitled “Defects, Irregularities or Omissions in Deeds; Curative Period.”

The statute lists the errors or omissions that are cured by this ten-year period. They include any irregularity or omission that fails to comply in any respect with any requirement of law relating:

to seals, corporate or individual,

to the validity of acknowledgment,

to certificate of acknowledgment,

witnesses,

attestation,

proof of execution, or time of execution,

to recitals of consideration, residence, address, or date,

to the authority of a person signing for a corporation who purports to be the president or treasurer or a principal officer of the corporation.

After the deed is on record for ten years, provided the validity of the document has not been disputed during that time, it becomes “effective for all purposes to the same extent as though the instrument and record thereof had originally not been subject to the defect, irregularity or omission.”

This rule applies only to documents recorded in the registry of deeds and it doesn’t apply to those registered with Land Court.

In addition to the ten-year curative statute, Real Estate Bar Association (REBA) Title Standard No. 21 on Scrivners’ Errors gives additional leeway for mistakes and omissions. It states,

A title is not defective by reason of:

(1) The omission or addition of a middle or first initial or name of an individual or minor
variation in the spelling of names;

(2) The change of the name of a person as a result of marriage, or judicial change of name (in the
latter case, reference should be made to the court and date of judgment);

(3) Minor variations from the correct name of a corporation, trust, limited
partnership, limited liability company, limited liability partnership or other legal
entity, such as the omission or addition of “The” or the interchange of the long form entity name
with the abbreviated form;

(4) Inconsistencies in, or lack of dates of, execution and acknowledgement;

(5) Minor errors in area or in distances of bounds or the omission of one bound or incorrect
compass points in a description, especially if the correct lot number and plan reference or
reference to title are included in the description;

or

(6) The omission of, or an erroneous reference to, either the date or the record
reference (but not both) to a mortgage in the case of an assignment, partial release, or
discharge of such mortgage.

For additional, in-depth discussion see the following cases:

Gillespie v. Rogers, 46 Mass. 610, 16 NE. 711, and Laney v. Snow. 180 Mass.
411, 62 NE. 735, as to omissions, additions and variations in names of
individuals;

Harrison v. Phillips Academy, 12 Mass. 456,

Ashkenazy v. R.M Bradley & Co., 328 Mass. 242, 103 NE.2d 251, and Dresel v. Jordan. 104 Mass. 407, as to inconsistencies in or lack of dates; and

Worthington v. Hyler. 4 Mass. 196, as to minor errors and omissions in
descriptions.

Preparation vs. Results – Law School and Legal Practice

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One of the few similarities of law school and legal practice is the seemingly backwards relationship between preparation and results. Almost every law student has at least one story about working hard in a particular class and receiving a poor grade for their efforts. Conversely, the same student will have a story about doing very little in a class and getting a good grade nonetheless. This disconnection between preparation and results continues when students leave law school and begin their legal careers. In this video I discuss my experiences over the past 10 years of legal practice and give my thoughts on coping with the subjectivity and arbitrariness of legal results.

Barstool Sports Wins Legal Battle Against Somerville Mayor

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This week the Supreme Judicial Court in Massachusetts affirmed a trial court’s dismissal of Mayor Joseph Curtatone’s lawsuit against Barstool Sports, Inc.

The spat between the parties began in 2019 when the virtue-signaling mayor publicly criticized the Boston Bruins for distributing Barstool Sports promotional towels at their hockey games.

Curtatone sounded off on in social media page,

As a fairly rabid sports fan one of the more regrettable things
I’ve seen is the attempt to disguise misogyny, racism & general
right-wing lunacy under a ‘sports’ heading. Our sports teams &
local sports fans need to push back to stress that’s not for
us.

In response, Barstool Sports commentator Kirk Minihane attempted to speak with Mayor Curtatone about his social media remarks. After the mayor refused this request, Minihane called again and impersonated a reporter from the Boston Globe. This time Mayor Curtatone took the call.

Minihane asked permission to record the call and the mayor agreed. The conversation was then recorded and posted on Barstool’s blog:

Curtatone later discovered that the conversation was a trick and filed a lawsuit against Barstool Sports claiming that the company violated the Massachusetts wiretap act, M.G.L. c. 272, section 99.

The trial court dismissed the mayor’s complaint stating that he failed “to state a claim upon which relief could be granted.” The decision was appealed directly to the Supreme Judicial Court.

The Court affirmed the dismissal of the case. According to the opinion, Massachusetts’ wiretap act prohibits “willful…interception of any wire or oral communication.”

The Court then discussed the meaning of “interception” as it relates to the statute:

Interception, as defined in the act, “means to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication.” G. L. c. 272, § 99 B 4.

The call between Curtatone and Barstool was neither “intercepted” nor “secretly record[ed]” according to the Court. In fact, at the start of the call, Minihane expressly told Mayor Curtatone that he was recording the conversation and received Curtatone’s permission to do so. The fact that Minihane lied about his identity was irrelevant. Thus, the court concluded,

Because Minihane did not secretly record his conversation with the plaintiff, the challenged recording does not fall within the statutory definition of an “interception” within the meaning of the Commonwealth’s wiretap act. The plaintiff thus has not made factual assertions sufficient to state a cause of action upon which relief can be granted.

Plumber Sued for Wrongful Death After Installing Water Heater: Court Dismisses Case Based on Statute of Repose

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Late last week, the Massachusetts Appeals Court affirmed a judgment dismissing a wrongful death lawsuit against a plumber who installed several new water heaters and associated piping in a residential building in Springfield.

The plumbing work was completed and approved by city officials in October 2012.

In 2016, a resident in the building where the work had been completed suffered a seizure while showering. He was discovered slumped over in the bathtub in several inches of “steaming hot water.” He suffered second and third degree burns on his body and died shortly thereafter.

The decedent’s estate filed a wrongful death lawsuit against the plumber in 2019.

The trial court rejected the complaint citing M.G.L., c. 260, section 2B which states,

Action of tort for damages arising out of any deficiency or neglect in the design, planning, construction or general administration of an improvement to real property…shall be commenced only within three years next after the cause of action accrues; provided, however, that in no event shall such actions be commenced more than six years after the earlier of the dates of: (1) the opening of the improvement to use; or (2) substantial completion of the improvement and the taking of possession for occupancy by the owner.

The decedent’s estate appealed the trial court’s decision. The Appeals Court affirmed the decision. According to the Appeals Court’s opinion, the plumbing work was completed and the six-year time limit given in M.G.L., c. 260, section 2B began on the date the city issued its certificate of occupancy approving the work in October 2012. Thus, the estate was required to bring its claims against the plumber by October 2018 the latest.

Air BNB Host Not Liable for Visitor’s Death – Supreme Judicial Court

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Earlier this week the Massachusetts Supreme Judicial Court upheld the dismissal of a wrongful death lawsuit filed against an Air BNB host.

The host/property owner entered into a short-term rental agreement in 2016. The man who rented the property claimed that he was using it over the weekend for a college reunion.

Instead the renter posted advertisements on social media announcing as “Splash Mansion Pool Party” by “Special Invitation & Girls Only.”

The party, which took place over Memorial Day Weekend, was so large that over a hundred people were in attendance by 1 a.m.

Around 3 a.m. a man standing near the pool was shot twice in the chest and died shortly thereafter. The shooter was never identified.

The decedent’s estate filed a wrongful death lawsuit against the property owner claiming that the property owner “committed a breach of his duty to conduct the rental of his home in a ‘reasonable, prudent, and legal manner’ and that, as a result, the decedent was shot and killed.”

The property owner moved to dismiss the lawsuit arguing that the estate failed to show he owed a duty to protect the decedent from injury by a third party.

The trial court agreed with the property owner and dismissed the case. The estate appealed the decision. The Supreme Judicial Court rejected the estate’s arguments on appeal and affirmed the trial court’s decision.

According to the SJC,

A viable negligence claim requires a showing that a defendant owes a duty of reasonable care to the plaintiff, the defendant committed a breach of that duty, the plaintiff suffered damage, and a causal relationship existed between the breach of duty and the damage.

The opinions states the this duty of reasonable care “depends upon the foreseeability of a risk of harm that the defendant has an ability to prevent” and “does not extend to taking affirmative steps to protect against dangerous or unlawful acts of third persons.”

In the case at hand, the estate failed to show that the property owner could reasonably foresee the harm to the decedent. Therefore, the wrongful death claim was rightfully dismissed.

The opinion also made clear that there is a distinction between hotels and restaurants and those who rent their residential property online.

The defendant argues that just as restaurants, hotels, and common carriers have a duty to protect their customers from third-party harm, the defendant, as a “short-term rental operator,” had the same duty vis-à-vis those lawfully on his property during a rental. This comparison misses the mark. Aside from the fact that there is no allegation of any relationship between the defendant and the decedent other than the fact that the decedent was shot and killed on property owned by the defendant, perhaps the biggest difference between the relationship between a business establishment and its customers and the defendant’s relationship to the decedent is that the defendant had no control over the premises during the rental period. As the plaintiff acknowledged in the complaint, at the start of the rental period the defendant gave [the renter] sole and exclusive possession of his [r]esidence for the three-day stay, with no visits, monitoring, or supervision by [the defendant].” In short, aside from ensuring that the property was in a reasonably safe condition when he turned the premises over to [the renter]…the defendant owed no additional duty of care to the decedent.

For the full opinion click here.

Emotional Support Animals and Massachusetts Housing Laws

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In recent years I’ve gotten several inquires from landlords and condominium associations regarding emotional support animals (ESA).

Although state and federal laws clearly prohibit discrimination against people with “service dogs”, the laws are less clear with emotional support animals. 

The Massachusetts’ discrimination law (M.G.L. c. 151B) states:

It shall be an unlawful practice…for…any organization of unit owners in a condominium or housing cooperative to refuse to rent or lease or sell or negotiate for sale or otherwise to deny to or withhold from any person or group of persons such accommodations because…such person is blind, or hearing impaired or has any other handicap.

The same the law requires condominiums and landlords to provide “reasonable accommodations” for such persons.

The mass.gov website quotes the Attorney General as saying,

M.G.L. c.151B may require that an owner modify his/her ‘no pets’ policy as a reasonable accommodation for a person with a disability who requires the use of a service or emotional support animal because of the person’s disability.[1]

I searched for the original source of the quote, but I could not find it.

Based on the foregoing, it seems that a credible claim of discrimination could be made against a landlord and condominium association that prohibited the ownership of emotional support animals at their property.

Anyone seeking permission to own such an animal should provide the property owner with an ESA Letter from a Licensed Mental Health Therapist.


[1] https://www.mass.gov/info-details/massachusetts-law-about-service-animals

“Piercing the Corporate Veil” in Massachusetts

Most business people know that operating through a corporation or limited liability company (LLC) offers valuable legal protection.  If a business is sued, only corporate assets can be used to satisfy a judgment and the owner’s personal property is usually beyond the plaintiff’s reach.

However, in certain circumstances, courts may disregard the legal protection afforded to a corporation or LLC and permit a plaintiff to directly sue the business owner.  Such an action is referred to as “piercing the corporate veil.”

To accomplish this in Massachusetts, at least three factors must be present. 

 Confusion and Ambiguity

First, the owner is using his business entity or entities in a manner that creates confusion or ambiguity. 

Corporate formalities also may be disregarded “when there is a confused intermingling of activity of two or more corporations engaged in a common enterprise with substantial disregard of the separate nature of the corporate entities, or serious ambiguity about the manner and capacity in which the various corporations and their respective representatives are acting. My Bread Baking Co. v. Cumberland Farms, Inc., 353 Mass. 614, 619

Wrongful Purpose

Second, the confusion and ambiguity are used for wrongful purposes such as fraud. According to the Massachusetts Appeals Court:

There is present in the cases which have looked through the corporate form an element of dubious manipulation and contrivance [and] finagling .” Evans v. Multicon Constr. Corp., 30 Mass. App. Ct. 728, 736 (1991). See United States v. Bestfoods, supra at 62 (veil piercing appropriate when, “inter alia, the corporate form would otherwise be used to accomplish certain wrongful purposes, most notably fraud, on the shareholder’s behalf”); 1 W.M. Fletcher, Cyclopedia of Corporations, supra at § 43, at 296 (“although corporations are related, there can be no piercing of the corporate veil without a showing of improper conduct”). See Evans v. Multicon Constr. Corp., 30 Mass. App. Ct. 728, 736 (1991). 

Absence of Business Structure

Finally, to pierce the corporate veil, a plaintiff must show that the corporation at issue failed to operate within a legitimate business structure. 

Ultimately, the decision to disregard settled expectations accompanying corporate form requires a determination that the parent corporation directed and controlled the subsidiary, and used it for an improper purpose, based on evaluative consideration of twelve factors:

“(1) common ownership; (2) pervasive control; (3) confused intermingling of business assets; (4) thin capitalization; (5) nonobservance of corporate formalities; (6) absence of corporate records; (7) no payment of dividends; (8) insolvency at the time of the litigated transaction; (9) siphoning away of corporation’s funds by dominant shareholder; (10) nonfunctioning of officers and directors; (11) use of the corporation for transactions of the dominant shareholders; and (12) use of the corporation in promoting fraud” (emphasis added). Attorney Gen. v M.C.K., Inc., supra at 555 n.19, citing Pepsi-Cola Metro. Bottling Co. v. Checkers, Inc., 754 F.2d 10, 15-16 (1st Cir. 1985) (categorizing My Bread Baking Co. factors).

Need legal help? Email justin@jrmccarthy.com

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.