REBA Paralegal Series: Policy Endorsements

James S. Jurgens, Senior Title Counsel at CATIC, and Brenda Wilson, In-house Agency Advisor at CATIC, review and discuss some of the common endorsements requested for residential and commercial transactions, when the same are applicable, and the requirements for issuing the same. 

While there has been an explosion in the number of endorsements now available promulgated by the American Land Title Association (ALTA), those frequently requested is a shorter list.  

Chief Justice Judith C. Cutler Discusses Land Court Rule 14

A SHORT WEEK IN THE LIFE OF A DIRT LAWYER

Paul F. Alphen, Esquire

My cousin Vinnie, the suburban real estate attorney, accepted my invitation to join some other captains of industry for a weekend of fishing. The term “fishing” is somewhat of an exaggeration as

there is more eating than fishing involved. He took me up on my offer to arrive on the Cape early on Friday so that he could watch me prep the boat and watch me pump diesel into the tanks. It gave us some time to catch up on family news, and it gave Vinnie an opportunity to vent about his suburban real estate practice before the other men arrived.

“Paulie”, Vinnie started as we backed out of the slip on our way to the fuel dock, “What a week I had!” Sounding a little like the late Rodney Dangerfield, I fully expected him to tell me that he “gets no respect”.

“Paulie, honest to Goodness, this is a short list of some of the issues that entertained me in the last 4 days:

·         A client wants to buy a lot that was conveyed into a trust with a ch.184 s.35 trustee’s certificate with no mention of successor trustees, and the trustee since died, and no one can find the trust;

·         A buyer’s attorney instructed me to prepare a grantee clause in violation of the four unities of joint tenancy;

·         In reviewing a title, I found that our locus was one of a few lots conveyed years ago with the benefit of a common driveway easement declared by a party who did not own the servient estate;

·         A portion of a unit, as described in the Master Deed, is physically separated from the living quarters of the unit, and stuffed with common mechanicals and pipes, and partially submerged by groundwater infiltration;

·         A planning board approved a commercial use across the street from a client’s home in a residential zoning district, in a town that does not allow use variances;

·         I went to a closing for a seller and the buyer would not agree to close until she interviewed the landscaping contractor regarding the methodology used to seed the disturbed area over the new septic system;

·         A town installed a new drinking water well, causing a number of homes to lie within a Zone 1, forcing them to install outrageously expensive septic systems;

·         A condominium burned to the ground;

·         A zoning board told me that my client’s 40B was ‘too dense’, although it meets the boards’ own density guidelines;

·         A landlord gave a commercial tenant notice that the tenant had to vacate early, and later sent a goon to the tenant’s space to encourage them to ‘start packin’;

·         A broker that got a commission based upon a 10 year lease from our landlord client, is now showing the tenant other space, which will no doubt cause the tenant to breach the lease; and

·         I drove to Dedham for a closing and the buyer did not show, and days later nobody can find him.”

I had to laugh and tell him that I understood, all too well. “Vinnie, when we tell people that we are real estate attorneys, they think we make a living sitting at a closing table passing loan documents to homebuyers; I am sure that’s what my sisters think I do. In reality it is impossible to describe what we do. Sure, our practices are real estate related, but we also take care of issues that touch, directly or indirectly, real estate… sometimes very, very indirectly. And all of them could be better defined as ‘human issues’, as opposed to ‘real estate issues’.”

Vinnie wandered over to the Yeti with the big BC logo on top and pulled out an IPA that had its roots in Nantucket, but is now brewed on the mainland somewhere. He felt better, having vented, and he paused to enjoy the passing scenery and the sunshine as I pushed down the throttles to leave terra firma behind.

A former REBA president, Paul Alphen currently serves on the association’s executive committee and co-chairs the long-range planning committee.  He is a partner in the Westford firm of Alphen & Santos, P.C. and concentrates in residential and commercial real estate development, land use regulation, administrative law, real estate transactional practice and title examination .As entertaining as he finds the practice of law, Paul enjoys numerous hobbies, including messing around with his power boats and fulfilling his bucket list of visiting every Major League ballpark.  Paul can be contacted at palphen@alphensantos.com.

Cracks in the Law of Sidewalks

By  Edward M. Bloom

Under Massachusetts common law in effect since 1860, property owners have no duty to repair or warn of hazards on an abutting public sidewalk.

This long-established rule was recently addressed by the Massachusetts Appeals Court in Halbach v. Normandy Real EstatePartners. In this case, the plaintiff, Halbach, suffered serious injuries as a result of his fall on uneven payment on the public sidewalk adjacent to the John Hancock Garage, a commercial parking garage on Clarendon Street in Boston. Halbach sued the owners of the garage and its property manager, claiming that the defendants were negligent in their “ownership, control, maintenance and/or inspection” of the sidewalk and their “failure to keep … the walkway free from defects and conditions rendering it unsafe.” Defendants were granted summary judgment by the trial judge based on the long-standing Massachusetts rule, referred to above.

On appeal, the trial judge’s ruling was upheld by the Massachusetts Appeals Court, even though there was evidence that the property manager corrected the uneven pavement after Halbach’s fall. In a concurring opinion, Judge Milkey suggested that the SJC might want to alter the common law rule, and stated that his separate opinion was written “to note that the plaintiffs have a more forceful case for such change in the law than the majority opinion suggests.”

Judge Milkey, while conceding that public sidewalks are treated as part of the public highways, and that town ways shall be kept in repair at the expense of the town where they are situated, cited the fact that municipalities regularly look to private property owners to keep sidewalks adjacent to their property free from snow and ice so that they are passable and safe. In addition, he pointed out that most commercial property owners accept responsibility for adjoining public sidewalks, as evidenced by the property manager’s repair of the sidewalk after Halbach’s accident. “In short, at least in the context of commercial property, the reality is that the world principally looks to private property owners to make sure that the sidewalks bordering their property are safe. It is far from self-evident why – under modern tort principles – the law should not follow suit.”

Despite Judge Milkey’s ardent recommendation that the SJC reconsider the common law rule regarding public sidewalks, the SJC denied further appellate review this past April.

So where does this leave individuals like Halbach who are injured on public sidewalks? Under G.L.c. 84, §15, the maximum recovery for a private party against a Massachusetts city or town for injuries due to a defect on public ways is $5,000.00. On the other hand, many cities and towns like Boston have enacted ordinances requiring owners to clear snow and ice from the abutting public sidewalks. What if the individual is injured because an abutting owner failed to keep the sidewalk free from snow and ice in violation of a municipal ordinance requiring its removal? While generally a violation of a statute or ordinance is evidence of negligence, it has been held that ordinances which require abutting owners to remove snow and ice from sidewalks are for the benefit of the community at large and not for persons who fall as a result of unremoved snow and ice. “Any obligation imposed by the ordinance runs to the municipality and not a member of the travelling public.” Gamere v. 236 Commonwealth Ave. Condominium Assn, 19 Mass. App. Ct. 359,361 (1985).

Unless the SJC has a change of heart and revises the existing common law, as suggested by Judge Milkey, it would seem that the best way to provide relief to individuals like Halbach would be for the Legislature to enact a statute imposing responsibility for the repair and maintenance of public sidewalks on abutting owners, or at least on commercial owners. Such legislation could be challenged because, according to the Gamere case, it is the responsibility of cities and towns to keep the public ways in reasonably safe condition for travelers and that duty may not be delegated to others. Alternatively, the Legislature could amend G.L.c. 84, §15 either to increase the maximum recovery permitted to injured individuals or to abolish altogether the $5,000.00 cap that currently exists.

Given the current shortfall of revenues for the Commonwealth and its various cities and towns, the travelling public should best traverse carefully over those cracks and defects in public sidewalks.

Originally posted June 5, 2017 on the Sherin and Lodgen  Blog.

http://www.sherin.com/real-estate/2017/06/05/cracks-in-the-law-of-sidewalks/

A former president of the Association, Ed Bloom is a partner at Sherin and Lodgen LPP, practicing in the firm’s Real Estate Department. He concentrates on development, sale, leasing, and mortgaging of residential, office, shopping center, industrial, and condominium properties. Ed can be contacted by email at embloom@sherin.com.

 

 

Paralegal Series: Taking Title through Probate and Other Estates

This seminar explains the documentation required to clear title when transferring real estate through an estate, whether it be a decedent sole owner, decedent co-owner, or individual under guardianship or conservatorship.

Our guest speakers are Susan LaRose, New England Underwriting Counsel for WFG Title Insurance Company, and John McCoy, former Title Examiner II for the Massachusetts Land Court and current Land Court Administrator for the Norfolk Registry District of the Land Court.

For information on the Paralegal Section, please contact Jackie Waters Adams at jwatersadams@gbllaw.com or Sharon Garcia at sgarcia@catic.com.

REBA Paralegal Series - REBA & MPA Lunch and Learn: The complex world of Mechanic’s Liens

What do I do if my title reveals a recorded Notice of Contract?  When do mechanic's liens expire?  How do I release a Lien Bond? 

In this Video Melanie E. Kido, Esq., vice president and Massachusetts state counsel at CATIC discusses and explores the complex world of mechanics liens, the risks involved with these liens and how to address them.

The Impending TILA/RESPA Integrated Disclosure Rule (Audio)

The Practical effects of the CFPB’s Authority over our Lender Clients

 

 

 

Ruth A. Dillingham; Michelle L. Korsmo; Julie M. Palmaccio

The new Integrated Mortgage Disclosure rule takes effect on August 1, 2015. You must be prepared for new procedures, new documents and changes to some common business practices. The panelists will discuss issues as diverse as anticipated purchase and sale agreement revisions, the increased liability for lenders if the rule is not followed and how to set your firm apart by adoption of ALTA Best Practices.