Blog Archive

Monday, October 21, 2013


In the past few months there have been multiple Land Court cases regarding rights in paper streets and the application of the law of Easement by Estoppel. This past July,  Judge Piper concluded that:  Murphy v. Mart Realty of Brockton, and the related body of law establishes that ‘when a grantor conveys land bounded on a street or way, he and those claiming under him are estopped to deny the existence of such street or way, and the right thus acquired by the grantee (an easement of way) is not only coextensive with the land conveyed, but embraces the entire length of the way, as it is then laid out or clearly indicated and prescribed.’ 348 Mass at 677 (quoting Casella v. Sneierson, 325 Mass 85, 89 (1949)). In determining whether a way has been sufficiently defined as a proposed street, reference may be made to the plans described in the deed. Id. ‘A plan referred to in a deed becomes a part of the contract so far as may be necessary to aid in the identification of the lots and to determine the rights intended to be conveyed.’ Labounty v. Vickers, 352 Mass. 337, 344 (1967), quoting Wellwood v. Havrah Mishna Anshi Sphard Cemetery Corp., 254 Mass. 350, 354 (1926).” Puner v. Sierputoski, 11 MISC 454440 GHP, 2013 WL 3776820 (Mass. Land Ct. July 15, 2013).

See also Lepesqueur v. Swann, 11 MISC 445669 (HMG), 2013 WL 3816726 (Mass. Land Ct. July 19, 2013) wherein Judge Grossman found that a party had rights in a paper street and also found that it had not been abandoned although the road had never been constructed and was covered with woodlands and brush. Judge Grossman found that the paper street had not been abandoned because non use by itself did not constitute abandonment. “Abandonment of an easement is a question of intention, and ‘cannot be found unless it clearly appears that such abandonment was intended by the owner.’[citation omitted]  Mere non-use, no matter how long continued, will not work an abandonment. [citation omitted] In order to establish the abandonment of an easement, there must be ‘acts by the owner of the dominant estate conclusively and unequivocally manifesting either a present intent to relinquish the easement or a purpose inconsistent with its further existence.’[citations omitted] ‘Abandonment of an easement requires a showing of intent to abandon the easement by acts inconsistent with the continued existence of the easement’ [citation omitted]”



Wednesday, August 28, 2013


Have you been required of to provide an attorney’s opinion letter to residential mortgagees,  for their benefit and the benefit of FNMA, in relation to a closing on a residential condominium unit certifying as to various provisions contained in the condo documents and all amendments thereto and further:

That  you are familiar with all laws, ordinances, regulations and other legal requirements which were applicable with the respect to the establishment and administration of the condominium in the jurisdiction and locality where the unit  is located;

None of the amenities or facilities, including any recreational or parking facility, related to or associated with the condominium are, or are proposed to be, leased to the Owners Association or unit owners. None such amenities or facilities will be subject to any restriction or reservation in favor of the developer or declarant of the condominium or any affiliate of such developer or declarant, as the term “affiliate” is used in Section 803.08 of the FNMA Conventional Home Mortgage Selling Contract Supplement; and  

The project documents may provide for implied approval to be assumed when a mortgagee fails to submit a response to any written proposal for an amendment within sixty (60) days after it receives proper notice of the proposal, provided the notice was delivered by certified or registered mail, with a return receipt requested. Notwithstanding the foregoing, project documents that were recorded prior to August 23, 2007, may provide for implied approval to be assumed when a mortgagee fails to submit a response to any written proposal for an amendment within 30 days after it receives proper notice of the proposal, provided the notice was delivered by certified or registered mail, with a return receipt requested.

Have you been required to provide the opinion letter at no additional charge above and beyond your capped fee for the title exam, review of the title exam, title certification, coordination of the closing, performing the closing, acting as settlement agent, recording the documents and disbursing funds?

Are you familiar with ALL laws, ordinances, regulations and other legal requirements which were applicable with the respect to the establishment and administration of the condominium?

Have you examined Section 803.08 of the FNMA Conventional Home Mortgage Selling Contract Supplement?

Have you been able to examine the condo docs and all amendments to be in a position to provide a legal opinion on the above types of questions (ie an “implied approval to be assumed when a mortgagee fails to submit a response to any written proposal for an amendment…”)?

I am interested if you have. I have talked with some small firms who are now moving away from performing residential closings because they see a trend where lenders are shifting the burden of compliance with federal regulations to the closing attorneys.  The attorneys fear that if the borrower defaults and the loan reverts back to the lender under the new rules the lender will seek a remedy from the closing attorney. Your thoughts?




Tuesday, August 27, 2013


Take a look at Lois A. Jones v. The Town Of Harwich No. MISC 12-46068, Commonwealth of Massachusetts, Trial Court Land Court Department, Plymouth June 24, 2013. The Plaintiff was able to avoid the expense and time delays of (a) preparing plans and seeking a building permit, (b) obtaining a denial from the Building Department, (c) seeking a reversal by the Zoning Board of Appeals, and (d) filing a judicial  appeal of a denial once issued by the ZBA.  “The instant action was initiated pursuant to G.L. c. 240, § 14A by the plaintiff, Lois Jones (plaintiff / Jones). Ms. Jones seeks a judicial determination concerning the extent to which Article IV and Article VI, Table 2 Area Regulations and Table 3 Height and Bulk Regulations of the Harwich Zoning Bylaw (Zoning Bylaw) apply to her parcel of land on Sea Street Extension in Harwich, Massachusetts. Asserting that her property is exempt under G.L. c. 40A, § 6, Jones asks this court to conclude that the dimensional and area regulations of the Zoning Bylaw do not apply to her property.”

 Land Court Jude Grossman determined: “It is true that the language of the statute does not explicitly contemplate a judicial determination as regards the applicability of G.L. c. 40A to a property, since the statute is not a ‘municipal ordinance, by-law or regulation.’ However, the plaintiff seeks not a determination of the applicability of G.L. c. 40A, § 6 per se, but rather a determination concerning the effect of the Bylaw upon the locus. Although an interpretation of G.L. c. 40A, § 6 may constitute a necessary element, it is secondary to the interpretation of the Zoning Bylaw. This court possesses the jurisdiction to consider G.L. c. 40A, § 6 within the context of a challenge to a zoning bylaw.”

Judge Grossman then determined that the lot was a protected non-conforming lot. Nice.



Tuesday, August 6, 2013


Last month in Grady v. Zoning Bd. of Appeals of Peabody, 465 Mass. 725 (2013) the SJC determined that a variance decision that had been relied upon by the applicant did not expire notwithstanding that the decision was not recorded within one (1) year of its grant as required by Statute.

“ No variance, or any extension, modification or renewal thereof, shall take effect until a copy of the decision bearing the certification of the city or town clerk that twenty days have elapsed after the decision has been filed in the office of the city or town clerk and no appeal has been filed, or that if such appeal has been filed, that it has been dismissed or denied, or that if it is a variance which has been approved by reason of the failure of the permit granting authority or special permit granting authority to act thereon within the time prescribed, a copy of the petition for the variance accompanied by the certification of the city or town clerk stating the fact that the permit granting authority failed to act within the time prescribed, and no appeal has been filed, and that the grant of the petition resulting from such failure to act has become final, or that if such appeal has been filed, that it has been dismissed or denied, is recorded in the registry of deeds for the county and district in which the land is located and indexed in the grantor index under the name of the owner of record or is recorded and noted on the owner's certificate of title.” Mass. Gen. Laws Ann. ch. 40A, § 11 (West)

In the Land Court, Justice Long found that the Permit Extension Act did not extend the time period within which a variance decision must be recorded. Justice Long wrote:  The Permit Extension Act, in relevant part, provides, ‘[n]otwithstanding any general or special law to the contrary, an approval in effect or existence during the tolling period shall be extended for a period of two years, in addition to the lawful term of the approval.’ St.2010, c. 240 § 173(b)(1) (emphasis added). As Cornell makes plain, however, under G.L. c. 40A §§ 10 & 11, ‘a variance does not ‘take effect’ until it is recorded ... and the recording of a variance within one year of its grant is necessary to ‘exercise’ it.’ Cornell, 453 Mass. at 891. Simply put, unless ‘substantial reliance’ is sufficient to bring variance rights into effect, there is no actual ‘variance’ unless and until timely recording occurs. Thus, absent a ‘substantial reliance’ exception, there was no ‘approval’ capable of being extended by the Permit Extension Act. In short, on the facts of this case, the ‘substantial reliance’ issue cannot be avoided.” Grady v. Langone, 09 MISC. 419147 KCL, 2011 WL 3242211 (Mass. Land Ct. July 27, 2011) judgment entered, 09 MISC. 419147 KCL, 2011 WL 3163300 (Mass. Land Ct. July 27, 2011) aff'd sub nom. Grady v. Zoning Bd. of Appeals of Peabody, 465 Mass. 725 (2013)

Those of you who find this kind of thing exciting will no doubt remember Paul Cornell who attempted to develop two lots in Dracut but was stopped when the SJC finally ruled that he had not exercised his variance decision within a year. Within that year period “Cornell hired a registered land surveyor to prepare an ‘approval not required’ plan (ANR), see G.L. c. 41, § 81P, which subsequently was filed with the planning board, and approved and indorsed on August 14, 2002. Cornell then retained Norse Environmental Services, Inc. (Norse), to prepare septic and wetlands delineation plans. Norse began testing the soil in November, 2002, and submitted a septic plan to the board of health on February 14, 2003. At some point in early 2003, Cornell applied for an order of conditions from the conservation commission. By March 7, 2003, the anniversary of the issuance of his variance, the board of health and the conservation commission continued proceedings concerning Cornell's applications several times, and had not issued any decision concerning Cornell's applications” Cornell v. Bd. of Appeals of Dracut, 453 Mass. 888, 889, 906 N.E.2d 334, 336 (2009).

Notwithstanding actions that most of us would have considered to be steps that relied upon the original grant of the variance, the Court in Cornell did not agree.

In the Grady case, the SJC upheld the Land Court decision that found that the following steps were sufficient for a finding that the variance had been exercised: “They had previously (pre-grant) hired a surveyor (Jan. 27, 2008) and architect (Sept. 2, 2008). Now they (1) hired a general contractor (Feb. 18, 2009), (2) applied for a building permit (Feb. 22, 2009), (3) were issued that building permit by the City's building inspector (Feb. 24, 2009), (4) hired (at the City's insistence) a supervising architect to review the progress of the work and prepare periodic reports for the City (Jun. 15, 2009), (5) applied for and received a $350,000 construction loan from Community Credit Union of Lynn (Jun. 17, 2009), (6) granted a mortgage on Lot B to Community Credit Union (Jun. 17, recorded Jun. 18, 2009), (7) drew an initial $59,120 from the loan to begin funding construction activities (Jun. 19, 2009), and (8) began clearing the site (Jun.2009). Each involved a corresponding expenditure.” Grady v. Langone, 09 MISC. 419147 KCL, 2011 WL 3242211 (Mass. Land Ct. July 27, 2011).

It is important to note that the Grady variance was recorded a year and eleven (11) days after the grant thereof, the Plantiff had notice of the original variance proceedings but did not file an appeal and the Plaintiff’s land was subject to an easement that was created over her land for the purpose of the use being constructed on the lot in question.





Tuesday, July 2, 2013


In the recent Land Court decision of E&C Sports, LLC v. Town of Holliston, 11 MISC 445780 (KFS), 2013 WL 1804192 (Mass. Land Ct. Apr. 5, 2013), we are reminded of two principals. The case pertained to applications submitted by a swimming and tennis club seeking approval of an “air supported structure so as to provide tennis courts year round to the members of the Tennis Club.”  The case reminded us that:

1. A use or structure that depends on a previously issued variance is not a lawfully pre-existing non-conforming use or structure. Therefore, such use or structure cannot expand in accordance with a MGL Chapter 40A Section 6 Special Permit which otherwise allows non-conforming uses and structures to be altered and expanded. “It would be anomalous if a variance, by its nature sparingly granted, functioned as a launching pad for expansion as a nonconforming use.” Mendes v. Board of Appeals of Barnstable, 28 Mass.App.Ct. 527, 531 (1990), rev. denied, 407 Mass. 1103 (1990); see also Star Enterprise v. Zoning Bd. of Appeals of Medfield, Land Court Misc. Case No. 141347 (1991) (Kilborn, C.J.), aff'd 35 Mass.App.Ct. 1109 (1993) (Relying on Mendes, holding that a Section 6 finding was not possible in the action because “a use based on a variance was not non-conforming within the meaning of Section 6”); and

2. If you submit two applications, for example an application for Site Plan Review and an Application for a Special Permit, and at the hearing the Board appears to act upon only one, speak up and ask them to specifically act on both applications. If you assume that you can obtain a Special Permit by constructive approval (see MGL Chapter 40A Section 9, clause 13) you may be sadly disappointed. In the E&C case the Court found that that it was the Board’s intention to act on both applications and constructive approval was not available to the petitioner/plaintiff.  Over the years, I have seen many examples of a Board losing track of the details of the applications before it and forgetting to specifically act on one application. If you attempt to rely on constructive approval you may also lose your opportunity to file an appeal under Chapter 40A Section 17, which must be filed within twenty days of the decision being filed with the Town Clerk.




Wednesday, June 5, 2013

What’s Happening on Plum Island?

Articles appeared on line on June 3rd and 4th about a battle between homeowners who were attempting to rebuild homes on Plum Island and the MA DEP. According to, the DEP had imposed conditions on rebuilding that included a restriction that no structures could be built to combat erosion. The property owners claimed the condition was unconstitutional and obtained some help from the Pacific Legal Foundation. “Sources said that late last week just hours after the Pacific Legal Foundation emailed its legal challenge to state officials, the DEP called Newbury officials to say they'd be withdrawing their Order of Intervention on Trout’s permit application” according to the website.

If anyone out there knows somebody that is involved in this matter, suggest to them that the story would make a great article for REBANews.



Tuesday, April 30, 2013


There is an interesting lease discussion in a recent case alleged breach of a lease to operate a restaurant at the Charlotte Inn on Martha's Vineyard. See Edgartown Art Gallery, Inc. v. Il Tesoro, Inc., CIV.A. 12-11549-JLT, 2013 WL 628655 (D. Mass. Feb. 19, 2013). The defendant operated a restaurant under a one year written lease (with an option to renew for four more years) with the Edgartown Art Gallery (“EAG”). I somehow missed eating at “Il Tosoro at the Terrace” during the few years it was in existence.

After the first year the tenant did not renew but continued to operate the restaurant under the terms described in the lease, and in 2012 the landlord terminated the tenancy. The plaintiff/landlord brought an action that included claims of 1) breach of contract; 2) breach of the implied covenant of good faith and fair dealing; 3) breach of personal guaranty; 4) interference with advantageous business relationships; and 5) violation of Mass. Gen. Laws ch. 93A.

The defendant argued that “…the Statute of Frauds bars any subsequent oral agreement between the parties because the original lease involved real property and contemplated a four-year renewal period. Thus, Defendants argue, EAG's claims predicated on the existence of the lease—breach of contract, implied covenant of good faith and fair dealing, and personal guaranty—must fail.”

However, Judge Tauro found that “EAG has sufficiently alleged that upon expiration of the lease, Il Tesoro became a tenant at will subject to the same terms as the original lease. A holdover tenant becomes a tenant at sufferance, ‘[b]ut a tenancy at sufferance is readily changed into a tenancy at will by express or implied agreement of the parties. Whether there has been such agreement is, of course, commonly an issue of fact.’ (citation omitted) The tenant at will holds the premises ‘according to the terms of the written lease, in the absence of a new agreement,” Boudreau v. Johnson, 241 Mass. 12, 134 N.E. 359, 361 (Mass.1922).  ‘the only difference being that, instead of being in under a written lease and for a fixed term, they [are] in by parole and as tenants at will.’ Id, quoting Walker Ice Co. v. Am. Steel & Wire Co., 185 Mass. 463, 70 N.E. 937, 939 (Mass.1904). ”

The defendant/tenant’s motion to dismiss was denied. I have no idea how the case ended up in Federal Court.






Thursday, April 25, 2013


The Carver, Massachusetts Zoning By-law says “A nonconforming use or structure which has been abandoned, or not used for a period of two years, shall lose its protected status and be subject to all of the provisions of this zoning by-law.” In the recent Land Court decision in Gomes v. Collins, Gomes owned a non conforming structure in Carver and the buyer wished to raze the structure and construct a new one. The buyer was denied a building permit on the grounds that the building was not a protected lawfully pre-existing non-conforming structure. Judge Grossman found that the building has lost it non-conforming status whereas it had not been used for over 46 years and:  “In point of fact, the structure lacks those basic elements that would permit one to characterize it as a residential structure. It is, at best, a modestly sized, deteriorating shell with a tree growing up through the roof and through the lone front dormer. The front portion of that roof and the dormer, which are readily visible in at least two of the photographic exhibits, are in a state of near collapse appearing to be held up by the tree, thereby leaving the structure entirely open to the elements. The windows and doors are gone, having been boarded up. The photographic exhibits indicate that the plastered ceilings are largely gone; the wall studs are plainly visible as well. Moreover, the structure is devoid of those critical elements that one would ordinarily associate with a residence or single family dwelling. In this regard, the photographs disclose the that there are no kitchen or sanitary facilities, no sleeping accommodations, no plumbing or electrical service” Gomes v. Collins, 11 MISC 446909 HMG, 2013 WL 485206 (Mass. Land Ct. Feb. 7, 2013)

This case took 3 years to reach this conclusion.



Tuesday, April 2, 2013


You already know that MGL Chapter 41, Section 81R allows planning boards to issue waivers of their subdivision rules and regulations when considering subdivision applications. What happens when the rules of a planning board also say that certain requirements are “nonwaivable”?  Judge Piper in the recent Land Court decision of Cater v. Bednarek, 98 MISC 250365 GHP, 2013 WL 431342 (Mass. Land Ct. Feb. 4, 2013) concluded that a planning board regulation that says that certain regulations may not be waived, may be waived; otherwise Section 81R would be trumped by a local regulation. Judge Piper wrote: “I conclude, as I did at the time judgment entered initially, that the purported ‘no waiver’ language of the Truro board's subdivision rules and regulations, which suggests that the fourteen foot width of road surface rule should ‘in no instance.. be waived,’ is merely precatory, and does not as a legal matter prevent the board, if and when presented with a meritorious application for waiver as to a road surface less than fourteen feet, from granting that waiver. None of the parties have urged me to a different view, all apparently accepting that under subdivision control law in Massachusetts, a planning board may not lawfully bulletproof its regulations by adopting one rule which makes some or all of the rest of them incapable of waiver, no matter the circumstances which later present themselves when a waiver is sought” Cater v. Bednarek, 98 MISC 250365 GHP, 2013 WL 431342 (Mass. Land Ct. Feb. 4, 2013).

As the recession comes to a close and housing construction begins again, I look forward to hearing your stories of how you explained this to your favorite planning board.


Wednesday, March 27, 2013


On March 16th the SJC issued a decision that reinforces some of the earlier decisions that have concluded that absent specific conditions within a ZBA decision, there are no specific time requirements to perform certain steps anticipated by the decision. In E & J Properties, LLC v. Medas, 464 Mass. 1018, 1019 (2013) the Defendant obtained a variance in 2005 to demolish structures and subdivide property into twenty building lots. According to the decision, “[w]ithin one year of the board's variance decision, the Fall River planning board indorsed an ‘approval not required’ plan that showed the property divided into twenty lots, and sixteen of the lots were sold to the plaintiff. Thereafter, the plaintiff began construction of housing units on some of those lots, and the trust demolished a portion of the Global Glass Building. The trust retained for itself the four lots shown on the plan that were occupied by the remainder of the Global Glass Building.”  In 2009 the building inspector issued a notice of violation because the remainder of the building had not been demolished, notwithstanding that the defendant had represented to the ZBA at the variance hearing that it would be demolished.  Upon appeal the ZBA decided that the variance decision did not require demolition within a particular time, and ultimately the SJC found their conclusion to be “both legally tenable and reasonable.”
“While the variance decision requires that ‘rights authorized by the decision’ be exercised within one year, demolition was not a ‘right’ authorized by the variance per se. To construe demolition as a ‘right’ subject to lapse after one year would be nonsensical, as demolition was precisely the result sought by the building inspector in his enforcement order. “ E & J Properties, LLC v. Medas, 464 Mass. 1018, 1019 (2013)
Note that the controversy arose in January, 2009 and the SJC decision was issued in March, 2013.  That’s not what happens on the TV lawyer shows; everything gets adjudicated within an hour.


Monday, March 18, 2013


I am willing to make two predictions at this time regarding coming trends in local residential real estate. First, as more of the “Baby Boomer Generation” approaches retirement age, the Boomers will jettison their maintenance-heavy two-story colonials and seek the relative ease of condominium life (yours truly being an exception), and second, as the market for new buildable lots increases, there will be a renewed interest in attempting to build on existing parcels which may benefit from existing private ways and paper street. I can make the second prediction based upon the questions that are coming across my desk,  plus the recent Land Court decision by Justice Cutler in Williams v. Norwell Bd. of Appeals, 10 MISC 419885 JCC, 2013 WL 139534 (Mass. Land Ct. Jan. 11, 2013)

Williams obtained a building permit on an existing 2.076 acre parcel of land, which was overturned by the Norwell Board of Appeals. The local Zoning By-law requires that all lots have frontage on a street or way shown on an approved subdivision plan or being suitable in the opinion of the Planning Board (like the language in MGL Chapter 41, Section 81L). Williams argued that he was exempt from the local requirement because his lot was protected by MGL Chapter 40A, Section 6 which states:

“ Any increase in area, frontage, width, yard, or depth requirements of a zoning ordinance or by-law shall not apply to a lot for single and two-family residential use which at the time of recording or endorsement, whichever occurs sooner was not held in common ownership with any adjoining land, conformed to then existing requirements and had less than the proposed requirement but at least five thousand square feet of area and fifty feet of frontage.” Mass. Gen. Laws Ann. ch. 40A, § 6 (West)

Justice Cutler concluded that Williams almost had a buildable lot, but he was unable to prove that he has the requisite fifty feet of frontage. William’s argument was based primarily on his reference to a “right of way” contained in a deed, but the right of way was not improved on the ground. As Justice Cutler summarized: “…a mere grant of a ‘right-of-way’ across land of others to access a public way, does not necessarily qualify as ‘frontage’ for purposes of § 6, particularly where there is no evidence that it ever existed on the ground, or was used for access to a public way.” Furthermore,  “…as long as the Plaintiff is claiming to have frontage on a private way in existence prior to subdivision control in Norwell, he cannot avoid an adequacy determination by the Planning Board, with respect to the statutory 50–foot minimum needed to qualify the Lot for separate lot protections under § 6. And it is undisputed that the Planning Board has not made such a determination with regarding the right-of-way across Lot 62.” Williams v. Norwell Bd. of Appeals, 10 MISC 419885 JCC, 2013 WL 139534 (Mass. Land Ct. Jan. 11, 2013).

Invest in condo development but use caution when attempting to develop land with questionable frontage.



Wednesday, February 27, 2013


“As the millennium dawned, American financial markets soared to new heights. One of the vehicles that propelled this dizzying flight involved the bundling and securitization of residential mortgage loans. But all good things come to an end, cf. Geoffrey Chaucer, Troilus and Criseyde (circa 1374) (‘There is an end to everything, to good things as well.’), and it was not long before the economy faltered and the housing bubble burst. A rash of residential mortgage foreclosures followed.”Culhane v. Aurora Loan Services of Nebraska, 12-1285, 2013 WL 563374 (1st Cir. Feb. 15, 2013). Thus begins the interesting US Court of Appeals decision which concludes that prior to instituting a foreclosure action, a note and a mortgage may be held by separate parties.

 In this case MERS was the mortgagee at the time the borrower signed the $548,000.00 mortgage; but the note landed in the hands of one of Deutsche Bank’s holders of bundled and securitized loans (the likes of which I often refer to as “The Wizard of Oz”). According to the lower court decision, the controversy started in June of 2011 when the borrower appeared pro se in Superior Court seeking a TRO to stop the foreclosure. There does not appear to be any disagreement that the borrower was substantially behind in her payments and unable to remediate the default. The borrower was unsuccessful in the U.S. District Court, and appealed to the First Circuit.

The borrower tried to claim that MERS could not assign the mortgage (to the holder of the note in preparation for foreclosure) because MERS was never a proper mortgagee whereas it did not own the beneficial half of the legal interest in the mortgage. The Court disagreed and determined that MERS is a proper holder of mortgagees and has the ability to assign mortgages. The Court stated: “The law contemplates distinctions between the legal interest in a mortgage and the beneficial interest in the underlying debt. These are distinct interests, and they may be held by different parties. See Black's Law Dictionary 885 (9th ed.2009) (defining ‘beneficial interest’ as a ‘right or expectancy in something (such as a trust or estate), as opposed to legal title to that thing’). So it is here: prior to the assignment to Aurora, MERS held the legal interest and Deutsche held the beneficial interest.”

“We add that—short of the time of foreclosure—the MERS framework, which customarily separates the legal interest from the beneficial interest, corresponds with longstanding common-law principles regarding mortgages. A mortgage loan involves the borrowing of money by one party, who secures the loan by means of a mortgage on a piece of property. It requires the execution of two separate, but related, contracts: a promissory note and a mortgage. Eaton, 969 N.E.2d at 1124. The note embodies the borrower's promise to repay the lender (or, in its stead, the noteholder). Id. The mortgage, in a title theory state like Massachusetts, transfers legal title to the mortgaged premises from the mortgagor to the mortgagee for the sole purpose of securing the loan. Id. The mortgagee holds bare legal title to the mortgaged premises, defeasible upon repayment of the loan (because the mortgagor owns the equity of redemption). Id.”


Wednesday, February 13, 2013


Do you recall the episode of “60 Minutes” from about 5 years ago when the mortgage crisis was rolling to a full boil? It was the episode in which the reporters interviewed a number of homeowners who had decided to “walk away” from their overleveraged homes. They made it sound as if walking away from their home and their outstanding debt was a viable option. The “60 Minutes” reporters said nothing to make it sound as if “walking away” was not a reasonable alternative. Like you, I sat there screaming at the TV yelling “What about the obligations under the note???!!!”
Turns out we were right. In the February 11, 2013 edition of Massachusetts Lawyers Weekly you can read about In Re: Canning, Ralph G. III, et al, Lawyers Weekly No 01-034-13;  a Chapter 7 Bankruptcy case wherein the debtor claimed that the mortgagee was being unreasonable in not releasing the lien on their underwater home via foreclosure or otherwise taking title to the residence. The Bankruptcy Court ruled that the lender has the “prerogative to decide to accept or reject the surrendered collateral.” The debtor never explained to the court exactly why a short sale or a settlement was out of the question for them. “In fact, from the record available to [the court], it seems that the Cannings employed a ‘take it or leave it’ approach to negotiating with their mortgage lender…”
The Court also stated: “The Cannings also fail to advance any legal authority, and we are not aware of any, to support the proposition that a homeowner may walk away, with no strings attached, from their legally owned residence. But even worse, in vacating their residence, the Cannings placed many of the burdens of dealing with an abandoned property on their neighbors, their town and their city – in other words, on everyone but them.”
Perhaps the Cannings were in desperate straits and perhaps they deserve better circumstances. However, you can now report to your clients (and to the know-it-alls at cocktail parties) that there is no legal authority that gives a homeowner the right to walk away from their property and their obligations, including filing bankruptcy. 


Friday, January 11, 2013


Can you imagine anything more entertaining than a case where two municipalities are adversaries in a zoning matter pertaining to a cease and desist order regarding a rifle range? It was a shame that somebody had to lose. See Town of Lancaster ex rel. its Bldg. Com'r v. Town of Clinton, 10 MISC 423804 KFS, 2012 WL 5868786 (Mass. Land Ct. Nov. 20, 2012) for the details, but here is a synopsis:

Apparently the Town of Clinton owns a rifle range located in the Town of Lancaster. Lancaster’s Zoning Commissioner issued a cease and desist order to Clinton for violating the Zoning By-law that prohibits the discharge of a firearm in a residential district. Clinton appealed the order to the Lancaster Zoning Board. MGL Chapter 40A, Sec 15 says “The board of appeals shall hold a hearing on any appeal, application or petition within sixty-five days from the receipt of notice by the board of such appeal, application or petition.” Mass. Gen. Laws Ann. ch. 40A, § 15 (West).

The parties corresponded did not reach an agreement extending the time for the hearing. A hearing was eventually held,  but 98 days after the appeal had been filed. “After the notice of the February 4, 2010 hearing was published, Clinton's counsel sent another letter dated January 25, 2010, to the Board. This letter stated that due to the Board's failure to hold a timely appeal hearing, any action taken in connection with the hearing to be held on February 4th would be ‘of no force and effect’ and therefore Clinton would not attend the hearing.”

Section 15 further states that “The decision of the board shall be made within one hundred days after the date of the filing of an appeal, application or petition, except in regard to special permits, as provided for in section nine.” Mass. Gen. Laws Ann. ch. 40A, § 15 (West)

“Clinton alleges that summary judgment should be granted in its favor because the Board's failure to hold a hearing on its appeal of the Order within sixty-five days of the Board's receipt of Clinton's notice of appeal, as directed by Section 15, mandates a constructive grant of its appeal. Clinton argues that an applicant is entitled to a constructive grant for either a board's failure to comply with the statutory directive to hold a hearing within sixty-five days or the directive for a board to ‘act’ within one hundred days. It argues that both deadlines are mandatory. Otherwise, it asserts, the sixty-five day requirement would be ‘inoperative and superfluous,’ a result to be avoided under the rules of statutory construction.”

Chief Justice Scheier found that constructive approval under Section 15 is only available where a Board failed to act within 100 days. The statute says “Failure by the board to act within said one hundred days or extended time, if applicable, shall be deemed to be the grant of the appeal, application or petition. “  The statute does not specifically say that constructive approval will occur if the hearing is not held within 65 days.  

Having lost that argument, because Clinton did not bring an action in court within twenty days of the final decision of the Board, it failed to exhaust its administrative remedies and the decision of the Zoning Board denying Lancaster’s appeal became final.  Why can’t we just all get along?