Five Tips for Increasing Your Daily Use of Social Media

By Julie Barry

 

By now, even the most stridently resistant among us in the legal profession is likely to be using at least one social media platform, if only one for socializing with friends, such as Facebook. In fact, as shown here, approximately 91% of attorneys who participated in this Attorney At Work poll used social media, with Linked In considered the most effective for bringing in new business. A 2013 ABA Legal Technology Survey found that 98% of attorneys identified themselves as Linked In users.

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These numbers are too big to ignore. If you don’t routinely use social media as part of your marketing, you may be missing out on potential opportunities. At our panel discussion at REBA’s Spring 2016 Conference, my co panelists, Kim Bielan and Justin Tucker, and I shared some tips on how to increase your social media use and presence.  Here are just a few of those tips that you can incorporate into your daily schedule:

·         Update Your Contacts and Use Those Business Cards. Take the pocketful of business cards from your last networking event, enter them into your Contacts, and mine them for social media information. Then follow, subscribe, and link in or connect to those accounts. This provides a great opportunity to connect or reconnect with clients, referral sources, and others. And it may bring you great insights into what your contacts are doing, which can make any outreach more personal and timely.

·         Don’t Ignore Those Birthday or New Job Prompts. Use social-media generated opportunities to connect. But don’t just “like” that your contact has a new job or is celebrating an anniversary at a long-time position. Send a personal message along with those well wishes, and an invitation to have coffee or meet up at a REBA networking event. You might be surprised how often you’ll get a positive response to those messages.

·         Use Social Media to Publicize Events You’re Attending. You can tweet or post about a panel discussion you’ll be participating in, or an event you’re attending before, during and after, and include addresses of the organizer and the venue for additional likes and retweets. It’s all about starting a conversation, and encouraging as many others as possible to join you.

·          Add your photo. Put a face to your name. Think about it: all things being equal, are you more drawn to the faceless egg or a photo? Adding a recent photo brings an approachable point of contact whether you’re looking to find a new position or are recreating a brand as a thought leader. And consider updating your photo on a regular basis. If you have the good fortune of getting a meeting out of a social media contact, you want them to recognize you.

·         Join Social Media Discussion Groups (and Start With REBA’s Linked In Page).  This is another way to increase your potential outreach. There are alumni groups, and charitable groups, and industry groups, and sports fans groups. All of these provide an opportunity to develop deeper connections with group members. Staying on top of trends in the group will help you stay current and relevant while providing new sources of information to share with your contacts. Be sure to join discussion groups that will contribute substance with various perspectives on new information and inquiries within your field. You’d be surprised the types of information and other thought leaders you can meet within these groups.

·         Embrace your summary. Your summary is where you get to shine! Create a condensed summary that is conversational in tone that differs from your firm’s bio. You are giving a short pitch to someone. Tell them how you differentiate from others in the field. Make yourself known as a thought leader.

·         Republish! If you’ve written an article for another publication, blog or website, use this content to post on social media. REBA’s Linked In page is a great place for this. Make sure to include a source to the original publication. You will begin to develop of list of written works on your profile to demonstrate your involvement in your practice or industry.  

·         Make Social Media a Daily Habit. Pick a time that works best, morning, lunch time, or after work, and take 15 minutes to “like” a post, or share an article you’ve read, or post a blog, or look for new contacts.

These are just a few tips to get you started, and make social media a daily habit that will help you quickly build a following, and make new contacts that may some day lead to business.

Julie Barry is a partner at Prince Lobel Tye LLP where she specializes in real estate, land  use and environmental law. She is co-chair of the REBA Environmental Law and Strategic Communications committees. Her email is jbarry@princelobel.com

Appeals Court Gives Advice to Conservation Commissions on Making Decisions Tougher than State Law

By  Nathaniel Stevens

The Appeals Court in Parkview Electronics Trust, LLC v. Conservation Commission of Winchester, 88 Mass. App. Ct. 833 (2016), rejected a challenge to the well-established principle that a local

conservation commission can have regulatory authority under a local wetlands town bylaw or city ordinance (hereinafter “bylaw”) that is independent from, and in addition to, its authority under the state Wetlands Protection Act (“Act”).

The lesson of this court decision is that effective use of this municipal authority is contingent on the commission relying on bylaw provisions which are more stringent than those in the Act.  Also, the commission must comply with the decision timeframe in the Act (even if the local bylaw differs). Otherwise, the bylaw and commission decision are said to be preempted by the state.

Specifically, if a commission relies on a bylaw provision that is not stricter than state law, it risks having its decision superseded by the Massachusetts Department of Environmental Protection (“MassDEP”). The same thing can happen if it relies on the Act or MassDEP regulations rather than its local law provisions. Ditto if the commission issues its decision more than 21 days from the close of the public hearing.

To clarify this important implication of how a commission conducts its decision making, we will first review the relationship of Home Rule bylaws and ordinances to the state Act and MassDEP regulations, how and why the local rules can be stricter, and what happens when MassDEP overturns a commission on appeal under the Act.

Then we will look closely at the issues and logic of the Parkview decision and the Appeals Court’s practical advice it helpfully included for commissions.

Since at least the early 1970’s, Massachusetts courts have regarded the Act as setting forth only minimum statewide standards to protect wetlands and other inland and coastal resource areas, “leaving local communities free to adopt more stringent controls.” Golden v. Falmouth, 358 Mass. 519 (1970). More than 190 of the 351 cities and towns in the Commonwealth have Home Rule wetlands bylaws.

The interplay between local bylaws and the Act has been considered by the courts over the years, particularly when MassDEP entertains an appeal under the Act and reaches a different conclusion than a commission did under its bylaw. When a commission’s decision relies on a bylaw that is more stringent than the Act or the MassDEP Regulations (310 CMR 10.00), the commission’s decision under the bylaw will stand even if its decision under the Act is reversed by MassDEP.

In 2007, the Supreme Judicial Court in its Oyster Creek decision added an important procedural caveat: a commission must issue its decision under its bylaw within the time prescribed in the Act (21 days after the close of hearing). Otherwise, the SJC ruled, a commission can lose its authority under its bylaw if MassDEP issues a superseding order in an appeal under the Act.

In summary, be aware that MassDEP’s decision in an appeal under the Act controls if:  the bylaw is not more stringent than the Act in some key respect; the commission relies on a provision that is not more stringent; the commission relies on the the MassDEP regulations; or if commission is late in issuing the decision.

These types of legal claims can be raised by an unhappy applicant in a lawsuit against the commission, challenging the decision; in project plans designed to satisfy MassDEP regulations and not the local rules; or, in defending against commission enforcement.

If this “stricter bylaw” issue is raised in a court case, typically the court will determine whether indeed a bylaw is more stringent, in what respects, and if the commission relied on those. The bylaw is examined “as applied” with the court considering the particular provision(s) upon which a commission chose to rely.  This is instead of an “on its face” comparison of the local and state in whole and in the abstract.

If a commission simply failed to issue its decision within 21 days after the close of the public hearing, the typical applicant usually points this out to the commission, arguing the Oyster Creek decision means that a MassDEP permit is all that is needed.  Permit holders go to court if they want a definitive ruling on this score, as MassDEP rarely makes a determination of whether a bylaw is more stringent or if a Commission has acted in time.

In the Parkview case, the owner of an industrial park along the Aberjona River in Winchester, Parkview Electronics Trust, LLC (“Parkview”), argued unsuccessfully before the Appeals Court that a conservation commission must base its decision exclusively on a bylaw, instead of both a bylaw and state law, for the commission to avoid being pre-empted by MassDEP.

Relying on the Appeals Court’s Healer v. DEP decision in 2009, Parkview argued that a commission must choose to exercise authority under either the Act or its bylaw, but may not use both. Parkview seized on the Appeals Court’s use of the word “exclusively” in Healer when it ruled:

A local authority exercises permissible autonomous decision-making authority only when its decision is based exclusively on the specific terms of its by-law which are more stringent than the act... . The simple fact, however, that a local by-law provides a more rigorous regulatory scheme does not preempt a redetermination of the local authority’s decision by the DEP except to the extent that the local decision was based exclusively on those provisions of its by-law that are more stringent and, therefore, independent of the act. Healer v. Department of Environmental Protection, 73 Mass. App. Ct. 714, 718-19 (2009).

Parkview challenged the Winchester commission’s determination, in an Order of Resource Area Delineation and one or two later Enforcement Orders, that it had jurisdiction over its property under both its bylaw and the Act. The commission had found the property to be within Bordering Land Subject to Flooding under the Act as well as within “land subject to flooding” under Winchester’s wetlands protection bylaw, which has a more encompassing definition of that term.

MassDEP’s regulations promulgated under the Act define “bordering land subject to flooding” as presumed to be the area within the 100-year floodplain defined by the Federal Emergency Management Agency (“FEMA”) in its flood insurance rate maps and data. The Winchester Bylaw makes no reference to FEMA information, instead defining “flooding” as “temporary inundation of water or a rise in the surface of a body of water, such that it covers land not usually under water”. This covers more geographic area than in the presumptive FEMA line.

Parkview appealed the Winchester commission’s decision under the Act to MassDEP and under the bylaw to Superior Court. MassDEP reversed the Commission’s decision, finding that the property was not within the area mapped at the time by FEMA as 100-year floodplain. When issuing its decision, MassDEP explicitly stated its decision was only under the Act.

Parkview lost its bylaw appeal in Superior Court, and then tried to convince the Appeals Court that MassDEP’s decision preempted the Commission’s decision under the bylaw. Parkview argued the commission had violated the holding in the Healer case when it asserted jurisdiction under both state and local law (typical of most commissions with bylaws). Parkview maintained that the commission should have asserted jurisdiction only under the bylaw if it wanted to avoid being preempted by MassDEP.

The Appeals Court disagreed with Parkview and reaffirmed the long-established principle that, even when a commission bases its decision on both the Act and bylaw, MassDEP may review the decision and supersede any portion of the decision based on the Act. The Appeals Court stated that if were to adopt Parkview’s position, it effectively would expand MassDEP’s authority over bylaws, thus negating the principle that the Act sets minimum statewide standards.

The Appeals Court went on to advise that commissions “purporting to act under both State law and independently under local law should make it clear in their written decisions and orders that there is a dual basis for their determinations.”

That is good advice. Fortunately, this is what sophisticated commissions already do. Some issue two entirely separate decisions, using separate forms, findings, and conditions. Others utilize a single form modified to indicate the decision is under both the Act and bylaw, attaching one set of findings and conditions for its Act decision and another for its bylaw decision. Either way, they follow the Appeals Court suggestion to make clear the two different bases for jurisdiction and the decision, and where it is based on stricter local standards.

Nathaniel Stevens is a senior associate with McGregor & Legere, PC where he handles a broad range of environmental and land use maters including permitting, development, contamination, transactions, conservation, real estate restrictions, underground tanks, water supply, water pollution, subdivision control, tidelands licensing, Boston and state zoning, coastal and inland wetlands, stormwater, air pollution, and energy facility siting.  Nathaniel can be reached by email at nstevens@mcgregorlaw.com.

Will a Creditor’s Execution Sever a Joint Tenancy?

By Tucker DuLong

The question of whether a joint tenancy can be severed by the mere recording of a judgment execution has become a hot-button topic among members of the Massachusetts real estate bar in recent years.  The Land Court recently weighed in on the issue in the matter of McHugh v. Zanfardino, 16 MISC 000331 (2016).  

The underlying decision in the matter stems from a quiet title action filed by Kelly McHugh against the adult sons of her deceased co-owner, James Zanfardino, Sr. In 2005, McHugh and Zanfardino, Sr. purchased a 3-family property on Greenwood Street in Worcester as joint tenants with rights of survivorship. The next year, they converted the property into a 3-unit condominium, and later sold one of the units to a third party. McHugh and Zanfardino, Sr. retained ownership of the remaining two units.  In August of 2008, a judgment execution in the amount of $4,989.65 was recorded in the Worcester District Registry of Deeds against McHugh’s interest in the property. This execution was later brought forward by a notice recorded in the registry in July of 2014, however, the judgment creditor never completed the levy. Zanfardino, Sr. died intestate in April of 2016.

The defendants in this matter contended that the recording of the judgment execution against McHugh caused the severance of the joint tenancy between her and Zanfardino, Sr., thereby converting their interests in the property into a tenancy in common. As such, upon his death, the defendants asserted that Zanfardino, Sr.’s interest in the property therefore passed to them according to the law of intestate succession, and not to McHugh as a surviving joint tenant. For her part, the plaintiff contended that the joint tenancy is not severed until the completion of the levy by sale or by setoff, and since neither had occurred in this instance, the joint tenancy remained intact, entitling her to full ownership of the property through the law of joint tenancy.    

The Land Court’s decision in this case hinged on its interpretation of GL c. 236, § 12, which governs the effect of a levy on execution for properties held both in joint tenancy as well as tenancy in common. The statute, which consists of only two sentences, reads as follows:

If land is held by a debtor in joint tenancy or as a tenant in common, the share thereof belonging to the debtor may be taken on execution, and shall thereafter be held in common with the co-tenant. If the whole share of the debtor is more than sufficient to satisfy the execution, the levy shall be made upon such undivided portion of such share as will, in the opinion of the appraisers, satisfy the execution, and such undivided portion shall be held in common with the debtor and the other co-tenant.

All parties were in agreement that a joint tenancy is severed and becomes a tenancy in common at the point at which the property is “taken on execution,” but they disagreed as to the meaning of this phrase. In undertaking its analysis, the Court noted that the statute is arcane and susceptible to competing interpretations.

Upon consideration of other sections of Chapter 236, as well as interpretations rendered in prior cases dating to the mid-1800’s, the Land Court ultimately agreed with the defendants’ contention that the taking occurs at some point prior to the completion of the levy. However, the Court went on to explain that the language of Section 12 “does not entail a severance of the joint tenancy immediately upon recording of the execution.” Instead, the Court interpreted Section 12 as establishing the severance of the joint tenancy only retroactively, if and when the judgment creditor actually completes the levy.  Therefore, given that the levy against McHugh’s interest in the property was never completed, the Court held that the joint tenancy was not severed, and that all right, title and interest in the property had vested in the plaintiff as the surviving joint tenant upon the death of Zanfardino, Sr.    

The Court also dispatched a number of concerns put forth by the defendants, including their argument that delaying severance of the joint tenancy could harm creditors in the event that the debtor joint tenant dies before the levy is complete. In addressing this issue, the Court acknowledged that liens against one joint tenant’s interest in property are generally extinguished at death where non-debtor co-joint tenants survive.  However, the Court pointed out that there exists a long history of case law in Massachusetts that has treated levies differently from other liens, in that the intervening death of the debtor does not prevent the creditor from completing the levy.  The Court concluded that “for purposes of the levy, a transfer of the debtor’s interest through the right of survivorship would differ little from any other living or testate conveyance from which it is well-established that the creditor is protected,” and accordingly, from the perspective of a judgment creditor, early severance of the joint tenancy “thus accomplishes no discernible goal.”

Whereas the completion of a levy by setoff or by sale is a relatively rare occurrence, recorded judgment executions are commonplace. As such, had the McHugh court reached the conclusion espoused by the defendants, an untold number of titles would have been clouded by unaccounted-for interests held by the heirs or devisees of a decedent whose interest was thought to have passed to one or more surviving co-tenants. Clearly, for this reason the decision as rendered by the Land Court in McHugh is welcome news to conveyancers and title insurers alike. Moreover, this decision no doubt stands in harmony with the presumed purpose of the law which, as stated by the Court, is to “provide a process for the satisfaction of a judgment that sufficiently protects the rights of both debtor and creditor,” while avoiding what the Court considered a possible “irreparable harm” to the property interests of the debtor in the case of an incomplete levy.       

Tucker DuLong is Massachusetts title counsel for CATIC, New England’s largest domestic title insurance underwriter.  He is also a member of the association’s standards and forms committee.  Tucker can be reached by email at tdulong@catic.com.

PROFESSIONALISM AND CIVILITY TIPS FOR NEW LAWYERS

By Danielle Andrews Long and Nicholas P. Shapiro

Professionalism, ethics, collegiality and civility in the legal profession are essential to a successful, reputable, and fulfilling career.  Many lawyers, however, lose sight of these fundamental principles along the way.  It is therefore important, especially as a new lawyer, to ensure that such principles are integral to your day-to-day practice from the beginning.  Whether as a transactional attorney or a

litigator, we are all ethically obligated to zealously represent our clients’ interests.  The law is also a stressful profession.  Given these realities, it is exceedingly easy to lose track of our equally important responsibilities to each other and to the bar, especially when those around us may be losing track.  We cannot lose sight of the importance of interacting with our fellow attorneys with courtesy, dignity and respect, and honoring our obligations as officers of the court.  Indeed, while, at first blush, there may appear to be a tension between zealous advocacy and the stress of our work, on the one hand, and collegiality, on the other, a commitment to professionalism, in practice, will result in better outcomes for clients, and make the practice of law more pleasant and fulfilling, and less stressful for us all.  Balancing these imperatives can be particularly difficult for new lawyers because, despite the many eponymous courses in law school, there is no real way to teach professionalism.  How to maintain professionalism can only be learned through experience and example.  Below are some helpful guidelines for new lawyers, or really all lawyers, to consider in our quest to achieve and maintain the high standards necessary to develop a successful legal practice and foster collegiality and civility in the bar.

1.         Be prepared.  Always, always show up prepared.  There is no excuse or alternative.  Our occupation demands it.  Preparedness invites respect, professionalism, and ultimately success.  Especially as a new lawyer, you are demonstrating to opposing counsel that you are ready, willing, and able to stand where you are standing, regardless of how high your BBO number may be.  In turn, counsel will see you more as an equal and not some “newbie” to strong arm, intimidate, or take advantage of, because we all know that these tactics do and will happen from time to time. 

2.         Be confident.  If you are prepared, you should be confident.  Demonstrating confidence goes a long way in front of your clients, opposing parties, and other counsel.  If opposing counsel knows you are prepared and confident in your position, he or she is more likely to treat you with respect and acknowledge an equal playing field, no matter what the age difference or varying experience level may be between you.  This will lead to more productive interactions and ultimately resolutions. 

3.         Be Patient.  Patience is definitely a virtue in our profession.  It can be so difficult to take a step back or bite your tongue when you are not being treated professionally.  Everyone will experience that lawyer in their career who will be just downright awful to them.  It is in these situations where you take a deep breath and respond in a professional and civil manner (and then just walk away when need be). There may be times when you do need to leave the situation to give everyone a breather, but always do so with your head held high.  There is no sense in rushing things with an angry opposing counsel on the other side who is being “overly zealous.”  Likewise, even if another attorney sends an objectively offensive email, or otherwise acts offensively, do not react out of anger – always wait until you have calmed down to respond.

4.         Hold your ground.  You are retained by your client to counsel and advocate for them.  You know what is best for your client and you know the goals you are trying to accomplish.  Always advocate in a respectful and courteous manner, even if the other side in not playing the same way.  Such bullying tactics are used many times on new lawyers to intimidate them to back down or not speak their position.  Always hold your ground and it will make it difficult for other lawyers to prevent you from being the best possible lawyer you can for your client.

5.         Take the high road.  It can be so difficult not to take the bait when another lawyer is being discourteous or just plain obnoxious.  An objective from day one of your practice should always be to never compromise when it comes to professionalism.  Never compromise your integrity, respect, beliefs, or standards.  It is okay to compromise your legal position – that is what lawyers do to resolve cases - but never compromise your fundamental values as a lawyer or a person in this profession. 

6.         Know when you are over your head.  Unfortunately, we may find ourselves in a situation that we cannot handle on our own, especially as a new lawyer.  Always know when to reach out to a colleague, partner, or mentor for sound advice on how to handle a situation or another lawyer.  They will be happy to help, it will result in a better outcome, and you will learn from the experience and wisdom you are being offered. 

7.         Be Human.  Believe it or not, lawyers are people too.  There are times when other lawyers, including adversaries, are having a difficult time, either professionally or personally.  It could be a difficult client, colleague, decision, or something outside of the office.  Always be compassionate, reasonable, and understanding because you too will be in a similar situation many times throughout your career.  Always be professional and courteous by agreeing to reasonable extensions and other requests.  Of course do not let the other side take advantage of you and always do what is best for your client, but being a good person will make you an even better lawyer. 

8.         Pick a role model to follow by example.  There many examples of both “good” and “bad” lawyers.  The best way to learn is to learn by example.  This is a difficult profession, which requires a mix of intelligence, persuasiveness, objectiveness, and aggressiveness in order to succeed.  A lawyer does not have to be disrespectful, unethical, or intolerable to achieve these goals.  Pick someone you admire as a lawyer and as a person, and observe how he or she handles all types of situations with his or her adversaries and colleagues and emulate that behavior.  Also take notice of the ones who do not do it well to learn why they are not effective and why others do not respect their behavior. 

9.         Pick up the phone.  In this day and age, no one wants to talk.  Almost all communications are done through email or other electronic means.  Email “wars” are common, and we all have sent something we regretted later, especially from our phone.  When you are having a dispute with opposing counsel or a disagreement with a colleague over something, pick up the phone or walk down the hall.  Hearing each other’s voice or looking into each other’s eyes demands more courtesy and respect (at least it should) then hiding behind your words in an email.  Difficult disputes are more likely to be resolved over a conversation than an email.  Take the extra ten minutes to pick up the phone or have a face-to-face discussion – it will almost always result in a quicker, more satisfying outcome.

10.       Follow the Golden Rule.   This is the most important tip of them all!  When presented with a difficult situation, always stop and think to yourself how would I want to be treated.  The key is to take a few seconds and process this thought.  No one wants to be treated poorly, unprofessionally, or with disrespect, no matter how they may act towards others.  If you follow this one simple rule, you are on your way to earning the respect of your colleagues and a successful career and reputation. 

 

Don’t Look Now, But the Homeownership Rate Keeps Falling…

By Robert M. Ruzzo

 

From Capitol Hill to Beacon Hill, 2017 promises to be a very “interesting” (and perhaps difficult) year for housing aficionados. First of all, on the national front, the impact of tax reform (particularly its impact on the affordable housing tax credit world) is likely to be front and center. In addition, although the details are still evolving, it is difficult to imagine a (potentially)  $1 billion infrastructure proposal that would not have a major impact upon Transit Oriented Development efforts. Rumor also has it that long ago in a galaxy far away, reform of the government sponsored enterprises (the “GSEs,” a/k/a Fannie Mae and Freddie Mac) was once imminent. If GSE reform is going to happen within the lifetime of any life presently in being, the current session of Congress might seem as likely a time as any, but the betting window is still wide open on that one.

Meanwhile, the debate over zoning reform is sure to resurface on Beacon Hill, and it is once again time for a new Housing Bond bill.  Mix in some potential measures at the state level to counteract, offset or capitalize upon whatever comes out of Washington, and are things interesting enough for you yet?

If you can tear yourself away from this political back and forth long enough to ruminate upon any other housing issue, kindly consider the following as a way to add an eggbeater to already troubled waters: take a look at the homeownership rate in our otherwise economically vibrant Commonwealth, particularly the five counties comprising Greater Boston.

Like the MBTA in the fall of 2014, the plummeting homeownership rate in Greater Boston has all of the hallmarks of a crisis hiding in plain view.  While five counties do not a Commonwealth make, one would have a hard time arguing that homeownership is substantially more achievable to the average citizen in Barnstable, Dukes, or Nantucket Counties. When combined with Greater Boston (as defined in the Report Card), this would represent 8 of the state’s 14 counties and more than two thirds of the state’s total population.

The drop (plummet) in homeownership is the most underplayed issue to emerge (or not emerge) from the 2016 Greater Boston Housing Report Card. And while the swing of the pendulum in favor of “funky” downtown apartments explains some of this phenomenon, not everyone wants to spend their entire life in a micro unit, no matter how vibrant the surrounding neighborhood may be.

Massachusetts has always been somewhat of a laggard in terms of its homeownership rate due to our restrictive local zoning and high housing costs. Nationwide, the homeownership rate grazed the 69% level before crashing back to earth in the throes of the Great Recession. According to U. S. Census Bureau data, the nationwide homeownership rate was 63.7% in the fourth quarter of 2016. The homeownership rates for African Americans and people of Hispanic origin are far lower, averaging in the mid-40% range.

Of particular interest in Greater Boston is the homeownership rate among “Prime Age Households” (those between 25 and 44). The facts are there in all their shocking glory in Table 2.2 of the Housing Report Card.

In Greater Boston, in the year 2000, 67.2 % of all households between 35 and 44 (the choicest of the Prime Age Households) were homeowners. After the Great Recession, in 2010, that rate had fallen to 65%; however, even more troubling is the fact that since then, in the years 2011-2014, the decline in homeownership in Greater Boston has been more than twice as fast as it was between 2000 and 2010. Between 2011 and 2014, the homeownership rate in this age group plunged to 58.9%, despite historically low interest rates.

For those between the ages of 25 and 34, less than one third (30.2%) are homeowners according to the most recent data published in the Report Card, compared to 40.7% in the year 2000. With increasing student loan debt levels, rising home prices and now rising interest rates, it’s unlikely that trend will improve dramatically any time soon. The expiration, at the end of 2016, of the ability to deduct mortgage insurance premiums will not help matters.

Homeownership-the engine of middle class expansion in post-World War II America (and a fundamental means of wealth creation)-is becoming less viable for an increasing number of young citizens in Massachusetts, particularly in Greater Boston. 

A few points worth noting:

First, there is no immediate, sweeping solution, as the single family mortgage business is a retail business.

Second, there is an opportunity for some light to pierce this darkness, particularly in Gateway Cities (and perhaps, most particularly, for Gateway Cities with good rail links to the downtown Boston core).

Third, never forget that much of this is the result of our anemic housing production efforts.

Finally, even for a potential borrower with a healthy income and excellent credit, the so-called “wealth barrier” (accumulating a sufficient down payment) remains a nearly insurmountable hurdle on the path to homeownership. 

What can be done?

With any luck, “teaser rates,” no document “liar loans,” and similar vices from the last great boom will remain consigned to the ash heap of history. Nonetheless, riskier low down payment loans are going to be a part of any solution, but they must be coupled with strong buyer education programs. If the last crash taught us anything, it is that an educated consumer can make a riskier loan product viable.

MassHousing’s Mortgage Insurance Fund, the MassHousing Partnership’s “One Loan” Program, and FHA low down payment loans will be more in demand than ever. 

One of the more creative suggestions heard recently at an industry meeting was for the state’s quasi-governmental agencies, particularly MassHousing, to work with the management companies within its rental portfolio to identify (and groom) future homeowners from the leading ranks of tenants. Employer based programs to foster homeownership may also need to move beyond the beta stage.

Some additional original thinking along these lines is very much needed.

Bob Ruzzo is  senior counsel in the Boston office of Holland & Knight LLP.  He possesses a wealth of public, quasi-public and private sector experience in affordable housing, transportation, real estate, transit-oriented development, public private partnerships, land use planning and environmental impact analysis. Bob is also a former general counsel of both the Massachusetts Turnpike Authority and the Massachusetts Housing Finance Agency; he also served as chief real estate officer for the turnpike and as deputy director of MassHousing.”  Bob can be contacted by email at robert.ruzzo@hklaw.com.

 

A CONDO LAWYER WALKS INTO A BAR

Saul J. Feldman, Esq.

Feldman Law Office

I read the First Main Street Corporation case when it was decided in 2000 (49 Mass. App. Ct. 25 (2000)).

Recently, I reread the First Main case.  The reason I did so in February of 2017 is that the City of Boston has adopted a policy to tax parking spaces in condominium buildings.

I had thought that First Main had put this issue to rest seventeen (17) years ago in the year 2000.  In First Main, the Town of Acton sought to tax development rights which were retained by the developer to build subsequent phases of a condominium.  The assessors treated the development rights as present interests in real estate that are taxable under M.G.L. Chapter 59, Section 11.  The Court strongly disagreed.  Rather, the Court affirmed the decision of the Appellate Tax Board holding that “the limited scope of that taxing statute and the unambiguous prescription and proscription of M.G.L. Chapter 183A, Section 14, regarding the taxation of common areas of a condominium do not authorize the tax the assessors have sought to impose.”

The decision of the Appeals Court was authored by Judge Rudolph Kass.  The Court noted that “the right to tax must be plainly conferred by statute.  It is not to be implied.  Doubts are resolved in favor of the taxpayer.”  The Court cited for this Cabot v. Commissioner of Corp. and Taxation, 267 Mass. 338, 346 (1929).  The Court stated in First Main that there often is value in the common areas but that “Everything of value, however, is not necessarily subject to taxation, unless the Legislature makes it so.”

The Court stated that the land is common area of the condominium and as such is taxed pro-rata to current unit owners in the condominium.  Common areas may not under Section 14 be taxed other than proportionately to the unit owners.  The Court went on to quote the statute:

“Each unit and its interest in the common areas and facilities shall be considered an individual parcel of real estate for the assessment and collection of real estate taxes, but the common areas and facilities, the building and the condominium shall not be deemed to be a taxable parcel.”

The Court concluded that the only way there could be a real estate tax on a part of the common areas would be if our legislature enacted a statute to that effect.

To sum up, in the event a Condo Lawyer walks into a Boston bar, you should ask him about the First Main case.  In the event he says he is not familiar with that case or the attempt by the City of Boston to tax parking spaces, you should suggest that he “better call Saul” at 617 523-1825.

 Saul J. Feldman is the founder of Feldman Law Office.

Email your questions to Saul@FeldmanRELaw.com.

© 2017 Feldman Law Office

Electronic Acknowledgements

By Richard P. Howe Jr.

Several weeks ago, an out-of-state title company sent a letter asking if the Middlesex North Registry

of Deeds would record a mortgage that was acknowledged in Virginia in accordance with that state’s remote electronic acknowledgement law. In Virginia, an authorized electronic notary may take an acknowledgment online using audio-video conference technology, even though the person executing the document is not in the physical presence of the notary.

My initial thought was, “Remote electronic notary? No way!” but I delayed answering the query with an “I’ll have to see the document before deciding” response.

On further review, my opinion has changed. The Massachusetts Deed Indexing Standards say that for a document executed outside of Massachusetts, an acknowledgement may be taken by a justice of the peace, notary public, or magistrate of the state in which the acknowledgement was taken. Implied in that standard is that the acknowledgement was taken in accordance with the laws of that non-Massachusetts jurisdiction. When deciding whether to record such a document, Massachusetts registries just assume compliance with the law of the other jurisdiction and do not verify it since we cannot realistically track the notary laws of every jurisdiction in America.

This outcome also assumes the validity of the choice of law principle upon which the Indexing Standard is based, namely that it is the jurisdiction where the acknowledgement is taken that controls its legality, not the law of the jurisdiction in which the land is located. To my knowledge, no one disputes this, however, I am not aware of any Massachusetts statute or decision that confirms that interpretation.

Applying these standards to the question posed by the title company, I would conclude that since a remote electronic acknowledgement is legal in Virginia, a document acknowledged by that means in that state would be recordable in Massachusetts.

While we would record a document from Virginia that was remotely electronically acknowledged, a document acknowledged that same way in Massachusetts would be rejected. Massachusetts law makes no provision for electronic acknowledgements, either in person or remote. This is so despite our notary laws having just been updated by Chapter 289 of the Acts of 2016 which became effective January 4, 2017.

Although not expressly allowed, would a reasonable interpretation of the new law nevertheless permit electronic acknowledgements to be done in Massachusetts? Section 3 of that law defines acknowledgement as “a notarial act in which an individual, at a single time and place appears in person, before a notary public . . .” There is no ambiguity there. “In person” means just what it says, so remote electronic acknowledgements are clearly prohibited.

But what of an “in person” electronic acknowledgement? Would that be legal in Massachusetts? While not expressly authorizing an in person electronic acknowledgement, Chapter 289 of the Acts of 2016 does not expressly prohibit it.

Section 4 of the new law (which amends M.G.L. c.222, s.8) directs the notary to type his name directly beneath his signature “and affix thereto the date of the expiration of such person’s commission . . .” No problem doing all of that electronically. But the next section requires the notary to have an official seal or stamp and describes what information should be contained on it. While this section does not explicitly require the notary to affix the stamp to the acknowledgement, another section of the law that prescribes the form of the acknowledgment includes a line that is labeled, “official signature and seal of notary public.”

So is a seal required for a valid acknowledgement? The same section of the law that requires the notary to have a seal also states “failure to comply with this section shall not affect the validity of any instrument . . .” and the Deed Indexing Standards state the registry of deeds will record a document even if the acknowledgement does not contain a seal. While omitting the seal from an acknowledgement might cause the notary to run afoul of the new statute, a document lacking a seal would still be valid and could still be recorded.

Still, the wisest course would be to address electronic acknowledgements legislatively and to do so sooner rather than later. As the real estate industry moves aggressively towards transactions that are entirely paperless, Massachusetts registries of deeds and the conveyancing bar should strive to keep pace.

A regular and welcome contributor to REBA News, Dick Howe has served as register of deeds in the Middlesex North Registry since 1995.  He is a frequent commentator on land records issues and real estate news.  Dick can be contacted by email at richard.howe@sec.state.ma.us.

THE CONDOMINIUM FORM OF OWNERSHIP AS A FINANCING TOOL

By Saul J. Feldman and Angel K. Mozina

In this article, we will discuss ways in which the condominium form of ownership can be used as a financing tool.

BACKGROUND

A construction lender will want broad rights to protect its security.  For example, once the Master

Deed is recorded, the construction mortgage must be amended to show clearly that the security is no longer the land and improvements but rather the condominium units and the phasing rights.  There must be a broad definition of “Declarant” in the Master Deed to include not only a foreclosing mortgagee, its successors and assigns, but also any purchaser of the note and mortgage.

The phasing/development rights are customarily covered not only by specific and detailed references in the Master Deed but also by a separate assignment of phasing/development rights. 

Pursuant to Chapter 183A, the Massachusetts Condominium Law, Chapter 183A applies when the sole owner or owners of land submits such owners’ interest in the land by executing and recording a Master Deed.  As Massachusetts is a “title” state, an “owner” includes the mortgagee of record, and therefore each mortgagee must execute a subordination of the lien of its mortgage to:

(1)               The Master Deed;

(2)               The entity for the organization of unit owners which may be a trust, a corporation or an unincorporated association; and

(3)               More generally, the condominium regime.

 

EXAMPLES

In each of the following examples, title insurance companies provided (both owners and lenders) title insurance thereby making these examples available to developers and their lenders.

The following are three (3) examples of using the condominium form of ownership as a financing tool.

Take the case, for example, of a rental apartment complex for low income people over fifty-five years of age.  There are two high rise buildings.  A condominium could be created with each building as a separate unit.  There will be three budgets, one for Building A which becomes Unit A, one for Building B which becomes Unit B, and one for the common areas.  This form of ownership allows each building to obtain separate mortgage financing.

Another way the condominium form of ownership can assist in financing is phasing.  Phasing can be vertical or horizontal.  Vertical phasing is several phases in a medium or high rise building.  Horizontal phasing is several phases on a single lot.  Lenders will not be willing to finance the entire development at one time, but lenders may be willing to finance a development on a phase by phase basis.  There may be a market today for twenty (20) units but not for 200 units.  The condominium documents and plans must be drafted carefully to allow the financing of phases.

Sometimes a development may be built with multiple condominiums.  The various condominiums may want to get a single loan from a lender.  One way to do this is to create an umbrella trust which will include all of the condominiums.  The umbrella trust can be the borrower as a lender will be willing to accept the umbrella entity as the borrower.  The security is not a mortgage.  The loan is collateralized by a security agreement, a conditional assignment of revenue stream and a UCC financing statement.  The security is the income stream the umbrella trust receives from its unit owners in the form of the monthly payment of condominium fees.

We routinely put a paragraph in Master Deeds to address the financing of construction.  The following is the language we use:

“The Declarant reserves the right to mortgage all or any portion of the Condominium which is not encumbered by a mortgage for the purpose of financing the construction phases and, until discharged, any such mortgage shall have priority over the interests of all other Unit Owners and their mortgages as to the phase which is encumbered by such mortgage.”

Lenders ought to be aware of potential liability and address it whenever possible in the financing or related documents.  For example, Section 22 of Chapter 183A imposes liability on a construction lender.  The SJC, in Moloney v. Boston Five Cents Savings Bank FSB, 422 Mass. 431 (1996), has said that Section 22 is a consumer protection statute.  It covers deeds in lieu as well as foreclosures.  Proper indemnification and waiver language in the financing documents can ensure the lender is protected in such cases.

In Wyman v. Ayer Properties, 469 Mass. 64 (2014), the Court held that the economic loss doctrine is no bar to construction defects claims asserted by condominium associations.  In addition to indemnification and waiver language, a lender may require a higher liability coverage limit when lending to a condominium developer.  

Also, a construction lender may be bound by unrecorded purchase and sale agreements (“P&S”s) where the bank had actual notice of the P&Ss and the buyers by virtue of the P&Ss had priority equitable interests in the condominium units.  Queeno v. Colonial Co-operative Bank, 63 Mass. App. Ct. 392, review denied 444 Mass. 1108 (2005).  A lender should ensure that a P&S for future construction contains a specific reference to the right and intent of the developer to obtain construction financing, and the buyer should be asked to subordinate to such financing within the text of the P&S.

Sometimes, being a construction lender can be hazardous!

CONCLUSION

Little has been written until now about the concerns of lenders in lending to a condominium development.  We hope that this article might encourage more thought on this important topic.

Saul Feldman and Angel Mozina practice with the Feldman Law Office in Boston The firm's primary specialties are commercial real estate transactions and condominium law and development, in addition to residential conveyancing.  Angel can be contacted at angel@feldmanrelaw.com. Saul can be contacted at saul@feldmanrelaw.com.