Monday, June 4, 2018

Excerpted from Remarks to the Merrimack Valley Conveyancers Association – March 22, 2018 (Amicus Committee Report)



Daniel J. Ossoff
These remarks will address the appellate advocacy work that is done by the REBA Amicus Committee, of which I am co-Chair along with Ed Bloom of Sherin and Lodgen.  For those not familiar with the REBA Amicus Committee, it is technically a joint committee of REBA and the Abstract Club.  The Abstract Club is an organization limited to 100 members of the bar (together with emeritus members), by invitation only, traditionally comprised of title gurus and conveyancers, but now more generally open to real estate lawyers of all stripes.  The mission of the joint Amicus Committee is to write and submit to the appellate courts of the Commonwealth, and occasionally to the Federal courts sitting in the Commonwealth, briefs relating to matters of interest to the real estate bar and its clients.  While we occasionally do submit briefs at the Appeals Court level, our focus has traditionally been on cases before the Supreme Judicial Court, where definitive law is made.  We rely entirely on volunteers to author and submit briefs on behalf of the Committee.  In consideration of the significant time and effort involved in preparing, reviewing and submitting briefs, we do operate under fairly stringent standards in deciding which cases we will become involved with.  The guidelines that we follow are:

1.         Who should prevail in the case?  If there is not a consensus among the Committee members consulted as to the correct outcome of the case, we do not get involved.
2.         Preferably, the case is of wide applicability in a particular area of real estate law rather than dealing with a narrow and obscure topic.
3.         Finally, the case must have significant precedential value.  If a case is so fact-intensive that it limits the precedential value of any decision that may be issued in the case we will typically decline to participate.

Cases come to the Amicus Committee in a variety of ways.  We are very often asked by the appellate court itself to consider submitting a brief when a case on appeal presents title or other real estate issues on which the court feels the Committee’s view would add value.  We also monitor decisions coming out of the lower courts and, where we deem appropriate, may reach out to the lawyer on the “correct” side of the case to volunteer an amicus submission.  Finally, and perhaps most importantly, we welcome requests from REBA members who may be involved in a case that they deem appropriate for participation by the Committee.

Historically, the cases in which the Amicus Committee became involved were almost exclusively cases related to title issues.  One of the most interesting developments that I have witnessed in my many years of participation on the Committee is that, as the focus of both REBA and the Abstract Club has expanded beyond simply title and conveyancing issues to the broader scope of real estate law in general, the cases that the Committee has taken on have similarly broadened in scope and focus.  In fact, the proliferation over the past 10-15 years of new REBA sections focused on particular areas of the law – the Affordable Housing, Litigation, Land Use and Zoning, Commercial Leasing, Environmental Law, and Condominium Law and Practice Sections immediately come to mind – has given Ed Bloom and I the ability to readily refer to the chairs of those sections cases within their particular area of expertise for a recommendation on whether the case is worthy of the Amicus Committee’s involvement.  Those specialized sections also provide a potential source of volunteers to author briefs on cases on which the Committee elects to participate. 

We do generally attempt to stay away from cases which are largely policy-oriented, to insure that the Amicus Committee is viewed as a largely impartial voice dedicated to improving the law.  That approach has resulted in the appellate courts seeking our input, and also has resulted in those courts giving substantial weight to the views expressed in our briefs.  While we have not prevailed on 100% of the briefs that we have submitted, our batting average is substantially better than the .406 batting average famously accomplished by Ted Williams in 1941.  And it is critically important to us that the courts continue to respect and pay heed to our views on issues within our particular areas of expertise.
I thought it might be helpful and of interest for me to give you a quick snapshot of some of the cases which we have been involved with over the last few years.  The cases that I am going to mention all were decided since 2016.

One case within our traditional focus on title matters is Kitras v. Town of Aquinnah (474 Mass. 132 (2016)).  The issue in that case was whether easements by necessity were created when former Native American common land on Martha’s Vineyard was partitioned by commissioners appointed by the Probate Court in 1878.  The result of the partition was to create more than 500 lots, the majority of which were landlocked parcels of land.  In creating the landlocked parcels, the commissioners did not include any express grant of rights of access to those parcels.  Fast forward to the current day, and the owners of the landlocked land were arguing before the Supreme Judicial Court that easements by necessity arose when the landlocked parcels were created as a result of the partition in 1878.  The amicus brief that we submitted argued to the contrary.  Our position was that recognizing easements by necessity more than 125 years after those lots were created would upset well-settled title rights and unnecessarily and inappropriately broaden the availability of such easements by necessity under the common law of the Commonwealth.  The Supreme Judicial Court agreed with our position that easements by necessity were not created by the 1878 partitioning of the land, relying in large part on the fact that tribal custom at the time of the partitioning permitted free access over land, including not only land held in common but also land which was individually owned.  Given that context, the Court was unwilling to find that the commissioners intended to create easements for access in 1878 since no such easements would have been necessary under the tribal custom that existed at that time.

The spike in foreclosure activity which emerged from the last economic downturn resulted in an uptick in the Committee’s involvement in cases focused on the foreclosure process.  One such case that we weighed in on was the case of Federal National Mortgage Association v. Rego (474 Mass. 329 (2016)).  In that case the party seeking to invalidate the foreclosure argued that the foreclosure was void because various foreclosure notices were given by the attorney for the foreclosing lender without authority being given to the attorney to so act by a “writing under seal” pursuant to Section 14 of Chapter 244 of the General Laws.  While it seemed obvious to the Amicus Committee that the statutory language in question was never intended to limit the ability of a mortgagee to retain legal counsel to conduct foreclosure activities on its behalf, but was instead intended to apply to agents operating as attorneys in fact under a power of attorney, that was apparently not so obvious to the party challenging the foreclosure.  Thankfully the SJC agreed with our position, and we avoided the prospect of having countless foreclosures invalidated by an incorrect reading of the language of Section 14 of Chapter 244.

Another foreclosure case that we weighed in on was Bank of America v. Casey (474 Mass. 556 (2016)), which was one of what seemed like an unending line of cases addressing issues concerning defective acknowledgments in mortgages which were subsequently foreclosed.  In Casey, a defect in an acknowledgement in a mortgage – namely the failure to write in the names of the mortgagors in the acknowledgement clause – was corrected prior to any action being taken to foreclose the mortgage by the attorney whose acknowledgement was in question by recording a Chapter 183, Section 5B affidavit to correct the deficiency in the acknowledgment.  This case actually came to the SJC on questions certified to it by the First Circuit Court of Appeals.  As a Committee we were particularly concerned that, if the SJC did not recognize the ability to use a Chapter 183, Section 5B affidavit to cure the defect in the acknowledgement, it would not only have an adverse impact in the foreclosure arena in which this case arose, but would also severely impair the ability to use Section 5B affidavits to address a broad variety of clerical errors and ambiguities confronted more generally in title examinations.  Fortunately, the SJC agreed that under circumstances such as those presented in this case an acknowledgment that omitted the mortgagors’ names may be cured by a Section 5B affidavit.

Yet another foreclosure-related case at the SJC that we weighed in on successfully was the case of Turra v. Deutsche Bank Trust Company Americas (476 Mass. 1020 (2017)).  The argument made to invalidate the foreclosure in that case was based on an alleged failure to comply with the provisions of Chapter 244, Section 15A of the General Laws.  That statutory provision requires notice of the foreclosure to be given to the assessor or collector of taxes of a municipality and to the companies providing water and sewer service to the foreclosed property.  That notice is to be given within 30 days after the foreclosure occurs.  There is some ambiguity in certain language in the “infamous” Ibanez decision from 2011 (U.S. Bank National Association v. Ibanez (458 Mass 637)) that was the basis for the mortgagor’s argument that failure to comply with any provision of Sections 11 through 17C of Chapter 244 was grounds for voiding a foreclosure.  The SJC agreed with the argument put forth in our brief that Section 15A – which involved notice given subsequent to the foreclosure and which also provided for notice to third parties rather than any notice to and for the benefit of the mortgagor – was not part of the foreclosure process which had to be strictly complied with under the language of the Ibanez decision.  Therefore the foreclosure was preserved.

We have also seen a proliferation of condominium cases in recent years.  Perhaps the most significant is the case of Drummer Boy Homes Association, Inc. v. Britton (474 Mass. 17 (2016).  Consistent with the argument made in the brief submitted by members of REBA’s Condominium Law and Practice Section, the Court found that a “rolling lien” exists under Section 6(c) of Chapter 183A of the General Laws, allowing a condominium association to bring successive actions to enforce its lien for unpaid common area expenses and, by doing so, to establish and enforce multiple contemporaneous six-month priority liens.  The experts from REBA’s Condominium Law and Practice Section argued persuasively – both to the Amicus Committee during its internal deliberations about taking on the case and to the Court - that the rolling lien has been long recognized as a feature of Section 6(c) of Chapter 183A, and that for the Court to find otherwise would be disruptive to the financial health and well-being of condominium associations in Massachusetts.  The Court was not persuaded by arguments to the contrary from certain elements of the lending community, citing the various protections available to lenders under the statute allowing them to step forward to assume the responsibility for payment of the condominium charges to protect against the rolling lien.

Another more recent triumph in the condominium arena occurred in the case of Trustees of the Cambridge Point Condominium Trust v. Cambridge Point, LLC (478 Mass. 697 (2018)), just decided in January.  The issue there was the enforceability of so-called “poison pill” provisions in condominium documents which create barriers to suits being brought by condominium associations, particularly suits directed against developers for construction defects and the like.  The documents governing this particular condominium required, for example, that a copy of the actual complaint be delivered to the unit owners, that a monetary limit be established on the litigation costs, and that within 60 days not less than 80% of the unit owners consent.  Given the fact that the developer in this case retained ownership of more than 20% of the units, the 80% consent requirement was effectively a total bar to bringing an action against the developer for the construction defects that were alleged to have occurred at the condominium.  REBA’s Condominium Law and Practice Section once again argued persuasively not only that there was an ambiguity in the law with respect to the enforceability of these provisions, but also that it was grossly unfair for condo owners and associations to be denied their remedies to bring actions because of inappropriate barriers being erected by the developers of condominiums in the documents creating those condominiums.    Although the SJC did not go as far as ruling unenforceable any restrictions in condominium documents to the commencement of litigation, it did concur with our position that the restrictions in this particular instance were void by reason of being in violation of public policy.

The last case that I want to mention shows just how far afield from our original areas of focus the Amicus Committee sometimes ventures.  With the encouragement and through the assistance of REBA’s fairly new Estate Planning, Trusts and Estate Administration Section, we submitted a brief in the case of Daley v. Secretary of Executive Office of Health and Human Services (477 Mass. 188 (2017)), where the issue was whether the fairly common practice of conveying a piece of property to a family member but retaining a life estate in the property resulted in the full value of the property remaining as a countable asset of the grantor for purposes of determining Medicaid eligibility.  We dipped our toe in these unfamiliar waters by allowing the Estate Planning, Trusts and Estate Administration Section to prepare and submit on behalf of the Amicus Committee a brief which addressed the limited issue of whether a life estate was a separately recognizable property interest.  While that seemed absolutely obvious to us dirt lawyers, we were concerned that a decision in this context which found a life estate not to be a separate property interest could have unintended consequences within the real estate world (as well as having the effect of rendering  ineffective a good deal of Medicaid planning done by estate planning practitioners).  In its decision, the SJC fully-recognized the life estate as a property interest separate and distinct from the remainder interest, which was a clear win for REBA’s membership at large.  The Court also found that under the applicable regulations it was compelled to agree with the argument of the estate planning bar that Medicaid planning steps such as conveying the property subject to a life estate effectively shielded the asset from being counted for Medicaid eligibility purposes.  But the Court also encouraged the applicable Commonwealth agencies to take a look at those regulations.  So this was a win, at least for the time being, for the estate planning bar as well.

As I deliver these remarks, there are more cases that have been brought to our attention which, if they are appealed, may be worthy of an amicus submission by our Committee.  This is important work for REBA and for the real estate bar and our clients, and it is work that is ongoing and never-ending.  Should any of you be involved in cases that you believe may fit the criteria that I outlined earlier, please feel free to bring them to our attention by contacting either Peter Wittenborg and the REBA staff, or by reaching out to Ed Bloom and me directly. Your participation in our efforts is the best way to insure that a case doesn’t slip by us that has an adverse impact on the law or our clients.


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