Superior Court weighs in on Question of First Impression under G.L. c. 183A § 8(f)

 Ryan R. Severance

A summary judgment decision in a Suffolk Superior Court case, recently reduced to judgment, has addressed a question of first

impression regarding the state of construction necessary to support the recording of plans showing the layout, location and dimension of the units for purposes of compliance with G.L. c. 183A § 8(f)

 

While the Trial Court’s decision does not constitute binding precedent, the significance of the decision cannot be overstated.

 

In the matter of The 1850 Condominium Trust v. Allied Residences, LLC, Suffolk Superior Court Civil Action No. 1884 CV 01594, the question presented was what, precisely, does G.L c.183A § 8(f) require in connection with the recording of the floor plans. Attorneys from Moriarty Troyer & Malloy LLC, including Kim Bielan and Tom Moriarty, were confronted with a claim that the floor plans accompanying a phasing amendment were invalid under G.L. c. 183A § 8(f) because; (1) they omitted a verification, under oath, from a registered architect, professional engineer or land surveyor, and (2) the construction of the common area was not substantially complete at the time the phasing amendment was recorded.

 

G.L. c. 183A § 8(f) provides, as follows:

 

The master deed shall be recorded in the registry of deeds or the land registration office where the real estate is located and shall contain the following particulars:

 

(f) A set of the floor plans of the building or buildings, showing the layout, location, unit numbers and dimensions of the units, stating the name of the building or that it has not a name, and bearing the verified statement of a registered architect, registered professional engineer, or registered land surveyor, certifying that the plans fully and accurately depict the layout, location, unit number and dimensions of the units as built.

 

While §8(f) refers to the master deed, it has long been recognized that such requirement applies to phasing amendments submitting additional units to condominium status.

 

In response to the claim that the subject plan lacked a verification under oath, the Defendant argued, in reliance on certain plan recording requirements of the registry of deeds, and G.L. c. 112 § 60F which controls an architect’s use of her seal, that the only verification required by G.L. c. 183A § 8(f) is the preparer’s signature and professional seal. In addition, the Defendant pointed out that the form of verification demanded by the Plaintiff was, in fact, missing from the floor plans recorded with the master deed, which plans the Plaintiff relied upon to sustain its very existence as a duly constituted condominium organization of unit owners. Confronted with the Defendant’s arguments, and no doubt recognizing that if its position in that regard were accepted the association would cease to exist, the Plaintiff disavowed such claims, and the claim was effectively dismissed.

 

In its summary judgment decision, the Trial Court rejected the Plaintiff’s claim that construction of the common area has to be substantially completed in order to record a plan compliant with G.L. c. 183A § 8(f). In connection with its decision, the Trial Court rejected each of the Plaintiff’s arguments addressing several with specific detail. The Trial Court did, however, acknowledge that there is no case that explicitly answered the questions presented, noting that cases addressing the issue had done so indirectly and inconsistently. In order to answer the question presented, the Court turned to ordinary principles of statutory interpretation concluding that the use of the term “as built” in Section 8(f) does not require “post-construction” plans, or a plan showing a building that is “substantially complete.” The Trial Court’s analysis is clear, concise, and self-explanatory and, for that reason, it is quoted at length herein below.

 

In its analysis the Court first observed as follows:

 

First, as Allied points out, if Section 8(f) required plans showing a building that is substantially complete, then including a requirement that plans show “the layout, location ... and dimensions of the units” would be meaningless, because those elements would necessarily be included in plans showing a building that is substantially complete. “We seek to avoid a construction which would make statutory language meaningless.” Commonwealth v. Maher, 408 Mass. 34, 37 (1990).

 

The Trial Court went on to find:

 

Second, Allied argues persuasively that, if the Legislature had meant construction to be “substantially complete” for purposes of Section 8(f), it would have said so explicitly, as it has in several other statutes. See G.L. c. 260, §2B (actions arising from improvements to real property must be brought no more than six years after “substantial completion of the improvement”); G.L. c. 254, §2A (requiring a notice of substantial completion in order to assert a mechanic’s lien); G.L. c. 30, §39G (requiring certification of “substantial completion” in public works projects); G.L. c. 149, §29F (same, for private construction projects). The Court should “not read into [Section 8(f)] a provision which the Legislature did not see fit to put there.” In re Adoption of Daisy, 460 Mass. 72, 76 (2011).

 

In refusing to accept the Plaintiff’s position on summary judgment the Trial Court also stated,

 

Conversely, the Trust’s contentions as to why Section 8(f) should be interpreted as requiring plans reflecting construction that is substantially complete are not persuasive.

 

The Court noted:

 

The Trust primarily argues that interpreting Section 8(f) as not requiring a building to be substantially complete would permit a developer to “build a house of cards,” in order to meet phasing deadlines, “and then knock it all down,” thus rendering those deadlines, which are meant to protect the rights of unit owners, meaningless. However, as Allied points out, the recording of a Section 8(f) plan fixes the layout, location and dimensions of the units within the structure containing the units. The Trust does not point to any part of G.L. c. 183A, or anything else, from which a declarant would derive authority, after recording Section 8(f) plans, to change the location, layout and dimensions of the units as shown on the plans.

 

The Court found, in addition, as follows,

 

Moreover, as Allied also points out, once a building is submitted to condominium status, a declarant no longer owns or controls the common areas of the building (excepting any phasing rights that have been reserved) and therefore cannot “knock it all down.” The Trust’s concern is therefore speculative and cannot serve as a basis for interpreting Section 8(f) so strictly.

 

Additionally, the Trial Court considered and disagreed with the Plaintiff’s argument that § 8(f)’s reference to “as-built” requires post-construction plans, as follows:

 

The Trust also refers to certain industry publications which define “as built drawings” as drawings that show how a building has actually been constructed. However, these publications speak to how the term “as built” is defined generally, rather than how it is defined in Section 8(f), specifically. Moreover, these publications are inconsistent. As Allied points out, the Mass. Conveyancers’ Handbook, §17.5 (4th Ed), referring to condominiums specifically, states that a unit “need not be completed, or even substantially completed in the customary architect’s term” at the time it is submitted under G.L. c. 183A.

 

Finally, the Court held that the Plaintiff’s reliance on the Appeals Court decision in DiBiase Corp. v. Jacobowitz, 43 Mass. App. Ct. 361 was misplaced as DiBiase “does not answer the question of what stage of “being” an edifice must be in to enable the developer to submit as-built plan under § 8(f) other than to require that there be an edifice in being.

 

While the Trial Court’s decision does not constitute binding precedent, the significance of the decision cannot be overstated. Had the Plaintiff’s position been adopted, it would have called into question the title to virtually every unit added by phasing amendment in the Commonwealth as it would have become impossible for any buyer, conveyancer or title insurer to determine whether a recorded plan showing the layout, location and dimensions of the units as built was compliant with G.L. c. 183A § 8(f). In that regard, the owner of every unit in a phased condominium, and the industry in general, avoided a substantial adverse consequence in connection with the Trial Court’s decision to reject the position advanced by the Plaintiff in the case.

 

A copy of the decision is available at this link.

 

If you have any questions, you can email Ryan at rseverance@lawmtm.com or any of our other attorneys at Moriarty Troyer and Malloy LLC at 781-817-4900 or info@lawmtm.com.

Disclosure v. Confidentiality: A Real Estate Agent’s Conundrum

Robert Stetson

Home sales rose in 2020 to the highest level since before the Great Recession.  Given the sheer mass of transactions involving real estate agents and brokers, it is hardly surprising that home sale disputes

Related Video & PowerPoint

abound and that many of these cases involve brokers and agents; often times, the perceived deep pocket in the situation.  But, generally, a broker is not liable for merely passing along information to a prospective buyer, see; Fernandes v. Rodrigue, 38 Mass. App. Ct. 926 (1995) so, why do agents and brokers so frequently end up the targets of litigation?

One reason – at least in Massachusetts – is the dearth of seller’s disclosure forms.  As the National Association of Realtors recognized decades ago, seller’s disclosure forms provide cover for agents and brokers on a given transaction.  If the information contained on the form appears reasonable and accurate, the agent or broker owes no duty to inspect or investigate the information and can provide the form to a prospective buyer and avoid liability even for false information contained on the form. DeWolfe v. Hingham Ctr., Ltd., 464 Mass. 795, 800 (2013) (“While a broker ordinarily may rely on information provided by the seller in making representations about a property… the critical question is whether the broker ‘failed to exercise reasonable care or competence in obtaining or communicating the information.’”). 

However, Massachusetts is one of only four states in the United States that does not mandate sellers’ disclosures.  George Lefcoe, Property Condition Disclosure Forms: How the Real Estate Industry Eased the Transition from Caveat Emptor to ‘Seller Tell All’, 39 Real Prop. Prob. & Tr. J. 193, 250 (2004).  This lack of mandatory seller’s disclosures places brokers and agents in an awkward situation at the outset of any engagement.  Do they encourage their client to execute a disclosure form, or not?  The form would provide an additional layer of protection to the agent and broker, but unquestionably would increase their client’s risk of liability.  

Massachusetts laws and regulations create additional tension in the broker/agent and client relationship.  On the one hand, brokers and agents owe fiduciary obligations to their clients. See NRT New England, Inc. v. Moncure, 78 Mass. App. Ct. 397, 401 (2010).
 

confidentiality and nondisclosure on agents and brokers.  See 254 Code Mass. Reg. 3.00 (Professional Standards of Practice).

On the other hand, agents and brokers owe a competing duty to disclose material information to the opposing party in a transaction. 940 Code Mass. Reg. 3.16(2) states, as follows:  

Without limiting the scope of any other rule, regulation or statute, an act or practice is a violation of M.G.L. c.93A, § 2 if… (2) Any person or other legal entity subject to this act fails to disclose to a buyer or prospective buyer any fact, the disclosure of which may have influenced the buyer or prospective buyer not to enter into the transaction…

940 CMR 3.16(2) applies to agents and brokers.  Tragakis v. Angilly, 2006 WL 2848128, 4 (Mass. Super. 2006) (“A real estate broker has a duty, under G.L.c. 93A, § 2(c) and 940 CMR 3.16(2), to disclose to a buyer or prospective buyer any fact which may influence him or her not to enter into the transaction”); see also Rousseau v. Gelinas, 24 Mass. App. Ct. 154, 158 (1987) applying c. 93a to real estate professionals).  Consequently, although agents and brokers owe their clients duties of confidentiality, they also owe duties of disclosure to the opposing parties in a transaction and can face liability, including double or treble damages under c. 93a, for failing to satisfy their disclosure duties in a given transaction. 

Especially in the residential home sales context, the competing duties of confidentiality and disclosure faced by agents and brokers is unfair and unreasonable.  But, caveat emptor is alive and well in Massachusetts.  Generally, sellers of a “private home” are not required to disclose material defects about their home.  See Sullivan v. Five Acres Realty Tr., 2020 WL 8837439 (Mass. 2020) (rejecting seller liability for latent defects created by sellers despite evidence that sale occurred in the course of sellers’ real estate “business plan”).  Therefore, until Massachusetts sellers owe comparable disclosure obligations – like in the vast majority of states in the country – agents and brokers will face an unnecessary conundrum: protect their client or protect themselves? 

Robert Stetson is a construction and real estate litigation partner at Bernkopf Goodman LLP.  He can be contacted via email at: rstetson@bg-llp.com.

This blog entry was adapted from a webinar titled “Advising your Referral Source: A Primer on Real Estate Broker/Agent Liability” and is available here.

Advising Your Referral Source: A Primer on Real Estate Broker/Agent Liability (Video)

PresentationPowerPoint (PDF)

New Lawyers Tool Kit: Basics of Professional & Firm Marketing (Podcast S1E3)

MassHealth must file estate claims within three years of death

Meredith A. Fine

May 1, 2018: I was sitting in a breakout session at the spring REBA conference titled “Conveying Real Estate Out of Probate.” The

speakers were discussing a section of the new Probate Code called “Probate, Testacy and Appointment Proceedings; Ultimate Time Limit.” My mind wandered to the pastry-and-fruit table in the lobby. 

Fast forward to December 28, 2020. In a case of first impression, the Supreme Judicial Court ruled in favor of my clients, the heirs of
Jacqueline Ann Kendall, and against MassHealth (SJC Docket No. 12881). The Court said MassHealth has three years from the beneficiary’s death to file its claims on estates or the claim is barred forever.

The Estate had argued that the Probate Code was clear: More than three years from the date of death, a personal representative has the power only to sign title documents and pay estate expenses. Even if the personal representative wanted to pay the claim, she did not have the authority to do so.

MassHealth had argued that it had unlimited time to file estate claims and that requiring the agency to track the status of beneficiaries who were not in long-term care facilities would be unduly burdensome.

If one were to accept MassHealth’s argument, estates would never close, the Estate countered. Personal representatives would never be freed from their duties and from personal liability, and the estate’s interest in assets such as real estate would never be fully released.

The Court held: “G. L. c. 190B, § 3-108 (4), prohibits the filing of such claims after three years and prohibits the personal representative from paying any claims, and thus the claim here is time barred. The Legislature provided MassHealth with various advantages over other creditors, but it also created an ultimate time limit on the filing and payment of creditor claims against estates in § 3- 108, with no exception for MassHealth.”

Factual background

Ms. Kendall died intestate on August 7, 2014. At the time, she and her brother co-owned a house in Gloucester, where Ms. Kendall lived. She had never been in a nursing home. Instead, she received her medical care in hospitals and at doctors’ offices.

After she died, the family rented the house for four years. In 2018, Ms. Kendall’s brother and her three children decided to sell the property. On May 24, 2018, shortly after that REBA conference, I filed a Petition for Late and Limited Testacy in the Salem Probate & Family Court to appoint one of the daughters as personal representative in order to sign a deed. As required by the form, I mailed the petition to MassHealth.

The family intended to pay the $104,738.23 MassHealth bill but, as I was speaking to the Estate Recovery specialist, I remembered that REBA workshop. “I don’t think we can pay this,” I recall saying to her.

I informed MassHealth in writing that this claim could not be paid, pursuant to G.L.c. 190B s. 3-108(4), which says that more than three years, “the personal representative shall have no right to possess estate assets … beyond that necessary to confirm title thereto in the successors to the estate and claims other than expenses of administration shall not be presented against the estate.” 

MassHealth filed an Affidavit of Objection to the appointment of Ms. Kendall’s daughter as personal representative, seeking instead to appoint a public administrator who would pay the claim. In order to allow the sale to proceed, the Probate Court certified Ms. Kendall’s heirs and allowed me to hold the disputed amount in escrow. The sale was consummated on September 14, 2018.

After the parties filed motions for summary judgment, the Probate Court reported the case to the Appeals Court on April 23, 2019. On January 16, 2020, the SJC transferred the case to itself sua sponte.

REBA, the Massachusetts chapter of the National Academy of Elder Law Attorneys, the Massachusetts Bar Association, and the Abstract Club strongly supported the Kendall heirs. Attorney Thomas J. Carey Jr. of the Massachusetts Bar Association organized two moot courts the week before the oral argument, where my argument was politely but firmly shredded. Attorney Patricia Keane Martin appeared at the October 5, 2020, oral argument on behalf of the amici.

‘Plain and clear language’

Justice Scott L. Kafker, writing for a unanimous court, noted the Commonwealth’s longstanding policy of “promoting a speedy and efficient system for liquidating the estate of the decedent and making distribution to the decedent’s successors” embodied in G.L.c. 190B.

The Legislature has already given MassHealth advantages over other creditors, the Court said. First, MassHealth claims have higher priority than other creditors’ claims. Second, the Legislature exempted MassHealth from the one-year limit on claims. MassHealth can file its claim within four months after the personal representative’s bond is approved and MassHealth can seek the appointment of a public administrator, even more than one year from the date of death. In addition, MassHealth must be notified whenever a petition for probate is offered, unlike other creditors. 

The Legislature knew how to exempt MassHealth from requirements that applied to other creditors and specifically did not include an exemption for the agency in the three-year statute of repose in Section 3-108. “Where the Legislature intended for differential treatment for MassHealth in the probate process, it did so expressly,” wrote the Court. The language of the Ultimate Time Limit was “plain and clear.”

The Court continued, “The three-year ultimate time limit is a critical provision ensuring the orderly settlement and liquidation of estates in a relatively expeditious manner. We conclude that if the Legislature intended to create an exception for MassHealth to this ultimate time limit, it would have done so expressly in that particular provision.”

The Court gave weight to the fact that creditors, including MassHealth, have the power to open estates themselves. It also noted that the three-year limit on filing claims was originally stated in the Uniform Probate Code and has been adopted by at least nine other states.

The Court waved away MassHealth’s concern about how to receive notice of the deaths of beneficiaries who are not in nursing homes. Most estates will be settled quickly, said the Court. Furthermore, MassHealth knows when benefits cease and can follow up to ascertain a beneficiary’s status.  

As to MassHealth’s argument that heirs would wait out the three-year period to avoid paying MassHealth, the Court said the Legislature had already examined that possibility in a Comment to Section 3-803 and deemed the risk low. “The Legislature’s risk assessment and overall cost-benefit analysis is entitled to respect,” said the Court.

Conclusion

The Legislature has amended the Probate Code several times since it was first passed, including adding language emphasizing the very limited nature of the personal representative appointed in a late and limited testacy. If MassHealth objects to a time limit on its claims, its redress is with the Legislature, not the courts. At some point, estates must close and personal representatives must be released from their duties. 

Meredith A. Fine has offices in Gloucester and Ipswich, where her practice focuses on real estate, litigation and business counseling. She is a member of REBA’s Ethics Committee. She can be reached through her website, capeannlegal.com. 

Unpublished Appeals Court 2020 Decisions Involving Municipal Conservation Commissions

Gregor I. McGregor

Three selected 2020 summary decisions of the Massachusetts Appeals Court illustrate, in brief and crisp opinions, the types of

situations heard by Conservation Commissions, thorny issues the disputes can present, arguments presented by the opposing parties, court review of a tribunal’s decision, and…  how a well-maintained document record, well-run deliberation, with a well-written decision can win the day, even if years after, in litigation in the nature of certiorari.

A summary decision pursuant to the Appeals Court rules, as these three are, is labelled an unpublished disposition or opinion, may be cited for its persuasive value but, because of the limitations to it, not as binding precedent. It is a decision of the panel of judges who heard the case, limited to the facts stated, and not an opinion of the full Appeals Court. Therefore, it is educational and useful, but not legal precedent in other similar or even identical situations.

Zani v. Town of Ashland, 98 Mass.App.Ct. 1108 (August 10, 2020) Unpublished Disposition

In 2018, the parties entered into settlement negotiations, over an order of conditions, required restoration, and a large money penalty, which were memorialized in a series of e-mail messages. Zani was represented at the time by an attorney. Town counsel sent him an e-mail offering to reduce the fines to $300 as long as the plaintiff agreed to comply with the order of conditions. Zani’s attorney agreed in court, but Zani later said he did not, and anyway the settlement was never finalized.

The Appeals Court addressed whether the many emails constituted an enforceable settlement. Under the law set in early cases, “An enforceable agreement requires (1) terms sufficiently complete and definite, and (2) a present intent of the parties at the time of formation to be bound by those terms.” The first is a legal question, the second a factual issue. “Sufficient completeness depends upon the substance of the terms approved by the parties”. If an absent term was a subsidiary matter (here whether the deal turned on there being a successful meeting with the Commission about the work to be done) that did not alter the essential nature of the bargain, then there was a contract that could be enforced.

On this the Appeals Court said, “We conclude that the parties’ e-mail messages evidenced a sufficiently complete and definite agreement to settle the plaintiff’s claims. As reflected in the messages, the parties agreed that the plaintiff would dismiss his claims and comply with the order of conditions in return for the town’s reducing the $50,000 fine to $300.” Thus, the emails contained all essential terms, they did not include having a Commission meeting, and therefore the agreement was final.

On the point of Zani’s intent to be bound by those terms, the Appeals Court stated: “For similar reasons we are unpersuaded by the plaintiff’s argument that he did not intend to be bound by the settlement agreement. Although the agreement was not formally executed, “[i]f ... the parties have agreed upon all material terms, it may be inferred that the purpose of a final document which the parties agree to execute is to serve as a polished memorandum of an already binding contract.” Thus, it did not matter the deal was not reduced to a single written document signed by the parties, or that it was not submitted to the judge below. 

Won v. Creighton and Cohasset Conservation Commission, 98 Mass.App.Ct. 1107 Unpublished Disposition (August 6, 2020)

Plaintiff Won filed a certiorari complaint against the Commission seeking a declaration that the failure to issue its denial on Won’s storm water permit application, under a storm water bylaw the Commission administers with the wetland bylaw, within 21 days after the “close of the public hearing” resulted in a constructive grant of the application, that is the permit would be deemed granted. 

One Superior Court judge ruled that it was deemed granted, a second judge ruled that it was not, and the Appeals Court sidestepped the issue by ruling that Won effectively had abandoned the claim by requesting a new hearing on the application after the 21-day period had expired and then withdrew the application after the Commission indicated it had additional concerns. 

Thus, it remains to be decided in future case if, under the Cohasset storm water permit bylaw, a lapse of 21 days after the close of the hearing, constitutes a grant of the permit. In contrast, you know, inaction after 21 days under a wetlands bylaw results in loss of local-bylaw jurisdiction over the project, and the eventual Superseding Order of Conditions issued by MassDEP governs the project. 

Rochester Bituminous Products, Inc. v. Rochester Conservation Commission and Edgewood Development Corporation, LLC, 98 Mass.App.Ct. 1118 Unpublished Disposition (November 12, 2020)

Rochester Bituminous challenged a three-year extension given to Edgewood Development seven years after an older order of conditions allowing Edgewood’s asphalt plant, which had been the subject of a lengthy court appeal and also had been extended four years by the Permit Extension Act. 

The grounds alleged were that the extension was unsupported by substantial evidence because it was not based on a new wetland delineation, and it is “possible” that the wetlands had changed over the years.  You already know that extension decisions are not appealable to MassDEP, rather to Superior Court in a certiorari action. 

The regulations governing extensions of such orders, however, allow for multiple extensions for periods of up to three years each. Furthermore, the MassDEP regulations set forth criteria for denying an extension request.

Essentially the Commission (or MassDEP) may deny a request for an extension and require the filing of a new notice of intent (NOI) or notice of resource area delineation (jurisdictional ruling) in specific circumstances. Three of them apply here: where no work has begun on the project, except where such failure is due to an unavoidable delay, such as appeals, in the obtaining of other necessary permits; where new information, not available at the time has become available and indicates that the Order is not adequate to protect the interests identified in the Act; or where a resource area delineation or resource area delineation certification is no longer accurate. 

The Appeals Court upheld the Commission and the Superior Court, saying: “The substantial evidence shows that none of the articulated reasons to deny an extension was present. To the contrary, the record reveals…that the commission took reasonable steps to satisfy itself that the delineation remained accurate. Edgewood’s environmental scientist’s explanation that the wetlands at issue are highly maintained, man-made wetlands with steeply defined perimeters supports the inference that expansion of the wetlands was unlikely. Rather than rely on inference alone, however, the commission reviewed aerial photographs, conducted a site visit, questioned Edgewood’s environmental scientist, and sought the opinion of the town’s conservation agent.”

The Appeals Court noted, “In addition, no authority supports the plaintiffs’ contention that because the composition of the commission has changed, the commission should reconsider the order anew.”

Thus, the Commission won, having reviewed the facts in a record, applied the right criteria, articulated its reasons in its decision granting the extension. 

A founder and current co-chair of REBA’s Environmental Law Section, Greg McGregor is also the founder of the Boston-based environmental law firm, McGregor & Legere, PC, which handles environmental, land use, and real estate matters, plus related litigation. He is also a founding member of the Environmental Law Network, an alliance of specialty law firms in the United States and abroad, sharing expertise and experience for the benefit of their clients.   Greg can be contacted by email at gimcg@mcgregorlaw.com.

News and Updates from the Massachusetts Registries of Deeds (podcast)

Resolving Vexing Title Problems (Video)

VINNIE ADMITS THAT HE DOESN’T CHARGE ENOUGH

 Paul F. Alphen

My Cousin Vinnie, the suburban real estate attorney, got vaccinated and felt it was now safe enough for him to visit me in Falmouth and watch me replace some of the electronic equipment on my daughter-in-law’s boat. “Why don’t you pay somebody to do this? It can’t be comfortable scrunched down there inside the little center console messing around with all those wires.” I tried to explain to Vinnie that marine electronics is one of my hobbies, and I enjoy being scrunched up inside the center console, and its very expensive to engage a real boat electronics installer.

“How much could they charge?” Vinnie asked. I told him: “They start at $120.00 per hour, per person, and they usually use two people. They also charge for every rubber glove, rag, wire tie and connector.”

Vinnie couldn’t believe it. “$240.00 an hour!? I was charging $240.00 an hour in 2008! But I know I don’t charge enough. I had to retain counsel to help me with my mother’s estate, and it was not inexpensive. Then there was the time I had to retain a litigator for that frivolous little problem a few years back; and that cost me as much as a car! Why don’t real estate attorneys charge like other attorneys?”

At first, I thought he was asking a rhetorical question. After a few moments of silence, I realized he was looking for an answer. I gave him my opinion:

“It’s a tradition. Prior to one of the financial crisis of the 1990’s our good lender clients allowed us to charge $1,000 or more to be lender’s counsel. Then one day, the market died and the fees were cut to a flat fee of around $350 per closing. The fees have not risen considerably since then. We are afraid to raise our fees, because we think people will just take their business elsewhere. The general public is oblivious to the fact that title examinations have become very complicated. Most homes have been sold or refinanced numerous times in the past 20 years, resulting in piles of mortgage paperwork fraught with potential errors.  Lenders have come and gone, leaving a trail of mis-prepared or mis-indexed mortgages, assignments and discharges. These days we expect that every title will have a problem, and when we identify the problem, everyone expects us to solve the problem. For gratis.”

“Not to mention that in 1980 a subdivision approval consisted of a two-page decision. Today the decisions are 20 pages long and the records includes a few seven-page declaration documents, a homeowner’s trust and a bunch of easement agreements. Somebody has to read and understand all that stuff.”

Vinnie responded: “And there are still plenty of lawyers out there who prepare documents for less than the registry charges to record them.”

“Everyone wants to save money. I have no sympathy for the guy who bought the lot of land here in Falmouth through an online auction. He admitted that he had not used an attorney, even though, according to the case[i] the buyer owns 13 properties in 5 states. He bought the lot so that he could park some of his 7 vehicles on the lot so he could walk to the free bus that goes to the ferry terminal, and then take the ferry to his summer home on the Vineyard. After a two-year battle with the neighbors, the court determined that the lot was good for planting tomatoes, and not much else.”

“Awesome” said Vinnie. “I wouldn’t be surprised if his litigation expenses cost him more than he paid for the lot.”

[1] [Halewijn v. Hurrie, No. 18 MISC 000697 (RBF), 2020 WL 5094679, (Mass. Land Ct. Aug. 27, 2020), judgment entered,]

“Contemplations, Ruminations and Musings of a Country Lawyer” is Paul Alphen’s regular column in REBA News.

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