Friday, July 19, 2019

Land Court Department of the Massachusetts Trial Court

By Hon. Gordon H. Piper

I am honored to have been asked to offer a few initial observations about the Land Court Department, from my new perch as its Chief
Justice, a role I assumed at the end of October last year.  I thank Trial Court Chief Justice Paula M. Carey for selecting me to serve.

We at the Land Court relish our status as the smallest of the seven departments of the Trial Court. Our seven justices hear cases from every corner of the Commonwealth.  We “have gavel, will travel,” trying cases from Pittsfield to Nantucket, and in many courthouses in between.  Our center of gravity does remain the high-rise courthouse on Pemberton Square in Boston, where most hearings take place, the Recorder’s office is located, and the court’s legal, title examination and surveying experts are based. 

We also are enthusiastic about our responsibilities to adjudicate cases placed in our specialized jurisdiction. Our justices--and everyone else at the Land Court--appreciate the trust placed in us to understand and apply the law in a broad range of real estate related cases.  We understand that lawyers and parties come to the Land Court expecting us to be up to speed and engaged on the subject matter with which we have been entrusted.  While many of our judicial colleagues sitting in other departments of the Trial Court (and even some members of our own families) may quietly wonder, looking at the types of cases we hear, how the judges of the Land Court get up and come to work each morning, I assure you that we do so with gusto.  We value role we play in the development of the common law of real estate in Massachusetts.  

I have taken on my new job at a time of considerable change and opportunity at the court.  My immediate predecessor, Chief Justice Judith C. Cutler, reached the age of retirement after a decade on the bench, the last five years as our Chief.  And her predecessor, Chief Justice Karyn F. Scheier, also retired at the end of 2018; she had been a member of the court since 1994, including ten years as Chief Justice.  These two distinguished jurists left indelible positive marks on our court and the Commonwealth’s judicial system. 

We were delighted to welcome in January of this year Justice Jennifer S. D. Roberts and Justice Diane R. Rubin, who came to the Land Court after long years of prominent private practice and are leaping into their new positions, taking on very ample caseloads.  They join four other greatly accomplished and respected Associate Justices, Hon. Keith C. Long, Hon. Robert B. Foster, Hon. Howard P. Speicher, and Hon. Michael D. Vhay.  It is good to have our right-sized court up to its full fighting strength, at least for now. And I am grateful not only for the talent and dedication of my judicial colleagues, but of the entire leadership and staff of the court, including (but by no means limited to) Recorder Deborah J. Patterson, Deputy Court Administrator Jill K. Ziter, Deputy Recorder Ellen M. Kelley, Chief Title Examiner Edmund A. Williams, and Chief Surveyor Stephen LaMonica. 

Improvements over the last several years in the general and real estate economies of the Commonwealth have brought a change in the mix of the court’s work.  When the real estate markets were moribund, and property values stayed stagnant, a disproportionate share of the court’s work concerned mortgage foreclosure and tax lien foreclosure matters, and others arising out of transactions and development plans in distress. Servicemembers Civil Relief Act cases have declined somewhat from the peak of more than 30,000 new cases filed in a year. More recently, an increasing percentage of our case load is driven by the state’s vibrant development activity–zoning and subdivision permit appeals, including some arising out of very large and complicated project plans.  We also have rapid growth in the court’s volume of partition cases, with common owners of land seeking the court’s aid in equitably dividing their joint real estate asset. Both land use and partition cases demand additional courtroom time, and more legal research and writing, continuing the pressure on the judges and staff of the court to keep up. 

The court, which labors a bit with an undeserved reputation as a place of green eyeshades and quill pens, is moving ahead with a number of twenty-first century innovations.  Like the rest of the Trial Court, the Land Court has embarked on e-filing of cases.  We are underway with an initial pilot program in our Servicemembers Civil Relief Act case type, our largest by volume, and expect soon to expand that pilot to include more filers, before opening those cases to e-filing by all lawyers and firms.  Following that, we intend to pilot e-filing in another large category of cases, those seeking the foreclosure of the right of redemption following real estate tax lien takings.  Over the next several years we will push to bring e-filing to a wide variety of the court’s docket, including most of our Miscellaneous case types.  The density of pleadings filed in many Land Court cases–a number of which include large plans, lengthy reports, and other challenging exhibits–may present some challenges, but the court shares with the bar the goal of being able over the coming years to have filed and accessed on line most of our ordinary case types.  We soon will launch in at least one of the court’s sessions a trial of a “judicial tools” setup, which should allow the judge and clerk in that session to work with digital versions of many of the filings in the cases that judge is hearing.

We also have commenced work on modernizing the computer systems used by our Surveying Department, with the intention to have current drafting and survey production and indexing capabilities in use.  The court is the repository of registered land plans from across Massachusetts dating back to soon after the founding of the Land Court in 1898, and, in later phases of this project, we hope to have digitized many of these critical plans, to enhance access to them by the bar, surveyors, and the public.

In a continuing effort to provide more efficient hearing and disposition of contested cases, a committee now chaired by Justice Speicher is convening, and will look over the court’s rules, standing orders, and procedural practices, building on past rules changes to expand opportunities to expedite, simplify, and reduce the cost of litigation in the Land Court.  We anticipate soliciting the involvement of the bar and other stake holders in this effort over time.  A related effort will look over the court’s mediation and other alternative dispute resolution process and methods.  While we of course will insure every litigant the chance to have his or her case decided by the court, we acutely are aware that not infrequently the best resolution is one the parties themselves reach.  We intend to seek out more and better ways to facilitate that.

One area of the court’s business that continues to grow in volume and complexity are the many cases subsequent to registration, our “S-cases,” in which the court is asked to make orders relative to the certificates of title for registered land.  Our long-time Chief Title Examiner, Edmund Williams, soon will be retiring after decades of extraordinary service to the court, the conveyancing bar, and the citizens of the Commonwealth.  He has helped the court issue extensive guidelines and guidance to the court’s land registration districts and the real estate bar.  His successor, once selected and in place, will be challenged to hold to the high standards of the court’s Title Examination Department, and to continue positive strides made in the processing of the important S-case petitions.  The last comprehensive revision to the court’s Guidelines on Registered Land issued in 2009, and the new Chief Title Examiner will work closely with the justices of the Land Court, with the input of the court’s Assistant Recorders and the bar, to make any needed updates and expansions to those guidelines.

My new post as Chief Justice of the Land Court presents exciting opportunities and challenges.  I am grateful to have the very best judicial colleagues, court leaders, and so many other members of the Land Court team working alongside me, helping the court achieve great things for the users of the court and the citizens we serve.

A former president of the association, Chief Justice  Piper has served on the Land Court since 2002.  Trial Court Chief Justice Paula M. Carey appointed him Chief Justice last October.  This article originally appeared in the Boston Bar Journal, a publication of the Boston Bar Association.





Implications and Complications Associated with Developing Affordable Condominium Units

Thursday, July 18, 2019

Timeshare Exit Scams


By Laura Brandow

A few weeks ago, the CBS Evening News reported on an elderly couple who in looking to sell their timeshare, ended up paying over
$18,000.00 to an exit company who promised to assist the couple in “terminating” their timeshare contract. They paid, and today they still own the timeshare.1 Now you may wonder why in the world the couple continued to fork over money to the exit company with no result in sight, and the couple admits to being embarrassed over their own naiveté, but this is exactly what exit companies count on.

Now you may wonder why in the world the couple continued to fork over money to the exit company with no result in sight...

While there are legitimate exit companies who sincerely and ethically assist owners in selling their timeshares, the industry has become infiltrated with companies who guarantee they can get you out of your timeshare - but for a substantial fee. You’ve probably seen the proliferation of ads on the internet and television attesting to the success rate of these companies. These advertisements scare you into believing that you will be unable to sell, be burdened with ever-increasing maintenance fees and that your children will be liable for the maintenance fees after your death. They claim to use secret proprietary methods they have developed that “guarantee” to get you out of your timeshare. Some even have celebrity endorsements and claim to have excellent BBB ratings and have websites filled with many testimonials from satisfied customers but with very little actual detailed content.

All these advertisements would lead one to believe that timeshare owners are highly dissatisfied with their timeshares when in actuality, timeshare ownership continues to be one of largest growth areas in real estate. According to the American Resort Development Association (“ARDA”, which was established as the trade association representing the vacation ownership and resort development industries to combat marketing abuses and promote the growth and development of the timeshare industry and is actively involved in local, state and national governmental affairs), 83% of all timeshare owners are satisfied with their timeshare. The Better Business Bureau (the “BBB”) conducted the investigation which CBS reported on after receiving thousands of complaints. The BBB found that out of the 9 million or so timeshare owners, 1.5 million are seeking an exit from their timeshare. With so many people looking to exit, more exit companies continue to pop up because fraudsters recognize an easy way to make millions of dollars by preying on the lack of knowledge of consumers. As the old saying goes, even a broken clock is correct twice a day, and some exit companies do manage to get results for some clients. However, it is their methods that have raised the ire of the timeshare industry, even causing several of the larger timeshare companies to file lawsuits against exit companies, including their celebrity endorsers, such as national syndicated radio host Dave Ramsay who for years endorsed an exit company on his radio show. Lack of knowledge on the part of the owners assists the exit companies. Owners fail to read their condominium documents, fail to contact the resort about exit options, and fail to take a little time to do some research into exit options and the exit company itself.

Aside from the legitimate exit companies, the fraudulent companies generally fall into two categories: Those that basically do nothing more than collect their fee and send one or two nonsensical letters to the resorts making vague allegations of fraud and demanding contract termination and that the resort “take back” the timeshare; and those which send out numerous letters to the resort claiming fraud, misrepresentation, resort mismanagement and demand every piece of documentation under the sun in the hopes that by overwhelming the resort with their demands, the resort will give in and “take back” the timeshare in order to avoid potential litigation. The exit companies claim the owners associations are the successors in interest to the developers, and are thus directly liable for any sins of the developer. The owners association was not a party to the sale of the timeshare and may have no knowledge of what occurred at time of the sale or any documentation from the sale. The exit company is betting that their threats will scare the resort into agreeing to assume title to the timeshare in order to avoid potential litigation. These companies also advise the owners to stop making their maintenance fee payments and demand the owners and the resort have no further contact with each other – thus preventing the resort from advising the owner as to any sales or exit program it may have in place.

A common misperception amongst timeshare owners is that the timeshare is a contract that can be terminated. In Massachusetts, ownership is thru a recorded deed or license. The majority of exit companies do not understand state conveyancing and timeshare law nor do they care to. They are not based in the state where the resort is located and do not conduct research as to how title to the timeshare week may be held. Instead, they send a “one size fits all” form letter to the resort demanding termination of the contract and make numerous allegations against the resort, claiming the initial sale process was somehow illegal or unethical, that the owners were promised the timeshare was a good investment and would be easy to sell. If the exit company engages a law firm, then the resort is also subjected to allegations of violations of the Federal Fair Debt Collection Practices Act, Massachusetts consumer laws, and common law fraud. The exit law firms make demands on the resort for any and all documentation as to budgets, financials, minutes, contracts, loans for the last several years as part of their “investigation” into how the resort is being run and managed. Should the resort find such a document demand to be too cumbersome, then the exit company states it will agree to drop any and all claims the owner may have against the resort if they simply agree to take back the timeshare at no cost to the owner. The resorts are forced to either capitulate to the exit companies’ demands or engage legal counsel to respond to such accusations.

The demand to “take back the inventory” rings hollow as the resort owners association has no obligation to take title to deeded or licensed real estate of an owner. There have even been numerous instances where the exit company sent a congratulatory letter to the owner that they successfully persuaded the developer or resort to take back the timeshare and have the owners execute a deed conveying title to the developer or resort, which is then recorded, all without the knowledge or permission of the developer or resort.

Some exit companies give unsuspecting owners the false assumption by their name and website that they are in fact a law firm, and not a group of people simply sending out form letters and working the phones. Some exit companies engage complicit law firms to send the appropriate correspondence to the resort without ever advising the owner of the use of the outside law firm.

Timeshare ownership continues to be one of largest growth areas in real estate. Consequently, as with any purchase of real estate, buyers need to perform due diligence before purchasing and understand their options on selling when they are no longer able to use the timeshare. A common complaint of owners is that there is no easy mechanism to sell a timeshare. If you own property in Boston, you can engage a broker who will advertise on your behalf, hold showings and find a buyer who wants to own or live in Boston. With a timeshare it is more difficult to sell as you need to find a buyer who wants to buy into your particular resort or timeshare club. The buyer pool becomes much, much smaller.

Any owner seeking to sell their timeshare should always contact their resort first. As the vacation and travel needs of aging original owners have changed, the vast majority of resorts have realized that responsible exit programs needed to be developed. The larger timeshare resorts have developed either resale programs for owners to enter with an on-site broker or an exit policy that allows an owner to pay a one-time fee in exchange for the resort to assume title to the timeshare. The resale programs charge a brokerage fee and closing costs just as when selling residential property. The resort exit policy typically costs far less than what an exit company would charge and with use of an exit company, the resort will still require payment of its exit policy fee, so an owner ends up paying twice by engaging the exit company. If the owner is also a member of an exchange company, they should contact the exchange company for alternative exit options. ARDA and several large timeshare companies have developed a website – ResponsibleExit.com – which provides information and resources for timeshare exit options. ARDA’s main website, ARDA.org also has recommendations for sale of timeshares and lists of legitimate exit companies. Owners can save money, time and avoid stress by taking the time to do a little homework.

1. CBS Evening News, Timeshare exit companies may be scamming customers, aired June 5, 2019.


Should you have any questions regarding this article, please do not hesitate to contact Laura Brandow at 781-817-4900 or by email at lbrandow@lawmtm.com.

Laura Brandow

Laura has over twenty-five years of experience as a practicing attorney in Massachusetts and New Hampshire. Laura specializes in the area of time share condominiums and vacation clubs and provides representation to national clients in connection with resort and time share developments, as well as to traditional condominium associations in Massachusetts and New Hampshire. Laura provides a wide range of services for her clients including governance and enforcement of association rules and regulations, and collection of condominium fees and time share management fees and membership payments. Laura has a special concentration in foreclosure, bankruptcy and lien enforcement issues for both residential and time-share condominiums. Laura also represents several local New England banks on all aspects of mortgage foreclosures.


Laura has lectured on condominium lien issues for the Massachusetts Conveyancer’s Association, Massachusetts Real Estate Bar Association, MCLE and on time-share issues for the American Resort Development Association and is a member of the MA and NH Bar Associations as well as a member of REBA and the American Resort Development Association. Laura is also a contributing author for MCLE’s Massachusetts Mortgages, Foreclosures and Workouts and Massachusetts Condominium Law.

Originally posted June 25, 2019 on tlawmtm.com.


Wednesday, June 26, 2019

Hostile Environment Harassment


In some cases, an Association is justified in taking a hands-off approach to resident against resident complaints. This is not one of them. In fact, an Association has certain affirmative obligations to
address hostile environment harassment, not only by its own members or agents, but also by third parties (residents) if it knew or should have known of the conduct/harassment. The stakes for potential Association liability are high, so let’s review what hostile environment harassment is and what an Association can and must do.

Hostile environment harassment is unwelcome conduct upon a member of a protected class that interferes with the use or enjoyment of housing or housing-related activities.

What is Hostile Environment Harassment?
Hostile environment harassment is unwelcome conduct upon a member of a protected class that interferes with the use or enjoyment of housing or housing-related activities. The harassment must be sufficiently severe and pervasive to create a hostile environment. The conduct could be a single instance or multiple instances of harassment.

In 2016, HUD published a final rule regarding harassment and fair housing, which can be found here. The HUD rule also addresses quid pro quo harassment, which is not discussed in detail in this article.

When Can an Association be Held Responsible?
An Association can be held be responsible for Board members, agents and employees that create a hostile living environment (direct harassment) as well as for resident conduct if the Association knew or should have known of the discriminatory conduct or harassment, had the power to correct it and failed to address it (third party harassment).

This means that the Association has an affirmative obligation to address certain resident on resident harassment.

This also means that the Association does not need to receive a specific complaint to be held responsible. The Association could be held responsible if, for example, a Board member, property manager, or maintenance person observes conduct that amounts to hostile environment harassment and fails to take appropriate measures to stop it. The resident would not have to make a formal complaint to trigger liability.

How Can an Association Protect Itself?
Protecting your Association from a hostile environment harassment claim starts with having appropriate policies and procedures in place, including:

• Educating board members, managing agents and staff on fair housing and anti-discrimination obligations on a regular basis;

• Enacting an anti-harassment policy; and

• Establishing procedures for receiving and processing harassment/hostile environment complaints from resident and internal channels.

If an Association receives or has notice of a hostile environment harassment complaint, it is important that the Association acts promptly; it can’t be hands-off. Initial response may include:

• Respond and acknowledge receipt of verbal or written complaint/notice of harassment;

• Investigate the claim and obtain information about how many incidents occurred, the severity of the incidents, what happened, how has the resident been affected and whether the incident is related to the resident’s membership in a protected class. An investigation may also include reviewing security footage and interviewing residents, board members or witnesses.

• Remind residents that if they feel they are in immediate danger to contact local police.

• Offer resource information to the resident on obtaining a Harassment Prevention Order through the local District Court.

• Be sensitive to the resident and follow all rules on receipt and maintenance of confidential and private information.

After an investigation of the facts and a review of the enforcement measures permitted by your Association’s governing documents, the Association may need to take one or more of the following measures: send a warning letter or violation notice, impose fines, seek a court-ordered injunction or connect residents with dispute resolution services. It is best to consult with legal counsel as soon as possible about the appropriate steps to take in response to a hostile environment harassment complaint.

If you have questions about your Association’s harassment policies and procedures or have received a harassment complaint, call us for more information at 781-817-4900 or email Katherine Brady at kbrady@lawmtm.com.

Originally posted June 25, 2019 on tlawmtm.com.


Kate is an associate in the firm’s litigation department. Kate comes to MTM with years of experience in condominium and real estate litigation and recognized expertise in fair housing, affordable housing and the myriad of statutes and regulations which apply.

In her litigation practice, Kate has handled complex transitional litigation including phasing disputes, construction defect claims and related matters. Most recently in her work with the City of Boston Kate was intimately involved with the development of housing policies including drafting and testifying in support of bills that would increase homeownership opportunities for middle income households, incentivize the preservation of naturally occurring affordable housing, prevent family homelessness and enhance tenant protections.