Friday, March 16, 2018
Tuesday, March 6, 2018
Making Reasonable Modifications and Accommodations for Residents with Disabilities: What Does the Law Require and How Can Condominium Associations Avoid Violating It?
It seems there has been a recent surge in the number of news stories about travelers bringing exotic animals and other livestock ontoairplanes as emotional support animals. In fact, the popularity of animals on commercial flights has become so great that some airlines have begun taking a proactive approach to the new trend by revisiting and revising their policies on the subject. Making accommodations for those with emotional support animals, however, is by no means limited to the airline industry. As Kim Bielan wrote last fall in her article, Accommodating Reasonable Accommodations for Service and Emotional Support Animals, fair housing laws that provide individuals with disabilities the protection to have emotional support animals—which are distinct from and are not to be confused with trained service animals—also extend to the condominium context. In addition to providing for support animals in private housing, state and federal laws also impose obligations on condominium associations to make certain reasonable accommodations and/or modifications for persons with disabilities. Such obligations are meant to afford everyone the ability to use and enjoy their property, regardless of disability status.
As the number of public discussions surrounding disability accommodations continues to rise, condominium associations will likely receive more requests from residents to make exceptions to policies or to make modifications to the existing premises. For example, requests for additional disabled parking spaces, wheelchair ramps, and automatic doors are not uncommon. This area of law is complex, and it can be confusing for associations. The questions we hear from trustees often relate to what the law requires and who is responsible for the cost. My goal in writing this article is to provide a background of the disability discrimination laws that most often impact condominiums and to give you a blueprint of sorts to use as a starting point if and when a unit owner asks for an accommodation or modification of the property.
Such obligations are meant to afford everyone the ability to use and enjoy their property, regardless of disability status.
Both the state anti-discrimination statute, Massachusetts General Laws Chapter 151B, and the federal Fair Housing Act, 42 USC §3604 (and their respective regulations) prohibit disability-based housing discrimination. Importantly, these laws apply to condominiums to the same extent as other forms of housing. In some cases, and as I’ll explain below, state law imposes even greater responsibilities than the federal statute.
Under the state and federal law, it is considered discrimination for a condominium association to refuse to make reasonable accommodations in rules, practices, policies, or services when such accommodations are necessary to afford a disabled person equal opportunity to use and enjoy the premises, including private units and public and common use areas. Whether such an accommodation is reasonable, requires highly fact-specific inquiry and a case-by-case determination, but cost alone is typically not sufficient to render an accommodation unreasonable.
Example 1. A condominium has a “no pets” policy. A deaf resident requests that the association allow him to keep a dog in his unit as a reasonable accommodation. The resident explains that the dog is an assistance animal that will alert him to several sounds, including knocks at the door, sounding of the smoke detector, the telephone ringing, and cars coming into the driveway. The association must make an exception to its “no pets” policy to accommodate this tenant.
Example 2. A condominium has a policy of providing unassigned parking spaces to residents. A resident with a mobility disability, who is substantially limited in her ability to walk, requests an assigned accessible parking space close to the entrance to her unit as a reasonable accommodation. There are available parking spaces near the entrance to her unit that are accessible, but those spaces are available to all residents on a first come, first served basis. The association must make an exception to its policy of not providing assigned parking spaces to accommodate this resident.
Example 3. As a result of a disability, a resident is physically unable to open the dumpster placed in the parking lot by the condominium association for trash collection. The resident requests that the association send a maintenance staff person to his unit on a daily basis to collect his trash and take it to the dumpster. Because the association is a small operation with limited financial resources and the maintenance staff are on site only twice per week, it may be an undue financial and administrative burden for the association to grant the requested daily trash pick-up service. Accordingly, the requested accommodation may not be reasonable.
State and federal law also prohibit refusing reasonable modifications of existing premises occupied or to be occupied by such person, if the modifications are necessary to afford the individual full enjoyment of the premises. Examples of such modifications could include ramping the main entrance of a condominium, lowering kitchen cabinets inside of a unit, and installing a shower grab bar. There must be an identifiable relationship between the request and the individual’s disability.
Example 1. A tenant, whose arthritis impairs the use of her hands and causes his substantial difficulty in using the doorknobs in his apartment, wishes to replace the doorknobs with levers. Since there is a relationship between the tenant’s disability and the requested modification and the modification is reasonable, the housing provider must allow him to make the modification at the tenant’s expense.
Example 2. A resident with a mobility disability asks the condo association to permit him to change his roofing from shaker shingles to clay tiles and fiberglass shingles because he alleges that the shingles are less fireproof and put him at greater risk during a fire. There is no evidence that the shingles permitted by the association provide inadequate fire protection, and the person with the disability has not identified a nexus between his disability and the need for clay tiles and fiberglass shingles. The association is not required to permit the modification because the resident’s request is not reasonable and there is no nexus between the request and the disability.
While both statutes make it unlawful to refuse to permit reasonable modifications, federal and Massachusetts law differ with respect to who is responsible for the cost of the changes. Under the FHA, reasonable modifications must be allowed at the expense of the disabled resident. However, the FHA, as with all federal law, establishes only the minimum requirements with which state laws must comply. Thus, states can impose additional requirements as long as the federal minimum is met.
The Massachusetts anti-discrimination statute, unlike the FHA, sets forth that reasonable modification could come at the expense of the association, as opposed to the resident. Pursuant to state law, the question of who pays for a reasonable modification begins with: 1) the total number of units in the condominium and; 2) ownership of the area to be modified
Under the Massachusetts statute—and barring undue hardship, which I will explain below—condo associations for properties with ten or more units could be responsible for the cost of making reasonable modifications to parts of the existing premises which are owned by the association as common area. For example, Massachusetts law states that where a condominium contains at least ten units, and the front entrance to the building in which a unit is located consists of no more than five steps, installing a wheelchair ramp for a disabled resident is a reasonable modification that could come at the expense of the association.
As with accommodations to rules or policies, however, whether a modification is reasonable is a case-by-case determination that requires a highly fact-specific inquiry, and the analysis does not end with the individual characteristics of the resident. Indeed, even if the modification is necessary to afford the disabled individual full enjoyment of the premises, it could nevertheless be deemed unreasonable. Under Massachusetts law, for example, modification to condominium common area paid for by the association is not reasonable—and therefore, is not required—if it would cause an undue hardship.
There is no bright-line rule for what constitutes undue hardship, so courts look at a variety of factors. Some of the factors that a court might consider when determining whether the burden caused by paying for an otherwise reasonable modification rises to the level of undue hardship include:
▪ the nature and cost of the modification needed;
▪ the nature and cost of the modification needed;
▪ the extent to which the modification would materially alter the marketability of the property;
▪ the overall size of the property, including but not limited to, the number and type of units, size of budget, and available assets, and;
▪ the ability of the association to recover the cost of the modification through a federal tax deduction.
It is important to understand that these factors and any other relevant information are considered as a whole, rather than in isolation.
▪ Create a procedure for handling reasonable accommodation/modification requests and make residents, and prospective residents, and board members aware of this policy. It should state, at minimum, how a person may request an accommodation or modification, to whom the person should make the request, and the time frame for approvals. This may aid individuals with disabilities in making requests and it may aid associations in handling requests. Further, in the event of a dispute later on down the line, having a procedure in place could help provide records to show that a request received proper consideration. NOTE: A request may not be refused because a resident fails to follow the procedure adopted by the association, and a request need not include the words “reasonable accommodation.”
▪ Seek only information that is needed to evaluate if a requested accommodation/modification may be necessary because of a disability:
- If the individual’s disability is obvious or otherwise known, and if the need for the requested accommodation/modification is also readily apparent or known, the provider (i.e., the condo association) may not request any additional information.
- If the disability is known or readily apparent to the association, but the need for the accommodation/modification is not, the association may request only information that is necessary to evaluate the disability-related need (i.e., whether the accommodation/modification is needed due to the disability). Such information must be kept confidential, and it must not be shared with other persons unless they need the information to make or assess a decision to grant or deny an accommodation/modification request, or unless disclosure is required by law (e.g., a court-issued subpoena requiring discloser).
- If the disability is not known or obvious, the association may request reliable disability-related information that: 1) is necessary to verify that the person meets the definition of being disabled (i.e., she has a physical or mental impairment that substantially limits one or more major life activities); 2) describes the needed accommodation/modification, and; 3) shows the relationship between the person’s disability and the need for the requested accommodation/modification.
Depending on the circumstances, information verifying that the person meets the definition of disabled can usually be provided by the individual herself (e.g., proof that an individual under the age of 65 receives Supplemental Security Income or Social Security Disability Insurance benefits, or a credible statement by the individual). A doctor, a peer support group, a non-medical service agency, or a reliable third party who is in a position to know about the individual’s disability may also provide verification of a disability. In most cases, a resident’s medical records or detailed information about the nature of a person’s disability is not necessary for this inquiry.
▪ Provide prompt responses to reasonable accommodation/modification requests as an undue delay in responding may be deemed to be a failure to provide a reasonable accommodation/modification.
▪ Treat each request on an individual basis.
▪ Engage in an interactive process with the person requesting an accommodation/modification, even when the request would pose an undue burden.
- If the request is unreasonable, it is advisable to discuss with the resident whether there is an alternative accommodation/modification that would effectively address the requester’s disability-related needs.
- If the request is reasonable, but more feasible alternatives exist, the association may discuss with the resident if she is willing to accept an alternative accommodation/modification. However, keep in mind that the resident is not obligated to accept an alternative suggested by the association if she believes it will not meet her needs and her preferred accommodation/modification is reasonable.
- A failure to reach an agreement on an accommodation/modification request is effectively a decision by the association to not grant the request, and the resident could file a complaint to challenge the decision with the Department of Housing & Urban Development (HUD) or the Massachusetts Commission Against Discrimination (MCAD). Alternatively, the resident could file suit in either federal district court or Massachusetts Superior Court.
▪ Finally, it is recommended that when faced with a reasonable accommodation or modification request, the association seek legal advice from its counsel to ensure compliance with the current laws in this complex and ever-changing area.
Originally posted February 26, 2018 on tlawmtm.com:
Janelle is an associate in Moriarty Troyer & Malloy LLC’s litigation and real estate departments and a REBA member. She concentrates her practice in condominium and real estate litigation, permitting matters, and land use litigation, as well as leasing and transactional matters.
Janelle received her J.D. from Northeastern University School of Law where she was Editor-in-Chief of the Northeastern University Law Review and a teaching assistant for the property law and legal research and writing programs. During law school and prior to joining Moriarty Troyer & Malloy LLC, Janelle was a federal judicial intern for the Honorable Denise J. Casper, U.S. District Court, District of Massachusetts.
Monday, February 26, 2018
By: Thomas Bhisitkul
Virtually every commercial lease provides a mechanism for the tenant to assign the lease (or sublease the premises) to a third party, and in most cases the lease provides that the tenant cannot do sowithout the landlord’s consent. As with many “standard” commercial lease provisions, there are countless variations as to the manner in which such consent must be sought and the scope of the landlord’s discretion to say “yes” or “no” to the request for consent. Almost invariably, the assignment clause provides that the landlord’s consent “will not be unreasonably withheld.” While simple in language, and seemingly simple in concept, the “reasonableness” of the landlord’s discretion is fraught with potential confusion and, consequently, often the subject of substantive negotiation.
Well-represented landlords will be sensitive to the potential mischief that can result from being subject to a broad and otherwise undefined standard of “reasonableness.” If, for instance, a national retail tenant (say, Starbucks to choose an example at random) came to the landlord and asked for consent to assign the lease to start-up mom-and-pop coffee shop with no sales history and negligible assets. Would the landlord be acting “reasonably” if it denied consent to the proposed assignee, who operates the same “use”, but has a totally different economic profile? What if Starbucks agreed to remain principally liable for the lease obligations? Conversely, what if Starbucks proposed instead to assign the lease to a different user who has roughly equivalent (or better) financial strength, but whose propose use of the premises is “adult entertainment”? Or even a less extreme (but still relatively noxious in comparison to the original coffee shop) use like a nightclub, or a medical marijuana dispensary? If the landlord denies consent to an assignment, it is at risk of a challenge by the prime tenant that the denial was “unreasonable,” and having a third party (a judge, or an arbitrator, or a jury) make the determination as to whether the denial was reasonable or not.
Well-represented landlords will be sensitive to the potential mischief that can result from being subject to a broad and otherwise undefined standard of “reasonableness.”
Owing to these vagaries, landlords are interested in negotiating (and should negotiate) to insert standards into the lease to more specifically define “reasonableness.” By doing so, landlords can, practically and legally, reserve to themselves a more concrete and defined level of discretion such that, if challenged by the prime tenant, a “reasonable” denial of an assignment request will be more defensible. These standards are often drafted into the lease by the landlord’s counsel in the form of a stipulation providing, in substance, that the landlord’s denial of an assignment request “will not be deemed unreasonable” if the proposed assignee or its proposed use fall under any enumerated proscribed categories. As reflected by the hypotheticals outlined above, these proscribed categories most often relate to the proposed assignee’s use and to its economic viability.
The range of issues regarding the proposed assignee’s “use” is somewhat dependent on the type of property involved. If the property is an office building and the prime tenant’s use is limited to “office use only” the opportunities for dispute are relatively small. If the tenant proposes to assign to a non-office user (which would not only violate the lease, but would conflict with the overall nature of the building and use of the other tenants), the landlord’s denial would likely be upheld if challenged. And conversely, if the proposed assignee intended to continue normal office use, the landlord’s denial of consent on the basis of the proposed assignee’s use would likely not be upheld if challenged. Retail centers, on the other hand, present many more opportunities for conflict. Retail uses within a given center are varied and the tenants often negotiate exclusivity provisions to ensure that no other tenant having the same or similar use can set up shop and compete with them within the center (for instance, Starbucks will want to ensure that no other tenant in the center can sell coffee). Accordingly, retail landlord should negotiate, at minimum, for a stipulation that denial of an assignment will not be deemed “unreasonable” if the proposed assignee will conduct a use that is (or could be) in violation of exclusivity rights of other existing tenants in the center.
Even aside from legal exclusivity rights of existing tenants, it is important to the success of a given center that the uses be, to the extent reasonably controllable, complementary to each other. Starbuck’s landlord would, for instance, love to lease other space in the same center to a bookstore to complement Starbucks’ business and generally create a more cohesive tenant mix. Thus, it would be undesirable and disruptive to the tenant mix in the center if Starbucks assigned its lease to a disco bar whose business would be conducted primarily at night when the bookstore would be closed. Accordingly, landlords are interested in having the discretion to deny consent to an assignment to a new tenant whose use would be incompatible with the nature or character of the center (or building) and the current tenant mix therein. In order to ensure that this discretion is real (and to avoid the same types of “reasonableness” vagaries previously outlined), landlords will want the determination of “compatibility” to be made by the landlord unilaterally in its “sole discretion.” Tenants may (and often do) object that leaving this determination to the landlord’s “sole discretion” tilts the balance too far in the landlord’s favor and creates opportunities for the landlord to abuse that discretion. Both are valid points and the outcome of the issue is often determined in accordance with the relative negotiating positions of the parties.
The range of issues regarding the proposed assignee’s economic strength is usually a function of that economic strength in relation to that of the original tenant. At the time of original lease negotiation, the economic strength of the tenant will have driven many of the key economic terms of the lease. If the tenant is a Fortune 500 company, the landlord will have the benefit of that tenant’s high credit and substantially lower default risk, as well as (in the case of a national retail tenant) the tenant’s national identity and recognition, which will add value to the reputation and desirability of the center. In exchange for those advantages, the landlord may be inclined to offer more favorable economic terms to the tenant, and also may also agree to forego a security deposit, letter of credit or other security for the payment and performance of the tenant’s lease obligations. The economic strength of the tenant may also drive many non-economic terms of the lease, such as parking rights, more accommodating tenant alteration rights, favorable default terms and cure rights, enhanced or priority signage rights (in a retail lease), SNDA and estoppels, and even more favorable assignment and subletting terms. Indeed, large national tenants are likely to have considerable negotiating leverage, so many of the negotiable terms of the lease that are often determined by the relative bargaining strength of the parties will tend to be resolved in favor of the tenant. Accordingly, after having made so many tenant-favorable lease concessions on the basis of the economic strength of the tenant, the landlord understandably will be unwilling to allow such tenant to turn around and assign the lease to a small, thinly capitalized tech start up whose ability to make future rent payments will be dependent upon the next round of venture capital funding (i.e. a tenant to whom the landlord may not have even agreed to lease the premises, let alone on the favorable terms it gave to the original national retail tenant).
For those and other reasons, landlords will often (and should) negotiate for a stipulation that its denial of consent to an assignment will not be deemed unreasonable if the proposed assignee does not have at least the same net worth (or other equivalent measures of economic strength/viability) as the original tenant. This financial “equivalence” determination should made by reference to the original tenant’s financial standing at two distinct moments in time. First, as of the date of the execution of the lease, since the landlord would have negotiated the terms of the Lease (and may have agreed to significant lease concessions) based on the original tenant’s economic strength at that time. If the landlord is later forced to accept a replacement tenant with weaker financial strength, the landlord will be deprived of the benefit of the bargain it reached with the economically stronger original tenant. Second, the financial equivalence determination should be made by reference to the economic strength of the original tenant at the time of the proposed assignment. If the original tenant’s financial strength has increased, landlords will benefit from that increased strength (for many of the same reasons outlined above), and so will arguably suffer a loss if the tenant assigns the lease to a new tenant with lower financial strength (even if it were nonetheless equivalent to the original tenant’s economic strength at the time of the original lease execution).
In summary, like many other provisions of a commercial lease that seem simple in language and straightforward in concept, assignment provisions governing the landlord’s consent to a proposed assignment of the lease contain many levels of considerations and resulting complexities. Accordingly, it is always in the best interest of both landlords and tenants to be represented by knowledgeable and experienced commercial leasing attorneys who understand these hidden issues and can effectively negotiate the complexities in a manner to advance (or at least protect) the interests of their clients.
Originally posted February 26, 2018 on tlawmtm.com:
Tom is a principal of Moriarty Troyer & Malloy LLC and chair of its Commercial Real Estate Department and a former REBA president. Tom has over 20 years of experience in representing Fortune 500 companies, national and local banks, retailers, shopping center owners, and investors in all facets of acquisition, development, operation and leasing of commercial real estate throughout the country.
Thursday, February 22, 2018
Tiny House fever is sweeping the nation. The public seems to be head over (w)heels for the concept—small yet artistically craftedhomes offering the key elements of a house in the space of a traditional garden shed.
The allure of tiny homes has people buying them in hopes of skirting unattainable home prices. But new Massachusetts tiny home owners have a big problem—where can they put them?
As a Home Rule state, Massachusetts Municipalities have the power and freedom to enact and enforce their own Zoning Bylaws. Further, land uses and structures are also regulated under the Zoning Act, plus the Building Code and other state regulations. Most municipalities have utilized their land use authority to impose restrictions on residential dwellings, of course, and many have adopted siting specifications, permit requirements, and sometimes flat-out bans on mobile homes and trailers.
So begs the question—is a Tiny House a mobile home or trailer, as regulated by many Massachusetts municipalities? The short and inconvenient answer is both yes and no. A recent in-house survey shows the nuances of the question.
Tiny Houses are complex creations. There is no one formula or definition for a tiny home. They can range in size from less than 100 square feet to upwards of 1,000 (as a city apartment-dwelling resident, I can affirmatively say that tiny is subjective.) They can look like miniature Victorian homes decked with gingerbread trimmings, pint-sized manors with mansard roofs, or play-house log cabins. Their appearance is up the creator’s imagination.
One feature of many tiny homes proves to be their downfall in Massachusetts: wheels.
So what if a tiny house has wheels? A survey of 40 zoning bylaws of municipalities in central Massachusetts shows that many legal definitions of “trailer” or “mobile home” squarely include tiny homes on wheels—even if later placed on a permanent foundation. These definitions are often broad and vague.
For example, Section 10 of the Upton Zoning Bylaws defines a “mobile home” as: “A dwelling built upon a chassis, containing complete electrical, plumbing and sanitary facilities, and designed without necessity of a permanent foundation for year-round living, irrespective of whether actually attached to a foundation or otherwise permanently located.” To top it off, Upton further specifies that a mobile home is not considered a dwelling for zoning purposes.
So, in many municipalities, a tiny home built on wheels will be treated as a mobile home regardless of its other features. With this classification comes many obstacles:
Prohibition. Some municipalities outright prohibit whatever qualifies as a mobile home (tiny homes included) except in emergency circumstances (such as Stow and Milford), while others simply omit them from their tables of permitted uses (such as Franklin and Northborough).
Restriction. Other municipalities restrict the location of mobile homes to specific zoning districts, or trailer parks (like Westborough and Hudson). While some towns allow mobile homes as detached accessory apartments, depending on the municipality, there may be a familial relation requirement on the resident of the subordinate structure.
Special Permit. Often, mobile homes are only allowed with a special permit, and often the permission is only for a matter of weeks (such as in Maynard, Marlborough, Dedham, Cambridge).
While few towns have no restrictions on siting tiny homes on wheels as primary residences, they do exist. For example, under the Millis zoning bylaws a tiny house on wheels would qualify as a trailer, but trailers are allowed permanently in all residential zones with a special permit from the Millis Board of Appeal (although the permit must be renewed annually).
As a testament to their variety, not all tiny homes have wheels. In fact, those who choose to build wheel-less tiny homes on lots, from the ground up, have had some success in Massachusetts. When tiny homes are not regulated as mobile homes, however, there are still obstacles for the tiny-home owners to tangle with.
Even if a tiny home isn’t built on a chassis, siting it can still be thwarted through minimum residential floor area square footage requirements (such as a 600 square foot minimum in Holliston). State laws also come into play with State Building Code requirements, and mandatory minimum square footage requirements of the Board of Health (105 CMR 410). Tiny homes do face big challenges.
Massachusetts residents eyeing tiny homes are getting mixed messages. Tiny homes are popular, available, and affordable, but difficult to site. To rub it in, the Town of Concord hosted the “2nd BIG Tiny house Festival in 2016”—yet its zoning bylaws outright prohibit mobile homes.
Despite these challenges, there is progress in tiny home siting in Massachusetts. Nantucket recently amended its bylaws to include a provision for a “Tiny House Unit,” allowing mobile tiny homes to serve as primary, secondary, or even tertiary dwelling units.
Other municipalities may follow Nantucket’s lead and make special provisions for Tiny Homes. Without outright bylaw changes, tiny-home owners and their attorneys will have to do their homework to find places for tiny houses to call home.
Olympia Bowker is an associate at McGregor &Legere, P.C. in Boston. She helps clients with a broad range of environmental, land use, zoning, and regulatory matters in both administrative and legal forums. She is an active member of REBA’s new lawyers section and women’s real estate networking group. She can be contacted at firstname.lastname@example.org.
Tuesday, February 20, 2018
Adaptive reuse of a building means rehabbing the building for new uses. Often, the building is a vacant mill or church building.Developers usually focus on tax credits, preservation and zoning among the many considerations when rehabbing an existing building and then converting it to a new use and the condominium form of ownership.
The Massachusetts Condominium Statute requires that the Master Deed contain a description of the building. It is often difficult to describe a building converted from a historic use such as a mill or a church to a residential building or a mixed-use building. That’s why at least one visit to the site is necessary and helpful.
Because of the thick walls, the description of the boundaries of the units in the Master Deed must be drafted with extra care. Sometimes the original ceiling is used and sometimes there is a drop ceiling. The attorney drafting the Master Deed must find out and cover this in the Master Deed.
Even a 2-unit adaptive reuse can be challenging. For example, there may be a building and an existing carriage house in back of the building. Part of the carriage house may be a part of one of the 2 units in the main building and the remainder of the carriage house may be limited common area, with a parking space for Unit 1 and a parking space for Unit 2. The lesson is that, whether the project is 30 luxury units in the city or 2 units in the suburbs, condominiumizing existing structures for adaptive reuse is not easy.
Developers should not overlook the need for well drafted condominium documents prepared by an experienced condominium lawyer and floor and site plans prepared by experienced architects, engineers or surveyors.
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 email@example.com. Saul can be contacted at firstname.lastname@example.org.
Wednesday, February 14, 2018
“The abutter doesn’t have standing” is a frequent, but often unsuccessful, argument made when a neighbor appeals a zoning board decision under G.L. c. 40A, § 17. But what happens whenthe named plaintiff passes away unexpectedly after filing an appeal? How is standing determined? And, is it possible to challenge the standing of a personal representative of the plaintiff’s estate? A recent Land Court decision, Zuk v. Pairseau, 2018 Mass. LCR LEXIS 15 (Land Ct. Feb. 8, 2018), demonstrates that the standing requirement passes on to the personal representative and that the standard must still be met. In this case, the lack of knowledge of harm testified to by the personal representative to the abutting property even with the presumption of standing enjoyed by a direct abutter, the appeal was successfully challenged on standing grounds.
The standard for standing is well-known. To have standing, one must be a “person aggrieved.” G.L. c. 40A, § 17; Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115, 117 (2011). Abutters and abutters to abutters within 300 feet of the subject property are entitled to a rebuttable presumption that they are aggrieved within the meaning of the statute. Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719, 721 (1996). That presumption is rebutted if the defendant(s) can provide evidence that the plaintiff is not aggrieved. Marotta v. Bd. of Appeals, 336 Mass. 199, 204 (1957). The presumption can be rebutted by demonstrating “that, as a matter of law, the claims of aggrievement raised by an abutter, either in the complaint or during discovery, are not interests that the Zoning Act is intended to protect,” 81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692, 702 (2012), the offering of affirmative evidence that rebuts the presumption, id. at 703, by “by showing, in the negative, that the plaintiff lacks any factual foundation for asserting a claim of aggrievement.” Kourouvacilis v. Gen. Motors Corp., 410 Mass. 706, 716 (1991). “Once the presumption of standing has been rebutted successfully, the plaintiff then would have the burden of presenting credible evidence to substantiate the allegations of aggrievement.” 81 Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline, 703 n.15 (2012).
In Zuk v. Pairseau, an abutter appealed a decision of the Town of Danvers Board of Appeals approving a modification of a site plan of a long-existing nursing home which, among other changes, permitted additional parking spaces on the nursing home property with no increase in impervious pavement. Shortly after the Complaint was filed, the abutter passed away. His son, personal representative of the estate, was substituted as plaintiff several months later. Defendants, who had unsuccessfully challenged plaintiff’s standing on account of his death, conducted discovery before challenging the son’s standing in a motion for summary judgment. The defendants’ standing argument raised the following concerns: to what extent does the personal representative of an estate need to demonstrate individual standing? Can a personal representative rely upon the aggrievement claimed by the deceased?
To a certain extent, yes, the personal representative may adopt the position taken by the deceased, but, this does not provide a free pass guaranteeing court review of the appeal. In Zuk, the son as personal representative of his father’s estate owned the abutting property, and therefore was entitled to a presumption of aggrievement. However, the defendants successfully rebutted the presumption by demonstrating, after discovery, that the son had no reasonable expectation of proving a legally cognizable injury. The son’s answers to interrogatories and deposition testimony demonstrated that, whatever aggrievement his father may have thought existed, his son was unaware of any potential harm to his property as a result of the Board’s decision. Rather, to the extent that the son claimed aggrievement stemming from certain claimed procedural errors, he did “not articulate anything that could be interpreted as a harm to an interest protected by G.L. c. 40A or the bylaw.” Zuk, at 13.
To bolster his position, the son filed an affidavit in opposition to the defendants’ motion for summary judgment. In this affidavit, the son adopted his deceased father’s statements of aggrievement, as set forth in the complaint and in the answers to interrogatories which his counsel had prepared, ostensibly based upon conversations with the deceased. However, the affidavit was ineffective because a person cannot contradict by affidavit statements previously made under oath at deposition. O'Brien v. Analog Devices, Inc., 34 Mass. App. Ct. 905, 906 (1993). The son explicitly testified at his deposition that he had no knowledge of any harm that would result from the Board’s decision. The affidavit could not be used to contradict those statements; whatever knowledge the father may have had was not passed on to the son, who claimed “aggrievement on the grounds that the [Board] Decision increases the impact of the facility on the Zuk property and its inhabitants, with no more specificity.” Zuk, at 14. As the Court so aptly stated, this “does not go far enough to allege a harm to a legally protected interest.” Id.
Though the plaintiff lost in this instance, it is not unreasonable to expect that a similar situation may arise again. When can the standing of a personal representative, substituted in for a deceased plaintiff, be subject to challenge: immediately after appointment? In Zuk, after the death of the original plaintiff, agreed deadlines were set for discovery deadline and the filing of dispositive motions. Though not an issue in Zuk, there could be conflict after the death of a party between the defendants seeking to move the case forward as quickly as possible and a personal representative plaintiff seeking additional time.
Monday, February 12, 2018
A newly arisen boundary dispute with a neighbor will frequently prompt a homeowner to come to the registry of deeds in search of his deed and a plan of his property. The expectation that these
documents will resolve the problem is soon punctured by
the realization that even the most precisely drawn deed or plan is of limited
use unless one can accurately translate a point on the document to a point on
|Middlesex North Registry of Deeds|
While there will always be a need for surveyors and civil engineers, a uniform system of corner markers embedded in the ground would do much to resolve these kinds of disputes. But physical markers are expensive to emplace and subject to loss or relocation. Perhaps technology will provide a solution to this problem.
The same GPS technology that guides your car to its destination also has the potential to resolve boundary disputes like the one described above, and to revolutionize land records in the process. GPS devices calculate their location by “triangulating” electronic signals emitted by GPS satellites that continuously orbit the earth. The result is given as the latitude and longitude of the GPS device, numbers often referred to as GPS coordinates.
So what does GPS have to do with land records? By including the GPS coordinates of corner points and other terrain features on new subdivision plans (and perhaps even on new deeds), the challenging task of aligning a point on a document with a point on the ground will become infinitely easier. Supplied with the GPS coordinates of his lot line, a homeowner with a GPS-enabled smart phone would be able to accurately identify the boundary line on the ground and resolve the dispute.
Consumer grade GPS devices today are only accurate to about six feet, but more expensive military and commercial grade devices are more precise with error rates of only a few inches. History teaches us that technology always gets better and more affordable over time, so soon the GPS capability of the standard cell phone will be as accurate as its more sophisticated counterparts.
While mandating the inclusion of GPS coordinates in subdivision plans and deed descriptions will be a big undertaking, there are other steps registries of deeds should take now to ease the coming integration of real estate documents and mapping technology. A starting point would be to include the MassGIS parcel location identification number – the LOC_ID – in the registry of deeds database. MassGIS, the state agency responsible for geographic information in the Commonwealth, selects a point within each parcel of land in the state and uses the latitude and longitude of that point – its GPS coordinates - for the parcel’s LOC_ID. Because this same ID number is already included in every assessor’s database in Massachusetts, LOC_ID is the digital link that connects mapping and assessing information. By adding LOC_ID to the registry database, deeds and subdivision plans could be similarly linked to mapping and assessing information. Once this LOC_ID link was established, users viewing a deed could, with a single click, display assessor information for the parcel and, with a second click, view the parcel on the state’s mapping system.
Creating a new field in the registry database would be relatively easy. Populating that field with data will be the big challenge. One possibility would be to amend the Massachusetts Deed Indexing Standards to require the LOC_ID of a parcel being conveyed to be included in new deeds and subdivision plans and for the registry to capture that information in its database. However, an easier way to capture LOC_ID information might be through the use of standard addresses.
Property addresses have never been a central feature of our system of land records. It was only in the late 1990s that we consistently added street addresses to our database. Even today, address is a flawed method of searching land records.
One way to make property addresses more useful in registry of deeds records is for the Commonwealth to adopt standard addresses. With a list of standard addresses, the address field on registry computer systems could be converted from today’s “enter whatever address is on the document” field to a drop down menu of standard addresses. To be recorded, the property address on a document would have to match an address on the drop down menu of standard addresses. This would increase the accuracy of address searches on registry computer systems and, because standard addresses could be programmatically linked to the corresponding LOC_ID number of the parcel involved, the registry’s LOC_ID field would be automatically populated each time the address field was filled.
While much of the above may seem far-fetched to those in practice today, our records are inextricably linked to land. Anything we can do to better connect registry records to the land depicted in those records will benefit everyone. The exact path we should take is unclear, but technology is propelling us rapidly forward. Now is the time to convene a working group of registry personnel, conveyancers, surveyors, and GIS and IT professionals to help guide us through the integration of registry of deeds records and mapping technology.
Dick Howe’s column, “From the Recording Desk...,” is a regular feature of REBA News. Dick 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 email@example.com.