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| Daniel J. Ossoff |
1. Who should prevail in the case? If there is not a consensus among the
Committee members consulted as to the correct outcome of the case, we do not
get involved.
2. Preferably, the case is of wide applicability in a
particular area of real estate law rather than dealing with a narrow and
obscure topic.
3. Finally, the case must have significant precedential
value. If a case is so fact-intensive
that it limits the precedential value of any decision that may be issued in the
case we will typically decline to participate.
Cases come to
the Amicus Committee in a variety of ways.
We are very often asked by the appellate court itself to consider
submitting a brief when a case on appeal presents title or other real estate
issues on which the court feels the Committee’s view would add value. We also monitor decisions coming out of the
lower courts and, where we deem appropriate, may reach out to the lawyer on the
“correct” side of the case to volunteer an amicus submission. Finally, and perhaps most importantly, we
welcome requests from REBA members who may be involved in a case that they deem
appropriate for participation by the Committee.
Historically,
the cases in which the Amicus
Committee became involved were almost exclusively cases related to title
issues. One of the most interesting
developments that I have witnessed in my many years of participation on the
Committee is that, as the focus of both REBA and the Abstract Club has expanded
beyond simply title and conveyancing issues to the broader scope of real estate
law in general, the cases that the Committee has taken on have similarly
broadened in scope and focus. In fact,
the proliferation over the past 10-15 years of new REBA sections focused on
particular areas of the law – the Affordable
Housing, Litigation,
Land
Use and Zoning, Commercial
Leasing, Environmental
Law, and Condominium
Law and Practice Sections immediately come to mind – has given Ed Bloom and
I the ability to readily refer to the chairs of those sections cases within
their particular area of expertise for a recommendation on whether the case is
worthy of the Amicus Committee’s involvement.
Those specialized sections also provide a potential source of volunteers
to author briefs on cases on which the Committee elects to participate.
We do generally
attempt to stay away from cases which are largely policy-oriented, to insure
that the Amicus Committee is viewed as a largely impartial voice dedicated to
improving the law. That approach has resulted
in the appellate courts seeking our input, and also has resulted in those
courts giving substantial weight to the views expressed in our briefs. While we have not prevailed on 100% of the
briefs that we have submitted, our batting average is substantially better than
the .406 batting average famously accomplished by Ted Williams in 1941. And it is critically important to us that the
courts continue to respect and pay heed to our views on issues within our particular
areas of expertise.
I thought it
might be helpful and of interest for me to give you a quick snapshot of some of
the cases which we have been involved with over the last few years. The cases that I am going to mention all were
decided since 2016.
One case within
our traditional focus on title matters is Kitras
v. Town of Aquinnah (474 Mass. 132 (2016)). The issue in that case was whether easements
by necessity were created when former Native American common land on Martha’s
Vineyard was partitioned by commissioners appointed by the Probate Court in
1878. The result of the partition was to
create more than 500 lots, the majority of which were landlocked parcels of land. In creating the landlocked parcels, the
commissioners did not include any express grant of rights of access to those
parcels. Fast forward to the current
day, and the owners of the landlocked land were arguing before the Supreme
Judicial Court that easements by necessity arose when the landlocked parcels
were created as a result of the partition in 1878. The amicus brief that we submitted argued to
the contrary. Our position was that
recognizing easements by necessity more than 125 years after those lots were
created would upset well-settled title rights and unnecessarily and
inappropriately broaden the availability of such easements by necessity under
the common law of the Commonwealth. The
Supreme Judicial Court agreed with our position that easements by necessity
were not created by the 1878 partitioning of the land, relying in large part on
the fact that tribal custom at the time of the partitioning permitted free
access over land, including not only land held in common but also land which
was individually owned. Given that
context, the Court was unwilling to find that the commissioners intended to
create easements for access in 1878 since no such easements would have been
necessary under the tribal custom that existed at that time.
The spike in foreclosure
activity which emerged from the last economic downturn resulted in an uptick in
the Committee’s involvement in cases focused on the foreclosure process. One such case that we weighed in on was the
case of Federal
National Mortgage Association v. Rego (474 Mass. 329 (2016)). In that
case the party seeking to invalidate the foreclosure argued that the
foreclosure was void because various foreclosure notices were given by the attorney
for the foreclosing lender without authority being given to the attorney to so
act by a “writing under seal” pursuant to Section
14 of Chapter 244 of the General Laws.
While it seemed obvious to the Amicus Committee that the statutory
language in question was never intended to limit the ability of a mortgagee to
retain legal counsel to conduct foreclosure activities on its behalf, but was
instead intended to apply to agents operating as attorneys in fact under a
power of attorney, that was apparently not so obvious to the party challenging
the foreclosure. Thankfully the SJC
agreed with our position, and we avoided the prospect of having countless
foreclosures invalidated by an incorrect reading of the language of Section 14
of Chapter 244.
Another
foreclosure case that we weighed in on was Bank of America v.
Casey (474 Mass. 556 (2016)), which was one
of what seemed like an unending line of cases addressing issues concerning
defective acknowledgments in mortgages which were subsequently foreclosed. In Casey, a defect in an
acknowledgement in a mortgage – namely the failure to write in the names of the
mortgagors in the acknowledgement clause – was corrected prior to any action
being taken to foreclose the mortgage by the attorney whose acknowledgement was
in question by recording a Chapter 183, Section 5B affidavit to correct the
deficiency in the acknowledgment. This
case actually came to the SJC on questions certified to it by the First Circuit
Court of Appeals. As a Committee we were
particularly concerned that, if the SJC did not recognize the ability to use a Chapter
183, Section 5B affidavit to cure the defect in the acknowledgement, it
would not only have an adverse impact in the foreclosure arena in which this
case arose, but would also severely impair the ability to use Section 5B
affidavits to address a broad variety of clerical errors and ambiguities
confronted more generally in title examinations. Fortunately, the SJC agreed that under
circumstances such as those presented in this case an acknowledgment that
omitted the mortgagors’ names may be cured by a Section 5B affidavit.
Yet another
foreclosure-related case at the SJC that we weighed in on successfully was the
case of Turra v.
Deutsche Bank Trust Company Americas (476 Mass. 1020 (2017)). The argument made to invalidate the
foreclosure in that case was based on an alleged failure to comply with the
provisions of Chapter 244, Section 15A of the General Laws. That statutory provision requires notice of
the foreclosure to be given to the assessor or collector of taxes of a
municipality and to the companies providing water and sewer service to the
foreclosed property. That notice is to
be given within 30 days after the foreclosure occurs. There is some ambiguity in certain language
in the “infamous” Ibanez decision from 2011 (U.S. Bank National
Association v. Ibanez (458 Mass 637)) that was the basis for the
mortgagor’s argument that failure to comply with any provision of
Sections 11 through 17C of Chapter 244 was grounds for voiding a
foreclosure. The SJC agreed with the
argument put forth in our brief that Section 15A – which involved notice given
subsequent to the foreclosure and which also provided for notice to third
parties rather than any notice to and for the benefit of the mortgagor – was
not part of the foreclosure process which had to be strictly complied with
under the language of the Ibanez decision. Therefore the foreclosure was preserved.
We have also
seen a proliferation of condominium cases in recent years. Perhaps the most significant is the case of Drummer Boy Homes Association,
Inc. v. Britton (474 Mass. 17 (2016).
Consistent with the argument made in the brief submitted by members of
REBA’s Condominium Law and Practice Section, the Court found that a “rolling
lien” exists under Section
6(c) of Chapter 183A of the General Laws, allowing a condominium
association to bring successive actions to enforce its lien for unpaid common
area expenses and, by doing so, to establish and enforce multiple
contemporaneous six-month priority liens.
The experts from REBA’s Condominium Law and Practice Section argued
persuasively – both to the Amicus Committee during its internal deliberations
about taking on the case and to the Court - that the rolling lien has been long
recognized as a feature of Section 6(c) of Chapter 183A, and that for the Court
to find otherwise would be disruptive to the financial health and well-being of
condominium associations in Massachusetts.
The Court was not persuaded by arguments to the contrary from certain
elements of the lending community, citing the various protections available to
lenders under the statute allowing them to step forward to assume the
responsibility for payment of the condominium charges to protect against the
rolling lien.
Another more
recent triumph in the condominium arena occurred in the case of Trustees of the
Cambridge Point Condominium Trust v. Cambridge Point, LLC (478 Mass. 697
(2018)), just decided in January.
The issue there was the enforceability of so-called “poison pill”
provisions in condominium documents which create barriers to suits being
brought by condominium associations, particularly suits directed against
developers for construction defects and the like. The documents governing this particular
condominium required, for example, that a copy of the actual complaint be
delivered to the unit owners, that a monetary limit be established on the
litigation costs, and that within 60 days not less than 80% of the unit owners
consent. Given the fact that the
developer in this case retained ownership of more than 20% of the units, the
80% consent requirement was effectively a total bar to bringing an action
against the developer for the construction defects that were alleged to have
occurred at the condominium. REBA’s
Condominium Law and Practice Section once again argued persuasively not only
that there was an ambiguity in the law with respect to the enforceability of
these provisions, but also that it was grossly unfair for condo owners and
associations to be denied their remedies to bring actions because of
inappropriate barriers being erected by the developers of condominiums in the
documents creating those condominiums.
Although the SJC did not go as far as ruling unenforceable any
restrictions in condominium documents to the commencement of litigation, it did
concur with our position that the restrictions in this particular instance were
void by reason of being in violation of public policy.
The last case
that I want to mention shows just how far afield from our original areas of
focus the Amicus Committee sometimes ventures.
With the encouragement and through the assistance of REBA’s fairly new
Estate Planning, Trusts and Estate Administration Section, we submitted a brief
in the case of Daley
v. Secretary of Executive Office of Health and Human Services (477 Mass. 188
(2017)), where the issue was whether the fairly common practice of
conveying a piece of property to a family member but retaining a life estate in
the property resulted in the full value of the property remaining as a
countable asset of the grantor for purposes of determining Medicaid
eligibility. We dipped our toe in these
unfamiliar waters by allowing the Estate Planning, Trusts and Estate
Administration Section to prepare and submit on behalf of the Amicus Committee
a brief which addressed the limited issue of whether a life estate was a
separately recognizable property interest.
While that seemed absolutely obvious to us dirt lawyers, we were
concerned that a decision in this context which found a life estate not to be a
separate property interest could have unintended consequences within the real
estate world (as well as having the effect of rendering ineffective a good deal of Medicaid planning
done by estate planning practitioners).
In its decision, the SJC fully-recognized the life estate as a property
interest separate and distinct from the remainder interest, which was a clear
win for REBA’s membership at large. The
Court also found that under the applicable regulations it was compelled to
agree with the argument of the estate planning bar that Medicaid planning steps
such as conveying the property subject to a life estate effectively shielded
the asset from being counted for Medicaid eligibility purposes. But the Court also encouraged the applicable
Commonwealth agencies to take a look at those regulations. So this was a win, at least for the time
being, for the estate planning bar as well.
As I deliver
these remarks, there are more cases that have been brought to our attention
which, if they are appealed, may be worthy of an amicus submission by our
Committee. This is important work for
REBA and for the real estate bar and our clients, and it is work that is
ongoing and never-ending. Should any of
you be involved in cases that you believe may fit the criteria that I outlined earlier,
please feel free to bring them to our attention by contacting either Peter Wittenborg and the REBA staff, or
by reaching out to Ed Bloom and me directly. Your participation in our
efforts is the best way to insure that a case doesn’t slip by us that has an
adverse impact on the law or our clients.
