Title Traps for the Unwary & Claim Avoidance

 

Understanding the New Revisions to Chapter 40A

 

PowerPoint (PDF)

Commercial Real Estate Foreclosures

 

Crime is Both a Concern and Liability Risk for Condominium Associations

Matthew W. Gaines

Are community associations required to protect residents from the criminal acts of third parties?

This question usually arises after press reports of a crime committed in a condominium community for which the association is being sued. Until fairly recently, the generally

accepted answer was – no.  While boards might be required in some circumstances to address the criminal acts, or potential criminal acts of residents – for example, when one resident threatens to harm others – they had no obligation to protect residents from burglaries, assaults, rapes or other crimes committed by third parties who had no relationship with the association.

That long-standing assumption was turned on its head by a 2022 Massachusetts Superior Court decision (Field, et. al. v. Highbridge Concierge, Inc., et al.), which held that boards do, in fact, have an obligation to try to prevent crimes they could reasonably foresee. The underlying crime was horrific (an outsider gained access to a penthouse owned by two doctors and murdered them), and the evidence provided a good illustration of bad facts making bad law.  Among other problems, the condominium board was aware of security flaws but failed to address them. 

While acknowledging that condominium associations are not landlords, the court found that they nonetheless have the same duty “to exercise due care for the residents’ safety in those areas under the association’s control. “That duty exists, the court said, if potential threats are “reasonably foreseeable.”

The decision raised two obvious questions:  How do you define “reasonably foreseeable” threats and what are associations required to do about them. The answers fall short of being  “crystal clear,” but it is possible to offer some general guidance that may help boards address security concerns in their communities and reduce the association’s liability risks. 

 

Do Something

The key takeaway from the Field decision is a variation on the standard advice to citizens: “If you see something, say something.” For boards, the advice is: “If you know something, do something.” If you know a lock on an entry to the common area is broken, fix it; if you know the light bulbs in the parking garage are out, replace them.  Evidence that they knew about security problems and ignored them was damning for the defendants in the Field case.

What makes a crime “foreseeable?”  If five cars have been stolen from your garage in the past two months, that is a risk the board can identify and should address.  But how could the board possibly foresee that a car would be stolen if cars have never been stolen from the garage before? 

The answer is, your risk assessment shouldn’t focus only on what has happened within your condo community.  Due diligence for the board includes knowing what is happening in the surrounding neighborhood. If there has been a rash of burglaries nearby, you can reasonably conclude that owners in your community might be targeted. This is a crime you can reasonably foresee. 

If you have information about criminal activity in your community or nearby, share that information with owners. Remind them periodically in newsletters and other communications to check their own locks, to be aware of their surroundings, to call the police if they feel threatened, and to report any security concerns (broken locks, overgrown shrubs, etc.) to the board or the manager.

 

Reducing Litigation Risks

Boards are concerned, or should be, about reducing the risks that community residents will be harmed.  These are, after all, your neighbors. But boards also must be concerned about the possibility that the association will be sued for negligence by residents who are victims of third party criminal acts.  

Unfortunately, there is no amount of money associations can spend on security, no measures they can implement and no protocols they can follow that will ensure they won’t be sued.  But boards can take steps that may reduce the association’s litigation risks and strengthen its defense if it is sued.  The first item on this list is something boards should not do:

1.    Don’t do or say or hint at anything that might lead residents to assume the association is guaranteeing their safety. If residents have reason to believe the association is responsible for protecting them, they will almost certainly sue if something goes wrong.

 

2.    Be proactive. Boards or managers should inspect the property periodically to identify maintenance related security concerns and address them. If you are sued for negligence, “We inspect the property weekly and all the lights were working two nights before the attack,” will sound a lot better to a judge or jury than, “No one told us the lights were out” or “We knew but we hadn’t gotten around to fixing them.”

3. Use common sense. You don’t have to adopt the most expensive high-tech security measures installing stronger common area doors or better locks, adding lighting, trimming bushes and shrubs so they don’t create natural hiding places or obscure windows and doors are all reasonable, low-cost steps associations can take to improve security.

4.    Install cameras in lobbies, parking garages, and near entrances.  But don’t call them security cameras.  Call them surveillance cameras and emphasize that they will not be monitored 24/7 but rather will record actions in portions of the common areas, but won’t prevent them. 

5.  You don’t have an obligation to install cameras, but if you do, you will incur an obligation to maintain them. Remember, we’re talking about reducing litigation and liability risks.  The owner robbed at knifepoint in the parking lot will have a reasonable claim if it turns out that the security camera located there has been broken for six months and the board has ignored multiple requests to repair it.

6.    If you add a security feature, think carefully before removing it. If the board decides it no longer needs the security guard it had hired, document the reason for that decision and make sure owners understand it.  Boards arguably face greater liability risks by eliminating an existing security measure than by never providing it in the first place.

7.   Consider hiring a security expert to recommend measures you might add or improve.  But don’t request a written report.  The board’s decision not to implement some recommendations could be used as evidence in a negligence suit.  “If the board had only hired round-the-clock security guards, I would never have been robbed.”   The board can certainly consider the costs when evaluating different security measures. But a decision that seems fiscally responsible to the board may look like something else to a court considering the association’s potential negligence in a wrongful death suit like the one that produced the Field decision.  “How much is a life worth” is a question you definitely don’t want to have to answer in court.

How much should boards do – and how much are they required to do – to address security issues?  These are different questions, the answers to which will be different in different communities. 

But when they are debating the pros and cons of specific security measures, board members might do well to remember that as a general rule, we are more likely to regret the things we don’t do.  

Co-chair of REBA’s Legislation Matt Gaines is a partner in the Braintree firm of Marcus, Errico, Emmer & Brooks P.C, concentrating his practice on commercial and residential real estate acquisitions, as well as condominium and community association law.  Matt can be contacted at mgaines@meeb.com.

 

 

 

A Hard Lesson Learned

 Jesse D. Schomer

 An adage that I have heard attributed to various sources goes

something like this: If the only tool you have is a hammer, it is tempting to treat everything like a nail. In other words, there’s a right (and wrong) tool for the job and it behooves the operator of the tool to know the difference.

 This is a lesson that was learned the hard way in SLV Bridgewater PO, LLC v. Town of Bridgewater (Case No. 24-P-1418). At issue was an apartment building developed under the Massachusetts Comprehensive Permit Statute, M.G.L. c. 40B, §§ 20-23. Several years after the building was built and occupied, the local building inspector issued a cease-and-desist order, claiming that some of the apartments constituted an illegal “lodging house” use because they were occupied by four or more unrelated persons. The developer unsuccessfully appealed that order to the local zoning board and then lost again on appeal to the Superior Court.

On further appeal, the Appeals Court reversed the judgment and directed that the cease-and-desist order be rescinded – lambasting the town for its “caprice” and accusing it of reducing the permit to a “hollow parchment promise.” The Court’s reasoning was that the approved architectural plans had conceptually depicted two beds in each bedroom – impliedly contemplating that a three-bedroom apartment might contain up to six residents. (The Court does not appear to have considered whether the presumptive occupants of these hypothetical beds were related to each other.) In other words, by approving these plans, the board also approved occupancy. Thus, although the developer did not request a waiver of the lodging house bylaw, the Court found that the board had impliedly approved one.

As an aside, the outcome directed by the Court effectively entails that the occupancy of apartments by four or more unrelated persons did, in fact, constitute a lodging house use, albeit one that would be allowed through the waiver of the bylaw forbidding this use. The Court did not delve into the thorny moral and legal question of whether a municipality should be allowed to favor one class of persons over another based on familial status, nor whether it is appropriate in the midst of a housing affordability crisis for that municipality to affix the decidedly pejorative epithet “lodging house” to someone’s home simply because the people who call it home happen to be unrelated.

While the Court’s decision, broadly speaking, yielded the correct result, a lesson to be learned from this case can be found in the adage cited above: it is important to use the right tool for the job. Chapter 40B development is highly complicated, requiring parties to navigate numerous pitfalls across an extended period of time. As this case illustrates, those pitfalls do not necessarily end when a project is occupied. A review of the underlying record suggests several suspects for how things went sideways. 

First, although the developer was represented by counsel with experience in Chapter 40B at some point during the entitlements process, the developer’s principals appear to have largely led the proverbial charge. This inclination towards self-help is contrary to the wisdom of Professor Bobrowski, who in his Handbook of Massachusetts Land Use and Planning Law, teaches us that permitting counsel should be the “maestro” of the permitting team in order to ensure completeness and procedural correctness – a task that “is usually enough to inject the attorney into the center of the storm.” Whether motivated by budgetary considerations or a developer’s self-assuredness, development under Chapter 40B is not the time for DIY.

Next, when the dispute at issue in this case arose, the developer opted to retain a local lawyer to respond to the cease-and-desist notice and handle the resulting litigation. (That litigation, for those keeping score in the grandstands, took more than five years, and counting, to resolve.) To be clear, local lawyers are a vital part of the legal ecosystem for countless reasons. In the context of Chapter 40B development, a local permitting counsel can be helpful due to their on-the-ground knowledge of the permitting environment and familiarity with the players on the field. But the violinist doesn’t lead the orchestra. The maestro does.

A 40B specialist would have known that there was a simpler, quicker, and more cost-effective option available: rather than (or in addition to) appealing the cease-and-desist order, counsel could have sent a letter to the zoning board alerting them that the project was being modified to include a request for a waiver of the local lodging house bylaw. (In its appeal of the cease-and-desist order, the developer apparently refused to this, arguing instead that a waiver was neither requested nor necessary because the bylaw didn’t apply; perhaps – but would you rather be right, or would you rather win?)

Had the developer taken the other path, the zoning board would have had twenty days to act on the notice of project change. Per applicable regulatory criteria, this change was undoubtedly insubstantial and thus did not even require the board’s approval. Had the board deemed the change substantial or denied it outright, the developer would have a right to take an expedited appeal to the Housing Appeals Committee, where the outcome almost certainly would have been a finding of insubstantial change. And, had the municipality opted to continue this fight, the HAC’s decision would have been subject to expedited administrative record review, rather than de novo review under Chapter 40A, Section 17. In sum, this would have been a faster, less costly way to accomplish the same outcome – and one with fewer opportunities for appellate authorities to get things wrong.

The lesson learned here is not exclusive to Chapter 40B, Massachusetts land use law, or even “dirt law” generally. Specialization exists in all fields for a reason: the right or wrong tool can make all the difference. As our clients’ trusted counsel, we must be unafraid to render this advice (and to learn this lesson even if it applies to ourselves).

A Co-chair of REBA’s Affordable Housing Section, Jesse Schomer is a director and shareholder in the Boston law firm of Dain, Torpy, Le Ray, Wiest & Garner, P.C.  His practice focuses on Massachusetts real estate development, land use, and zoning/permitting, with primary specialization is the permitting and development of affordable housing under M.G.L. Chapter 40B.

Jesse can be contacted by email at jschomer@daintorpy.com.

 

Solving the Commonwealth’s Housing Crisis Takes Ideas, Big and Small

 Daniel Dain, Douglas Troyer, and Nicholas Shapiro

Good things come to those who wait. A year ago this month, the three of us penned an opinion piece in these pages describing an initiative by the Real

Estate Bar Association to propose zoning reforms that would make the process for permitting housing more straightforward and predictable in the 350 communities across the Commonwealth subject to the state’s Zoning Act, General Law chapter 40A (which does not apply in Boston). We were thrilled to see much of the language we had drafted in an Act Relative to Zoning (H2317) make it into the FY2027 state budget (Chapter 137 of the Acts of 2026) signed by Governor Healey on July 9 of this year.

 The initiative started back in 2024 when Peter Wittenborg, executive director of REBA, called one of us and said that REBA should be doing its part to help address the Commonwealth’s housing crisis. We put together a small committee, chaired by Dan, to draft proposed legislation with the directive that our changes should be procedural, should respect Home Rule, and should not include any mandates similar to the MBTA Communities Law (which we all supported, but which has fostered significant local push back). We were told to think of small ideas that could have a big impact.

With guidance from REBA lobbyist Ben Fiero, and major drafting and strategic help from Mike McDermott and Sarah McHale of the law firm of Dain Torpy, we came up with a series of proposals that aimed to make zoning litigation less expensive, make it easier to expand otherwise zoning-compliant structures on undersized lots, limit the reach of what is known as the merger doctrine, provide more uniform time standards for zoning decisions, and reform the variance standard so that it could become a viable tool in the process of entitling new housing.

We then all got a lesson in bill-making 101 as our language was passed around from one committee to another, bounced in and out of different housing bills, got sent to purgatory (also known legislatively as being sent to “study”), was revived, and after numerous hearings and meetings, emerged, in slimmed-down version, as part of the budget bill signed into law this summer. We thank the governor, lieutenant governor, and various legislators, including notably Rep. Murray, Sen. Cyr, and Sen. Finegold, and their staffs, for keeping our reforms alive.

 As the drafting committee for REBA of these proposed zoning reforms, we still believe in those parts of our initial proposal that did not make it into the final budget bill, including reform of the appeals process and the merger doctrine, but those can wait until the next legislative session, plus we would love to see these reforms applied consistently to all municipalities, including Boston. But for now, we can celebrate the reforms that were adopted. Notably, these include:

·      Municipalities are now authorized to grant use variances for housing, which provides another avenue, but not an inflexible mandate, to permit housing.

·      The old variance standard of the applicant needing to prove a “substantial hardship” from the literal enforcement of zoning due to soil conditions, lot shape, or topography replaced by new standard that allows municipalities the flexibility to weigh the benefits of a proposed project, including the community’s need for more housing. Also, variances would have a longer duration, providing project proponents a more realistic time period to commence a project.

·      Under the so-called Bransford/Bjorklund rule, a property owner of an otherwise zoning-compliant structure on a lawfully-nonconforming lot (meaning the lot was rendered undersized due to a municipality adopting lot-size and -shape requirements after the lot was already laid out) required a special finding by the local zoning board of appeals in order to expand the existing structure even in a way that otherwise complies with applicable dimensional requirements like floor area ratio, height, and setback. Now, such an expansion can proceed as of right, saving property owners considerable time and expense.

·      Projects that have received a zoning entitlement enjoy greater protection from municipal changes to zoning requirements before the project can get underway.

Although not part of the budget bill, our proposal for clearer rules for constructive approvals remains alive in the current economic development bill.

Nicholas Shapiro is president of the Real Estate Bar Association, while Daniel Dain and Douglas Troyer are the co-chairs, respectively, of the bar association’s Litigation and Legislation sections.   This article was originally published in Banker & Tradesman, and is republished in REBA News with their permission.

Surety Bonds in Massachusetts Zoning Appeals – Know Before You Appeal

Marissa P. Giaimo

Surety bonds are financial guarantees. While they are often used in the construction industry and in commercial licensing contexts, in Massachusetts

they can also be required by a judge. When a party appeals a municipal board decision in Massachusetts, the court hearing the case may demand that the appealing party issue a bond to be collected by the opposing party upon obtaining a winning judgment.

There are various surety bond provisions that could come into play in litigation in Massachusetts, so it is important to be familiar with the differences between them and when each one may apply.

In many zoning appeals in Massachusetts, wherein a party appeals the decision of a municipal board to a court, the third paragraph of G.L. c. 40A, § 17 determines the amount of the bond that may be awarded. Chapter 17 of G.L. c. 40A (Zoning Act) also provides the applicable bond provision for Chapter 40B (affordable housing) appeals of comprehensive permits. See G. L. c. 40B, § 21. Recently, in April 2026, attorneys at MBG secured a § 17 bond in the amount of $200,000 for a client in the Land Court related to the review of a comprehensive permit under Chapter 40B.

The bond provision found in the third paragraph of G.L. c. 40A, § 17 was amended by the Affordable Homes Act (St. 2024, c. 150, § 12), a landmark piece of legislation signed by Governor Maura Healey in 2024. The amendment increased the amount of a surety bond permitted under this section from $50,000 to $250,000 and also included a provision allowing for the indemnification and reimbursement of damages and expenses in addition to costs (which were previously allowed) to the defendant should they prevail in the zoning appeal. Furthermore, it added a statement that a court is not required to find “bad faith or malice of a plaintiff” in order “to issue a bond under this section.” G.L. c. 40A, § 17, as amended. As it reads now, any plaintiff appealing a zoning decision approving a variance, site plan, or special permit may be required to “post a surety or cash bond” up to $250,000. Id.

The Zoning Act is not the only statute that allows for judicial bonds in Massachusetts. There are other bond provisions, too. For example, G.L. c. 231, § 98 allows for bonds in appeals by municipalities of civil decisions of the District Court. Additionally, Section 11 of the Boston Zoning Code (St. 1956, c. 665, § 11, as amended) allows a court to require a surety bond “to indemnify and save harmless . . . from damages and costs” the person whose municipal win has been appealed. And, while Section 17 directly governs zoning appeals, G.L. c. 231, § 117 has been relied upon in certain cases in order to address the posting of a bond in appeals following final judgment.

Unlike Section 17 of the Zoning Act, G.L. c. 231, § 117 is a bond provision that does not specifically authorize a surety bond in so many words. Nonetheless, Massachusetts courts have held that a surety bond may be issued under this section. Recently, in a Memorandum and Order out of the Massachusetts Land Court, Judge Foster determined that a defendant was entitled to an appeal bond under G.L. c. 231, § 117 in the amount of $750,000. In his Order, Judge Foster notes that § 117 permits judges to “make any proper interlocutory orders,” including ordering that an appeal bond be required.

There are various surety bond provisions that could come into play in litigation in Massachusetts, so it is important to be familiar with the differences between them and when each one may apply. Given the complexity of this area of law, this has been a basic overview of some of the general bond provisions that may apply in Massachusetts actions.

Marissa (Mari) is an Associate at the Quincy-based firm of Moriarty, Bielan & Gamache LLC, focusing her practice on real estate and land use issues, worked on research projects involving historical land title matters and restrictions on state-owned land in Massachusetts, and completed a judicial internship at the Massachusetts Supreme Judicial Court.  Mari can be contacted my email at mgiaimo@mbgllc.com. 

Appeals Court Clarifies Easement Rights Following Merger of Dominant and Servient Estates

 Elizabeth A. Lake

 In a recent decision, the Massachusetts Appeals Court addressed the intersection of easement law, the doctrine of merger, and implied easements in

Elizabeth A. Lake

Gladstone v. Denizard, Appeals Court No. 25-P-480 (June 15, 2026). The case arose from a long-running dispute over the use of a privately owned oceanfront beach in Dartmouth and provides important guidance regarding the continued viability of easement rights after common ownership of dominant and servient estates.

Gladstone v. Denizard provides a thorough examination of how the doctrines of merger, implied easements, and overloading interact when historic waterfront rights are at issue.

Background

The dispute in Gladstone v. Denizard involved several neighboring property owners who claimed rights to use a privately owned beachfront parcel for boating, bathing, fishing, and other beach-related activities. The claimed rights originated from easements created in the late nineteenth century when a larger waterfront tract was subdivided and conveyed to multiple grantees. Over time, portions of the original dominant and servient estates came into common ownership, raising questions regarding whether certain easement rights had been extinguished by merger.

The Plaintiffs in this case, some of whom owned inland properties, sought to establish that they retained enforceable rights to access and use the Defendant’s beachfront property for both passage and recreational purposes. They argued that their historic easement rights either survived the periods of common ownership or were effectively recreated through subsequent conveyances. They contended that their longstanding use of the beach for access and recreation demonstrated an intent to preserve broad rights, including activities such as boating, bathing, and general beach use, and that any merger did not eliminate their ability to continue those uses. 

The Defendant, Denizard, is the current owner of the beachfront parcel that is subject to the claimed easement rights. She opposed the Plaintiffs’ use of her property and argued that any easement rights benefiting the inland lots had been extinguished when a prior owner acquired both portions of the dominant estate and the burdened beachfront property. She further contended that subsequent owners could not use surviving easements benefiting other parcels to access or enjoy the beach because doing so would improperly overload the easement.

The Appeals Court’s Decision

Merger Extinguished the Original Easement Rights

The Appeals Court agreed that the doctrine of merger applied to certain portions of the Defendant’s property. Under Massachusetts law, the doctrine of merger provides that when the same person acquires title to both the dominant estate (the property benefitted by an easement) and the servient estate (the property burdened by the easement), the easement is extinguished as a matter of law. The Appeals Court reaffirmed that once extinguished, an easement does not automatically revive if the properties are later separated; instead, new easement rights must arise through express grant, reservation, or implication based on the circumstances of a subsequent conveyance.

Implied Easement Reserved Upon Subsequent Conveyance

Although the Appeals Court concluded that merger extinguished the original easements affecting certain inland parcels, it held that an implied easement arose when the common owner later conveyed the beachfront parcel while retaining the surrounding properties. The implied easement was created at the time of that conveyance based on the circumstances showing that the grantor intended to reserve a right of access over the beachfront parcel for the benefit of the retained inland parcels, and that such access was reasonably necessary for their use and enjoyment. Applying established Massachusetts principles governing implied easements, the Appeals Court found that continued access across the beachfront parcel was reasonably necessary for the landowner’s enjoyment of the retained properties. The Appeals Court emphasized that the circumstances surrounding the conveyance demonstrated an intent to preserve access rights, even though no express reservation appeared in the deed.

Scope of Rights Matters

One important aspect of the decision is the Appeals Court’s distinction between access rights and recreational rights. For certain inland property owners, the Appeals Court held that the implied easement permitted only the right to pass and repass across the Defendant’s property to reach other shoreline areas. Those owners were not entitled to use the Defendant’s beach for general recreational activities such as sunbathing, picnicking, or beach games. The Appeals Court found that allowing broader use would improperly expand the implied easement beyond what was reasonably necessary and would overload the surviving easement rights. By contrast, owners whose properties acquired beach-use rights before the merger occurred retained broader easement rights allowing customary beach activities incidental to boating, bathing, and fishing. The Appeals Court upheld the Land Court’s determination that those rights included modern recreational uses such as sitting on blankets or chairs, sunbathing, picnicking, and playing beach games.

Conclusion

Gladstone v. Denizard provides a thorough examination of how the doctrines of merger, implied easements, and overloading interact when historic waterfront rights are at issue. The decision serves as a reminder that easement disputes often turn on detailed title history and the specific circumstances surrounding decades-old conveyances. Property owners, developers, and title professionals dealing with coastal property should carefully evaluate historic easement language and ownership history before relying on claimed access or recreational rights.

A member of REBA’s Condominium Law Section, Liz is an associate in the Litigation Department of the firm of Moriarty Bielan & Gamache LLC, specializing in real estate and land use matters. Liz represents developers, condominium associations, and individual property owners in a variety of real estate litigation matters, including adverse possession, easement disputes, and zoning appeals. Liz also has experience representing individual property owners and developers before municipal boards and obtaining local permits for development projects. She can be contacted at elake@mbgllc.com.

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Clean Energy Siting and Permitting (video)

 

Underwriting 101: The Conveyancer’s Guide to Massachusetts Underwriting (Video)

 

Landlords On Notice: Security Deposit Funds Do Not Cover “Reasonable Wear and Tear”

 George Georgountzos

It is often said that being a residential landlord in Massachusetts is difficult. There is a perception that statutory rules favor tenants, particularly with respect to the handling of security deposit funds. Mass. Gen. L. c. 186, §15B outlines the landlord’s responsibility with respect to security deposits. For

example, a landlord may only retain a security deposit equal to the first month’s rent, provided that the tenant is provided a statement of condition within ten (10) days of receipt of the security deposit funds. Security deposits must be held in a separate, interest-bearing account in a bank located in Massachusetts that is outside the reach of the landlord’s creditors, and provide the tenant with the bank’s name, location and account number.  Landlords must pay the tenant the yearly interest on the funds held. Landlords must return the security deposit funds within thirty (30) days after the tenancy ends, or provide a detailed itemization of damages, reasonable wear and tear excluded. Landlords who fail to adhere to these requirements are subject to a strict liability penalty of three times the security deposit funds held, 5 percent interest, plus the tenant’s reasonable attorneys’ fees in an action to recover the security deposit. Many landlords unknowingly and innocently violate provisions but nevertheless find themselves subject to the statute’s penalties.

Landlords should be careful to avoid lease provisions that conflict with the law. The Supreme Judicial Court recently answered two questions concerning provisions in a residential lease that conflicted with Massachusetts law. In Peebles v. JRK Property Holdings, Inc., the SJC addressed: (1) under what circumstances does a landlord who charges a tenant for painting, carpet repair, or similar refurbishment violate the “reasonable wear and tear” prohibitions in the statute; and (2) does a lease that includes a requirement that the tenant have the leased premises professionally cleaned or bear the costs of such professional cleaning from security deposit funds violate the statute? 

The Court confirmed that the language about “wear and tear” in the statute is clear and unambiguous, but a factual determination must be made as to which repair charges are valid and which violate the statute. A landlord needs to assess, among other things, the nature and cause of damages, the condition of the property at the lease’s commencement, and whether deterioration of the conditions are reasonable, normal wear and tear, or something more.  The Court held that the provisions of the JRK Property Holdings lease that mandated the tenant pay for professional cleaning and painting or have those charges deducted from the security deposit violate the clear language of the Massachusetts statute. The linking of the tenant’s responsibility to the security deposit was improper. The SJC did not opine whether a requirement that a tenant pay for professional cleaning, so long as there was an exemption for normal wear and tear, was permissible.

Landlords may require tenants to return the premises to the condition in which they found, but there must be an exception for reasonable wear and tear.  Clearly, in Massachusetts, a landlord who seeks to saddle a tenant with costs and tasks from security deposit funds that address reasonable wear and tear runs the risk of violating the law. 

A Co-chair of REBA’s Residential Landlord/Tenant Section, George is a lawyer at the Boston firm of Rudolph Friedmann LLP, with an active litigation practice representing landlords in disputes with tenants, bringing actions or defending against claims in business disputes, and representing buyers and sellers of commercial enterprises such as restaurants, shops and professional offices. Fluent in Greek, Russian and French, George can be contacted at ggeorgountzos@rflawyers.com.

 

Defamation Law: Recent SJC Case Reviews the Law

 Casey Sack

Defamation is a legal concept designed to protect individuals and organizations from false statements that harm reputations. It

generally refers to presenting false information as fact—whether spoken (slander) or written (libel)—that causes reputational damage. Importantly, defamation law is not meant to silence opinions or honest reporting, but to address demonstrably false claims presented as truth.

 

To qualify as defamation, several elements typically must be met. The statement must be false, communicated to others, and made without appropriate care for the truth. In many cases, context matters just as much as content: opinions, hyperbole, and clearly framed commentary are often protected, while factual assertions that are inaccurate and harmful may not be. Public figures also face a higher legal standard, requiring proof that a statement was made with actual malice.

 

Defamation recently took center stage in the SJC, where the court clarified when a defamation claim cannot survive the beginning stages of a lawsuit. In that matter, one individual insulted another on a social media website. The statements at issue, however, were not statements of fact but rather rhetorical hyperbole containing obvious sarcasm. The statements included wondering whether the alleged defamed individual knew how to read, and whether he had passed the bar exam or whether it was taken by another individual for him.

 

The Court found that these comments were “not the stuff of a defamation claim.” Instead, such statements were designed to be sarcasm, and the court determined that these comments could not be confused for factual assertions. The analysis turned on whether a reasonable person would understand the social media posts to be facts and the court determined that no reasonable person would make that determination. As a result, the SJC upheld dismissal of the defamation claim.

 

Ultimately, defamation law exists to strike a careful balance between protecting reputations and preserving free expression. It reminds us that words carry weight, particularly when presented as fact, and that accuracy is not just a best practice but a responsibility. At the same time, the law recognizes that open discussion, criticism, and differing viewpoints are essential to a healthy public dialogue. Not every error, disagreement, or uncomfortable statement rises to the level of defamation. Context, intent, and evidence all matter.

 

Casey, a lawyer with Rudolph Friedman LLP, handles high-stakes commercial litigation for individuals and businesses in state and federal courts. Her practice encompasses a wide range of disputes, including sophisticated commercial and civil actions, construction litigation, shareholder and stockholder disputes, employment matters, and appellate proceedings. She regularly guides clients through mediation, arbitration, and other forms of alternative dispute resolution, providing strategic and dynamic advice and representation. Casey can be contacted at csack@rflawyers.com.

 

Construction Law in the Condominium Context Part 1(Video)

 

An Introduction to Updated Homestead Protection

 Alvin S. Nathanson

Homestead protection shields a primary residence by requiring certain creditors to wait for the payment of their debts, after taxes

and mortgages are satisfied, and after receipt of the equity in a home up to the homestead exemption amount. Note that the new legislation does not impact the automatic homestead exemption; and if one does not record a homestead declaration, the protection is up to $125,000.

In 2024, the Legislature increased the declared exemption limit for primary residences protected from $500,000 to $1,000,000 for those who had filed a declaration of homestead. Homeowners who previously filed a homestead declaration do not need to re-file to take advantage of the increased protection amount, as they automatically benefit from the $1,000,000 protection.

The new law also increased the homestead protection for elderly or disabled persons, from $500,000 per person in a primary residence, to $1,000,000 per person. Individuals who are disabled or aged 62 or older, regardless of marital status, can file a separate declaration to obtain this personal homestead protection. Multiple exemptions can be combined to protect a single primary residence over the ordinary homestead limit of $1,000,000.

All owners living at the residence are eligible to the Section 3 Declaration protection up to the $1,000,000 limit. In the case of multiple owners, the $1,000,000 exemption is divided between them. A Section 3 Declaration continues to protect the declarant’s family members who reside in the same house even after the declarant dies. A homestead declaration protects the homeowner’s primary residence from certain creditor claims during bankruptcy except as follows that are not affected by homestead protection:

 

1)              A sale for federal, state and local taxes, assessments, claims, and liens;

 

2)              Prior liens, municipal taxes and a mortgage on the home;

 

3)              An execution issued from the Probate Court to enforce its judgment that a spouse pay for the support of a spouse, former spouse or minor children; and.

 

4)       An execution issued from a court of competent jurisdiction to enforce its judgment based upon fraud, duress, undue influence or lack of capacity.

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Senior Homestead Protection for Persons 62 or Older

The Homestead Act allows people 62 years or older to individually declare a $1,000,000 exemption per person in their primary residence under Section 2. If the home is co-owned by two seniors, then they each can declare the $1,000,000 exemption; and do not need to share that amount. The Act also addresses the same homestead protection for disabled persons.

A senior homestead declaration can be terminated by death of the declarant, leaving any heirs who lives in the home with no protection. If the spouse inherits the home, and lives there, then a Senior Section 2 Declaration will be converted into a Section 3 Declaration for the benefit of the spouse.  The spouse can declare under Section 2 if over 62. If owned by tenants in common, and over 62, but the other is not, the over 62 can file a Section 2 Declaration and the other can file a Section 3 Declaration and have a total of $1,500,000 homestead protection.

Jointly owned property by a married couple if over 62 years old can protect the residence for up to $2,000,000 as a family by each filing a Section 2 Declaration. But each individually is entitled to only $1,000,000 of protection.

If a home is owned by a Trust, only the Trustee can sign the declaration of homestead on behalf of the beneficiaries. The rules regarding homestead exemptions are technical and the filing requirements must be complied with, failing which the full homestead exemption to which someone is entitled, may not be realized.

A partner in the Boston law firm of Rudolph Friedman LLP, Alvin is a longtime member of the Real Estate Bar Association.  He practices in all areas of general law with his principal area of concentration being civil litigation. Alvin possesses extensive experience in civil litigation, government contract litigation, foreclosures, commercial lease drafting, federal and state construction litigation, summary process matters and complex real estate matters.  He can be contacted at anathanson@rflawyers.com

The Good, the Bad and the Horrid in Community Association Contracts

 Jonathan Klein

There are many things that make lawyers cringe, but there is one phrase that makes them want to pull the covers over their heads: “After I signed the contract….”  That’s like saying, “After I jumped

in the pond, I realized it was infested with snakes.”  There’s not much a lawyer can do for you at that point, except call an ambulance or an undertaker. 

Poorly drafted contracts, unlike snake bites, aren’t going to be fatal for a condominium association, but they may contain conditions that could be expensive and harmful.  That’s why the association’s lawyer should always review contracts before you sign them.  (You knew I was going to say that!) It is also why I’m going to concentrate here on the provisions boards either want to include or want to avoid in construction contracts and contracts with their vendors. 

But first, this key question: Do you need a contract for small projects or services that aren’t complicated and don’t involve much money.  The answer (unsurprising from a lawyer) is yes -- because even small projects can create huge liability risks, with the potential for legal costs and adverse judgments that could far exceed the cost of the work.

A maintenance contract won’t have the same level of detail as a construction contract, but their purpose is the same: To protect the association’s interests and ensure recourse if the contractor doesn’t deliver the product, service or performance the association expects and the contractor has agreed to provide.   It is better to have a contract you don’t need than to need a contract you don’t have.  

Contracts differ in their complexity and their details, but all should deal in some way with: Insurance, termination, and duration.

Insurance.  Contracts should require a service provider to have the appropriate type and amount of insurance.  In a construction contract, the coverage should exceed the cost of the project. For most projects costing between $200,000 and $1 million, this would mean a policy limit of $1 million per incident and $2 million in aggregate. For larger projects, you would want an “umbrella” providing excess coverage above the policy limit.  You want the vendor to insure not against the most likely risks but against the worst possible outcomes. 

The contract should also require the contractor to “indemnify” the association against claims resulting from the project.  This invariably complicated language addresses whose insurer will pay the litigation costs and damages if something goes wrong.  To secure the broadest protection possible for my clients, I prefer language requiring the contractor to defend and “hold harmless” the association, the manager, and the trustees from any damages arising from the project or any breach of the contract. 

This is a bit one-sided, and I will modify the language somewhat if contractors push back on it. A contract is a negotiation, after all, and the goal is to find language on which both parties agree. 

I also reject language that seeks to limit a vendor’s potential liability to a set amount, or to the amount paid by the association under the contract.  Under this language, an engineer’s liability would be limited to his/her fee, even though a claim resulting from a flawed study could be several times that amount. 

In addition to requiring service providers to have appropriate insurance, the contract should require them to provide proof that they have the insurance required. A certificate of insurance isn’t enough.  It simply documents the type and amount of insurance the contractor has.  The contract should require evidence that the service provider’s insurance policy names the association as an “additional insured.”  This endorsement provides, at least in theory, that in the event of litigation, the provider’s insurer will cover the association’s defense costs, potentially avoiding the need to tap the association’s liability policy for that coverage. 

Termination Clauses.  No one thinks about terminating a contract the day they sign it – if you do, you probably should be having second thoughts.  But you can’t predict the future. Good relationships can go south. Conditions, priorities and needs can change. A termination clause protects both the association and the vendor from the unexpected. In a vendor contract, I try to insert language specifying that either party has the right to terminate “for cause or convenience” by giving 30 days’ notice. Associations don’t often exercise this option, but it provides an exit for the association if the relationship is beyond saving, but there hasn’t been a material breach by the vendor. 

In a construction contract, I will typically accept language requiring the association to pay any costs the contractor has incurred for the project.  But I will try to exclude the penalty some contractors want to add for anticipated profits they lose as a result of the early termination. 

Duration.  The contract should state when the project or service begins and ends, which is usually fairly straightforward. However, some vendor contracts contain self-renewal provisions specifying that the contract will renew automatically unless the association (or the vendor) gives notice of non-renewal before a specified date.  These provisions are common in long-term contracts, like those with laundry service providers, which typically extend for five years or more. 

Here’s the problem: What are the odds that anyone will remember that a 10-year contract beginning in January 2020 will renew automatically, and remember to provide the non-renewal notice by October of 2030?  The manager may keep track, but managers change; so, do board members. And if they miss this renewal notice date, odds are they will miss the next one, too.   That is why they call these clauses “evergreen”- because they can lock associations forever into relationships with vendors they may want to replace. 

The best way to deal with these provisions is to reject them, which I always try to do.  Alternatively, if the vendor insists and the association likes the vendor, I want the vendor to provide written advance notice of the renewal date, giving the association ample time to opt out before the self-renewal provision is triggered.

A ‘right of first refusal’ isn’t exactly the same as ‘self-renewal’ but it has the same undesirable “flypaper” effect – sticking the association with a vendor it doesn’t want.   Under the most common form of this provision, as long as the current vendor matches a better price offered by another provider, the association must renew the contract, even if the vendor has been providing lousy service and the association has been counting the days until the current contract ends. If I can’t eliminate this provision, I will try to modify the language to specify that the association must “consider” the matching price but isn’t required to accept it.

What happens if a vendor the association likes insists on undesirable contract language, and the choices are to accept that language or find another vendor?  This is a business decision the board is free to make as long as it understands and is willing to accept the risks involved.

Automatic renewal and right of first refusal provisions are traps, and there is no easy way to escape them.  Associations will be able to terminate the contract only if:

·       The vendor commits a significant breach of its terms; or

·       The vendor agrees to waive the ‘flypaper’ provisions, which most vendors either will not do, or for which they will charge an exorbitant buy-out fee.

The association can also break the contract and dare the vendor to sue, but many vendors, especially those with in-house attorneys, will do just that.  And vendors that sue will probably win. Even if the dispute is eventually settled, the association will still incur substantial litigation costs. Fly-paper provisions may be unpalatable to associations, but they are usually enforceable.  Few things in life last forever.  A contract shouldn’t be one of them.

An associate in the Braintree firm of Marcus Errico Emmer & Brooks, PC, Jonathan has nearly 20 years of experience litigating business, construction, and personal injury disputes for both plaintiffs and defendants in Massachusetts State and Federal courts. He focuses his practice on advising clients on construction related issues, drafting and negotiating construction contracts, as well as handling a broad range of civil litigation matters.  He can be contacted at jklein@meeb.com.

 

 

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