Vinnie hates remote board meetings!

 Paul F. Alphen

My Cousin Vinnie, the suburban real estate attorney, called me today

and was hot under the collar. “The remote board meetings have to stop!” he bellowed. “We can’t get anything done trying to talk to each other using World War II Era walkie talkies; it’s like:

‘Our client’s land is not located in the wetlands resource area – OVER’

‘Your client’s land is in wetlands? -OVER’

‘NO, it is not in the buffer -OVER’

‘Which buffer? -OVER’”

I had to laugh, because he was right. Only one person can talk at a time, and depending on the quality of the connection and the cheap microphones people are using, it can be impossible to understand what is being said.

“Did you read that some neighbors in Sandwich are opposed to the delicious Tree House Brewery from going into the former location of the ‘Drunken Seal Tavern’ because they were disconnected from the remote connection at the liquor license hearing” asked Vinnie. “Yes, it’s a travesty” I replied.

Vinnie went on. “So much time and energy is wasted just trying to find ways to effectively communicate simple points. Trying to show a subdivision plan via a shared screen to a board member using a 19-inch laptop screen does not work. And it is impossible to engage in simple give-and-take conversation. Like I said, its like using a bad walkie talkie. At a live meeting I can get out of my chair, point to a location on the plan and look a board member in the eye and engage in a back-and-forth conversation until we both understand one another.”

Vinnie wasn’t finished. “In one recent meeting a neighbor conducted a 30-minute filibuster, and the chairperson didn’t feel comfortable cutting him off. But in Carlisle, they know how to hit the ‘mute’ button if someone goes on too long; they’ll just cut you off mid-sentence. And Paulie, this process must be torture for you because I have seen you in action as you raise your 245-pound mass out of your chair and approach a board table with an exhibit; the board members cannot ignore you!”

“Vinnie, I am embarrassed to say: you are correct, sir”  

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

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

VINNIE ADMITS THAT HE DOESN’T CHARGE ENOUGH

 Paul F. Alphen

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

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

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

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

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

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

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

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

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

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

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

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

 

My Cousin Vinnie is not Smarter Than a Neurosurgeon

Paul F. Alphen, Esq.

My Cousin Vinnie, the suburban real estate lawyer, joined the family on one of those video conference calls where everyone shows up in a “Hollywood Squares” box, but only one person can speak at a time. It had been quite a while since the family had spent much time with one another, and it was good to catch up.

Vinnie, it turns out, had experienced some serious back problems, which had prevented him from even working from home for over a week.

One of the down sides of Hollywood Squares meetings is that it is hard to cut someone off. Vinnie was very descriptive when explaining the pain and the medical processes. Vinnie said: “I did not get to see my orthopedic surgeon. He has not met patients in person for months. I spoke with him via a ‘Telehealth’ call. I thought it was odd not getting to meet with him, but apparently medical professionals recognize the serious risks of  Covid19  and they are doing everything they can to protect their staffs, their patients and themselves from infection.”

“When I went to get an MRI, I was the only patient in the facility at that time. I was referred to a neurosurgeon, who also did not want to meet me in person. I had a video call with the neurosurgeon, who reviewed the MRI with me and prescribed physical therapy. Even my follow- up visit in late June will be via ‘Telehealth’”. 

“Then it occurred to me. Why would I contemplate opening my office back up to the public?  If two of the most respected surgeons in Boston are not meeting with patients who are experiencing debilitating pain, why should we risk the health of our staff people and our respective families through meetings with strangers to discuss boundary line disputes?  I’m certainly not smarter than a neurosurgeon!  I immediately sent a memo to our staff people that the office door would remain locked, and we will continue to work from home with no more than two employees in the office at a time to go through the mail, and pay the bills.”

I had to agree with Vinnie on three points: First, none of us are smarter than a neurosurgeon. Secondly, if medical professionals are not meeting with patients, we also need to appreciate the health risks and continue to confer with clients remotely. Thirdly, with most everyone staying at home, boundary line disputes are becoming more commonplace.

Stay safe.

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

My Cousin Vinnie’s Observations During a Pandemic

Paul F. Alphen

My Cousin Vinnie, the suburban real estate attorney, has been going to his office (alone) everyday during the pandemic. He is

pleased that he is considered to be “essential”. He sent me an email with the following unrelated observations:

It has been more than delightful to hear from collegial friends like Ed Rainen, Karen Johnson and others with new client referrals during these dreary days.

Our home builder clients are essential businesses and they, and their brokers and crews, continue to put homeowners together with new homes. God bless them all.

Almost everybody has been patient and understanding with the complexities involved in providing services, and the precautions involved in performing closing transactions.

I am glad that REBA is keeping track of the emergency legislation and working on ways to keep business moving forward.

My reduction in income has been offset from savings from restaurants, sporting events and travel. I feel bad for my dry-cleaner.

I was surprised to find attorneys with fancy downtown addresses that needed more time to respond to my case citations in memorandums because their only access to legal research materials was within the now-closed courthouse law libraries. Huh?

Conference calls that should take 20 minutes take an hour because everyone on the call is thrilled to have some form of human contact, and they don’t want it to end.

I have a suggestion on how people can spend some of their spare time: order some new casual clothes on-line. Too many people on Zoom meetings look like they are dressed for gardening.

From the video conferences I have learned that a lot of people have very nice kitchens with custom cabinetry and tray ceilings.

I learned how to insert fake photos into backgrounds in a Zoom conference; so now it looks like I have a 5,000 sq ft kitchen, overlooking the ocean.

Some towns were early adopters to using video conferences for public hearings. Some other towns, not so much. I found my local planning board to be empathetic that applicants had been waiting for many weeks for a hearing, and they did whatever they could to move the process forward.

I spent a weekend binge watching Massachusetts corruption on TV, and now I find it hard to distinguish between the fiction in “City on a Hill”, and the non-fiction in “How to Fix a Drug Scandal”. 

Although I am glad that Chapter 53 of the Acts of 2020 was enacted to deal with some of the land use permitting issues, I am concerned about the potential implications of the provisions which state: “..a permit granting authority may contest the completeness of an application at the time of filing if the application is ultimately denied by the permitting board on other grounds or if the permit is ultimately appealed by the applicant.”

I need a haircut.

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

My Cousin Vinnie Avoids Surgery

By Paul F. Alphen

My cousin Vinnie, the suburban real estate attorney, and I, recently met in the North End before a Celtics game. It was great to see him

because I had missed the annual family Post Christmas Party at our cousin Carmella’s house. Vinnie filled me in on the current foibles of our various relatives, and provided me with a painfully detailed description of status of Aunt Mary’s cruise to Nova Scotia.  Sorry I missed it.  

Vinnie swirled his bread around the residual red sauce in his plate previously filled with chicken cacciatore, as he shifted the conversation to his small practice.  “Paulie”, he said with a mouth filled with bread soaked in sauce, “I have a new client who has been in a years-long battle with a local building commissioner who claims that the use of his property for an auto repair shop and selling used cars is unlawful. The commissioner is correct that the uses are not allowed in the zoning district. My client provided me with a 6 inch high pile of correspondence between he and the town, peppered with correspondence from his former attorney. It seems his former attorney specialized in criminal law (when not working on his part-time thespian career). He penned a series of inflammatory demand letters to the town manager, the building commissioner and the town planner asserting all sorts of mischief including violations of his client’s civil rights, unequal treatment under the law, injustices and shenanigans. It came as no surprise to me that the matter was not resolved and the town was turning up the heat on the landowner.”

I think Vinnie is hilarious, but I interrupted him “That sounds like trying to deal with the medical profession. If you ask for a diagnosis from a surgeon, don’t be surprised if the surgeon recommends surgery, even if you don’t need it!” Vinnie replied “Right; sometimes you just need the right physical therapist.”

Vinnie went on. “I went through the client’s pile of paperwork. Something in the pile suggested that the property had been used for auto repair for decades. I checked the Assessors’ property record cards and flipped through the old files in the Building Department.  I found a history of Class II Used Car Dealer’s licenses in the Selectmen’s records, as the December meeting minutes always list the annual license renewals. I checked the registry of deeds and identified the names of the various owners of the property over the years and found that they were in the auto repair business from their corporate purpose statements on file with the Secretary of State. I then went back to town hall to wade through copies of the zoning bylaw from the past 30 years to determine when the uses became unlawful in the zoning district. Turns out the uses are protected as lawfully pre-existing nonconforming uses.  I bundled together my evidence and had a cup of coffee with the building commissioner and the town planner. Case closed.”

I was nodding my head in the affirmative throughout his story. His approach was spot on, and second nature for a land use guy.  Vinnie concluded by saying: “Like most of our brethren, I like to think that I am pretty good at ‘issue identification’ and I try to send prospective clients in the right direction. I find that even when I turn people away and recommend that they see another specialist, it is not uncommon to hear from them again in the future when they are dealing with a real estate issue; which is one of the benefits of practicing for a long time. I wish all physicians were better at issue identification.”

I couldn’t agree with him more.

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

MY COUSIN VINNIE SETS UP SOME GROUND RULES FOR FAMILY MEMBERS.

By Paul F. Alphen

My cousin Vinnie, the suburban real estate attorney swung by my office today. He was agitated and he was looking for some moral support.

“Paulie, remember what President Lincoln said; ‘A lawyer’s time and advice are his stock in trade’, right?”  I told Vinnie that I was

not present when Lincoln said those words, but I agreed that those words have been attributed to Lincoln. “Then, Paulie, why do our relatives expect me to provide my stock in trade without renumeration?” I asked him to clarify. “Our cousin Georgie, the dentist, for example. Does he perform free dentistry for you and your family; no he does not. But when he decided it was time to buy a big beach house in Chatham, he expected me to provide my stock in trade for free.”

“Vinnie, Vinnie, Vinnie, it’s expected that we work for free for our closest relatives, at least to the degree that we can. It’s the eleventh commandment.”    I said, and Vinnie replied: “Yeah, I know, but I decided it was time to set up some ground rules.”  All I could say is “Oh, oh, what did you do now?”

Vinnie picked up his iphone 4 and showed me an email that he sent to cousin Georgie, DMD. “Paulie,  I sent this email to Georgie, and I saved the language so that I can share it with my siblings, in laws,  and our other relatives.” It said:

“Cousin. So glad that you and Natalie are upgrading to an oceanside beach house. I love you and I am here for you, but I need some assistance from you. Here are some suggested Do’s and Don’ts going forward:

·         Do not hide the Offer to Purchase from me until the day before the P&S is supposed to be signed.

·         Do get the Offer and the proposed P&S to me as soon as you can. I would like to extend a family discount to you, so it would be helpful if I have some flexibility in scheduling when I work on your P&S; perhaps while eating my sandwich at my desk, or after 6:30 in the evening.

·         Do not do what your brother Louie did to me,  who told me on a Friday night that he had to sign a P&S on Saturday, which meant that I had to work on the P&S from my cabin on the lake where all I have for office equipment is a 7 year old computer with DSL internet, and a combination copier, scanner, printer, coffee-maker. So while the rest of the family was out in the leaky boat, I was waiting for documents to download. I then edited the P&S and sent it back to Lou and sat by my old computer waiting for comments. Meanwhile, my sons ran through the house to get my credit card so that they could fill the old Glastron with gas and outboard motor oil. At lunch time I got edits back and sent the P&S to the Seller’s attorney and the brokers and sat around waiting for their comments. Meanwhile, I received pictures via text messages from my wife and kids enjoying lunch at that lake front bar that you like so much.

·         Do not think you are doing me a favor by not interrupting my work week with your deal.

·         Do contact me at my office during business hours. At the office I have a building full of people and a leased printer, scanner, copier worth $10,000.00, which is connected to fiber-optic high-speed internet. I have a computer server with 33 years of addenda, forms and contracts. My paralegal can check the Registry of Deeds to verify the title references and conduct a preliminary check for any issues, like a pending foreclosure or that the property was in a trust. I can prepare a buyer’s addendum using the format that I have developed over the years, rather than having to type one from scratch. I can send my documents to you and the Seller’s attorney and resumed my other work while you and the attorney reviewed my drafts. I would have had the opportunity to work on your contract at times that work best for me.

·         Do avoid calling me at home or on weekends unless there is a real estate emergency.  Thank you for your understanding.”

I read it again. “Vinnie, that was a little harsh. Forward it to me so that I can use it too.”

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

JUST ANOTHER WEEK FOR MY COUSIN VINNIE, THE DIRT LAWYER.

By Paul F. Alphen

My cousin Vinnie, the suburban real estate attorney, made his way down to Falmouth again this summer for a boat ride to the Vineyard and to continue his

ongoing hunt for the perfect Old Fashioned. I told him that sometimes it’s not the cocktail, but the setting, as Vinnie and our gang enjoyed the veranda of the Harborview Hotel.  

“Paulie” Vinnie bellowed between sips, “I could not wait for this weekend to come. I had another crazy week!” I knew that after taking another sip that he would regale us with a description of his work week, and he did not disappoint.

“After a buyer and seller could not agree on the terms of a P&S, the buyer’s attorney recorded the offer to purchase with an affidavit that the seller was not acting in good faith. He kinda created his own lis pendens without a troublesome trip to court. This now means that I have to add a provision to the few offers I see stating that if the offer is recorded with the Registry of Deeds in any form, the offer shall become immediately void. True story.” My brother-in-law Bill, who flips houses, nearly spit out his pale ale.

Vinnie continued. “A buyer called me at the last minute after deciding that he should have an attorney review a P&S before signing it. The house had an in-law apartment, which was a critical requirement for the buyer. I did some quick homework and discovered that the building commissioner had issued a cease and desist order, ordering that the in-law apartment be torn down.”  My son Chris, who also happens to be a suburban real estate attorney laughed out loud, and said “Something like that happens to me about once a week!”

Vinnie was on a roll, but paused to order a bowl of chowder and a refill of the Old Fashioned.  “In a town in which we had filed applications for a subdivision for a light industrial development, town meeting enacted a moratorium on light industrial uses two days before we were scheduled to meet with the Planning Board. We spend the night explaining zoning freeze protection to the neighbors. Town Counsel and the Board members are knowledgeable regarding such things, so we are optimistic that things will work out”. “Thank goodness for the Massachusetts Broken Stone decision”, I replied while watching a wedding party posing for photographs in front of the lighthouse.

“Yesterday I got a call from a woman who wanted me to write a letter to a ZBA stating that there was no mention of an access easement in her deed, and therefore the neighbor  proposing a new garage on abutting land had no right to use a sliver of her lot for a driveway. When I tried to explain to her that it would take a review of her chain of title, she argued with me that I should just take her word for it and write the letter, and eventually she hung up.”

“A builder bought a lot in an old retail condominium project and built a very fancy retail store building. He then engaged counsel to draft a phasing amendment. Counsel copied, word for word, the last phasing amendment document recorded 25 years ago, not noticing that the phasing rights expired in 1996. I cannot make this stuff up.” I asked him what happened after that, and Vinnie said he is still waiting to find out.

“And while all of this is going on I represented a seller in a house sale that was supposed to close 3 weeks ago, and still has not closed. I counted the emails for the week between the attorneys, the lender and the brokers: 305 of them!”  

We all told Vinnie to chill, and enjoy the weather and the view. He took a deep breath, and a sip, and started to calm down.

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

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

MY COUSIN VINNIE PERFORMS BACKGROUND CHECKS

By Paul F. Alphen

I took my cousin Vinnie, the suburban real estate attorney, to a Celtics game recently. He always has a hard time reaching a

decision on where to eat before a game. The North End has too many options, and Vinnie seems to have an opinion about each of them. He arrived too late to snag a seat at the marble topped bar at my favorite oyster place, so we walked down Salem Street until he finally found a restaurant worthy of his patronage. He had pappardelle pasta with ground veal, beef and pork tomato ragù. He said it was delicious. 

As we started our usual exchange of war stories, I told Vinnie the story about a proposed P&S came across my desk for an expensive new home in an exclusive neighborhood, and I recognized the name of the buyer; and it was not just because he was a member of a prominent local family. I called my builder client and told him that the same buyer had attempted to buy fancy houses from two of my other builder clients during the past few years, but at each closing when it came time for the buyer to deliver a bank check, all we received was a story about how the family wealth was tied up in an off-shore trust account and it would take a week to deliver all of the funds. One of my builder clients had given the keys to the buyer before we were told the off-shore-trust-fund story, and our construction foreman had to rush to the house to change the locks before the moving van arrived. True story.

Vinnie told me to watch out for cell tower lease assignment agreements that essentially convey all rights in the cell towers and the land they are constructed upon in perpetuity. “There are a lot of cell tower lease acquisition companies out there, and some of them disguise the conveyance of the land rights in the boilerplate of the assignment. Sometimes the property owners don’t discover that they sold their land until 20 years later.” I thanked him for the tip while negotiating a littleneck from its shell in my cioppino stew.

Vinnie continued: “Paulie, after a few mishaps I am now performing ‘internet-checks’ from time to time regarding parties on the other side of most deals. For years I have been correcting title references and seller information when preparing or reviewing P&S agreements provided by sellers. And, more and more recently I have come across sellers who forgot that they had conveyed the property into a trust, or forgot that they conveyed out a sliver of their land 10 years ago. But recently I typed the name of a builder/seller into the registry web site and like a slot machine out rolled nothing but pages and pages of  ‘execution, execution, attachment, execution, attachment, attachment, attachment…’ I now use internet searches on a regular basis.”

Without taking a bite, Vinnie continued with an even better story. “I had a client that was about to partner with a new guy on a nice commercial project. I had a few conversations with him and I was troubled that he didn’t seem to follow my explanation of pre-existing non-conforming structures. The guy claimed to be a big time developer, but I got a funny feeling about him. I typed his name into Google™ and all kinds of interesting stories tumbled out. I found old newspaper stories about drug charges, charges of shoddy construction and a bankruptcy. I then typed his name into the Registry of Deeds website and found numerous executions and foreclosures. I then called my client and asked if he knew about the guy’s sorted past, and he did not. I thought it was odd that it took an old guy like me to know how to effectively use the Internet!”

“Crazy” was all I could say. But, in the future I am going to take Vinnie’s counsel and perform more background checks.

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

Vinnie Appreciates the Finer Point of Title Exams

By Paul F. Alphen

My cousin Vinnie, the suburban real estate attorney, joined the gang in the Man Cave for a recent Patriots’ game. He brought some

terrible beer, suitable for his own personal consumption; which was fine because nobody else wanted to drink it. I am sure the smoked brisket made the beer taste better, because smoked meat makes everything better. After the victory, Vinnie hung around with the die-hard football fans to watch “Red Zone” and eat cookies. Only then did he start regaling us with stories from his small town practice.

“Paulie, I don’t know if you have noticed, but it seems to me that our brothers and sisters of the bar have upped their standards when it comes to reviewing title exams. I have been very pleased to see more requests that sellers need to obtain confirmatory discharges, or need to record missing trusts and cure deed descriptions. Until a few years ago, it was as if we were expected to accept anything, including discharges from the first cousin of a mortgage holder, but now that things have settled down, it seems that there is more attention to detail and a greater expectation of precision.”

I told Vinnie that I had notice the same trend, and I told him about a deed that came across my desk last week from the assignee of an assignee of a foreclosing entity, with one of those crazy long names with a “certificate series number” signed via POA, and the POA may have provided authority to execute and deliver deeds, but for some reason the drafter of the POA did not know how to type the words “and execute and deliver deeds”. 

Vinnie declined an offer for a taste of some Eagle Rare bourbon and held on to his crappy beer. “It’s a conundrum.” Vinnie continued. “If three owners ago a trustee’s certificate was not perfect, and all the trustees died, but the title was buttressed with attorney’s affidavits, certificates of appointments and acceptance, a new certificate plus the passage of ten years, I suppose you can complain that the title is not perfect, but somewhere you have to apply a reasonableness standard. On the other hand, if the parties are alive and available to sign corrective documents, I will usually insist that we obtain and record corrective documents; and I usually end up drafting all the corrective documents and confirmatory deeds.”

Vinnie continued: “And, the other thing that is happening is that subdivisions that sat dormant since the Great Recession are coming back to life. But unfortunately the land owners are attempting to sell expensive lots only to discover that the septic regulations have changed, or the wetlands have migrated, or Orders of Conditions have lapsed. On more than one occasion I have seen land owners attempt to sell pricey lots, but in the course of my title exam I found conditions of approval that were long forgotten by the seller/developer, including lapsed special permits, and missing easements or restrictions that still require review by learned town counsel. Talk about delays to the closing!”

My buddy Chip told us to stop talking shop, and pay attention to the games. He had a point. There would be plenty of time to contemplate the fine details of a 2” thick title exam on Monday morning.

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

Vinnie Appreciates the Finer Point of Title Exams

Paul F. Alphen, Esquire

My cousin Vinnie, the suburban real estate attorney, joined the gang in the Man Cave for a recent Patriots’ game. He brought some

terrible beer, suitable for his own personal consumption; which was fine because nobody else wanted to drink it. I am sure the smoked brisket made the beer taste better, because smoked meat makes everything better. After the victory, Vinnie hung around with the die-hard football fans to watch “Red Zone” and eat cookies. Only then did he start regaling us with stories from his small town practice.

“Paulie, I don’t know if you have noticed, but it seems to me that our brothers and sisters of the bar have upped their standards when it comes to reviewing title exams. I have been very pleased to see more requests that sellers need to obtain confirmatory discharges, or need to record missing trusts and cure deed descriptions. Until a few years ago, it was as if we were expected to accept anything, including discharges from the first cousin of a mortgage holder, but now that things have settled down, it seems that there is more attention to detail and a greater expectation of precision.”

I told Vinnie that I had notice the same trend, and I told him about a deed that came across my desk last week from the assignee of an assignee of a foreclosing entity, with one of those crazy long names with a “certificate series number” signed via POA, and the POA may have provided authority to execute and deliver deeds, but for some reason the drafter of the POA did not know how to type the words “and execute and deliver deeds”.

Vinnie declined an offer for a taste of some Eagle Rare bourbon and held on to his crappy beer. “It’s a conundrum.” Vinnie continued. “If three owners ago a trustee’s certificate was not perfect, and all the trustees died, but the title was buttressed with attorney’s affidavits, certificates of appointments and acceptance, a new certificate plus the passage of ten years, I suppose you can complain that the title is not perfect, but somewhere you have to apply a reasonableness standard. On the other hand, if the parties are alive and available to sign corrective documents, I will usually insist that we obtain and record corrective documents; and I usually end up drafting all the corrective documents and confirmatory deeds.”

Vinnie continued: “And, the other thing that is happening is that subdivisions that sat dormant since the Great Recession are coming back to life. But unfortunately the land owners are attempting to sell expensive lots only to discover that the septic regulations have changed, or the wetlands have migrated, or Orders of Conditions have lapsed. On more than one occasion I have seen land owners attempt to sell pricey lots, but in the course of my title exam I found conditions of approval that were long forgotten by the seller/developer, including lapsed special permits, and missing easements or restrictions that still require review by learned town counsel. Talk about delays to the closing!”

My buddy Chip told us to stop talking shop, and pay attention to the games. He had a point. There would be plenty of time to contemplate the fine details of a 2” thick title exam on Monday morning.

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

A SHORT WEEK IN THE LIFE OF A DIRT LAWYER

Paul F. Alphen, Esquire

My cousin Vinnie, the suburban real estate attorney, accepted my invitation to join some other captains of industry for a weekend of fishing. The term “fishing” is somewhat of an exaggeration as

there is more eating than fishing involved. He took me up on my offer to arrive on the Cape early on Friday so that he could watch me prep the boat and watch me pump diesel into the tanks. It gave us some time to catch up on family news, and it gave Vinnie an opportunity to vent about his suburban real estate practice before the other men arrived.

“Paulie”, Vinnie started as we backed out of the slip on our way to the fuel dock, “What a week I had!” Sounding a little like the late Rodney Dangerfield, I fully expected him to tell me that he “gets no respect”.

“Paulie, honest to Goodness, this is a short list of some of the issues that entertained me in the last 4 days:

·         A client wants to buy a lot that was conveyed into a trust with a ch.184 s.35 trustee’s certificate with no mention of successor trustees, and the trustee since died, and no one can find the trust;

·         A buyer’s attorney instructed me to prepare a grantee clause in violation of the four unities of joint tenancy;

·         In reviewing a title, I found that our locus was one of a few lots conveyed years ago with the benefit of a common driveway easement declared by a party who did not own the servient estate;

·         A portion of a unit, as described in the Master Deed, is physically separated from the living quarters of the unit, and stuffed with common mechanicals and pipes, and partially submerged by groundwater infiltration;

·         A planning board approved a commercial use across the street from a client’s home in a residential zoning district, in a town that does not allow use variances;

·         I went to a closing for a seller and the buyer would not agree to close until she interviewed the landscaping contractor regarding the methodology used to seed the disturbed area over the new septic system;

·         A town installed a new drinking water well, causing a number of homes to lie within a Zone 1, forcing them to install outrageously expensive septic systems;

·         A condominium burned to the ground;

·         A zoning board told me that my client’s 40B was ‘too dense’, although it meets the boards’ own density guidelines;

·         A landlord gave a commercial tenant notice that the tenant had to vacate early, and later sent a goon to the tenant’s space to encourage them to ‘start packin’;

·         A broker that got a commission based upon a 10 year lease from our landlord client, is now showing the tenant other space, which will no doubt cause the tenant to breach the lease; and

·         I drove to Dedham for a closing and the buyer did not show, and days later nobody can find him.”

I had to laugh and tell him that I understood, all too well. “Vinnie, when we tell people that we are real estate attorneys, they think we make a living sitting at a closing table passing loan documents to homebuyers; I am sure that’s what my sisters think I do. In reality it is impossible to describe what we do. Sure, our practices are real estate related, but we also take care of issues that touch, directly or indirectly, real estate… sometimes very, very indirectly. And all of them could be better defined as ‘human issues’, as opposed to ‘real estate issues’.”

Vinnie wandered over to the Yeti with the big BC logo on top and pulled out an IPA that had its roots in Nantucket, but is now brewed on the mainland somewhere. He felt better, having vented, and he paused to enjoy the passing scenery and the sunshine as I pushed down the throttles to leave terra firma behind.

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