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

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.