WWW.REBA.NET THE NEWSPAPER OF THE REAL ESTATE BAR ASSOCIATION MARCH 2018 • Vol. 15, No. 2

Supplement of Massachusetts Lawyers Weekly

Appeals Court limits application of equitable subrogation

BY LAWRENCE P. HEFFERNAN (2017), follow a common refinance sce- AND DANIELLE ANDREWS LONG nario found in equitable subrogation cases, but with a twist. Nancy Comeau (“Nancy”) and her husband, William, owned property in Groveland that was encumbered by a $150,000 mortgage to Haverhill Co-Operative Bank. Al- though Nancy signed the mortgage to Haverhill Co-Operative Bank, she did not sign the underlying note. A refresher on adverse possession In 2005, two years after the Haver- hill Co-Operative mortgage, William The doctrine of equitable subroga- refinanced the Haverhill Co-Opera- and prescriptive easements tion is frequently invoked to salvage tive mortgage by executing a note in BY KIMBERLY A. BIELAN the priority of a supposed first mort- his name only to Washington Mutual ium Trust. v. Cambridge Point, LLC, gage when the mortgagee discovers an Bank in the amount of $300,000, se- in which the Supreme Judicial Court intervening superior lien. Under the cured by a mortgage in which he was In think- struck down a so-called “poison-pill doctrine, which is based on principles the sole mortgagee and signatory. Of ing about the provision” in a condominium’s govern- of equity and fairness, a mortgagee the Washington Mutual loan proceeds, cases that we ing documents that sought to chill the whose loan proceeds were used to pay $142,871.51 was used to pay off and have handled condominium trust’s ability to litigate. off a prior mortgage will be subrogated satisfy the first mortgage to Haverhill over the past But in light of the frequent inquiries or substituted into the position of that Co-Operative. year as I tried that we have received on the topic of earlier mortgage and accorded prior- William died in January 2008, and to determine a adverse possession and boundary line ity over intervening liens to the extent his undivided interest in the Groveland topic for this disputes, I thought a refresher on ad- that it paid off the superior lien. property passed to Nancy by right of month’s news- verse possession would prove beneficial. The Supreme Judicial Court ad- survivorship. At that time, there was an letter article, I realized that we have While many people are able to re- dressed the doctrine for the first time outstanding balance on the Washing- had a number of questions regarding cite the requisite duration to establish in decades and reinforced it in East ton Mutual mortgage note. adverse possession, most often in the adverse possession — 20 years — sev- Boston Savings Bank, et al. v. Lois J. The Appeals Court’s analysis inCo - context of boundary disputes. In each eral of the other requirements to ob- Ogan, 482 Mass. 327 (1998). The Ap- meau was guided by the Ogan decision. of the cases that we have handled, tain title may not come to mind quite peals Court, however, recently declined The Appeals Court noted the five fac- there has been a change in circum- as readily. The common law doctrine to apply the doctrine to a widow who tors identified by the Supreme Judicial stance (most frequently, new own- of adverse possession and the related had not signed the subsequent mort- Court that must be determined before ership of either one or both of the doctrine of prescriptive easements re- gage or related note even though the equitable subrogation can be applied: properties involved) that has brought main powerful mechanisms by which proceeds of the subsequent mortgage (1) the subrogee made payment to pro- matters relating to location of fences property interests may be altered. loan were used to discharge an earlier tect its own interest, (2) the subrogee and established uses to a head. To establish title to land by ad- mortgage on her property. did not act as a volunteer, (3) the sub- It is always exciting to share legal verse possession, a party must dem- The facts of Wells Fargo Bank, N.A. rogee was not primarily liable for the updates with our clients — as Dave onstrate that each of the following is See page 11 v. Comeau, 92 Mass. App. Ct. 462 Rogers does in his discussion of Trust- satisfied: ees of the Cambridge Point Condomin- See page 10 Update from the Board of Bar Overseers Inside this issue BY JOSEPH S. BERMAN Westlaw computer terminal, which was ◆◆Punxsutawney philomena . . . . 2 the size of a small refrigerator. Today, we Editor’s Note: carry the entire library in our pocket and Joe Berman and we are as likely to communicate with ◆◆Remote title examination . . . .. 2 his colleague at the clients via text message as a formal letter. BBO, Stacy Best, With all the benefits of technology ◆◆Operational guide to life estates will lead an hour- come challenges. The most important of vs . irrevocable trusts...... 4 long breakout ses- these concerns protection of client con- sion, entitled “Eth- fidences. Rule 1.6 of the Rules of Pro- ics Involving Re- fessional Conduct requires lawyers to ◆◆Vinnie performs background mote Office Matters protect confidential information relating checks ...... 5 and Shared Office Space,” at the associa- to the representation of a client. The rule expands beyond the limits tion’s Spring Conference on Tuesday, May I want to discuss the role of the BBO 1, in Norwood. of the attorney-client privilege. It ex- ◆◆Zoning and other legal obstacles and my view of its future in an evolving Starting in May of this past year, I tends to any confidential information to tiny houses ...... 6 profession. Many of these changes will have had the privilege of serving as gen- gained during or relating to the repre- be of direct interest to the real estate bar. sentation of a client, whatever its source. eral counsel at the Board of Bar Over- ◆◆Latitude, longitude and the registry Like practitioners in every profes- Since 2012, Rule 1.6(c) has required seers. Prior to assuming this position, I of deeds...... 7 was in private practice for over 20 years, sion, lawyers are facing rapid change, lawyers to make reasonable efforts to including several years as a mediator and and it’s critical that our ethical rules prevent the inadvertent or unauthorized arbitrator. I was honored to be on RE- and standards keep up. Not surpris- disclosure of, or unauthorized access to, ◆◆Condominiums and adaptive BA’s panel of neutrals, and I have many ingly, technology is at the top of the confidential information. Thus, attor- reuse ...... 8 happy memories of helping litigants re- list. When I was in law school, I typed neys must take affirmative steps to guard solve their real estate disputes. Since a papers and exams on a Smith-Corona against improper disclosure. ◆◆Devils in the details: ‘fair market new job provides the opportunity to take typewriter. Computerized legal research In our technology-based world, a look at things with a fresh perspective, was done on the law library’s dedicated See page 11 rent’ in lease extensions . . . . . 9 PAGE 2 REBAnews MARCH 2018 Punxsutawney philomena BY DIANE R. RUBIN President’s Message well the day-to-day business of REBA is run. Thanks to Peter Wittenborg Many colleagues have asked me and the REBA team, all of these ini- what it’s like to be the president of tiatives run smoothly. For instance, we 295 Devonshire Street, Sixth Floor, REBA. “Is it a lot of work?” “Are you will soon have a new accounting firm Boston, MA 02110-1266 overwhelmed with time commit- at some savings to the organization, ments?” “Is it stressful to balance ev- following a competitive bid process. www.reba.net erything?” Peter also oversees the REBA Dis- As I take pen to paper in early pute Resolution panel of neutrals. In President: February, Punxsutawney Phil has just January and February alone, 16 media- Diane R. Rubin seen his shadow and we know we are tion and arbitration cases are sched- [email protected] in for a long winter. I’ve now chaired uled, ranging from purchase and sale my first REBA board meeting, and disputes to boundary disputes. As I President Elect: had the opportunity to survey the full write these words, I’m reminded that Paula M. Devereaux breadth and depth of REBA’s activi- REBA DR is not just for real estate, ties. I share the adventures of my first but also complex business disputes. [email protected] month with you. Bloom. Their leadership has contrib- I’m looking forward to working with Our luncheon programs are going uted mightily to finding the right cases Peter to expand REBA DR’s reach Immediate Past President: strong and the calendar is jam-packed. and guiding the briefing so that REBA and increase the number of satisfied Francis J. Nolan I’m looking forward to the February can have a meaningful impact when customers. [email protected] meeting of the Commercial Real Es- real estate issues are before the SJC. Lastly, I would be remiss if I didn’t tate Finance Section, where Tom Giu- The most recent example is the mention the Women’s Networking Treasurer: di and Vicki Donahue will lead a dis- Cambridgepoint case, in which the SJC Group’s event to support the Women’s Jennifer L. Markowski cussion on legal opinions. I’m walking held that it was overreaching for a con- Lunch Place, coming up on April 5. [email protected] over to REBA’s offices along with sev- dominium developer to impose poison This event has come to be an annual eral of the associates in my firm, since pills as conditions precedent to litiga- tradition for gathering and supporting Clerk: REBA’s programing is a great supple- tion, which for all practical purposes this wonderful charity. One question Neil D. Golden ment to any firm’s training repertoire, I’m asked from time to time is wheth- made it extraordinarily difficult or even [email protected] whether in person or by webcast. impossible for the condominium trust- er men are invited. The answer is, “Yes! We’ve also seen an increasing num- ees to seek redress for construction de- Please join us!” Indeed, last year, my ber of joint programs, sponsored by fects. predecessor and past President Fran Executive Director, Editor: multiple sections, which bring togeth- Because the Cambridgepoint case Nolan was joined by his lovely and Peter Wittenborg er practitioners of different strengths. did not prohibit poison pills outright, very funny wife, adding much mer- [email protected] On March 7, the Condominium and REBA has at the ready our stellar Leg- riment to the evening. We hope she Environmental Law Sections will dis- islative Committee to bring this issue joins us again. Managing Editor: cuss the SJC’s recent decision in Grand forward with the Legislature, for fur- So after one month in office and Nicole Cohen Manor Condominium v. City of Lowell, ther clarification and consideration. with a busy spring ahead of us, I can [email protected] which extended the statute of limita- Ed Smith, REBA’s legislative counsel, report that I may be a tad busy, but am tions for Chapter 21E claims, bringing is one of the best in business. I had the having a great time. REBA’s breadth Legislative Counsel: together plaintiff ’s counsel as well as opportunity to spend time with Ed and depth are formidable — learning, Edward J. Smith one of the condominium trustees who during this year’s Walk to the Hill for collaboration, thoughtful advocacy of [email protected] had the fortitude to spearhead this Civil Legal Aid. He introduced me to real estate principles, meaningful par- case all the way to the SJC. many legislators, who seemed genuinely ticipation in the legislative forum, the MISSION STATEMENT I’ve also learned to appreciate the interested in hearing what REBA has challenge of resolving difficult cases To advance the practice of real great work of REBA’s Amicus Com- to say about pending real estate issues. outside of court, and lots of fun and estate law by creating and sponsoring mittee, chaired by Dan Ossoff and Ed I’ve also come to appreciate how good works. professional standards, actively participating in the legislative process, creating educational Remote title examination programs and material, and demonstrating and promoting fair dealing and good fellowship among BY JOEL A. STEIN state supervision charge for copies; how- sion 2 must pay for the print members of the real estate bar. ever, those not under the state’s jurisdic- b. Can print if no entries found Many attor- tion — including Norfolk, Barnstable, c. Shows dates of examination neys and title ex- Bristol and Plymouth — do charge, not d. Can click a next button to check MENTORING STATEMENT aminers are now only for copies, but, in some cases, for a the following instrument To promote the improvement of the performing their registration fee. e. Can check another search area, practice of real estate law, the men- toring of fellow practitioners is the searches remotely Pros and cons i.e., Plan Book and then return and making use to your search continuing professional responsibility Grantor/grantee sheets — Mass. of all REBA members. The officers, of information Plan Indexes — Mass. Land available online. Land directors and committee members Attorneys and ex- a. Cannot print the grantor/grant- Suffolk allows you to search under are available to respond to member- aminers should ee sheets if no entries are found the book and page number of the plan. ship inquires relative to the Asso- be aware that there exist any number b. Can print grantor/grantee Middlesex South requires you to know ciation’s Title Standards, Practice of quirks from system to system, and sheets eliminating non-locus that plan number and the year of record- Standards, Ethical Standards and it is essential to have familiarity with entries ing. If you have access to the book and Forms with the understanding that the specific registry before doing a title c. Does not show dates of exami- page number of the plan, you should advice to Association members is search remotely. nation on the printed grantor/ search for an instrument recorded in not, of course, a legal opinion. There are two basic systems avail- grantee sheets the same book, which will have the plan able. The first is the Massachusetts Land d. Cannot bounce back and forth information noted in its margin. Since between grantor/grantee sheets System, used in Middlesex (North and 2005, both registries use the year of the © 2018 The Real Estate Bar Association South), Suffolk, Berkshire (all three and other search entries plan book. for Massachusetts. Materials may not be e. Cannot check the next entry reproduced without permission. districts), Bristol (South and Fall Riv- Norfolk — Browntech system er Districts), Hampshire, Franklin, without going to book and page Postmaster: Send address changes Worcester (Worcester), Dukes, Nan- index • Requires Firefox version 52ESR to REBA, 295 Devonshire Street, 6th Floor, tucket and Plymouth. f. Can perform two-party search or Internet Explorer. Boston MA, 02110 The second is the Browntech system, — particularly helpful when • There is $100.00 annual sub- used in Norfolk (two different versions), searching for an assignment, a scription fee, and you must put Hampden, Worcester (North), Barnsta- power of attorney or a discharge $100.00 into the account. ble and Essex (North). Grantor/grantee sheets — Brown- • Copies are available from 1793. (ISSN 01967509), 10 Milk St., 10th floor, Two registries use their own systems: tech • Indexes by use of an extended Boston, MA 02108 Bristol (North) and Essex (South). a. Must print entire page that ap- search are available from 1900 (617) 451-7300 • masslawyersweekly.com None of the registries that are under pears on screen, and under Ver- See page 8 MARCH 2018 REBAnews PAGE 3

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www.FirstIndemnity.net 781.581.2508 Boston • New York • Tampa • Chicago • Dallas • Los Angeles • Philadelphia PAGE 4 REBAnews MARCH 2018 Operational guide to life estates vs. irrevocable trusts A THREE-PART SERIES FOR REBA NEWS

BY LEO J. CUSHING AND For example: If the value of the to an individual who has owned and There would be a corresponding TODD E. LUTSKY property transferred was $600,000, the used his property as his/her primary res- $490,446 allocation of proceeds to the individual was 66 years old, and the ap- idence for two of the last five years and children, minus a $163,482 cost basis, re- plicable federal rate of interest on the entitles him/her to exclude $250,000 of sulting in a $326,964 capital gain. How- date of creation of the life estate was capital gain attributable to the sale of his ever, since the children do not live in the 2.4 percent, the corresponding Internal primary residence. property they would not be able to avail Revenue Code Table S for that interest themselves to this capital gains exclusion rate would tell us that the value of the and would have to pay federal and state remainder interest is 68.921 percent It is important to fully income tax on the gain in the amount of of the whole, or $413,530 ($600,000 x understand how a life approximately $94,166 ($326,964 x 20 68.9217 percent). percent fed, 3.8 percent Obamacare tax Therefore, the value of the gift estate operates and and 5 percent Massachusetts). Editor’s note: This is the second install- made as of the date of transfer would A final problem with this arrange- ment in an exclusive three-part series of be $413,530 and a gift tax return must what your options are ment is that after the tax has been paid articles in REBA News directed to trans- be filed by April 15th of the year fol- by the children as remaindermen, the actional and general practice attorneys, ex- lowing the year in which the transfer prior to gifting the portion remaining in the hands of the ploring the use of life estates and irrevocable occurred to report the resulting gift tax remainder interest in children or family member is an early trusts in estate planning and Medicaid liability. No actual tax may be due be- inheritance. If the life tenant needs that planning. cause the giver would likely just reduce your property to your money to live on or to purchase a new The concluding installment, to be pub- their federal gift tax exemption of cur- home, the life tenant would be forced to lished in the May/June issue, will explore rently $5,490,000 by the gift tax liability. children or a family ask the children or family member to re- creating a life estate and transferring the Though there is no Massachusetts gift turn it. remainder interest to a Medicaid irrevo- tax, the value of the gift would reduce member. In the event the children or family cable trust along with the related gift-, es- the current Massachusetts $1,000,000 member decide to return it, they then tate-, and income-tax implications. estate tax exemption or filing threshold. would be subject to the gift tax rule in What are the tax pitfalls associated 2. Can the life tenant sell the home after This amount is increased to $500,000 the event the amount given back to the with creating a life estate in which placing the remainder interest in the hands for a married couple who have owned life tenant exceeds the current $14,000 the remainder interest is in the of the children, and what are the income and used their property as their primary present gift exclusion. Either way, the hands of the children or a family and gift tax ramifications? residence for two of the last five years. parent will have less money for them- member? The first major hurdle the life tenant The ability to shelter this gain exists ev- selves after the payment of the capital 1. Does transferring the home or other faces prior to selling the property is get- ery two years. In this case, if the children gains tax by the children than they would real estate to the kids while retaining a life ting the children’s permission. Assuming have moved out of the home, then the otherwise have had. estate constitute a completed gift for gift tax that the children or family member have portion of the sale proceeds allocated to A parent should not have to jump purposes? agreed to sell the property, this arrange- them as remaindermen would be subject through so many hoops and encounter When an individual transfers their ment would still result in adverse in- to capital gains tax and not eligible for such adverse income tax consequences interest in property directly to children come tax consequences associated with the exclusion under this rule. in order to protect their assets from the or a family member and reserves a legal the sale. However, the life tenant would be cost associated with long-term care. It is life estate, they have made a completed If the property is sold, the gains (and able to apply this capital gain exclusion important to fully understand how a life gift of the remainder interest to that proceeds) would be split between the life to his portion of the proceeds received estate operates and what your options person. In the event the value of the tenant and the remainderman using the from the sale, thereby reducing and pos- are prior to gifting the remainder inter- remainder interest exceeds the $14,000 actuarial tables discussed above and the sibly eliminating any capital gain tax li- est in your property to your children or a present interest exclusion, a Form 709 IRS Section 7520 rate that applies for ability at least for the life tenant. family member and instead compare the gift tax return should be filed. the month in which the sale occurred. For example: Let’s assume the life benefits of transferring the remainder in- The $14,000 present interest exclu- The basis would also be allocated at the tenant decides to sell the home during terest to an irrevocable Medicaid income sion is an amount that can be currently time of sale using the 7520 rate. (See their life for $600,000, with a cost basis only trust. given away each year per person gift- also Revenue rulings 71-122, 66-159 of approximately $200,000. It is further Editor’s Note: This is the second install- tax-free without requiring the filing of a and 85-45). assumed that the children agreed to sell ment of a three-part REBA News series. gift tax return. The value of the remain- The gain allocated to the life tenant the home. Assuming the life tenant is The concluding installment will be pub- der interest is calculated using IRS Table is eligible for the capital gains exclusion age 79 and the applicable federal inter- lished in the May/June issue. S in accordance with interest rates in ef- under Internal Revenue Code Section est rate on the month of sale found in fect on the date of transfer under IRC 121 provided the life tenant has owned the tiger tables mentioned above is 2.4 Todd Lutsky, of Cushing and Dolan, P.C., concen- Section 7520, which can be found at ti- and used the property as their primary percent, based on the applicable corre- trates in the preparation of estate plans, includ- gertables.com, and once you determine residence for at least two of the last five sponding Table S life estate tables, the ing the use of revocable trusts, joint trusts, irre- the interest rate you go to Table S for years. However, the gain allocated to the remainder interest is worth 81.741 per- vocable life insurance trusts, qualified personal that interest rate to get the value of the remainder interest holders is not eligible cent of the property, which translates residence trusts and family limited partnerships. remainder interest that correlates to the for this capital gains exclusion provid- into $490,446 ($600,000 x 81.741 per- He has a specific interest in Medicaid and asset life tenant’s age. Then you multiply the ed that the children have not used the cent). protection planning for the elderly, assisting cli- value of the property by that remainder property as their primary residence. Upon completion of the sale, ents with the Medicaid application, preparation percentage to get the value of the gift. This capital gains exclusion applies $490,446 of the proceeds would be al- and eligibility process of obtaining MassHealth located to the children as remaindermen benefits, fair hearings, and advanced Medicaid and the balance of $109,554 of the pro- planning and the preservation of assets through the ceeds would be allocated to the life ten- the use grantor irrevocable income only trusts. ant. This also assumes that 18.259 per- He hosts his own radio show, “The Legal Ex- cent (100 percent - 81.741 percent), or change with Todd Lutsky,” and it can be heard TITLE $36,518 ($200,000 x 18.259 percent), of every Saturday at 5:00 p.m. on WRKO 680AM the $200,000 cost basis would be allocat- and on four other local stations. Todd can be AGENT ed to the life tenant and 81.741 percent, contacted at [email protected]. FOR EXCEPTIONAL RESOURCES, or $163,482 ($200,000 x 81.741 per- Co-chair of REBA’s Estate Planning, Trusts and COUNT ON OLD REPUBLIC TITLE. cent), would be allocated to the children. Estate Administration Section, Leo Cushing is The result would be that $109,554 of the founding partner of Cushing & Dolan, P.C., the proceeds would be allocated to the specializing in closely held businesses, taxation, TITLE AGENTS life tenant, minus $36,518 of cost ba- sophisticated estate planning, elder law and real estate. Leo’s practice includes all aspects Andover, MA | 800.370.6466 sis, for a $73,036 capital gain. This gain T would be reported on the individual in- of sophisticated estate planning techniques, come tax return of the life tenant, i.e. asset protection, trust planning, charitable giv- mom and dad. However, since they have ing and resolution of tax controversies. Leo has owned and used the property for two of written and lectured extensively on all aspects the last five years as their primary resi- of taxation and estate planning. Leo is a much i s to a n d t h e a n d OLD REPUBLIC TITLE DEDICATED DEVELOPING PROVIDING UNSURPASSED EDUCATION RESOURCES dence, they would be able to avail them- sought after speaker, as he is able to articulate yo u n e e d to DISTINGUISH YOURSELF IN THE MARKETPLACE. o u r VIDEOS, TECHNOLOGY TOOLS, TRAINING PROGRAMS, selves of the full $500,000 capital gain complex issues in a way that is clear, concise and DOCUMENTS help PREPARE you for INDUSTRY CHANGES, EDUCATE CONSUMERS on the HOME-BUYING PROCESS and so much more. exclusion, thereby eliminating any capi- and easy to understand. Leo’s email address tal gains tax liability. is [email protected]. MARCH 2018 REBAnews PAGE 5 Vinnie performs background checks BY PAUL F. ALPHEN the keys to the buyer before we were cently I typed the name of a builder/seller told the off-shore-trust-fund story, and into the registry web site and like a slot Why I’m a REBA member I took my cous- our construction foreman had to rush to machine out rolled nothing but pages On the first day of my first job in Vinnie, the sub- the house to change the locks before the and pages of ‘execution, execution, attach- as an attorney, in 1985, I became urban real estate at- moving van arrived. True story. ment, execution, attachment, attachment, a member of the Massachusetts torney, to a Celtics Vinnie told me to watch out for cell attachment…’ I now use internet searches Conveyancers Association. Having game recently. He tower lease assignment agreements that on a regular basis.” the Standards and Forms to refer always has a hard essentially convey all rights in the cell Without taking a bite, Vinnie contin- to has been invaluable to my small time reaching a de- towers and the land they are constructed ued with an even better story. “I had a cli- practice; having them to rely upon cision on where to upon in perpetuity. “There are a lot of ent that was about to partner with a new is like being able to run something eat before a game. cell tower lease acquisition companies guy on a nice commercial project. I had by an infallible seasoned expert. The The North End has too many op- out there, and some of them disguise a few conversations with him and I was spring and fall meetings provide tions, and Vinnie seems to have an opinion troubled that he didn’t seem to fol- us with the opportunity to break about each of them. He arrived too late to low my explanation of pre-existing bread with our brothers and sisters, snag a seat at the marble-topped bar at my Contemplations, non-conforming structures. The guy and they are an essential source of favorite oyster place, so we walked down Ruminations and Musings claimed to be a big time developer, CLE. The case law updates by Phil Salem Street until he finally found a res- but I got a funny feeling about him. Lapatin are alone worth the price taurant worthy of his patronage. He had of a Country Lawyer “I typed his name into Google of admission. I have no idea how pappardelle pasta with ground veal, beef and all kinds of interesting stories anyone practices real estate related and pork tomato ragù. He said it was deli- tumbled out. I found old newspa- law without the resources and CLE cious. the conveyance of the land rights in the per stories about drug charges, charges provided by REBA. As we started our usual exchange of boilerplate of the assignment. Sometimes of shoddy construction and a bankruptcy. Paul F. Alphen war stories, I told Vinnie the story about a the property owners don’t discover that I then typed his name into the Registry Alphen & Santos, PC, Westford proposed P&S came across my desk for an they sold their land until 20 years later.” I of Deeds website and found numerous Member since 1985 expensive new home in an exclusive neigh- thanked him for the tip while negotiating executions and foreclosures. I then called borhood, and I recognized the name of the a littleneck from its shell in my cioppino my client and asked if he knew about buyer; and it was not just because he was a stew. the guy’s sorted past, and he did not. I ly serves on the association’s executive com- member of a prominent local family. Vinnie continued: “Paulie, after a few thought it was odd that it took an old guy mittee and co-chairs the long-range planning I called my builder client and told mishaps I am now performing ‘internet- like me to know how to effectively use the committee. He is a partner in the Westford firm him that the same buyer had attempted checks’ from time to time regarding par- internet!” of Alphen & Santos, P.C., and concentrates in to buy fancy houses from two of my other ties on the other side of most deals. For “Crazy” was all I could say. But in the residential and commercial real estate devel- builder clients during the past few years, years I have been correcting title referenc- future I am going to take Vinnie’s counsel opment, land use regulation, administrative but at each closing when it came time for es and seller information when preparing and perform more background checks. law, real estate transactional practice and title the buyer to deliver a bank check, all we or reviewing P&S agreements provided examination. As entertaining as he finds the received was a story about how the family by sellers. And more and more recently I Paul Alphen’s column, “Contemplations, Rumi- practice of law, Paul enjoys numerous hob- wealth was tied up in an off-shore trust have come across sellers who forgot that nations and Musings of a Country Lawyer,” is bies, including messing around with his power account and it would take a week to de- they had conveyed the property into a a regular feature of the REBA Blog and REBA boats and fulfilling his bucket list of visiting liver all of the funds. trust, or forgot that they conveyed out a News. every Major League ballpark. Paul can be con- One of my builder clients had given sliver of their land 10 years ago. But re- A former REBA president, Paul Alphen current- tacted at [email protected]. PAGE 6 REBAnews MARCH 2018 Zoning and other legal obstacles to tiny houses

BY OLYMPIA A. BOWKER homes are only allowed with a special permit, and often the Tiny house permission is only for a matter fever is sweep- of weeks (such as in Maynard, ing the nation. Marlborough, Dedham and The public seems Cambridge). to be head over Though few towns have no restric- (w)heels for the tions on siting tiny homes on wheels concept — small as primary residences, they do exist. yet artistically For example, under the Millis zoning crafted homes of- bylaws a tiny house on wheels would fering the key elements of a house in qualify as a trailer, but trailers are al- the space of a traditional garden shed. lowed permanently in all residential The allure of tiny homes has peo- zones with a special permit from the ple buying them in hopes of skirting Millis Board of Appeal (although the unattainable home prices. But new permit must be renewed annually). tiny home owners in Massachusetts As a testament to their variety, not have a big problem — where can they all tiny homes have wheels. In fact, put them? those who choose to build wheel-less NICOLÁS BOULLOSA VIA FLICKR As a home rule state, Massachu- tiny homes on lots, from the ground setts gives municipalities the power shows the nuances of the question. nicipalities in central Massachusetts up, have had some success in Mas- and freedom to enact and enforce their Tiny houses are complex creations. shows that many legal definitions of sachusetts. When tiny homes are not own zoning bylaws. Further, land uses There is no one formula or definition “trailer” or “mobile home” squarely in- regulated as mobile homes, however, and structures are also regulated un- for a tiny home. They can range in size clude tiny homes on wheels — even there are still obstacles for the tiny- der the Zoning Act, plus the building from less than 100 square feet to up- if they’re later placed on a permanent home owners to tangle with. code and other state regulations. Most wards of 1,000 (as a city apartment- foundation. These definitions are often Even if a tiny home isn’t built on a municipalities have utilized their land dwelling resident, I can affirmatively broad and vague. chassis, siting it can still be thwarted use authority to impose restrictions on say that tiny is subjective). They can For example, Section 10 of the Up- through minimum residential floor residential dwellings, of course, and look like miniature Victorian homes ton Zoning Bylaws defines a “mobile area square footage requirements home” as: “A dwelling built upon a (such as a 600-square-foot minimum in Holliston). State laws also come chassis, containing complete electri- A survey of 40 zoning bylaws of municipalities into play with state building code cal, plumbing and sanitary facilities, requirements, and mandatory mini- in central Massachusetts shows that many legal and designed without necessity of a mum square footage requirements of permanent foundation for year-round definitions of “trailer” or “mobile home” squarely the Board of Health (105 CMR 410). living, irrespective of whether actually Tiny homes do face big challenges. include tiny homes on wheels — even if they’re later attached to a foundation or otherwise Massachusetts residents eyeing permanently located.” To top it off, placed on a permanent foundation. tiny homes are getting mixed messag- Upton further specifies that a mobile es. Tiny homes are popular, available home is not considered a dwelling for and affordable, but difficult to site. To zoning purposes. rub it in, the town of Concord hosted So, in many municipalities, a tiny the “2nd BIG Tiny House Festival” in home built on wheels will be treated 2016 — yet its zoning bylaws outright as a mobile home regardless of its prohibit mobile homes. other features. With this classification Despite these challenges, there is come many obstacles: progress in tiny home siting in Massa- • Prohibition: Some municipal- chusetts. Nantucket recently amended ities outright prohibit what- its bylaws to include a provision for a ever qualifies as a mobile home “Tiny House Unit,” allowing mobile (tiny homes included) except tiny homes to serve as primary, sec- in emergency circumstances ondary or even tertiary dwelling units. (such as Stow and Milford), Other municipalities may follow whereas others simply omit Nantucket’s lead and make special them from their tables of per- provisions for tiny homes. Without mitted uses (such as Franklin outright bylaw changes, tiny-home and Northborough). owners and their attorneys will have • Restriction: Other munici- to do their homework to find places palities restrict the location of for tiny houses to call home. LINTEC GMBH, NEUMÜNSTER, PETER L. PEDERSEN VIA WIKIMEDIA COMMONS mobile homes to specific zon- ing districts, or trailer parks Olympia Bowker is an associate at many have adopted siting specifica- decked with gingerbread trimmings, (like Westborough and Hud- McGregor & Legere, P.C., in Boston. She tions, permit requirements, and some- pint-sized manors with mansard roofs, son). Though some towns al- helps clients with a broad range of envi- times flat-out bans on mobile homes or play-house log cabins. Their appear- low mobile homes as detached ronmental, land use, zoning and regula- and trailers. ance is up the creator’s imagination. accessory apartments, depend- tory matters in both administrative and This invites the question — is a One feature of many tiny homes ing on the municipality, there legal forums. She is an active member of tiny house a mobile home or trailer, as proves to be their downfall in Massa- may be a familial relation re- REBA’s New Lawyers Section and Wom- regulated by many municipalities? The chusetts: wheels. quirement on the resident of en’s Real Estate Networking Group. She short and inconvenient answer is both So what if a tiny house has wheels? the subordinate structure. can be contacted at obowker@mcgregor- yes and no. A recent in-house survey A survey of 40 zoning bylaws of mu- • Special permit: Often, mobile law.com.

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The Leading DR Provider in Massachusetts for Business and Real Estate-Related Disputes 295 Devonshire Street, Sixth Floor, Boston, MA 02110 617-854-7558 ♦ [email protected] ♦ www.disputesolution.net MARCH 2018 REBAnews PAGE 7 Latitude, longitude and the registry of deeds

BY RICHARD P. HOWE JR. on new subdivision plans (and perhaps Through the addition of LOC_ID to for the commonwealth to adopt standard even on new deeds), the challenging task of the registry database, deeds and subdivi- addresses. With a list of standard addresses, A newly arisen aligning a point on a document with a point sion plans could be similarly linked to map- the address field on registry computer sys- boundary dispute on the ground will become infinitely easier. ping and assessing information. Once this tems could be converted from today’s “enter with a neighbor will Supplied with the GPS coordinates of his LOC_ID link was established, users view- whatever address is on the document” field to frequently prompt lot line, a homeowner with a GPS-enabled ing a deed could, with a single click, display a drop down menu of standard addresses. To a homeowner to smartphone would be able to identify the assessor information for the parcel and, with be recorded, the property address on a docu- come to the registry boundary line on the ground accurately and a second click, view the parcel on the state’s ment would have to match an address on the of deeds in search resolve the dispute. mapping system. drop down menu of standard addresses. of his deed and a Consumer-grade GPS devices today This would increase the accuracy of ad- plan of his property. are only accurate to about six feet, but more dress searches on registry computer systems The expectation that these documents will expensive military and commercial grade From the and, because standard addresses could be resolve the problem is soon punctured by devices are more precise with error rates of programmatically linked to the correspond- the realization that even the most precisely only a few inches. History teaches us that Recording ing LOC_ID number of the parcel in- drawn deed or plan is of limited use unless technology always gets better and more volved, the registry’s LOC_ID field would one can accurately translate a point on the affordable over time, so soon the GPS ca- be automatically populated each time the document to a point on the ground. pability of the standard cell phone will be Desk… address field was filled. as accurate as that of its more sophisticated While there will always be a need for While much of the above may seem surveyors and civil engineers, a uniform counterparts. far-fetched to those in practice today, our system of corner markers embedded in the While mandating the inclusion of GPS Creating a new field in the registry da- records are inextricably linked to land. Any- ground would do much to resolve these coordinates in subdivision plans and deed tabase would be relatively easy. Populating thing we can do to better connect registry kinds of disputes. But physical markers are descriptions will be a big undertaking, there that field with data would be the big chal- records to the land depicted in those re- expensive to emplace and subject to loss or are other steps registries of deeds should lenge. One possibility would be to amend cords will benefit everyone. The exact path relocation. Perhaps technology will provide take now to ease the coming integration of the Massachusetts Deed Indexing Stan- we should take is unclear, but technology is a solution to this problem. real estate documents and mapping tech- dards to require the LOC_ID of a parcel propelling us rapidly forward. Now is the The same GPS technology that guides nology. A starting point would be to include being conveyed to be included in new deeds your car to its destination also has the po- the MassGIS parcel location identification and subdivision plans and for the registry time to convene a working group of regis- tential to resolve boundary disputes like the number — the LOC_ID — in the registry to capture that information in its database. try personnel, conveyancers, surveyors, and one described above, and to revolutionize of deeds database. However, an easier way to capture LOC_ GIS and IT professionals to help guide us land records in the process. GPS devices MassGIS, the state agency responsible ID information might be through the use through the integration of registry of deeds calculate their location by “triangulating” for geographic information in the common- of standard addresses. records and mapping technology. electronic signals emitted by GPS satellites wealth, selects a point within each parcel of Property addresses have never been Dick Howe’s column, “From the Recording that continuously orbit the earth. The result land in the state and uses the latitude and a central feature of our system of land re- Desk...,” is a regular feature of REBA News. Dick is given as the latitude and longitude of the longitude of that point — its GPS coordi- cords. It was only in the late 1990s that we has served as register of deeds in the Middle- GPS device, numbers often referred to as nates — for the parcel’s LOC_ID. Because consistently added street addresses to our sex North Registry since 1995. He is a frequent GPS coordinates. this same ID number is already included in database. Even today, address is a flawed commentator on land records issues and real So what does GPS have to do with land every assessor’s database in the state, LOC_ method of searching land records. records? By including the GPS coordinates ID is the digital link that connects mapping One way to make property addresses estate news. Dick can be contacted by email at of corner points and other terrain features and assessing information. more useful in registry of deeds records is [email protected].

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BY SAUL J. FELDMAN Because of the thick walls, the AND ANGEL K. MOZINA description of the boundaries of the units in the master deed must be drafted with extra care. Sometimes the original ceiling is used and some- times there is a drop ceiling. The at- torney drafting the master deed must find out and cover this in the master deed. Even a two-unit adaptive reuse can be challenging. For example, there may be a building and an ex- isting carriage house in back of the Adaptive reuse of a building means rehabbing the building for new uses. Often, the building is a va- Whether the project cant mill or church. Developers usu- involves 30 luxury ally focus on tax credits, preservation and zoning, among the many consid- units in the city or two erations when rehabbing an existing units in the suburbs, building and then converting it to a ing space for Unit 1 and a parking experienced architects, engineers or new use and the condominium form condominiumizing existing space for Unit 2. The lesson is that, surveyors. of ownership. structures for adaptive whether the project involves 30 lux- The Massachusetts Condominium ury units in the city or two units in Saul Feldman and Angel Mozina prac- Statute requires that the master deed reuse is not easy. the suburbs, condominiumizing ex- tice with the Feldman Law Office in Bos- contain a description of the build- isting structures for adaptive reuse is ton. The firm’s primary specialties are ing. It is often difficult to describe not easy. commercial real estate transactions and a building converted from a historic building. Part of the carriage house Developers should not overlook condominium law and development, in use such as a mill or a church to a may be a part of one of the two units the need for well-drafted condo- addition to residential conveyancing. residential building or a mixed-use in the main building and the remain- minium documents prepared by an Angel can be contacted at angel@feld- building. That’s why at least one visit der of the carriage house may be experienced condominium lawyer manrelaw.com. Saul can be contacted to the site is necessary and helpful. limited common area, with a park- and floor and site plans prepared by at [email protected]. Remote title examination CONTINUED FROM PAGE 2 searched from Jan. 1, 1963. Registered Indexing guidelines vides information of older corporations, land may be searched from Jan. 3, 1977. The indexing guidelines were revised including date of incorporation, name forward — this requires use of Bristol South also uses the Mass. on Jan. 1 and are available on the REBA changes and date of dissolution. the extended search index. Land Records System. Copies are avail- website. Prior to doing any examining, The secretary of state website also al- • For Plans in record books, enter able at $1.00 per page. Title may be you should become familiar with them. lows you to perform searches for UCCs the letter “d” before the record searched from Jan. 1, 1973. Registered They include information on the treat- and Massachusetts tax liens. book number. land may be searched from Jan. 2, 1977. ment of names, numbers and punctua- The National Information Center • For plans filed with Land Court South Essex tion when running the grantor/grantee website ffied.gov/nic/ provides informa- document numbers, put “LC” indexes. tion on bank name changes and mergers. before the document number, The grantor/grantee indexes allow The SCRA website scra.dmdc.osk. Probate which will be entered in the you to place information that includes mil/ allows you to check on whether a book section. type of instrument, locus and town to Searching probate records is an in- party is in the military service. • Registered land — there is a narrow your search. tegral part of completing your title ex- You should also make use of the notation on the registry website Extended search options are available amination. When checking for a probate materials available online that provide that reference must be made to in the following registries: record remotely, use masscourts.org. Un- assessors maps, such as Muni-Mapper, the physical COT for all activ- Middlesex South fortunately, probate records must be re- Oliver and GIS. ity. The Middlesex South District Reg- viewed at the probate registries. Worces- Finally, be aware that in some cases, • Certificates of title prior to Oct. istry of Deeds allows you to search re- ter probates must be ordered a day in the information available online is not 23, 2002, have been scanned. cords from Jan. 1, 1900. Please note, advance; Norfolk probate records are the same as what is available remotely. Before reporting a missing assignment Certificates of title after that however, that there is available a disk available at 35 Shawmut Road, Canton; or discharge, have the marginal refer- date are available by printout. that provides you with the books from and many Middlesex probate records ences checked at the registry. Barnstable — Browntech system 1896 through 1973. If you are not using must be ordered from their storage fa- cility in East Brookfield and may not be • Similar to Norfolk Version 2, this additional resource, you will find the Joel Stein concentrates his practice in real available for two to three weeks. designed to be compatible with indexes online to be unreliable. If you are estate law with an emphasis on title examina- Chrome, Safari, Edge, IE and doing work online, you should obtain a Online information tion, title insurance and foreclosure. He is a copy of these disks, which are available Firefox browsers, as well as tab- There is a substantial amount of in- former president of the association and he for $100.00 from the registry. lets and smartphones. terest available online. The website for currently co-chairs REBA’s Title Insurance and • Indexes are available from 1742 Suffolk County the Massachusetts secretary of state al- National Affairs Committee. He is a recipient forward. Recorded indexes are available from lows you to search the current corporate of the association’s highest honor, the Richard • You may get copies through a Jan. 1, 1973, forward. Registered indexes database, which will provide informa- B. Johnson Award, and founding editor of the credit card option or mail-in. are available from Jan. 2, 1898, forward. tion on corporate name changes and the REBA Guide to the Massachusetts Registries To create an account, you are Numbers appear after the street ad- names of officers. A check of LLCs will of Deeds. He is also a member of the Mas- charged a $50.00 registration dress and, due to the fact that many provide you with the name of managers sachusetts Bar Association and The Abstract fee and $50.00 to fund the ac- entities are named with a street address and parties authorized to act on behalf Club. He can be contacted at joel@steintitle. count. in Suffolk County, this can result in ex- of the LLC. The corporate card file pro- com. Bristol County tremely difficult searching. Bristol North has its own system. Extended search You purchase copies at $1.00 per page by Several registries include an extend- credit card. The search on the recorded ed search option. For Worcester North side is available from Jan. 1, 1958. The and Norfolk, this option allows you to Visit us online search on the registered side is available extend the period of your search. For from Jan 1, 1992. Essex South, Plymouth and Middlesex www.reba.net Bristol (Fall River) uses the Mass. South, it is essential you use this option, Land Records System. Copies are avail- as the extended search records are more able at $1.00 per page. Title may be reliable. MARCH 2018 REBAnews PAGE 9 Devils in the details: ‘fair market rent’ in lease extensions

BY THOMAS BHISITKUL the Back Bay or on the downtown water- front. In commercial Accordingly, it is important to carefully leases, it is common identify the relevant market area at the for the tenant to be time of lease execution, and to be sure that granted options to the lease language limits the relevant mar- extend the term of ket area to that specifically defined area. the lease beyond Conclusion the original term. At the time of lease It is easy simply to gloss over the seem- execution, however, ingly boilerplate extension rent provisions it is difficult or impossible to ascertain and of the landlord’s lease form and assume negotiate the rental rate for the future ex- that the broad references to “comparable” tension term. rent will be sufficient, years later, when it While the rent for the initial term is comes time to determine the rent payable negotiated within the known market con- during the extension term. ditions and going rental rates at the time However, attention to some of the finer of lease execution, the extension period the tenant usually takes its space in the market rent, and should always be carefully details of the “fair market rent” definition usually will not commence until as many condition at the time of the extension. considered, narrowly tailored and specifi- in the lease can help remove ambiguities as five or 10 years later, by which time mar- Thus, the tenant will not want its ex- cally identified. (and potential abuses), create a more clear ket conditions, and going market rental tension rent to be based on rents paid un- For instance, a lease that provides and objective set of standards to guide the rates, are likely to be significantly different. der leases the landlord is making (or giv- that fair market rent will be determined parties in determining the extension rent, Accordingly, landlords and tenants will ing the comparison tenants allowances for) by reference to rents charged for compa- and help the parties avoid (or reduce the often agree to “punt” the issue for later de- substantial tenant improvements, as the rable space “in the South Shore” leaves a likelihood of) disputes years in the future termination, and provide in the lease that costs of those improvements are usually lot of ambiguity and potential for abuse when the extension option is exercised. the fixed rent payable during the exten- built into the tenant’s rental structure (in (or conflict). Rents commanded for space sion period will be the “fair market rent” in terms of higher fixed rent) and amortized in North Quincy are likely to be signifi- Tom Bhisitkul is a principal of Moriarty, Troyer place at (or around) the time of the ten- over the initial term of the comparison cantly different from rents for comparable & Malloy, LLC, and chair of its commercial real ant’s exercise of the extension option. tenant’s lease. space in Rockland, and will give license to estate department. Tom has over 20 years For purposes of determining the “fair Comparable term the landlord to draw upon data from the of experience in representing Fortune 500 market rent” at that future time, the lease higher-rent towns on the South Shore to The fair market rent clause should also companies, national and local banks, retailers, will typically include a provision setting establish the extension rent for space in stipulate that fair market rent will be based shopping center owners, and investors in all forth standards and factors to be applied in lower rent towns. on rents then being paid by tenants of facets of acquisition, development, operation the analysis and calculation of the exten- Indeed, major cities like Boston have comparable space with a comparable term. and leasing of commercial real estate through- sion term rent. But, like many provisions many different sub-markets within the Fixed rental rates for longer-term leases out the country. A former president of REBA, in a commercial lease, the devil is in the city’s jurisdictional boundaries; a tenant are ordinarily lower than fixed rents for Tom currently co-chairs the association’s details, and both landlords and tenants of space in Brighton, for instance, would shorter-term leases, as landlords are often Unauthorized Practice of Law Committee. Tom need to be attentive to these details to be certainly not want its extension rent deter- willing to exchange lower rent for a lon- can be contacted at [email protected]. sure that they do not get burned by hidden mined by reference to rents being paid in ger lease commitment by the tenant, which devils five years down the line when they creates occupancy stability and rental in- are trying to establish the extension period come predictability for the landlord. rent. Accordingly, in determining fair mar- The following is a brief discussion of ket rent for a hypothetical five-year exten- a few common “devils” that each party sion term, the tenant should be attentive would be well served to identify at the time to ensure that the extension rent will not of lease execution: be based on higher rents then being paid Comparable space by comparison tenants under three-year Typically, fair market rent will be based leases. Dispute Resolution, inc. on the market rents then being charged for Comparable buildings “comparable” space in comparable build- Fair market rent clauses typically pro- ings in a defined market area. There is vide that the comparison space not only Since 1995, REBA Dispute Resolution usually little dispute that the comparable be comparable in size (and, if well-drafted, space must (at least) be of equivalent size also comparable in fit and finish, and lo- has become the leading dispute (in terms of the number of square feet) to cation within the building, etc.), but also the subject premises, but there are a host resolution provider in Massachusetts within comparable buildings. Tenants of other factors that play into whether the should be attentive to the details as to what comparison space is actually “comparable.” for business and real estate disputes may constitute a comparable building. For instance, the rents charged for For instance, many landlord forms comparably sized space can vary signifi- provide that fair market rent will be based cantly based on differences in the fit and on comparable space in “other first-class” MEDIATION • ARBITRATION finish of the spaces, so if a landlord has buildings; if the subject building is not a (under the original lease) built out the ten- CASE EVALUATION first-class building (or if the issue is argu- ant’s space with a host of special features able), then obviously the tenant will not and finishes, it will want to ensure that the Having trouble getting to Boston? want its rent to be based on higher rents fair market rent is not determined by ref- then commanded in first-class buildings. Not to worry… We’ll come to you! erence to comparably sized space built out In addition, if the subject premises are only to lower building standard finishes. office space within an office building, the Thus, the landlord should ensure that the tenant should ensure that the lease defines REBA/DR can secure locations definition of “fair market rent” refers to fair market rent with reference to com- anywhere throughout the comparable space with “comparable fit and parable space within comparable “office” finish” to the subject premises. buildings in the relevant market area. Commonwealth! Similarly, the location of the compa- Rents for retail space are typically sig- rable space within the comparison build- nificantly higher than rents commanded for ing can affect the market rental value. If an office space; accordingly, office tenants will Contact a REBA/DR Case Manager today! office tenant’s space is on the second floor want to ensure that their extension rents of a downtown office tower, the tenant cer- cannot be determined by reference to retail 295 Devonshire Street, Sixth Floor, tainly will not want its extension rent to be rents being paid by tenants of otherwise Boston, MA 02110 based on rents paid by otherwise compa- comparable spaces within retail buildings. rably sized space on the penthouse level of the comparison office tower. Relevant market area 617-854-7558 ♦ [email protected] Tenants should also ensure that the The market area from which the com- www.disputesolution.net rents are comparable for “as is” space, be- parable rents may be drawn is also very cause, for purposes of the extension term, significant to the determination of fair PAGE 10 REBAnews MARCH 2018 A refresher on adverse possession and prescriptive easements CONTINUED FROM PAGE 1 be viewed in light of the use to which pared to recorded land) cannot be Actual possession the land would be normally put. For acquired by adverse possession. Thus, Why I’m a REBA member even if all of the elements for estab- example, if an adverse possessor uses As a newly admitted attorney, It may seem self-evident that in lishing title by adverse possession are a seasonal cottage without heat for a I was encouraged to join REBA order to claim title by adverse posses- otherwise satisfied, the claim will fail. period of 20 years, but is not present by the colleagues at my firm. One sion, one must actually be in posses- • The intent of the adverse pos- during the winter, such use may still piece of advice that I received at sion of the land to which he claims sessor is irrelevant. “[C]ourts must be deemed continuous for purposes that time, which has proven to be title. But what constitutes “actual” look to the physical facts of entry and of satisfying this element. Similarly, true, is that REBA creates the op- possession varies under the circum- possession as evidence of an intent the property need not be possessed by portunity to be a leader. More than stances. “The nature and the extent to occupy and to hold property as of one individual for the entire period. any other bar association that I of occupancy required to establish a right.”viii Rather, where there is privity of es- have been associated with, REBA right by adverse possession vary with • Just like any other individual tate between those in possession, the encourages the involvement of the character of the land, the purposes and/or entity, a condominium asso- possessors may “tack” the time of oc- young professionals and constantly for which it is adapted, and the uses ciation has standing to bring a claim cupation to each other to satisfy the seeks out their input to shape the to which it has been put. Evidence of title by adverse possession.ix insufficient to establish exclusive pos- 20-year requirement. future of the association. There are Prescriptive easements session of a tract of vacant land in the always opportunities to engage and country might be adequate proof of When one using certain land is network with other practitioners such possession of a lot in the center While many people are unable to establish title due to a lack — whether it be by participating of a large city.” The touchstone is thus able to recite the requisite of exclusive use, he may still be able on a committee or section, attend- whether the individual in possession to establish an easement by prescrip- ing networking events, or having is controlling the subject property in duration to establish tion over the subject property, which articles published in REBA News. Since joining the association, I have a manner similar to that usually as- enables him to continue to use the adverse possession — 20 also been struck by its far reach. sociated with ownership. land consistent with his historical years — several of the use. “It is not necessary … for one While I practice in Braintree, I am Visible and notorious on the Zoning Board of Appeals in possession claiming an easement by prescription other requirements to to show that his use has been ‘exclu- Falmouth. Not only have attorneys The possessor’s occupation of the obtain title may not come sive’ … .” from both areas commented on dif- land must be open and notorious, so In seeking to establish an ease- ferent articles that they have read as to put the titled owner on notice of to mind quite as readily. ment by prescription, though, the lo- in REBA News, but I also have the the hostile activity. “To be open the cation of the easement must be fixed. pleasure of seeing these individuals use must be made without attempted For example, if a party is seeking to at the numerous REBA events. It concealment. To be notorious it must Hostile character of establish use of a swath of land as a is truly a small real estate bar, and I be known to some who might reason- possession passageway, he must establish that am tremendously grateful to REBA for fostering the connections that ably be expected to communicate their The use of the subject property the easement is “substantially con- knowledge to the owner if he main- I have made, and will continue to must be without permission from the fined to a regular and particularized tained a reasonable degree of supervi- make, as I practice. titled owner. “The essence of nonper- route.”xi Aside from this, the require- sion over his premises.” Notably, there missive use is lack of consent from ments to establish a prescriptive ease- Kimberly A. Bielan is no requirement that the true owner the true owner.” The inquiry into ment largely mirror those required to Moriarty, Troyer & Malloy LLP, have actual notice of the use in order establish title by adverse possession. Braintree for the use to be deemed notorious. whether use is permissible or non- Thus, a claim to a right to use by pre- Member since 2013 What is necessary, though, is that the permissive is fact-intensive. “Wheth- er a use is nonpermissible depends on scriptive easement may be advanced use be “open to the world to see.” in the alternative to a principal claim many circumstances, including the Exclusive possession for adverse possession. character of the land, who benefited However, as recently noted in a As referenced above, many of the The adverse possessor must hold from the use of the land, the way the cases that we have recently had in- decision of the Land Court: “If good the subject property to the exclu- land was held and maintained, and volving claims (or potential claims) fences make good neighbors, some- sion of all others, including the true the nature of the individual relation- times bad fences can ruin a neighbor- owner. The “gold standard” for estab- of adverse possession have involved ship between the parties claiming ly relationship.”xii When that hap- lishing exclusivity is the erection and boundary line disputes that have ownership.”vii pens, it likely makes sense to consult maintenance of a fence in a location been brought to a head in light of In ascertaining whether adverse recent changes in circumstance, such counsel. Cases involving claims to ti- such that it excludes the record owner possession has been established, the from accessing the subject property. as changes in ownership. As many tle and use run the gamut in terms of inquiry is largely fact-based, and dif- owners desire to maintain friendly how they are resolved. While a letter Continuity of possession ferent circumstances may produce relationships with their neighbors, or filing of a complaint may be in and Possession of the subject property unique results. However, there are it is often a good first step to try to of itself sufficient to bring a neighbor must be continuous for 20 years, with a few additional things to keep in discuss each party’s expectations and to the table to reach reasonable reso- no significant interruption of posses- mind: understandings relative to the disput- • lution, other matters may lead to full sion. Continuity of possession must Title to registered land (as com- ed property. litigation of the dispute. The “refresher” information pro- vided herein is intended to provide What REBA means to me you with an overview of the doctrines of adverse possession and prescriptive BY JOEL STEIN ends in the conveyancing world, includ- sections/committees, and never-end- easements, but is in no way intended ing Henry Thayer, Lou Eno, Norm By- ing efforts to expand REBA’s mem- to present a full treatise on the issues I have been rnes and Syd Smithers. For years, board bership and influence. Peter asked me — it would take many more pages to a member of meetings meant spending time with Jon onto the board in 1989, and for that I do so. REBA and its Davis, whose wisdom and passion I recall am eternally grateful. At Moriarty, Troyer & Malloy, LLC, Kim precursor, the each time my thoughts turn to REBA. Lastly, being an active member of Bielan is an associate in the litigation Massachusetts As a longtime board member, it REBA has afforded me opportunities Conveyancers is a marvel for me to watch each new not available in daily practice. I have and zoning and land use departments. Association, for president bring their special touch to prepared amicus briefs, written nu- She represents a variety of clients, 40 years, and a the job, succeeding seamlessly from merous articles for REBA News, tes- including condominium associations, member of the one year to the next. Credit Peter and tified on and drafted legislation, met developers, and individual homeowners. board of directors for close to 30 years. Nicole, and the many gifted people with members of the Massachusetts Kim’s practice focuses primarily on real My relationship with REBA has out- who have given their time and energy congressional delegation in Washing- estate litigation, with an emphasis on lasted my first marriage, several law to the job. ton, D.C., and been active in differ- zoning and land use matters. She also partnerships, my thyroid, a gall blad- When I was president of the MCA ent sections/committees. Being out of represents clients on a variety of real der, most of my hair and my left knee. in 1994, the office was a single room your comfort zone is not always easy, estate permitting matters and frequently REBA is a daily companion; the forms with a part-time administrator. The but try it…it may just change your life. appears before municipal boards to and standards are never far from view. present REBA is in many ways the Joel A. Stein permit projects and to represent the brainchild of Peter Wittenborg, who Equally important are the people Law Office of Joel A. Stein, Norwell interests of abutters and neighborhood has broadened REBA’s scope, with who are REBA. I was blessed to serve on Member since 1978 groups. She can be reached at kbielan@ REBA Dispute Resolution, additional the MCA board with mentors and leg- lawmtm.com. MARCH 2018 REBAnews PAGE 11 Update from the Board of Bar Overseers CONTINUED FROM PAGE 1 costs and difficulty of implementing tance Program (LOMAP), which has There should be clear, written instruc- additional measures; and the extent to resources for helping with technology. tions for handling client matters as well there are two additional sources of au- which the safeguards adversely affect the Another important issue for the bar as general law firm business (e.g. payroll thority. The first is Comment 8 to Rule lawyer’s ability to represent clients by, for involves emergency and succession plan- and rent). Attorneys should designate a 1.1, the rule that sets forth the general example, making technology excessively ning. Emergency planning demands person (or persons) to act in their place, standard of competence. The comment, difficult to use. some degree of common sense and they should discuss the plan with their added in 2015, explains that competence Thus, some emails may have to be foresight. Lawyers should have plans in successor, and they should make sure is not limited to legal knowledge or skill. encrypted. A law firm will have to make place in case of natural disasters, acts of that the successor understands the scope Competence includes keeping abreast of sure that it has adequate firewall pro- terror or electronic hacking. At a basic of the request and agrees to do it. Ap- changes in the law and its practice, “in- tection against hacking. It will have to level, this requires backup systems and pointment of a successor lawyer could be cluding the benefits and risks associated make sure that its network is password- established through a power of attorney with relevant technology.” As a baseline protected. These are minimum stan- or a more detailed agreement, which level of competence, the ABA Commis- dards. Depending on the client or the We may be nearing a both parties would sign. sion on Ethics 20/20 opined that every case, more security may be required. time when all electronic The effectiveness of any succession lawyer needed to be able to use email We may be nearing a time when all depends on an efficiently run law office. and create an electronic document. electronic communications must be en- communications must Lawyers need to keep an up-to-date list But, that’s only the starting point. crypted, and every device must be pass- of matters and clients with current con- Lawyers need to be adept at multiple word-protected. be encrypted, and tact information as well as multiple cop- technological tasks. In the twenty-first Lawyers, particularly real estate every device must be ies of a calendar with all deadlines. There century, it’s not enough to be a skilled practitioners, are prime hacking targets. should be an office manual for items such lawyer, with knowledge of statutes and We routinely hold sensitive informa- password-protected. as computers, accounting, phones and case law or the ability to argue a case tion, such as medical records, bank re- bank accounts. eloquently. Fulfilling one’s ethical duties cords, social security numbers and other The point of raising these issues is of competence now encompasses adroit identifying information. The safeguards the knowledge of how to use them. not to give lawyers heart palpitations. use of technology. As our clients become we use may be less robust than those In the age of cloud computing, it’s None of this is difficult or costly. But, as more sophisticated, they will expect used by our clients, particularly insti- relatively straightforward to store data the economy changes around us, the le- their lawyers to be as well. tutional clients. And the information in more than one physical location. Re- gal profession must stay current. Keeping This year, the American Bar Asso- we possess may be less voluminous and ducing paper is beneficial in many ways, abreast of technology is an aspect of com- ciation issued Formal Opinion Number easier to access than the information including making lawyers less suscepti- petent, ethical practice. And planning for 477, which governs the duty to safeguard stored by our clients. ble to physical theft or damage. But for emergencies is like an insurance policy client confidences. The opinion states The Rules of Professional Con- remote data storage to work properly against possible problems. It is better that lawyers may have to take special duct (as explicated by the recent ABA and securely, lawyers must follow proper to confront them now, rather than react security measures to protect client in- opinion and comment 8 to Rule 1.1) procedures and must have the ability later. With a few small ounces of preven- formation. The ABA’s Ethics Commit- require attorneys to be competent to retrieve data easily. This circles back tion, lawyers can focus on what brought tee declined to impose a “hard and fast in protecting data and confidential- to our basic duty of competence. Ev- us into the profession in the first place: rule,” but advised a “reasonable efforts” ity. Lawyers will have to stay abreast ery lawyer and law firm should have an advising and counseling our clients. standard to identify appropriate security of changes in technology, particularly emergency plan. measures responsive to specific risks. with regard to cyber security. Since Succession planning is another im- General counsel to the BBO, Joe Berman is a In practice, this means that lawyers many of us do not have sufficient -ex portant issue, particularly for solo prac- member of Lawyers Weekly’s Board of Editors. will have to use different security mea- perience in this realm, we may need titioners, but law firms of every size The opinions expressed here are his own and sures depending on the sensitivity of the to hire vendors or IT professionals. I should have in place a plan in case of the do not necessarily represent the position of information; the likelihood of disclosure also would urge attorneys to consult sudden unavailability (by death or dis- the Board of Bar Overseers. Joe can be con- if additional measures are not taken; the the Law Office Management Assis- ability) or disappearance of an attorney. tacted by email at [email protected]. M  M   L L  WW Appeals Court limits application of equitable subrogationM  M   L L  WW CONTINUED FROM PAGE 1 to the Comeau case, the Appeals Court tual mortgage was extinguished by Ultimately, principles of equity and first looked to the subrogee’s actions William’s death, the bankRR still heldee the fairnesspp movedrr iithe Appealsnn tCourttss to debt paid, (4) the subrogee paid off the and behavior, particularly the expecta- note but chose not to pursue a claim affirm summary judgment in favor entire encumbrance and (5) subroga- RReepprriinnttss tions and intent of Washington Mu- against the estate. Instead, in the eyes of Nancy Comeau, but the case pre- tion would not work any injustice to tual. of the Appeals Court, the bank at- sented an unusual set of facts and its the rights of the junior lienholder. The closing instructions and the tempted to transfer William’s obliga- impact on the applicationM   of equitableM   L  W L  W The Appeals Court observed that mortgage itself spoke only of Wil- tion and debt toM  M   his widow. subrogation L L  should WbeW limited. the majority of jurisdictions bar equi- liam’s title in the property. Indeed, Counsel for the bank undoubtedly table subrogation if the subrogee has Counsel in the Boston office of Robinson the mortgage stated that•• EnhanceEnhanceWilliam’s marketingmarketing argued packagespackages that Nancy andand presspresswas enriched kitskits •• DevelopbyDevelop directdirect mailmail andand emailemail campaignscampaigns •• ProvideProvide instantinstant accessaccess toto articlesarticles onon actual knowledge of the prior lien and interest was subject to encumbrances the satisfaction and discharge of the & Cole LLP, Danielle AndrewsR Longe handlesp rints •• ProvideProvide practicepractice specialtyspecialty literatureliterature • Present informationM   at conferences L  RWyouryoure websitewebsiteprints that a minority of jurisdictions deny of record. 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Thus, on the earlier mortgage note was ex- • Enhance marketing packages and press kits • Develop direct mail and email campaigns • Provide instant access to articles on M   L  W • Provide practiceLarry specialtyHeffernan literature serves as chair of• PresentRobinson information at conferences your website chusetts and that the Supreme Judicial in the court’s view the only reasonable tinguished, not Nancy’s, because she • Provide practice specialty literature • Present information at conferences your website M  Paper reprints L  of articles, book W reviews, news and seminars Court had signaled its preference for expectation WashingtonPaperPaper Mutual reprintsreprints had ofof articlesarticleshad,, booknotbook signed reviews,reviews, that newsnews earlier note. 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Custom-designed plaques that commem orate your achievements for display in your office, reception area or home. For more information on pricing or how to order, please contact us at 617-218-8145 or [email protected] H0K0514 PAGE 12 REBAnews MARCH 2018

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