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March 2018 Issue 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.
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