Will Rhode Island Be the Next Attorney State?

WWW.REBA.NET THE NEWSPAPER OF THE REAL ESTATE BAR ASSOCIATION MARCH 2020 • Vol. 17, No. 2 Supplement of Massachusetts Lawyers Weekly Boston Red Sox CEO Kennedy to deliver conference keynote Boston Red Sox CEO Sam Kennedy has overseen its growth from a start-up will deliver the keynote address at RE- to a world-class agency with an inter- BA’s Spring Conference luncheon May 4 national roster of clients that includes at the Four Points Sheraton in Norwood. the Red Sox, Liverpool Football Club, Kennedy’s remarks will include a NESN and Roush Fenway Racing, and Q&A session moderated by REBA partnerships with Boston College, Ma- board member Paul Alphen. jor League Baseball Advanced Media, Kennedy is entering his 18th season the Dell Technologies Championship, with the club and as well as a landmark marketing part- his third as presi- nership with NBA superstar LeBron dent and chief ex- James. ecutive officer. A native of Brookline who grew In addition to up within walking distance of Fenway his role with the Park, Kennedy, 45, joined the Red Sox ©Swampyank/Wikimedia Commons Red Sox, Kennedy in 2002 after working for the San Diego is chief executive Padres, from 1996 to 2001. of Fenway Sports Kennedy is active in the community KENNEDY Management, a and serves on the MLB International Will Rhode Island be sports marketing Committee and MLB Ticketing Com- and sales agency mittee, as well as the Beth Israel Dea- that is a sister company to the Red Sox coness Medical Center Trustee/Advi- the next attorney state? under the Fenway Sports Group family. sory Board and Marketing Committee; Since joining the Red Sox, Kennedy the Trinity College Board of Fellows; BY ASHLEY SADLER FISCHER has played a key role in the dramatic Winsor School Board of Trustees; Da- ney should be used to conduct a closing. Such has been the common prac- growth of the Red Sox brand. Recall- na-Farber’s Visiting Committee for In- When a per- ing the days when he was able to come stitute Initiatives; The BASE’s Advisory tice historically in Rhode Island, but it son purchases a may soon become a legal requirement. to the ballpark on his dad’s clergy pass, Committee; and Camp Harbor View home, there is a Kennedy has recently focused on en- Board of Directors. The Rhode Island Supreme Court great deal of work is contemplating whether the act of couraging young people to experience A former captain of the baseball done by real es- conducting a closing is the practice of Fenway Park through the creation of team at Brookline High with friend tate professionals law, requiring the involvement of an a “Kids Only” Gate K, offering a free and classmate Theo Epstein, Kennedy to ensure that the attorney. The court is faced with this ticket to youths who sign up for Red graduated from Trinity College (Con- transaction goes decision upon a finding by the Unau- Sox Kid Nation. necticut) in 1995. smoothly and that thorized Practice of Law Committee In 2004, Kennedy helped create To register for the REBA 2020 the parties understand their rights and that a non-attorney had engaged in the Fenway Sports Management, and he Spring Conference, go to www.reba.net. obligations under the deal. Since this is unauthorized practice of law by run- the largest financial decision that most ning a title company and conducting Americans make, it is critical that the closings. The committee’s determina- professionals involved are well qualified tion does not have the force of law, but and able to adeptly represent the inter- it has recommended that the Supreme 2020 REBA SPRING CONFERENCE ests of the parties to the transaction. MONDAY, MAY 4, 2020 This is why many feel that an attor- See page 6 FOUR POINTS SHERATON, NORWOOD BREAKOUT SESSIONS SJC to address proper recipient The Good, Bad and Ugly: Working with Life Estates: Creation, What’s Brewing on Beacon Hill? Changes & Conveyances — of unidentified IOLTA funds Francis J. Nolan, Edward J. Smith, Practical Skills Douglas A. Troyer Leo J. Cushing, Lisa J. Delaney BY MARY K. RYAN In the Matter of Gregory M. Ol- AND MICAH W. MILLER chowski raises the question of wheth- Got Tenancy? At-Will or At-Sufferance Nuts and Bolts of the Mortgage Discharge Statute — Practical Skills er unidentified IOLTA funds should Hon. MaryLou Muirhead, go to the IOLTA Committee to sup- Ward P. Graham, Kurt F. Stuckel Ted S. Papadopoulos port legal services for low-income clients, as interest from IOLTA ac- Pervasive Title Pitfalls: Don’t Fight Authority, Authority counts already does, or to the Trea- The Greatest Hits (and Misses) Always Wins — Practical Skills surer’s Office under Massachusetts’ Matthew J. Carbone, Tucker Dulong, Paula D. Lyons, abandoned and unclaimed property Margaret M. Fortuna Daniel J. Vieira law, G.L.c. 200A. REBA joined with the BBA and Tales from the REBA Ethics Hotline: Massachusetts Lead Paint Laws — RYAN MILLER the MBA in an amicus brief support- Questions for Conveyancers Practical Skills ing the position of the IOLTA Com- Rodney S. Dowell, Vincent N. DePalo, In a case closely watched by bar mittee that it should be the recipient Kathleen M. O’Donnell Dominic H. Poncia III organizations and legal services pro- of the unidentified funds. As REBA grams, the Supreme Judicial Court Do’s and Don’ts of Recent Developments in notes in the joint amicus brief, a sub- Deeds of Distribution Case Law Update will consider what should happen stantial amount of IOLTA revenue to funds in an IOLTA account for comes from real estate practitioners, Christina T. Geaney, Tracie M. Kester Philip S. Lapatin which the rightful owner cannot be making this issue especially relevant identified. See page 11 PAGE 2 REBAnews MARCH 2020 Taking a stand[ing] against ‘Murchison v. Sherborn Board of Appeals’ BY ROBERT KEITH HOPKINS part: AND NICHOLAS P. SHAPIRO “Plaintiffs cite several cases in support of the argument that density-based claims of harm can confer standing. This court does not take issue with the theoretical premise but the cases cited have significantly different factual contexts and largely present challenges to construction on undersized lots which have merged with adjacent lots in areas where ‘ex- isting development is already more HOPKINS SHAPIRO dense than the applicable zoning reg- ulations allow.’ Dwyer v. Gallo (2008); We are the authors of a recently see also, e.g., Mauri v. Zoning Bd. of filed amici brief on behalf of REBA Appeals of Newton (2013); Marhefka v. and The Abstract Club, with the Su- Zoning Bd. of Appeals of Sutton (2011). preme Judicial Court, which has taken While the cases cited by Plaintiffs further appellate review of the Ap- might allow, they certainly do not peals Court’s decision in Murchison compel a ruling in this case that Plain- ©wittybear v. Sherborn Board of Appeals, 96 Mass. tiff has established particularized harm App. Ct. 158 (2019). to them by the proposed construction REBA and The Abstract Club based on increased density. Based on have decided to support the abroga- On March 6, a day after hearing oral argument, the Supreme Mr. Murchison’s testimony, this court tion of the Appeals Court’s decision, Judicial Court issued an order affirming the Land Court’s dismiss- finds Plaintiffs simply do not want because it would have the effect of al of the complaint, noting that a full written opinion would fol- any construction on Lot 69F.” Mur- conferring automatic standing on chison v. Novak, 26 LCR 278, 280-281 low. Such swift action from the SJC was unprecedented, and im- abutters in zoning appeals by merely (Scheier, J.). plied that the court was (rightfully) concerned about the fate of claiming a violation of a dimensional Judge Scheier’s reasoning is sound pending zoning appeals during the under-advisement period. By and conforms to longstanding case promptly affirming the judgment of dismissal by the Land Court, Please do not be law. Density-based harms can be the the SJC sent a clear message to the trial courts: there is no per se basis for a claim of injury and, there- standing in Massachusetts. lulled into the false fore, standing; however, the mere fact that an abutter plaintiff has identified — Robert Keith Hopkins idea that only large a genre of injury that is cognizable under the Zoning Act or the local zon- developers will suffer ing bylaw or ordinance does not mean that a plaintiff has proven an individu- In some instances, practically lation.” Murchison, 96 Mass. App. Ct. from this decision. alized injury of this legally recognized speaking, it is true that if a munici- at 164-165 (footnote omitted). Every property owner sort will flow from the local board’s pality has adopted, for example, three- In the footnote corresponding to decision. acre zoning as Sherborn has in Mur- this analysis, the panel further as- would be at risk. On the plaintiffs’ appeal, the Ap- chison, then this legislative choice may serts that “[i]t is the fact of the place- peals Court got tangled in the ad- make it factually more difficult for an ment of the house on the lot across mittedly difficult and dense web of abutter-plaintiff to prove that he will the street from the plaintiffs that be harmed by a local zoning decision. demonstrates particularized harm to regulation. standing case law under the Zoning Act. The Appeals Court’s first error However, while it may have an im- the plaintiffs, not the mere violation The legal distinctions between pact on the likelihood that an abutter standing alone.” Id.

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