U.S. postage paid Boston, MA Members Weigh Register now for Permit#: 1323 In On Zoning Annual Meeting Reform Bill and Conference! Page 8 Pages 12 & 13

www.reba.net September 2013 The Newspaper of The Vol. 10, No. 5 news Real Estate Bar Association A publication of The Warren Group Globe Sports Columnist Dan Shaughnessy to Keynote Annual Meeting

Boston Globe sports colum- Press Sports Editors. Years, a biography focusing on Franco- nist Dan Shaughnessy will de- In addition to his journalism work, na’s years as manager of the Boston Red liver the luncheon keynote ad- Dan has written 10 books about the Sox. The book immediately became a dress at REBA’s Annual Meet- Boston Red Sox and the Boston Celtics. best-seller. ing and Conference on Monday, These include The Legend of the Curse of Dan is a regular contributor to ES- Nov. 4,at the Four Points by the Bambino, Reversing the Curse (written PN’s “Sports Reporters,” “Jim Rome is Sheraton in Norwood. Shaugh- after the Red Sox won the 2004 World Burning” and “Pardon the Interrup- nessy’s column is perhaps the Series), Fenway Expanded and Updated: tion,” and makes regular appearances on most widely followed of any in A Biography in Words and Pictures, Ever WTKK (96.9 FM talk radio), WHDH the Boston Globe. He has been Green: The Boston Celtics, Seeing Red: The Sports Xtra and network television’s named Massachusetts sports- Red Auerbach Story, At Fenway: Dis- “Nightline” and “The Today Show.” writer of the year seven times patches from Red Sox Nation, and many A registration form for the Annual and eight times has been voted others. Earlier this year, Shaughnessy Meeting and Conference can be found one of America’s top 10 sports and Cleveland Indians manager Terry elsewhere in the pages of this issue of columnists by the Associated Francona released Francona: The Red Sox REBA News. t REBA launches estate planning section Sara Curley and Leo Cushing to co-chair

In response to strong member inter- est in estate planning, elder law and the Massachusetts Uniform Probate Code, REBA has launched a new committee: the Estate Planning, Trusts and Estate Administration Committee. Sara Gold- man Curley, a partner at the Boston firm Nutter McClennen & Fish LLP, and Leo J. Cushing, a partner of the Waltham-based law firm of Cushing & Dolan PC, will co-chair the new group. The committee will respond to un- met member needs for a broad and com- prehensive resource From left: REBA Chief Operating Officer Nicole Cunningham; REBA president Mike MacClary; CATIC vice president Anne Csuka; and CATIC president Rich Patterson. in the estates and trusts field, including CATIC recently donated $25,000 to REBA to support the association’s ongoing efforts to eliminate the unauthorized practice of law. “REBA’s mission and CATIC’s mission include many congruencies,” said REBA president Mike MacClary. “We are both concerned with maintaining the centrality of the lawyer at the closing table. CATIC has been a estate and tax plan- strong REBA supporter and we are grateful to have them as friends and allies.” Sara curley ning, wealth preser- vation, probate and estate administra- tion and elder law Unwary landlords may lose right to damages when issues. In addition to open meetings with speakers of interest, terminating defaulting tenant’s lease committee will of- fer educational pro- By Edward M. Bloom tract damages for the landlord following its lord that it was not going to make any fur- grams at the REBA’s termination of the lease. The SJC stated that ther rent payments nor was it planning to leo cushing twice-yearly confer- The Supreme Judi- a “landlord left without an adequate remedy return to the premises. As a result, in May ences and serve as a cial Court’s decision in following breach of the lease by a tenant has 2008, two years into the lease, the landlord mentoring resource 275 Washington Street only itself to blame for entering into a lease terminated the lease and brought a contract for members. The group will collaborate Corp. v. Hudson River that fails to provide such a remedy.” action against the tenant and the tenant’s closely with the Title Standards Com- International, LLC es- In April 2006, the landlord leased prem- guarantor. mittee to develop and adopt forms and sentially left the land- ises on Washington Street in downtown A Superior Court judge assessed over standards to support REBA members in lord of a defaulting Boston to a tenant for 12 years for use as $1 million in damages against the default- these practice areas. tenant with no remedy a dental practice. Just a year into the lease, ing tenant and the Spanish company that REBA members who wish to join Ed Bloom because the landlord’s the tenant closed its doors, made some in- had guaranteed the tenant’s obligations the committee may contact Andrea Mo- lease form did not ad- termittent monthly payments during the under the lease. Yet the Appeals Court and rales at [email protected]. t equately provide con- next 12 months, but then notified the land- See Unwary landlords, page 5 page 2 Rebanews September 2013 Rebutting the proposed reformation of title insurance industry

By Joel A. Stein mission to study the feasibil- regulation of the conveyance of transactions are far more com- 50 Congress Street, Suite 600 ity of establishing a title insurer real property.” plex, with new types of financ- Boston, Massachusetts 02109-4075 A re- owned by the commonwealth or ing and higher demands from www.reba.net cently filed by a public authority constituted CommonWealth lenders. Defects in foreclosures, bill entitled, by the commonwealth.” Refuted new foreclosure statutes and President: “An Act Section 2(b) addresses the short sales have all created new to Reform constituency of the commis- Although the probability of work for the conveyancing at- Michael D. MacClary Title Insur- sion. Of the 20-plus members this bill being enacted is slight, torney and the title examiner. [email protected] ance” HB of the proposed committee, just the filing of the bill creates The real estate boom of the ’90s President Elect: 1241 dem- only one, the president of the press reaction. created hundreds of new sub- Michelle T. Simons Joel Stein onstrates a Massachusetts Bar Association, One such article, entitled divisions and condominiums [email protected] real lack of or the president’ s designee, is a “Title Insurance – No Regula- throughout the state, and result understanding of the nature of practicing lawyer. No members tion. Few Claims. Huge Profits.” in lengthy title examinations. Immediate Past President: title insurance. Filed by Rep. of the title insurance industry was published in the summer The claim that the ability to Christopher S. Pitt Antonio F.D. Cabral (13th and no members of REBA are 2013 issue of CommonWealth do title work online has resulted [email protected] Bristol), it contains two provi- included in the committee. magazine. I was disappointed in a profit boom to attorneys is sions which, if enacted, would “(c) The commission shall that, after spending an hour or not credible. For most attorneys, Treasurer: set Massachusetts apart from examine the technical, legal and so with the article’s author, Jack the title examination is done by Thomas Bhisitkul the rest of the country. The first financial feasibility of establish- Sullivan, to find that the article an outside examiner who will [email protected] of these provisions, appearing as ing a commonwealth-owned ti- repeated the same criticisms di- typically charge the attorney Clerk: Section 10, reads as follows: tle insurer. The commission shall rected against the title insurance a set fee. As I explained to the “No title insurer shall pay evaluate the experience of Iowa industry as have previously ap- author of the article in question, Susan B. LaRose to any title insurance agent or with state-owned title insur- peared in multiple publications. many of the registries do not al- [email protected] permit such agent to retain any ance, identifying the advantages There is much criticism low you to examine the 50 years Executive Director, Editor: amount exceeding ten percent and disadvantages presented to of the fact that title insurance of time. I also told him that Peter Wittenborg of the gross premium for any purchasers of title insurance for agents are not regulated, though several of the registries are ab- [email protected] policy of the title insurer issued residential property in Iowa as title insurance companies are; solutely not reliable to do work by such agent. The maximum compared with such purchasers and while rates are not set, title online. And yes, you still need to Legislative Counsel: commission to a title insurance in Massachusetts. The commis- insurance companies all issue do all the same work you would Edward J. Smith agent shall not be increased di- sion shall also examine the ex- rate guidelines which are to be do if you were at the registry in- [email protected] rectly or indirectly by an insurer isting structure and dynamics of followed. With the increase in cluding checking marginal ref- providing anything of value, in- the title insurance market as it class action cases relating to re- erences. Unauthorized Practice of cluding services, to an agent for currently operates in Massachu- finance rates arising throughout The fact that a new title in- Law Counsel: less than the actual cost or fair setts and shall include in its ex- the country, woe to the agent surance premium is charged for Douglas W. Salvesen market value.” amination a review of how title who leaves himself and his com- each refinance always seems to [email protected] This attempt to limit the risk is determined and title poli- pany open to such litigation. be the “aha” moment for writ- Managing Editor: agent’s percentage of the gross cies are priced. The commission Massachusetts, despite hav- ers who address this topic. Do Nicole Cunningham premium to 10 percent treats shall also examine the proceeds ing the fourth highest median attorneys make a profit on the [email protected] title insurance as if it were generated by the sale of title in- home price, is not in the top 20 refinance title policy? Perhaps the typical risk insurance, i.e., surance in Massachusetts and in closing costs. The title insur- they do, but many attorneys are Assistant Editor: homeowners insurance or auto shall identify the parties that ance premium charged in Mas- also stuck chasing discharges Andrea M. Morales insurance. The premium paid to receive or make payments as a sachusetts is substantially lower from prior transactions and [email protected] a title insurance agent reflects result of underwriting and issu- than the premium charged in in many cases “refinances” in- Mission Statement the fact that virtually all of the ing a typical title insurance pol- Texas, California, New York, clude taking a mortgage from To advance the practice of real work required to issue a title icy. The commission shall make Florida and Illinois, among oth- a divorced party or an heir. The estate law by creating and sponsoring insurance policy is done by the recommendations based on its ers. In addition, Massachusetts author of this article seems to professional standards, actively agent prior to the issuance of examination as to the extent to has no mortgage tax which is want it both ways. He wants participating in the legislative the policy. which it believes the conduct of a substantial closing expense in to argue that claims are low, process, creating educational Perhaps even more contro- the business of title insurance many states. and he wants to argue that at- programs and material, and versial is Section 2 of the pro- in Massachusetts requires new The author’s claim that title torneys have grabbed the work demonstrating and promoting fair posed bill, which provides as legislation in order to protect flaws used to be a big problem, for themselves. But perhaps dealing and good fellowship among follows: consumers, reduce the price of but are now rare, is based on the two are connected. Perhaps members of the real estate bar. “(a) There shall be a com- title insurance or improve the absolutely no evidence. First, claims are low because the ma- jority of work in Massachusetts Mentoring Statement is done by attorneys. We have To promote the improvement of all seen the product of work the practice of real estate law, the done through witness closings. mentoring of fellow practitioners is Bad descriptions, only one of the continuing professional respon- two owners on a mortgage and sibility of all REBA members. The the unending undischarged officers, directors and committee loans. This work is done by non- members are available to respond to attorney companies through- membership inquires relative to the out the country, and they have Association Title Standards, Practice charged the same title premium Standards, Ethical Standards and as is charged by an attorney Forms with the understanding that who does the work in Massa- advice to Associations members is chusetts. not, of course, a legal option. If you are concerned about the passage of this bill, please © 2013 The Real Estate Bar Association for Massachusetts. Materials for March can contact your local state repre- not be reproduced without permission. sentative or senator. If you live in Bristol County, you should Standard bulk postage paid at Boston MA, t 02205. Postmaster: Send address changes contact Rep.Cabral directly. to REBA, 50 Congress St., Boston MA, 02109 Joel Stein serves as co-chair of REBA’s title insurance and nation- al affairs committees. He can be reached at [email protected]. 280 Summer Street, 8th Floor Boston, MA 02210-1131 CORRECTION (800) 356-8805 Due to an editorial error, in the July-August issue of REBA News, the Superior Court justice who decided the Harris v. McIntyre case www.thewarrengroup.com was misidentified. He is Ralph Gants, now a justice of the Massachusetts Supreme Judicial Court. We regret the error. September 2013 Rebanews page 3

President’s Message In summary of a busy summer By Michael D. MacClary issue of REBA News you will find a complete listing of Planning, Trusts and Estate Administration Commit- theAMC13’s all-day program. tee will kick off this month led by Leo Cushing and As I write this message as we At the AMC13 luncheon we will also introduce a Sarah Curley. If any of you are interested in joining approach September with the ex- new REBA award to honor excellence in professional- this committee as an inaugural member, please contact pectation, post-Labor Day, of new ism in the practice of real estate law. This award recog- Andrea Morales at [email protected]. Also, our presi- deals pouring into our offices (!), I nizes the honoree’s integrity, passion and dedication to dent-elect, Michelle Simons, is finalizing a Women of want to share with you some exciting the highest standards in the practice of law. I am look- REBA group, focusing less on the nuts and bolts of our new initiatives in the works here at ing forward to honoring our first recipient on Nov. 4. practices, but more on networking and informal mem- REBA. In additional to sending their in-house CFPB ex- ber-to-member mentoring. We will have more to come September means that the 2013 pert to present at AMC 2013, WFG has become a new on this in the next few months. We are also developing Mike Macclary Annual Meeting and Conference is underwriter partner with Tom Bussone and Massachu- a new lawyers group to support and nurture newly ad- just around the corner. On Nov. 4, setts Attorney’s Title Group. WFG will continue Tom’s mitted lawyers with additional mentoring, networking again hosted at the Four Points by Sheraton in Nor- arrangement that with MassATG’s agents to support and practice development. wood, we will welcome award-winning Boston Globe REBA and our battle against the unauthorized practice In our continued battle against witness closings, we sports columnist and best-selling author, Dan Shaugh- of law in Massachusetts. I encourage all of you, whether have found a strong ally in the Office of Bar Counsel. nessy, as our luncheon keynote speaker. Thanks to for- you are an agent for MassATG or not, to speak with Assistant Bar Counsel Bruce Eisenhut has authored a mer presidents Ed Bloom and Paul Alphen for securing Tom about the support that MassATG has given to cautionary article on the risks of lawyer participating in Dan as a speaker. We have full slate of 10 hour-long REBA through the years. witness only closings in Massachusetts. In addition to break-out sessions to inform and update our member- Also, I want to particularly thank our friends at publication in the summer issue of REBA News, the ar- ship on the hottest topics in the real estate field, high- CATIC for their long and continuing support of REBA ticle can be found on the BBO website and the REBA lighted by a program covering the Consumer Financial and our work combating the unauthorized practice of site. For those who have chosen to ignore our warnings Protection Bureau’s new integrated rule for residential law. Our mission and CATIC’s include many natural until now, this may be the final straw! settlements presented by representatives of WFG Na- congruencies; we are both dedicated to maintaining the We hope to see everybody at our annual meeting tional Title Insurance Company, the Massachusetts centrality of the attorney at the real estate closing table. and conference in Norwood on Nov. 4. t Bankers Association and our own Rich Hogan. We We are grateful to have them as our friends and ally. thank all of you who have already preregistered for the This summer, REBA’s board laid the groundwork Mike MacClary is 2013 president of REBA and a partner at Burns AMC13 and urge others to register. Elsewhere in this for several new committees and groups. The Estate & Levinson, LLP. He can be reached at [email protected]. 2013 Spring Conference Reception

House Speaker Robert DeLeo was the keynote speaker at the 2013 REBA Spring Conference. Pictured, the reception for his address. SJC preview: NEFF v. Board of Assessors If a tree falls on conservation land, and no one is around to hear it, can it be taxed?

By Douglas W. Salvesen and Robert A. Levite land? How is that benefit, if any, different from when the its case in 2010. undeveloped property is privately owned? Following the evidentiary hearing, the ATB found that By state statute, land owned by a public charity is exempt These are the questions that will be considered by the though the Stetson-Phelps Memorial Forest was nominally from taxation if the charity occupies the land for its charita- SJC this fall in New England Forestry Foundation, Inc. v. open to the public for hiking, hunting and snowmobiling, ble purposes. In many cases, the determination whether the Board of Assessors, SJC No. 11432. it was about as accessible as Brigadoon. The entrance to the statutory requirements are satisfied is straightforward. Land forest was difficult to locate. Individuals unfamiliar with the on which hospitals, schools and museums are built clearly Stetson-Phelps Memorial Forest entrance might reasonably mistake it for the driveway to the fall within the statutory purview. Undeveloped land owned house on the subdivided parcel (which it is – the forest is by a charity, however, can present more difficult issues. Muriel Shippee and Ed Phelps owned a house in Haw- behind the house). There were no signs along the road into The Supreme Judicial Court has determined that unde- ley, Mass., situated on 150 acres of forested land. To keep the the property inviting public access to the forest. Information veloped land owned by a charity is tax-exempt if the activity property from being developed, they sold the house and sur- about the forest was not publicized by NEFF in any signifi- on the land is consistent with the charity’s charitable pur- rounding property to the New England Forestry Foundation cant way. The ATB found that there was only one scheduled poses. For instance, undeveloped land adjacent to a private Inc. (NEFF). NEFF subdivided the house from the rest of public activity at the forest since 1999, an “educational walk” school which the school uses as a ball field for its students the property and sold the subdivided parcel with the house to explain NEFF’s logging activities in the forest. The ATB is exempt from taxation. Undeveloped land owned by a con- to a third party. The remaining 130 acres of forestland be- concluded that the forest did not appear to be accessible to servation land trust has been found to be tax-exempt by the came the Stetson-Phelps Memorial Forest and part of more the public. Appellate Tax Board where the land trust seeks to preserve than 7,000 acres of forestland NEFF owns in Massachusetts. Although NEFF disputed that finding, it conceded that the natural character of the land for the public and the public In 2009, NEFF applied to the Hawley board of assessors it actively discouraged some public use of the forest. In fact, has access to the land to enjoy it. for a tax abatement and exemption under G. L. c. 59, § 5, public use of the forest may be somewhat antithetical to But what of a charity that owns undeveloped land as open Third. The board of assessors denied the request. It conclud- NEFF’s primary goals of protecting the natural beauty of the space without public access? Does a land trust that seeks to ed that NEFF did not occupy the forest on an “active and forest, maintaining and enhancing the wildlife habitats on protect the native flora and wildlife habitats by eliminating ongoing basis,” that the forest was insufficiently “accessible the forest, producing income from periodic timber harvests, or minimizing activity on the land occupy it for charitable to the public,” and that NEFF’s conservation efforts were and managing the forest’s timber resources. Nevertheless, purposes? If the public is banished from these idyllic proper- not sufficient to support a tax exemption under G. L. c. 59, § NEFF contended that, whether or not there is public access ties, how does it benefit from the charity’s ownership of the 5, Third. NEFF filed a petition with the ATB and presented See NEFF v. board, page 4 page 4 Rebanews September 2013 Admiration for professionals

By Paul F. Alphen 56-year-old quiet Celtics fan? Salvesen) debated the merits of the Ibanez many MLCE and REBA programs, but I admire those attorneys who always decision and opined on the elements of a also people like Jon Davis, who practice act in a professional manner. I wish I proper foreclosure. A year later, Esme what they preach and are models of integ- While enjoying could be more like them, but I admit that Caramello and Lawrence F. Scofield, who rity in the practice of law. watching the Red a few times a year I run across an adver- had adversarial positions in then FNMA Those of us who have had the pleasure Sox beat the Roy- sary that gets under my skin and I find it v. Hendricks decision, continued the de- to work with Jon on the REBA board of als in Kansas City in hard to hide my feelings – though I have bate. Additionally, James R. Senor and Ira directors have relied upon his levelheaded August, my sons and never poured the equivalent of a beer on H. Zaleznick, adversaries in the Denver perspective on maintaining the integrity I debated the topic of anyone. Street LLC v. Salem decision, discussed of the practice of law. From time to time, the most unfriendly It is always a pleasure to interact with when a municipal charge becomes an il- when we have considered the taking the sports fans (Pittsburg) the real estate practitioners from the near- legal tax. When I first called each of them more expeditious path, Jon has brought us Paul Alphen and the friendliest by communities because of the mutual re- to ask if they would mind sharing a po- back to reality and reminded us that our fans (undecided). We spect that has develop over the years, and dium with their adversarial counsel, to a collective duty is to protect the integrity discussed that while the players involved because we know that what goes around person each of them immediately replied of the recording process and to protect in the game can remain calm and friendly comes around. that they would be delighted to. Each of our clients. When Jon speaks, we cannot with their opponents (witness the friendly I am trying to behave more like those them also expressed their great respect for help but agree (at least most of the time). banter between a first baseman and a base many brethren that I have come to ad- the skills and abilities of their adversar- Jon is my touchstone for professionalism, runner), many well-fed fans, comfortably mire. For example, MCLE has allowed ies. When the day of the conference came, but I have a ways to go. t seated in the stands, are compelled to take me chair the Annual Real Estate Law everyone in the room could tell that the the game personally and can erupt into Conference since 2009. Some of the best mutual respect among the panelists was REBA’s president in 2008, Paul Alphen cur- unprovoked, hate-filled attacks upon vis- panels have been comprised of former significant and genuine. rently chairs the association’s long-term iting fans. Notwithstanding a few fastballs adversaries in important real estate liti- I continue to admire the many true planning committee. A frequent and welcome that may be aimed at the midsections of gation matters, who have presented their professionals that I have the pleasure of contributor to these pages, he is a partner in a few batters, professional athletes tend opposing perspectives on the law and on meeting through the practice of real es- Balas, Alphen and Santos, P.C., where he con- to be professionals and behave much bet- the impacts of the decision at the confer- tate law, not just each of the many profes- centrates in commercial and residential real ter than many of the fans. What drove an ences. Jeffrey B. Loeb and Glenn F. Rus- sionals that have graciously donated their estate development and land use regulation. adult fan in Cleveland to pour a beer on a sell, Jr (refereed by the unflappable Doug valuable time, skill and expertise to the Paul can be reached at [email protected]. Representing a condominium developer or converter in the sale of individual condominium units

By Saul J. Feldman well organized and efficient. laration of trust and by-laws in Mas- should contain an overview, whereby the Because the Massachusetts Supreme sachusetts, but it could be articles of developer retains the right to amend the I have previously Judicial Court has recently adopted a rule organization and by-laws if a corpora- condominium documents as long as the written about how to that requires attorneys in Massachusetts tion is used, and just by-laws if an un- basic rights of the prospective unit owner represent an individ- to provide clients with an engagement let- incorporated association is used). are not materially affected. This shall apply ◆◆ ual seller of a condo- ter concerning the scope of the work they A form of unit reservation agreement to the number and configuration of units, minium unit. In this have been engaged to do for the client and (customarily used in lieu of an offer to the addition of phases to a condominium article, I am going to their fees, the attorneys must provide such purchase). if applicable, the ratio between residential ◆◆ discuss how to repre- a letter to their developer and converter A form of unit purchase and sale units and commercial units in the case of a sent a condominium clients. In reality, this invariably has always agreement. mixed-use condominium (so long as Fan- ◆◆ Saul Feldman converter or a devel- been done, but now it is required by law. A sample 6(d) certificate. nie Mae provisions are not violated). ◆◆ oper in a unit sale. Given the cyclical nature of real estate, A sample unit deed (whereby buyer’s The purchase and sale agreement My experience in representing a con- the days of many unit closings in a short consent to any future phases/develop- should be tailored to the particular project. dominium converter or developer in unit period of time are back. It is important to ment is included). I believe that a shorter purchase and sale ◆◆ sales began in the early 1970s with 330 developer and converter clients that their A sample tax letter agreement. agreement is better than a longer purchase ◆◆ Beacon St. in Boston and Weymouth- closing attorneys be organized and ef- Limited warranty. and sale agreement. However, essential ◆◆ port in Weymouth. My experience has ficient in order to close large numbers of Preliminary budget. components need to be included. For in- ◆◆ continued over the decades to include the unit closings within short periods of time. A specimen title insurance policy. stance, if the developer intends to develop Farm at Chestnut Hill in Newton, Folio Seller’s attorney must prepare the con- additional phases, this needs to be ex- at 80 Broad St. in Boston, and Parkview dominium documents, namely: The foregoing together with a copy plained in a purchase and sale agreement ◆◆ in Westborough. The objective in handling master deed. of the site and floor plans should be in so that buyer’s consent to future develop- ◆◆ multiple unit sales in a large building or The document that creates the organi- a bound presentation given to purchas- ment is obtained. Also, if a new project is buildings in a short period of time is to be zation of unit owners (usually a dec- ers by the sales staff. The presentation See Condominium developer, page 14 SJC preview: NEFF v. Board of Assessors Continued from page 3 exemption. The ATB noted that, traditionally, the activity mined that the cultivation of forests is a charitable activity. In to the forest, these activities satisfy the statutory require- has been tied up with encouraging public access, and the Peakes v. Blakely, 333 Mass. 281 (1955), the SJC considered ments for the exemption set forth in G.L. c. 59, § 5, Third, absence of public access generally has proven fatal to an ex- the terms of a testamentary bequest by D. Blakely Hoar, a and that the public benefits from NEFF’s mere ownership emption claim. noted Brookline attorney. In his will, Hoar had directed the of the forest. The ATB’s decision is neither surprising nor unique. It trustees of his estate to use part of his estate to purchase land has consistently held that passive ownership of undeveloped along the Charles River and to cultivate a forest thereon. The Is Ownership Of Open Space A land is not a charitable activity. SJC expressly stated that “the purpose to cultivate forests is Charitable Activity? In its brief to the SJC, NEFF argues that the conser- in itself charitable.” vation of land’s natural beauty and character and the pres- The argument inNEFF v. Board of Assessors is scheduled The ATB disagreed. The ATB relied on the SJC’s defi- ervation of natural habitats is a gift for the benefit of the for later this year. t nition of a charitable activity as one that is “for the benefit public should qualify as a charitable activity, whether or not of an indefinite number of persons, either by bringing their the public is invited onto the property. It points out that the A partner in the Boston law firm of Yurko, Salvesen & Remz, P.C., minds or hearts under the influence of education or religion, ATB’s requirement that conservation charities allow public Doug Salvesen has served as counsel to the association’s prac- by relieving their bodies from disease, suffering or constraint, access onto their properties is without any basis in law, and tice of law by non-lawyers committee for more than 20 years and by assisting them to establish themselves in life, or by erect- in some situations could undermine NEFF’s conservation is a nationally acknowledged expert on the unauthorized practice ing or maintaining public buildings or works or otherwise goals. NEFF advocates that the SJC expand the definition of of law. Doug can be contacted by email at [email protected]. lessening the burdens of government.” charitable activity beyond the eleemosynary notion of doling Robert Levite has worked as general counsel to state agencies The ATB concluded that, while NEFF’s aims were laud- out relief to unfortunates in society to include a wider group in both Vermont and Massachusetts and has been active as le- able, the preservation of open space did not fit within this of activities that are beneficial to society. In essence, NEFF gal counsel and on the board of several nonprofit institutions, traditional description. A land trust that seeks to maintain wants the SJC to “go green.” including the Massachusetts Watershed Coalition, the Ecological undeveloped land in its pristine state is like a museum that Although the issue presented to the SJC is whether or Landscaping Association and Kestrel Land Trust. He is active in the holds works of art but does not allow public viewing. There not the conservation of open space is a charitable activity for Massachusetts land trust community and chairs the Massachu- must be some activity on conservation land to warrant a tax G. L. c. 59, § 5, Third purposes, the SJC has already deter- setts Land Trust Coalition Attorney Panel. September 2013 Rebanews page 5 Unwary landlords may lose right to damages when terminating defaulting tenant’s lease

Continued from page 1 been terminated. Other provisions require a remedy. As the SJC said: “We recognize to change the common law regarding lease the SJC, while agreeing that the tenant had the tenant to pay, as liquidated damages, a the possibility, as did the Appeals Court, terminations, which creates a trap for the clearly breached the lease and abandoned lump sum which may involve a full accel- that our common law rule, which requires unwary landlord. The reason why a tenant the premises, ruled that the landlord would eration of the remaining rent due under the the landlord to wait until 2018 to deter- is no longer liable to pay rent once a lease is have to wait 10 years in order to collect any lease discounted to present value; a partial mine post-termination damages under the terminated for any reason, including a ten- damage award. acceleration equal to the amount by which indemnification clause, ‘may in effect make ant’s default, flows out of the common law the aggregate rent due for the remaining it impossible for the landlord to recover its concept that a lease is a conveyance of an ‘The Law is an Ass’ lease term exceeds the current fair market true damages from this corporate tenant or estate in land and once the estate terminates rent for the remainder of the term, dis- guarantor, because of the protections afford- and the landlord regains its estate, the ten- Without knowing anything more about counted to present value; or a dollar amount ed by legal processes, such as dissolution or ant no longer owes any rent because its es- this case or the legal arguments put forth equal to the monthly rent due for a period bankruptcy.’” tate has ended. by the Appeals Court and the SJC to justify of anywhere from six months to two years. REBA and the Abstract Club had filed their decisions, your common sense tells you The landlord in this case had nothing in Lessons Learned an amicus brief with the SJC urging it to that this outcome is incorrect. In fact, one its lease other than a provision that, upon view a lease as a contract rather than an es- might even be tempted to sum up this case lease termination as a result of the tenant’s The lessons to be learned from this tate in land and thus allow the common law by citing Dickens’ 1838 novel, Oliver Twist, default, the tenant was to indemnify the harsh decision are these: If an indemnifica- of contracts to govern a tenant’s damages and Mr. Bumbles’ reply when the court in- landlord against all loss of rent and other tion clause is to be used by a landlord as a when the contract is breached. The SJC de- forms him that the law supposes that “your payments which the landlord may incur by remedy for a tenant’s default, the provision finitively agreed that a commercial lease is a wife acts under your direction.” “If the law reason of such termination. But the SJC, must set forth a date or dates prior to the contract rather than a conveyance of proper- supposes that,” replies Mr. Bumble, “then upholding the Appeals Court ruling in this end of the lease term for the landlord to re- ty, but it decided that there was no reason to the law is an ass.” case, concluded that “[w]here the specific cover damages. For example, the clause can change the common law that has governed However, one cannot so simply dismiss remedy is indemnification and no other require the tenant to indemnify the landlord leases in Massachusetts for over 100 years. this case, because there are important les- time period is established as to when pay- each and every month for the loss of rent Accordingly, it continues to apply the sons to be learned. To begin with, under ment is due, … under our common law … that was due under the lease or provide for common law that flows out of the concept Massachusetts common law, once a lease is the indemnified amount shall become due the determination of damages upon the re- of a lease being an estate in land rather than terminated for any reason, including a ten- at the end of the original lease period.” letting of the premises. applying the common law rule governing ant’s default, the tenant is no longer liable The court reasoned that indemnification Secondly, and more importantly, a land- contracts (which would grant the landlord to pay rent thereafter accruing unless there is a liability contingent upon events thereaf- lord must set forth in its lease detailed and its benefit-of-the-bargain damages) even if is an enforceable lease provision specifying ter occurring, such as a fire or other casualty, specific contract damages for which the the lease itself did not spell out these dam- damages due the landlord as a result of the relettings and defaults by replacement ten- tenant will be liable when the lease is ter- ages. So while Mr. Bumble’s comments termination. ants, so that the full amount which the ten- minated by reason of the tenant’s default. may be too harsh a view of this decision, Accordingly, commercial lease lawyers ant must pay for the remainder of the term These provisions should reflect the liqui- the SJC’s ruling that a commercial lease is in Massachusetts typically preserve a land- cannot be fully ascertained until the period dated damages clauses referred to above and a contract, but is not governed by the com- lord’s right to damages by employing several ends. should, at a minimum, grant to the landlord mon law of contracts, defies all logic. t common provisions. One provision may re- In this case, such a holding means that the benefit-of-its-bargain damages that are quire the tenant to continue to pay landlord the landlord would have to wait until 2018 typical under the common law governing Ed Bloom is partner in the real estate depart- each month, as damages, the monthly rent to determine its damages, a result leaving contracts in general. ment at Sherin and Logden, and past president of required by the lease, as if the lease had not the landlord, practically speaking, without The SJC missed a golden opportunity REBA. He can be reached at [email protected]. page 6 Rebanews September 2013 You mail, I mail, we all send email By James S. Bolan and Sara N. Holden

Are disclaimers in emails a necessary evil, a prudent and reasonable course of action or a bloody waste of time? Does anyone read them? Do they provide jim bolan needed notice, dis- closure or protection from creeping legal and societal ills? Here are two examples for your consideration: Too much, too little

Sara Holden Is there a conclu- sive movement away from the historic requirement of a for- mal, complete purchase and sale agree- ment when selling real estate? In Mc- Carthy v. Tobin, 429 Mass. 84, 87 (1999), the Supreme Judicial Court held that the controlling fact is the “intention of the parties” and that, even if a final written agreement was not executed by the par- ties, that, “[i]f . . . the parties have agreed If a social media post no longer resides within a reasonable expectation of privacy, let upon all material terms, it may be in- ferred that the purpose of a final docu- alone your care, custody and control, can access to such sites be held to be outside of 4th ment which the parties agree to execute Amendment protections from unreasonable search and seizures? is to serve as a polished memorandum of an already binding contract.” (Emphasis added). 17th century statute of frauds and 21st age where business and negotiations are client in the transaction referred to above The evolutionary trend continued re- century email. So, seeking to construct conducted electronically, how does one and your receipt of this email is evidence cently when, in a case of first impression, a four-lane highway, the court found prevent the inference or conclusion be- of your acceptance of all terms and con- a Superior Court judge (Middlesex) ap- that the statute of frauds could be satis- ing drawn that there is a binding agree- ditions and shall constitute a binding plied McCarthy to find that an exchange fied that there was a “writing” that was ment prior to an “intended” formal writ- contract in the absence of a fully signed of emails between buyer and seller of real effectively “signed” by the parties. Said ten agreement being signed by the par- written contract, unless specifically stated estate inferred an intention to be bound another way, if you live by electrons, you ties? What do you do with the “binding” otherwise. to a contract. See Feldberg v. Coxall, 2012 may die by electrons! language of an offer to purchase form, Said another way, forgetabout get- WL 3854947 (Mass. Super.). The Feldberg case sends the message which McCarthy upheld? ting out of this one!! In Feldberg, the court allowed buyer’s that, if the parties communicate by email, Should your emails now contain motion for endorsement of a lis pendens then their intent can at least be inferred another disclaimer that says something Where, oh where, did based upon an exchange of emails which that those communications will serve as along the following lines (with thanks to my contract go? included sufficiently material terms, in- a binding agreement without signing a Susan Larose and Richard Vetstein): cluding purchase price, property descrip- formal written agreement. NB: The Uni- Emails sent or received shall neither I have been raising questions for a tion and potential closing date. The seller form Electronic Transactions Act, G.L. constitute acceptance of conducting trans- number of years about the evolution of argued that the emails were insufficient c. 110G recognizes transactions between actions via electronic means nor shall cre- privacy in the U.S. and the world. As to satisfy the Statute of Frauds, G.L. c. parties who have both agreed to conduct ate a binding contract in the absence of we use social and related media, the 259, § 1, which requires a contract for the transaction electronically and that an a written contract signed by all parties, 20th century expectations of privacy are the sale of land to be in writing and “electronic signature” satisfies the law. unless otherwise specifically stated and changing faster than protection of those signed by the parties. So, do Feldberg and the UETA mean agreed to by a return email. expectations. As the court noted, “the rules of the that electronic signature blocks, among Or, do you want to go the other way? For example, does making a clear road” are not yet written to bridge the other things, are not necessary? In an This email shall bind you and your See mail, page 11

Excellence in Professionalism New Award Established David Wilson joins REBA At the Annual Meeting and Confer- ‘This new honor will have parity of our Dispute Resolution ence this year, REBA will launch a new two existing honors, the Richard B. John- award: the Excellence in Professionalism son Award and the Denis Maguire Com- Award. This award recognizes the honor- munity Service Award,” said Nominating David E. Wilson, a the law.” ee’s passion and dedication to the highest Committee Chair Chris Pitt. “However, it partner of the Boston Wilson practices exclusively in the standards in the practice of law. A recipi- will focus on the honoree’s commitment to law firm of Corwin field of construction law, representing ent of this honor understands that the legal the legal profession.” & Corwin LLP, has subcontractors and suppliers, general profession is a higher calling imbued with More information, as well as registra- joined REBA Dispute contractors and construction managers, noble and aspirational goals of service – to tion instructions, about the Annual Meet- Resolution, REBA’s sureties, designers and owners, in matters clients, to the community and to the pro- ing and Conference can be found elsewhere alternative dispute ranging from general advice to trials in fession. in the pages of this issue of REBA News. t resolution affiliate.district and state courts. He has lectured Dave Wilson David will focus on and participated in numerous classes mediation and arbi- and seminars on construction law with tration work on construction disputes. MCLE, Suffolk University Law School, “We are delighted that David has MBA and BBA, as well as various trade Visit us joined our panel of Neutrals,” said REBA groups. He has also drafted significant Executive Director Peter Wittenborg. legislative bills pertinent to construction, “We anticipate that we will bring his a number of which have been enacted online! special expertise in contrition law to our into law. existing clients while expanding our pro- Wilson received a J.D. from Boston www.reba.net gram’s area of expertise in to this impor- University School of Law, and an under- tant and often litigation-fraught area of graduate degree from Brown University. t September 2013 Rebanews page 7 Relation Back Doctrine preserves subcontractor’s late claim against contractor and surety

By Christopher R. Vaccaro days after notice, or risk dismissal. NES Rentals served its motion to amend, but In the world of did not file it with the court, within the litigation, timing is 90-day period. The Superior Court al- everything, especially lowed the amendment on Nov. 2, 2011. because of the various The contractor opportunistically seized statutes of limitations on this delay, and moved to dismiss NES dispersed throughout Rentals’ claim as untimely. The Superior the Massachusetts Court denied the contractor’s motion to General Laws. To a dismiss, ruling that NES Rentals’ service Chris Vaccaro litigation attorney, one of its motion operated to commence the of life’s greatest joys is action within the 90-day period. The con- to successfully assert a statute of limita- tractor filed an interlocutory appeal. tions defense, so the lawsuit against the The Supreme Judicial Court affirmed client is dismissed without the expense of the lower court’s decision, but disagreed protracted discovery and trial preparation. with its analysis. The SJC explained that However, statutes of limitation are the mechanic’s lien statute contains strict not always the silver bullets that defense timing and notice requirements to protect counsel would like. For example, the “re- property owners and others from tardy lation back doctrine,” codified in the Rule claims by contractors and suppliers. For 15(c) of the Massachusetts Rules of Civil example, the lien is dissolved unless the Procedure, generously allows a plaintiff claimant files an enforcement suit within to add claims and defendants to an ex- 90 days after recording a statement of the isting lawsuit after the limitations period amount claimed, and records an attested expires, as long as the original suit was copy of the complaint with the appropri- timely filed. Last July, the Massachu- ate Registry of Deeds within 30 days after setts Supreme Judicial Court analyzed filing suit. The SJC noted that the statute the interplay between the relation back corded a mechanic’s lien to secure a debt als received notice of the bond on June 13, enables title examiners to ascertain from doctrine and a 90-day limitations period owed by a contractor. After recording the 2011, served a motion to amend its com- registry records whether a mechanic’s lien in the mechanic’s lien statute (M.G.L. c. lien, NES Rentals filed a timely enforce- plaint to add the contractor and surety as encumbers a parcel of land. 254), in allowing a subcontractor to pros- ment action in Superior Court against defendants on Aug. 23, 2011, and filed its According to the SJC, the essential ecute a late claim against a contractor and the owner on May 21, 2010. Eleven motion to amend with the court on Oct. legal issue on appeal was to determine a surety. months later, on April 29, 2011, the con- 3, 2011. when NES Rentals “commenced” its en- NES Rentals v. Maine Drilling & tractor and surety recorded a bond under Section 14 of the mechanic’s lien stat- forcement action under Section 14 of the Blasting, Inc., 465 Mass. 856 (2013) in- Section 14 of the mechanic’s lien statute, ute requires claimants to “commence” ac- mechanic’s lien statute. The options avail- See Doctrine page 10 volved an equipment rental firm that re- dissolving the real estate lien. NES Rent- tions to enforce a surety bond within 90 page 8 Rebanews September 2013 Proposed Zoning Reform Bill Summarized

By Gregor I. McGregor Reps. Stephen Kulik and Sen. Daniel Vested Rights ANR process (unique in the U.S.) would be Wolf are lead sponsors. The bill is supported and ‘Grandfather eliminated. A zoning reform by 56 other legislators. The Boston Globe en- Protections’ These reforms are in line with the rec- bill is pending with dorsed it editorially as helping to ease hous- ommendations of the American Planning potential to fix much ing woes. 42 organizations wrote to Speaker Even if their zoning laws change, most Association and are the national norm for of what is regarded by Robert DeLeo urging passage to replace states offer protection to development proj- states that have vested rights statutes. many as being broken. antiquated planning and zoning laws to en- ects in the pipeline where a substantial The bill enjoys general courage new jobs and housing, community investment of time and money has been Special Permits support of many con- planning, and natural resource protection, made. In Massachusetts these “vesting” stituencies and stake- including more certainty and predictability protections are more liberal (to landown- The Zoning Act presently requires a su- greg Mcgreor holders. for developers and property owners. ers) than common law or statute elsewhere per-majority vote to of the board for a spe- Massachusetts has REBA and its committees will host in the U.S. cial permit, a high hurdle that makes special been listed by the American Planning As- some discussions of the merits of H.3216. Our Zoning Act today provides three permits harder to obtain. In addition, the sociation as one of the states with the weak- Our purpose here, for starters, is to summa- vesting loopholes which facilitate easy cir- duration of a special permit may not exceed est and most outdated state land-use laws. rize some of the provisions of H.3216 af- cumvention of local zoning law changes. two years, which can crimp development Since 1999 a concerted effort has been un- fecting real estate attorneys and their clients These serve to perpetuate zoning long be- schedules. derway to reform and modernize the stat- involved with projects and permits. yond grandfather protections for land on Three significant changes are proposed. utes that govern local planning, zoning, and which any subdivision plans have been The required vote to approve a special per- subdivision control. Statutory Authority and filed, even if hypothetical and never built; at mit becomes a simple majority, which may This legislative session, all of the pre- Basic Definitions the same time, the Act makes it harder for be increased by local option. The effective vious supporters of zoning reform – mu- landowners to obtain vesting protection for duration of a special permit is set at no nicipal officials, planners, regional planning Due to contradictory court decisions, their projects seeking just a building permit shorter than three years (which matches the agencies, and environmental, smart growth, over the years since the Zoning Act in 1975, or special permit. period of vested rights for a special permit housing, and public health advocates – have the bill would define and authorize explic- The bill eliminates two vesting loop- proposed elsewhere in the bill). Finally, a collaborated to create a consensus bill. itly the use of some existing planning tools. holes and modifies a third. The vesting peri- simple process for the extension of a special The new bill is House Docket #3216, Current Zoning Act definitions of “cluster ods for building permits and special permits permit is established. “An Act Promoting the Planning and De- development” and “transfer of development are extended. velopment of Sustainable Communities.” rights” are examples. So are “inclusionary The bill provides standardized zoning Site Plan Review (Find the bill at https://malegislature.gov/ zoning,” “natural resource protection zon- protections for development projects pro- Bills/188/House/H1859.) ing,” and “form-based codes.” posed in building permits, special permits, While not mentioned in the Zon- H.3216 blends aspects of previous zon- and subdivision plans. The proposed proj- ing Act, many communities use site plan ing reform legislative proposals in the first Majority Vote to Adopt ect itself would be protected for periods review (SPR) anyway. Ambiguities have major updating of the commonwealth’s land or Amend Zoning of two, three and eight years, respectively. plagued SPR such as uncertainty about use statutes in 37 years. It encourages com- The vesting point would be the date an ap- review board discretion, ability to require munities to adopt or update their local mas- The current two-thirds majority vote to plicant “duly applies for” a permit, which mitigation, timelines for approval, conduct- ter plans and provides tools to implement adopt or amend a zoning ordinance or by- must be before the first published notice ing public hearings, voting and signing ma- effective land use regulations. At the same law is unique in the U.S. The national norm of the public hearing on a proposed zoning jorities, SPR duration after approval, and time many of the existing statutory impedi- is a simple majority to adopt/amend local change, and the permit must ultimately be whether, when and on what standards is ments to the achievement of what has been zoning with no local ability to vary. Under approved. there a court appeal. termed “smarter growth” in Massachusetts the bill, communities may elect to lower the Preliminary plans no longer would be The bill would add a new section to would be eliminated so that communities vote quantum from super-majority (default) adequate as place-holders for vested rights. the Zoning Act specifically on SPR. It sets may better manage their growth and shape anywhere down to a simple majority. Once Instead there will be a “minor subdivision” standard procedures, clarifies that board their futures. Landowners and developers reduced, the majority subsequently could be process (at local option) which would af- discretion is limited (although approvals would enjoy several new rights. raised by whatever majority is then in place. ford 4 years of protection if approved. The See zone reform page 15 A few thoughts on why the zoning act is dysfunctional

By Robert W. Ritchie the Zoning Act it failed to do so in a form uniform and consistent across municipal having our state statute and our local land that calibrated its text to the constitutional boundaries. use laws aptly drafted to legitimize well- In 1966 the citi- prerogatives of cities and towns to zone. reasoned adjustments to the strict applica- zens of Massachusetts This failure is evident in the retention of Coherency And tion of local zoning, which the HB 1859 approved a state con- text in the “new” (1975) Chapter 40A that Consistency variance section seeks to do. stitutional amendment purports to “authorize” or “permit” precisely HB 1859 seeks to remedy the unrea- providing for consti- what the amendment had already equipped Among the more glaring deficiencies sonable and inconsistent vesting dates for tutional home rule for cities and towns to do without state legisla- of the existing statute is its failure to con- building permits, special permits, and sub- our state’s cities and tion. This is the foundational dysfunction- form to accepted principles of good writ- division plans. Zoning freeze provisions of towns. They reserved, alty of Chapter 40A. ing, instead offering up vast landscapes of the Zoning Act kick in for building per- Bob Ritchie however, the power to As if unaware of this history – and even often impenetrably dense text in sentences mits and special permits only upon issu- supersede that home with the best of intentions – the Legisla- and paragraphs that run on for hundreds of ance prior to first notice of a public hearing rule authority through the enactment of ture at various times after 1975 amended words that often defy parsing by courts and on a zoning change, which exposes devel- state laws applicable to cities and towns Chapter 40A with text again expressed in common folks opment projects to possible zoning changes generally. Before 1966, local zoning enact- terms of “permitting” or “authorizing,” but Zoning reform ought to elevate the that might well be directly responsive to the ments could only be adopted if and as ex- which in the final analysis had quite the op- coherence of the statute by reassembly of project itself. On the flip side, preliminary pressly authorized by general laws enacted posite effect of limiting or restricting mu- currently loosely peppered provisions relat- plans filed anytime prior to adoption of a by the Legislature. Thus in 1975 when the nicipal home rule powers. Where statewide ing to a single topic into a single coherent zoning change freeze zoning for all land last omnibus revision of Chapter 40A was uniformity in land use regulation is appro- re-statement of related provisions in one shown on the somewhat meaningless plan, enacted, the old “Zoning Enabling Act” was priate, the Legislature is constitutionally place. so long as a definitive plan with no required appropriately re-named the “Zoning Act,” equipped to mandate uniform state-wide The Zoning Act on variances establish- consistency with the preliminary plan is in reality a “Zoning Disabling Act” whose standards and procedures – illustratively, es criteria so strict that valid variances are filed within seven months. This emascu- provisions are prescriptive or proscriptive, HB 1859 would do precisely this for site truly rare. The fallout from this is statewide lates a community’s power to implement but otherwise leaving zoning to the locals. plan review, a zoning tool that did not ex- inconsistency, with some towns strictly its master plan since the deliberative phase It should not be forgotten that municipal ist in 1975 but which cities and towns have construing the statute and granting few of local lawmaking is exposed to frustration “home rule” was expressly meant to apply adopted in a wide variety of forms. Local or none, and others ignoring the clear lan- by the filing of a simple non-binding plan “in local matters,” and what may well have legislative flexibility can well be exercised guage of the statute by granting them liber- of land unaccompanied by any commit- been a local matter in 1966 could well have in conformity to state-wide substantive and ally in the expectation that if not appealed ment to proceed as planned. evolved into a matter of predominantly re- procedural standards and criteria. the variance will have successfully filed off The remedy proposed in HB 1859 gional or state-wide concern in 2013. To remediate these errors of legislative the rough edges of an overly rigid law. It would be to assign the first publication The core legislative need for the Zoning judgment, HB 1859 would clarify the legit- many cases, a town that liberally grants date of the planning board’s hearing on Act, therefore, was for the commonwealth imacy of such contemporary zoning tools variances might wish to reflect on whether proposed zoning changes as the trigger to exercise its reserved powers under Sec- as site plan review, development impact its by-law ought to have made the subject date for application for the two permits tion 8 of the Home Rule Amendment to fees, inclusionary zoning, and consolidated of the variance something allowed by spe- and for definitive plans. The equitable ad- preempt or restrict the exercise of local permitting, but would do by prescribing cial permit. Ultimately, disrespect and dis- justment of these dates in HB 1859 gives See zoning act page 14 zoning authority. Regrettably, in enacting standards and procedures that would be regard for the law is a poor alternative to September 2013 Rebanews page 9 Proposed bill a flawed plan Act will result in more permits, less housing

By Mark A. Kablack Currently c. 41 has as its main focus the regulation of eight-year period is reduced to five years for those mu- new roadways and roadway infrastructure for the devel- nicipalities that become “opt-in” communities. opment of new lots. The current law exempts lots that are One of the more onerous provisions in the new leg- Many have touted House Bill No. created along existing roadways through a plan approval islation is an inclusionary zoning requirement whereby a 1859, “An Act Promoting the Plan- process called “Approval Not Required” (ANR). developer must subsidize the construction of one or more ning and Development of Sustainable The proposed legislation would eliminate ANR plan affordable units in any new development. This provision Communities,” as a panacea for Mas- endorsements in favor of a new “minor subdivision” pro- lacks any density bonus as provided in the current law, sachusetts zoning laws, arguing that cess that could subject lots otherwise fronting on exist- and contains no exemption for small projects or numeri- the current laws are in dire need of ing public ways, requiring no new roadway frontage or cal standards as to how many affordable units must be reform. Still others, including The Bos- infrastructure, to the same rules and regulations required constructed. ton Globe, have stated that the zoning for major subdivisions. In essence it would remove one of While we should all be advocates for affordable hous- Mark Kablack reform bill is essential for providing the only by-right approval tools that property owners and ing, the mechanism for accomplishing its construction incentives and tools to municipalities developers have to create new housing units in a prompt must be rational and reasonable. It must follow a good to produce more housing. Unfortunately, many aspects and predictable manner. economic model. Subsidies for affordable units, which by of the reform effort will make housing production more An ANR plan must be endorsed under the current their nature are sold at reduced pricing levels, can easily costly and more permit intensive, resulting in fewer hous- law within 21 days. Compare that to a minor subdivi- surpass $100,000 per unit. If this subsidy is imposed on ing starts and more problems for the housing industry. sion review process that could take as many as 65 days, a relatively small development of 10 new homes, for ex- To its credit, several provisions of the proposed legisla- and could be subject to planning board regulations that ample, the allocation of that subsidy per market rate unit tion would be helpful to owners and developers, or at least vary from town to town, are unduly complicated, time- would be $10,000. That subsidy is an additional cost that content neutral. The codification of site plan review pro- consuming and costly. Lastly, the minor subdivision plan must be added to the price of home construction, when cedures, the establishment of new, more flexible standards review process is only applicable to six or fewer lots unless prospective home buyers in Massachusetts are already for variance relief, the opportunity for expedited permit- the local legislative body (e.g. Town Meeting) takes af- suffering from the highest housing prices in the nation. ting for certain projects, and the articulation of greater firmative steps to increase the applicable yield. vesting rights offered through the issuance of a building With the elimination of the ANR plan, the proposed Falling Short permit or special permit are all welcomed changes. legislation also eliminates the three-year zoning or plan The benefits of the proposed legislation, however, are freeze protection afforded to owners and developers for Those who advocate for this zoning reform bill state clearly outweighed by other provisions that eliminate cer- property shown on an ANR plan. that the burdensome and costly components are offset by tain permitting rights and procedures and add direct costs Other important zoning or plan freeze protections af- the benefits contained in other sections of the legislation, to development. forded to full subdivision plans are also modified by the which encourage municipalities to update their master proposed legislation. The eight-year plan protection ap- plans or designate districts for housing production and Where Things Go Wrong plicable to full subdivision plans, which currently freezes economic development (the so-called “opt-in” commu- all zoning applicable to the property shown on the plan, nities). These sections, however, fall short of meaningful The proposed legislation would amend sections of the would be curtailed to protect only those improvements production goals. Subdivision Control Law (M.G.L. c. 41) by redefining shown on the plan itself. It is arguable that the new legis- First, with respect to the creation of master plans, the one of the core definitions of what it means to be a regu- lation would not apply to (and not protect) modifications current law already mandates such planning (see M.G.L. lated “subdivision.” or changes to the approved plan. More significantly, the See Bill flawed page 14

Meet the new partners. Let Belmont Savings Bank’s dedicated client services • Free check scanning service team provide your law firm with outstanding service. • Free stop payments on checks REBA members are assigned a Business Banking • Free online wires (incoming and outgoing) Relationship Manager and receive banking perks: • Free email wire notification • Free first order of checks for IOLTA How can we help you? For more information, please go to our website or contact our Business Client Service Team at (617) 489-1397. Member FDIC. Member DIF.

Learn how we can help you:

belmontsavings.com | 617-484-6700 | In Belmont, Cambridge, Waltham & Watertown | page 10 Rebanews September 2013 Legal issues of land zoning in Russia

By Elena Boltanova tion rules, which need to be approved through normative The restrictive zoning norms are contained in various acts of law issued by local municipal authorities, or, in the federal laws and regulations (Land Code of Russia (2001), case of Moscow or Saint Petersburg, by their city authori- Water Code of Russia (2006), federal law On Environ- Zoning of land can have different ties. mental Protection (2002) and others). In order to ensure purposes and aims. Zoning activities The planning regulations provide: the preservation of natural resources and their protection, ◆◆ (regardless of their forms) comprise The types of permitted use of land, as well as all that is to establish special requirements for economic and other a single subject: the classification of above and below the surface of land sites and is used activities, additional restrictions can be applied in some land sites by pre-established criteria, for construction and subsequent operations in build- areas by creation of special zones or zones with special and features to solve a number of land ings and structures (main types of permitted use, con- conditions for land use (protective, sanitary zones, zones use problems through the adoption of ditionally permitted types of use and supplementary of cultural heritage of peoples of Russia (monuments of special legal norms. types of permitted use). history and culture), water protection zones, and others). ◆◆ Elena Unlike in the United States of Limited (minimum and or maximum) size of land The special zones cover parcels of land where planning Boltanova America, in Russia land zoning as a and parameters defining limits of permitted construc- zones are disregarded, including those lands where plan- set of legal norms is relatively new tion, reconstruction, construction in the height, and ning zoning does not apply. and, in fact, is still in its formative stages. First of all, land building density. Russian legislation specifies many types of special ◆◆ zoning affects the rights of persons using parcels of land Restrictions on the usage of land sites and buildings. zones that have different names. It is in common use for and other real estate objects as it requires determining zones in which construction is largely restricted or limit- limits and restrictions on the use of land. In this regard Special Zoning Restrictions ed. Construction of buildings has a very powerful impact there can be mentioned two types of zoning: planning on the environment in general, and on the land specifi- (territorial) zoning and restrictive zoning (identification It is important to understand that the Regulations cally. Such a restriction or limitation may include various of localized zones with special conditions of use). for Land Use and Construction, as well as any changes matters ranging from the necessity to obtain permission “Planning zoning” is defined as municipal zoning to to that document, should correspond to the provisions of from the authorized entities to build a structure (for ex- determine the overall territorial zones and planning regu- territorial planning documents (e.g., the general plans of ample, the buffer zones of power lines and facilities) to lations (Article 1 of the Town Planning Code of the Rus- towns and settlements). In Russia, there have already ap- a complete prohibition of construction of buildings and sian Federation). peared court cases involving reversal of changes in regula- structures (for example, exclusion zones adjacent to a mil- Accordingly, this type of zoning is characterized, first- tions of land use and construction that did not comply to itary warehouse, protected areas of gas supply facilities). ly, by the separation of the municipal territory into certain earlier adopted documents. Thus, restrictive zoning often has a local, or, to some parts. The Russian federal legislation contains an open list Thus, planning zoning allows one to plan the usage of extent at least, an individual character (for example, the of territorial zones, and it gives the right to the local gov- land parcels and property in view of the possible activity determination of the buffer zone of a particular object ernments to set their own types of territorial zones tak- at the site. This type of zoning affects both lands with to ensure its safe and trouble-free operation). Should in ing into consideration the specific usage of land sites and buildings thereon and vacant lands liable to be built upon some cases a planning zoning be in place, restrictive zon- capital objects, and the plans for municipal development. and is regulated by the Town Planning ing allows specifying the particular legal As a result of this planning zoning, there can be de- Code. regime of particular land fined residential, social, business and industrial zones, sites or other real zones of engineering and transport infrastructure, zones See Russia page 14 for agricultural usage, recreational zones, protected zones, special-purpose zones, zones for military facilities and other types of land zones. The limits of the territorial zones are to be established taking into account various factors, including the existing land use and the prevention of damage to the objects of capital construction located at adjacent territories. Changing the territorial zone is possible, though it is a rather lengthy procedure as it requires amendment of the regulations for land use and development of the mu- nicipality. The procedure is complicated not only because it needs consultation with various offices, but also because it requires public hearings. It is therefore important at the stage of making regulations for the land use and construc- tion to weigh the potential risks and danger, and harm threatening to the adjacent territories. The initiative to change the limits of territorial zones, or to change plan- ning regulations can belong to persons and legal entities. Secondly, the planning regulations for every territorial zone have legal effect for every such zone. The planning regulations constitute a part of the land use and construc- Relation Back Doctrine preserves subcontractor’s late claim against contractor and surety Continued from page 7 able to the SJC were, in reverse chrono- that merely serving an amended plead- amended pleading arose out of the con- construed the 90-day limitations period logical order: Nov. 2, 2011, the date when ing, without filing it with the court, did duct, transaction, or occurrence set forth and dismissed the amended complaint. the lower court allowed the motion to not operate to “commence” the enforce- …. in the original pleading, the amend- Lenk indicated that the bond enforce- amend; Oct. 3, 2011, the date when the ment action. The SJC ultimately chose ment relates back to the original plead- ment action was not commenced until motion to amend was filed with the lower the motion to amend the complaint was court; Aug.23, 2011, the date when the The SJC explained that the mechanic’s lien statute contains filed with the court, which was outside of contractor and the surety received notice the 90-day period. She opined that the of the motion to amend; or May 25, 2010, strict timing and notice requirements to protect property owners majority’s decision rendered the 90-day the date that NES Rental originally filed limitations period “largely superfluous.” suit to enforce its mechanic’s lien. This and others from tardy claims by contractors and suppliers. Notwithstanding this dissent, the SJC fourth option only makes sense if one reaffirmed its willingness under the -re applies the relation back doctrine to the the fourth option, invoking the relation ing.” This rule also applies to an amended lation back doctrine to let plaintiffs add issue. back doctrine to hold that NES Rentals’ pleading that adds or changes parties. Ac- new claims and defendants to lawsuits Had the SJC chosen the first or sec- suit on the bond was “commenced” when cordingly, the SJC cited the relation back after limitations periods have expired – a ond options as the date that NES Rent- it originally filed its mechanic’s lien en- doctrine in Rule 15(c) to decide in favor practice which the SJC conceded is “more als commenced its suit, NES Rental’s forcement action, eleven months before of NES Rental. liberal than other jurisdictions.” t claim would be dismissed as untimely. the bond was recorded on April 29, 2011. The SJC’s decision was not unani- Had the SJC chosen the third option, The SJC’s reasoning focused on Rule mous. Justice Barbara Lenk, dissenting, A long-time REBA member, Chris Vaccaro it would have adopted the lower court’s 15(c) of the Massachusetts Rules of Civil claimed the decision departed from the practices in Stoneham, concentrating in the position, and NES Rentals would prevail. Procedure, which states that “when- clear language of the statute and estab- areas of commercial real estate and banking. The SJC rejected the third option, stating ever the claim or defense asserted in an lished precedent. She would have strictly His email address is [email protected]. September 2013 Rebanews page 11 You mail, I mail, we all send email

Continued from page 6

As we know, after 9/11, President George W. Bush issued an executive order that authorized the NSA to con- duct surveillance of certain telephone calls without a FISA warrant. The issue has been raised anew recently. Do these realities create a new sense of exposure and liability for lawyers? Must we now take “reasonable” steps first to notify cli- ents and others of the possibility of inva- sion of routine communications – hence the email disclosure? If we fail to do so, choice in online privacy settings provide will we be charged with breach of con- sufficient protection against disclosure fidentiality by a less than gruntled cli- or search? Is there a risk if an online ent? Or, has the expectation of privacy or email account is hacked? These are been so eroded for so long that there is the questions that we in the legal eth- no need to connect these dots when en- ics community have been contemplating gaged in privileged or confidential acts? and a number of folks have been writ- In light of the renewed disclosures ing about, such as the article in 2010 in on NSA activity, we have been consider- the Marquette Law Review, “The Fourth ing reviving the following disclaimers for Amendment and the Brave New World our emails: of Online Social Networking.” The ar- This email message, including any ticle coalesces as follows: “Is there now attachments that follow, was sent unen- an illusion of privacy? Has the definition crypted. If you are concerned about con- (i.e., the subjective expectation of priva- fidentiality or privacy, such as the NSA cy) been inextricably altered?” PRISM program, please contact our office Mark Zuckerberg said several years to discuss alternate delivery options for ago that online activity means that peo- future communications. ple no longer have an expectation of pri- Answers may be few and far between, vacy – it isno longer the social norm. Is the but the conversation needs to begin right to be left alone permanently obvi- anew. t ated by the new social media contract? So, if a social media post no longer re- Jim Bolan and Sara Holden are partners with sides within a reasonable expectation of the Newton law firm of Brecher, Wyner, Si- privacy, let alone your care, custody and mons, Fox & Bolan, LLP, and represent and control, can access to such sites be held advise lawyers and law firms in ethics, bar to be outside of 4th Amendment protec- discipline and malpractice matters. They can tions from unreasonable search and sei- be reached at either [email protected] or zures? [email protected]. Harry Spence to Address Litigation Committee

Trial Court Administrator Lewis H. ment Spence served as commissioner of “Harry” Spence will address a luncheon the Massachusetts Department of Social meeting of the REBA Litigation Com- Services, the commonwealth’s child wel- mittee on Tuesday, Nov. 12, 2013, at Todd fare program. From 1995 to 2000 Spence & Weld LLP, 28 State St., 27th Floor, served as deputy chancellor for operations Boston. Spence will discuss his experi- at the New York City Public Schools, the ences in managing the seven departments nation’s largest school system, which has of the trial court since his appointment a budget of $10 billion and 120,000 em- in April 2012, as well as the challenge of ployees serving 1.1 million students. court operations in a time of diminished Prior to his work in New York City, funding appropriations. Spence was appointed by then-Governor Spence, who has a long history of William F. Weld as receiver for the bank- managing complex organizations in both rupt city of Chelsea. the public and private sectors, oversees 379 The Nov. 12 meeting is open to all judges, more than 6,000 court staffers and REBA members in good standing. To an annual operating budget of more than register for the meeting, email Andrea $560 million. Prior to his court appoint- Morales at [email protected]. t page 12 Rebanews September 2013 2013 Annual Meeting & Conference Monday, November 4th 2013 • 7:30 a.m. – 2:45 p.m. Four Points by Sheraton | 1125 Boston-Providence Turnpike, Norwood, MA

Join us at our 2013 Annual Meeting & Conference, where you can take advantage of accredited continuing education, network with colleagues and enjoy an informational luncheon with old friends. The registration form can be found on the next page. We look forward to seeing you on November 4th! Schedule of Events

7:30 a.m. – 8:30 a.m. registration and Exhibitors’ Hour The New Medical Marijuana Law: Condominium Commercial Closings & Title Policies for 8:30 a.m. – 1:15 p.m. BREAKOUT SESSIONS Associations, Residential Landlords & Zoning Residential Conveyancers By-laws Melanie E. Kido; Christopher S. Pitt Are the ALTA Best Practices in your Future? Adam D. Fine; Diane R. Rubin; Emil Ward The panel will discuss the requirements for commercial Charles Cain; Richard A. Hogan; Jon K. Skarin The Massachusetts medical marijuana law, and particularly closings when the parties are foreign or domestic Initiatives from the Consumer Financial Protection Bureau the implementing regulations, present many issues for real corporations, partners and limited liability companies. What specifically make lenders financially responsible for the estate practitioners including town counsel, zoning and land authority documents will be needed? What due diligence activities of many third-party vendors including attorney use lawyers, residential conveyancers, lawyers in the landlord/ should be done as to building jacket searches, zoning, etc.? settlement and title agents. In an effort to assist the lending tenant arena and lawyers representing condominium owners’ Are there any leases? What is covered by the title policy and community in its efforts to reduce its liability, the title associations. The implementing regulations are intensely what endorsements are required? How does the ALTA/ACSM insurance industry has implemented new quality control detailed in some areas and quite vague or silent in others. survey differ from a simple mortgage plot plan? Will the title standards designed to improve service, reduce risk, and REBA members need to know this cutting edge law and the company act as escrow agent? This informative session will ensure the highest level of regulatory compliance. The best opportunities and challenges it will present to their clients. help you be more at ease as you venture into commercial practices are voluntary standards professionals can adopt closings. to protect consumers, promote quality service, provide for 9:45 a.m. – 10:45 a.m. Tiffany Ballroom B ongoing employee training, and meet legal and market 11:00 a.m. – 12:00 p.m. Tiffany Ballroom B 8:30 a.m. – 9:30 a.m. Conference Room 103 requirements. 11:00 a.m. – 12:00 p.m. Essex/Lenox Room Upcoming DEP Regulatory Reforms 8:30 a.m. – 9:30 a.m. Tiffany Ballroom A Benjamin J. Ericson; Lealdon Langley; Ann Lowery; Trusts from General Practitioner’s Perspective: 9:45 a.m. – 10:45 a.m. Tiffany Ballroom A Sarah Weinstein Title Issues, Probate & More The upcoming DEP regulatory reforms are a comprehensive Sara Goldman Curley; Leo J. Cushing Homestead Reform: Three Years Later set of simplifying, streamlining and curative rule changes, The panelists will discuss and define the many types of trusts Michael J. Goldberg; Ward P. Graham; Lynne F. Riley in almost all operative DEP areas, put out for public owning real property or holding the beneficial interest. An The three years since the REBA-led overhaul of the comment and hearings in March. Panelists will cover the overview and definition of nominee trusts, estate planning Massachusetts homestead law have seen further changes proposed regulatory reforms within each DEP program; trusts, revocable and irrevocable trusts, inter vivos trusts, in both the law and conveyancing practice. The panel will opening and closing dates for public comment periods; testamentary trusts, and business trusts will discussed by the examine the impact of the new statute, including a discussion locations and dates of public hearings in various parts of the panel. Basic trust definitions will be reviewed, explaining the of state and federal court decisions interpreting its terms, Commonwealth; how to submit written comments for yourself trustee, the beneficiary, the donor, the creator, and the settlor. and a review of technical and clarifying legislation pending and your clients; and what to tell them of some rules changes The necessary components of various trust instruments and on Beacon Hill. The faculty will discuss issues relating to already promulgated. These changes will have surprising the C. 184 §35 Trustee Certificate will be discussed, as they the requirements for homestead declarations, and related importance, wide application, welcome simplicity, and relate to the proposed sale or refinance. There also will be a title questions. In addition, the panel will explore exemption common sense wisdom. The changes will affect any attorneys discussion of the Massachusetts Homestead exemption as planning for bankruptcy debtors in the context of the new law. and their clients involved even tangentially with real estate, it relates to trusts. The documentation to be required from transactions or permits, land management, or land use/ various trustee sellers or borrowers, as the conveyancer and 8:30 a.m. – 9:30 a.m. Essex/Lenox Room environmental procedures. the paralegal prepare for closing, will be defined. 9:45 a.m. – 10:45 a.m. Essex/Lenox Room 9:46 a.m. – 10:45a.m. Conference Room 103 9:45 a.m. – 9:30 a.m. Conference Room 107/108 Contracts to Purchase: The Cart before the Horse 11:00 a.m. – 12:00 p.m. Conference Room 103 11:00 a.m. – 12:00 P.m. Conference Room 107/108 Robert L. Bell Jr.; Michael McDonagh; Robert M. Ruzzo; George J. Warshaw Ibanez & Eaton: Title Confusion and Possible Recent Developments in Massachusetts Case Law A residential contract to purchase, commonly, but mistakenly, Solutions Philip S. Lapatin called an ‘offer’, is a binding agreement (see McCarthy Allison West Dalton; Paul J. Mulligan; Rachelle D. Willard Now in his 35th year at these meetings, Phil continues to v. Tobin, etc.). So why do we need a purchase and sale The Ibanez and Eaton decisions have brought an element draw a huge crowd with this session. His presentation on the agreement? Do our real estate broker friends – who are of uncertainty to legal titles and placed additional Recent Developments in Massachusetts Case Law is a must sometimes our clients – understand the binding nature of responsibilities on conveyancers certifying title. Practitioners hear for any practicing real estate attorney. Phil is the 2008 the standard form offer? Are brokers flirting with a 93A and their staff will want to know what to look for on their titles recipient of the Association’s highest honor, the Richard B. claim if they don’t disclose this? If a seller reneges, the so that the issues can be properly dealt with. The panel will Johnson Award. buyer can force the seller to perform based solely on a form provide a brief overview of the Ibanez and Eaton decisions as offer. However, if a buyer reneges, a seller – with the home well as discuss how to spot these issues on title. The panel 12:10 p.m. – 1:15 p.m. Conference Room 103 sale at stake – has no recourse. Can we rethink the use of will then lead a discussion of methods and proposals to cure *Video simulcasts of this presentation in Conference Rooms 102 & this ubiquitous form without alienating our real estate broker Ibanez issues in back title including: release deeds from prior 107/108 colleagues? owners and junior lienholders, Bevilacqua and foreclosure deeds as assignments of mortgage, re-foreclosure and the 1:20 p.m. 8:30 a.m. – 9:30 a.m. Conference Room 102 Eaton requirement to hold the note, making a new entry, LUNCHEON PROGRAM 9:45 a.m. – 10:45 a.m. Conference Room 102 statutes of limitation and registered land issues. 1:20 p.m. – 1:40 p.m. A Lawyer’s Primer on Short Sale Fundamentals 8:30 a.m. – 9:30 a.m. Tiffany Ballroom B President’s Welcome & Remarks Mike MacClary Hillery Dorner; Amanda Zuretti 11:00 a.m. – 12:00 p.m. Conference Room 102 The lawyer’s responsibility in a short sale varies depending 1:40 p.m. – 2:00 p.m. on the role played. This session will address the nuances Report of the REBA Title Standards Committee of a P&S agreement when you represent the seller and the For information on conference buyer, and the pitfalls the closing attorney needs to be aware 2:00 p.m. – 2:20 p.m. of. It will also address customary practices of lien holders, registration and exhibitor/sponsorship Award Presentation short sale approval letters, title concerns, and the use of the discharge law in protecting the closing attorney and clearing opportunities visit www.reba.net. title post-closing. or call REBA at 617.854.7555 8:30 a.m. – 9:30 a.m. Conference Room 107/108 September 2013 Rebanews page 13 Luncheon Keynote Address A sports columnist, Dan Shaughnessy’s is Reversing the Curse (written after the Red Dan is a regular contributor to ESPN’s perhaps the most widely followed of any Sox won the 2004 World Series), Fenway “Sports Reporters,” “Jim Rome is Burning” column in the Boston Globe. He has been Expanded and Updated: A Biography in and “Pardon the Interruption” and makes named Massachusetts Sportswriter of the Words and Pictures, Ever Green the Boston regular appearances on WTKK (96.9 FM Year seven times and eight times has been Celtics, Seeing Red: The Red Auerbach talk radio), WHDH Sports Xtra and network voted one of America’s top-ten sports Story, At Fenway: Dispatches from Red television’s Nightline and The Today Show. columnists by the Associated Press Sports Sox Nation, and many others. Earlier this Editors. year, Shaughnessy and Cleveland Indians After graduating from the College of the Holy manager Terry Francona released Francona: Cross, he worked for the Baltimore Evening In addition to his journalism work, Dan has The Red Sox Years, a biography focusing on Sun and the Washington Star, before joining PRESENTED BY written ten books about the Boston Red Francona’s years as manager of the Red Sox. the Globe in 1981. DAN SHAUGHNESSY Sox and the Boston Celtics. These include The book immediately became a best-seller. Boston Globe Sports Columnist The Legend of the Curse of the Bambino, General Information ◆◆REBA’s 2013 Annual Meeting & Conference is open to both members and non‐members. ◆◆Please submit one registration per attendee. Additional registration applications are All attendees mustregister; the registration fee includes the breakout sessions, the available at www.reba.net.REBA will confirm all registrations by email luncheon, and the written materials. REBA cannot offer discounts for registrants not attending the Conference luncheon. ◆◆To guarantee a reservation, conference registrations should be sent with the appropriate fee by email, mail or fax, or submitted online at www.reba.net, before October 28, 2013. ◆◆Credits are available for professional liability insurance and continuing legal education Registrations received after October 28, 2013 will be subject to a late registration credits in other states. For more information, contact Bob Gaudette at 617.854.7555 or processing fee of $25. Registrations may be cancelled in writing before October 28, 2013 [email protected]. and will be subject to a processing fee

◆◆Attendees may not use cell phonesduring the breakout sessions or the luncheon Driving Directions

FROM BOSTON: FROM PROVIDENCE FROM THE WEST: Take I‐93 South which turns into I‐95 (Route 128) North. Take Take I‐95 North to Exit 11B, Neponset Street, Norwood. Drive Follow the Mass. Turnpike (I‐90) East. Take Exit 14 onto I‐95 Exit 15B, Route 1 South, toward Norwood.Continue 4.5 miles 7/10 of a mile and tu (Route128) South (from the West it is Exit 14; from the East, down Route 1 South. The hotel will be on your right, after the rn left onto Dean Street. At the traffic light, turn left onto it is Exit 15). Continue South to Exit 15B (Route 1, Norwood). Staples Plaza Route 1 heading south. Continue 4.5 miles down Route 1. The hotel will be on your The hotel will be on your right, after the Staples Plaza right, after the Staples Plaza Registration COMPLETE AND RETURN THIS REGISTRATION FORM WITH THE APPROPRIATE FEE TO: REBA Foundation, 50 Congress Street, Suite 600, Boston, MA 02109-4075 | TEL: (617) 854-7555 | [email protected] | FAX: (617) 854-7570

By October 28th After October 28th

YES, please register me. I am a REBA member in good standing. $195.00 $220.00

YES, please register me as a guest. I am not a REBA member. $235.00 $260.00

NO, I am unable to attend, but I would like to purchase conference $190.00 $190.00 materials and a CD of the breakout sessions and luncheon address. (Please order by 11/6/13 and allow four weeks for delivery) $ $

Check Enclosed Credit Card

Check No: Card No: Expiration: Date: Signature: Date: You May Also Register Online at REBA.net Registrant Information Name of Registrant: Esq. (y/n):

Call Name (for badge): Email:

Firm/Company:

Address:

City/Town: State: Zip:

Tel: Cell: Fax:

Selcet Your Luncheon Choice Below Buttcher shop cut choice petit filet mignon, Pan seared chicken breast stuffed with spinach, garlic grilled and served with a red winde demi-glace & Fontina cheese in a while mushroom sauce The Real Estate Pasta Primavera in a cream sauce None, as I am unable to stay for the Luncheon Bar Association for Massachusetts page 14 Rebanews September 2013 A few thoughts on why the zoning act is dysfunctional

Continued from page 8 brought to the task. Zoning tools widely erty throughout our state and for regulat- sensus bill in balanced response to the le- the advantage to whomever first makes a available in other states are missing in our ing that development in a balanced and eq- gitimate needs and expectations of many declaration of specific intent, whether it be nearly 40-year old statute, often leaving uitable way. The act should assure expedited diverse constituencies. No bill will do ev- the applicant for a building permit, special cities and towns to fashion land local use and predictable outcomes, not uncertainty erything any one constituency would like, permit, or definitive plan approval, or the regulations that widely differ one from the and ambiguity in the allocation of the costs and those who believe their interests are community by publishing notice of a pro- next. and benefits of growth. best served by the status quo would be well pose zoning change. All concerned with state and local reg- It is a blemish that a state renowned advised to reassess. t ulation of land uses in Massachusetts need for its contemporary approach to the de- A Square Peg and deserve a modernized Zoning Act. The mands of the 21st century in other areas is Bob Ritchie is former General Counsel for the act should explicitly acknowledge proven so behind the times in its zoning laws. It is Massachusetts Department of Agricultural Where appropriate regulatory tools are contemporary tools and techniques for the a time for change. Resources. He can be reached at bobritchie@ not available, inappropriate ones are often sale, use, and development of private prop- HB 1859 was crafted to serve as a con- comcast.net. Proposed bill a flawed plan

Continued from page 9 Second, the benefits derived from in communities, for example, can create wary of the threats presented in the pro- c.41, section 81D). The sad reality, how- those portions of the legislation that en- natural resource zoning districts (with posed zoning legislation. While certain ever, is that municipalities reluctantly de- courage opt-in communities to designate reduced housing unit densities equal to provisions of existing zoning law could velop or update master plans and rarely districts for development are woefully in- onr unit per 10 acres) and enact rate-of- use revision, a comprehensive re-write in zone in accordance with such plans. The adequate. The requirement, for example, development laws that restrict new hous- the manner proposed would have severe new legislation does nothing to man- for an opt-in community to create new ing starts. negative impacts. Whether one supports date master plan development or zoning housing units equal to 5 percent of its Lastly, the tools that advocates say zoning reform or advocates against it, one conformance. If those who advocate for total housing stock over a 10-year period, they need in order to plan for the future of must be honest in recognizing that the smart growth really want to accomplish results in a small fraction of new housing Massachusetts such as transfer of develop- current proposal does more to deter hous- meaningful planning and production re- starts in any one year. It is a pace that will ment rights (TDR), open space or cluster ing production and economic develop- form, they would mandate planning and never allow Massachusetts to overcome development, or inclusionary zoning with ment than it does to promote them. t zoning benchmarks for all municipali- its housing shortage. a density bonus, are already available un- ties, coupled with regulatory oversight by Moreover, the incentives that are pro- der the existing provisions of M.G.L. c. Mark Kablack is principal of the firm M.A. state agencies, and advocate for appellate vided to opt-in communities are likely to 40A. Kablack & Associates, P.C. in Westborough. He reform. encourage anti-development bias. Opt- The real estate industry should be can be reached at [email protected]. Representing a condominium developer or converter in the sale of individual condominium units

Continued from page 4 Commission certificate. might be surprised by how often this does There is obviously much to be done ◆◆ to contain 25 or more units, issues relative Closing adjustments (condominium in fact happen. in representing a developer or converter to the Interstate Land Sales Full Disclo- reserves, condominium fees and real A subordination agreement or consent of a condominium. In a strong market for sure Act of 1968 (15 USC Chapter 42) estate taxes). to the condominium master deed by the condominium units, good organization is ◆◆ need to be identified. A copy of the specimen title insurance lender(s) on a condominium development essential to a smooth and efficient process. In addition to the presentation, the policy. needs to be recorded with the Registry In cases where my firm has represented ◆◆ developer’s or converter’s attorney should A certificate of occupancy (temporary) of Deeds. Lender(s) will have to provide developers of mid-sized and larger con- prepare a closing package for the closing in the event of a substantial rehabilita- a payoff statement relative to a partial re- dominium projects, we have typically con- attorney (the attorney for the buyer and/ tion or new construction. lease for each unit closing. The terms of ducted from three to six closings per day, ◆◆ or the buyer’s lender): A list of recording charges. obtaining partial releases for each unit upon completion of construction. When a ◆◆ A completed unit deed. closing should be established prior to the firm knows how to stream line this pro- ◆◆ A completed tax letter agreement. Careful track needs to be kept rela- beginning of the sale of units. The more cess, this is a realistic expectation. t ◆◆ An insurance certificate. tive to conveyance of parking spaces, stor- simple the formula (for instance, 80 per- ◆◆ Recording information of the condo- age spaces or other appurtenant rights. In cent of the purchase price) the better. If a A member of REBA’s Condominium Law and minium documents. a project with 100 or so parking spaces, lender is a private lender, original partial Practice Committee, Saul practices with his ◆◆ A current municipal lien certificate. care needs to be taken so a single space is releases in recordable form will have to be daughter at Feldman & Feldman, PC. He may ◆◆ In Boston, a current Water and Sewer not sold more than once by accident. One delivered to the closing. be reached at [email protected]. Legal issues of land zoning in Russia Continued from page 10 zones shall be approved by the decisions mation about it was registered in the state In general, zoning and special rules estate property located within the special of the state bodies of executive power, or land cadastre. shall provide a reasonable balance of: a) the zones. by bodies of local municipalities. A special The zoning can be vertical or horizon- socio-economic and technological devel- A particular site being covered by a group of zones are those which shall be tal in nature. Although the legislator main- opment of the country, associated rights of special zone means not only the necessity deemed to derive from a direct prescrip- ly regulates horizontal zoning, at the same citizens and organizations, b) the interests to follow the special rules and regulations tion of law: no special decision is required time planning zoning can set restrictions of the preservation of historical and cultur- during construction at the site but also the for their creation (such are, for example, on the development of underground space. al heritage, environmental protection and restriction on the alienation of the site, the protection zones for geodesic points, pro- There are such cases of legal regulation of related rights in the spiritual and cultural impossibility to lease it for construction, sphere. These goals are common for the le- and the prohibition to privatize it. Also, Changing the territorial zone is possible, though it is a rather gal regulation of land zoning not only in Russian legislation has other specifics Russia but also in other countries. t that regulate legal relations within special lengthy procedure as it requires amendment of the regulations zones. Elena Boltanova is an assistant professor on When should the specific conditions for land use and development of the municipality. the law faculty at Tomsk State University, in and terms and the specific regime in the the city of Tomsk, Siberia, Russia. She earned special zones be observed? This should a doctorate in law and is a specialist in the occur from the moment when the land tected zones of objects of the gas supply underground protection zones. In some re- field of legal regulation of real estate. She has parcel is identified as falling within the system within the minimum distance to gions of Russia it is stated that there should many publications on problems of land and specific special zone. Special zones have the objects of the gas supply system, and be designated boundaries of underground town planning law and is the co-author of the different names and different procedures others). As such, the protective zone of protection zones for individual monu- commentary to the Civil Code of Russia and required to be observed. In general, it the electric transmission systems is estab- ments or artifacts – these zones should re- the Land Code of Russia. She has published a can be stated that the boundaries of such lished only from the date when the infor- strict intrusion in the underground space. textbook on land law. September 2013 Rebanews page 15 Proposed Zoning Reform Bill Summarized Growth Act Continued from page 8 ing inventory (affordable to household with the community as a whole, and actual imple- may be subject to conditions and limited income not exceeding 80 percent of AMI). Development patterns, according to the mentation. The bill rewrites the master plan off-site mitigation is permitted), establishes bill’s sponsors, are not resulting in smart provisions to invoke the state’s sustainable that decisions must be made within 95 days Dispute Resolution growth, a resilient economy, and enough new development principles, including public and any public hearing (optional) is within housing and jobs across the commonwealth, health considerations; require five elements the same 95 days, a simple majority vote is Although informal dispute resolution while protecting environmental resources (goals and objectives, housing, natural re- required for approval, SPR duration is at may occur now, in cities and towns that see and community character. The “town and sources and energy, land use and zoning, and least two years, SPR is folded into any spe- a value in speeding approvals and reducing country” landscape of Massachusetts is being implementation); allow seven other optional cial permit review timeline, and SPR deci- lawsuits, there is no set process in the Zon- lost to sprawling suburban development. elements customized to local needs; discour- sions may be appealed based on the board ing Act, and no available confidentiality A new chapter would provide strong age superfluous data collection unrelated to record, not new evidence. provisions to make negotiations attractive. incentives for housing and job growth in land use and the physical development; re- No zoning freezes would be triggered by The bill offers an off-line avenue for ap- appropriate locations, coupled with envi- quire assessment against similar information SPR application or approval. plicants, municipal officials, and the public ronmental and open space protections. In in a regional plan, if any; mandate a public to work through the difficulties in a pro- exchange for local adoption of zoning dis- hearing before plan adoption by the planning Inclusionary Zoning spective development project using a neu- tricts for new residential and commercial board; and specify the plan subsequently tral facilitator so that the formal approval development, municipalities will get access must be adopted by the local legislative body. Presently in Massachusetts there is a process may later be successful for all. Con- to additional regulatory and fiscal resources patch-quilt of municipal inclusionary hous- fidentiality is provided. and tools to realize their plans for sustainable Court Appeals ing requirements, which are inconsistently development. placed upon market-rate housing develop- Variances Oversight of “opt-in” eligibility, imple- Once a municipality has made a decision ments to increase diversity in local housing menting regulations, and dispute resolution on a proposed project, opponents sometimes opportunities and add units to a commu- The Zoning Act as written about vari- would be through the Secretary of the Ex- turn to the courts in the attempt to delay or nity’s subsidized housing inventory to help ance is remarkably restrictive for landown- ecutive Office of Housing and Economic stop the proposal even if there is no merit to meet Chapter 40B. Yet these are widely ers and towns, tying the hands of building Development. $2 million is budgeted for the appeal. Resolving appeals is often an ex- used in other states, successfully and with inspectors and zoning boards where vari- reimbursements to communities that prepare pensive and slow route, undermining the pre- support by developers. ances are needed to relieve otherwise un- implementing regulations and regional plan- dictability and credibility of the local process A new section in the act would autho- fairly strict zoning. Some municipalities ning agencies that review them. in the eyes of local agencies, developers, and rize and set parameters for zoning measures approve almost no variances, while others residents alike. governing requirements to create affordable grant them liberally, but illegally. Most vari- Master Plans The bill streamlines the court appeal lan- housing in development projects. Some off- ances granted could be attacked in court guage for site plan review, special permits, site units, land dedications, or funds may be successfully. Required elements of a master plan in and subdivisions; sets consistent deadlines; provided in lieu of on-site dwelling units, The bill establishes new procedures and the present law are very general, master plans specifies the court will conduct a record- with dedicated accounts set up for this pur- criteria for variances while still maintaining can be quite long and costly, and many are based review; and clarifies jurisdiction of the pose. Any dwelling units created under this a community’s discretion to condition or said to compile data of doubtful usefulness. Land Court permit session to include resi- statute must be price-restricted for no less deny a variance. There is explicit authority Nine master plan elements are the same re- dential, commercial, industrial and mixed- than 30 years. The upper limit of affordabil- to deny variances sought because of “self- gardless of community size or characteris- use projects. t ity is to households earning no more than created” hardship. The effective life of a tics. Plan adoption is solely by the planning 120 percent of the area median income variance is extended from one to two years board, without a public hearing. Greg McGregor is a member of the REBA (AMI). The municipality may require all before it lapses if not used, and the permis- The bill’s supporters instead urge proac- board of directors and chair of REBA’s envi- or some of the units be eligible for inclu- sible extension interval increases from six tive planning, practical master plans, flexibil- ronmental committee. He can be reached at sion on the community’s subsidized hous- months to one year. ity reflecting community nature, adoption by [email protected]

$2,175,000 Quincy Residential Condominium Construction $3,490,000 South Boston Mixed Use $3,015,000 Dorchester Affordable Housing $8,900,000 Boston Condominium Construction $18,850,00 South Boston Mixed Use Construction $9,600,000 East Boston Commercial/ Industrial Building Refinance Our Commercial Lenders have money to EXCHANGE AUTHORITY, LLC lend...right here for YOUR business. The Experts Other Experts Turn To We offer commercial real estate, construction, Tax Deferred Exchanges for Income & Investment Property and C & I business loans up to $25 Million.

9 Leominster, Connector, Suite 1 P (978) 433-6061 Call Tom Henderson, Vice President at Leominster, MA 01453 F (978) 433-6261 857-524-1625 to discuss your business lending needs.

www.exchangeauth ority.c om [email protected]

Member FDIC I Member DIF page 16 Rebanews September 2013

What’s the low-down on the condo in Cambridge?

Discover everything about a property using

Learn everything there is to know about any property in New England, including sales, ownership and financing history, foreclosure filings and property characteristics. Complete your understanding in an instant.

Call 617-896-5392 or visit www.thewarrengroup.com

Free 7 day trial: www.tryrers.com