WWW.REBA.NET THE NEWSPAPER OF THE REAL ESTATE BAR ASSOCIATION SEPTEMBER 2018 • Vol. 15, No. 4

Supplement of Massachusetts Lawyers Weekly REBA Dispute Resolution The ghost train departs welcomes Larry DiCara

Lawrence S. DiCara, former chair of Quincy Market to Copley Place to the the real estate practice group in the Bos- Charlestown Navy Yard, and on. As an ton office of Nixon Peabody, has joined attorney in private practice, Larry repre- REBA/DR’s panel of neutrals, where he sented a wide array of clients with mat- will concentrate on mediation, arbitra- ters in cities and towns across the com- tion and case evaluations. monwealth. “With his involvement in so many Larry has extensive knowledge of major developments over the span of state and municipal law and an under- several decades, Larry standing of the reali- brings extraordinarily ties of developing real GABRIEL11 wide-ranging experi- estate in the current ence to our program,” era. BY EDWARD J. SMITH said REBA/DR Pres- Larry also is a in a manner that would make sense ident Joel Reck. “I’m published author and to him and his clients. confident that he will frequently lectures Since 1973, A mentor to generations of be among our most and writes about de- conveyancers REBA members, Henry also was sought-after neutrals.” velopment-related is- and their client a fan of railroads, and a student of “We are delighted sues. He has been an developers and their history. He told me that the to welcome my long- active citizen of the lenders have statute was passed in the wake of the time friend Larry Di- Greater Boston com- rued the enact- financial collapse of major railroads Cara to our REBA/ munity for almost ment of G.L.c. in the northeast in the 1960s. The DR family,” said Peter five decades, and he 40, §54A. That decade saw many railroads in finan- Wittenborg, executive LAWRENCE S. DICARA has been appointed statute has re- cial trouble, as well as a number of director of REBA and by mayors and gov- quired written consent, after a public mergers. This culminated in the 1970 treasurer of REBA/DR. “He will be a ernors to serve on a number of public hearing, by the then-Executive Of- collapse of the newly created Penn strong asset for our program, particularly boards. fice of Transportation and Construc- Central Railroad giant. in Boston. With his focus on large-scale Larry also has chaired A Better City, tion to the issuance of any municipal Realizing the severity of the real estate construction, and develop- the Boston Municipal Research Bureau building permit relative to land for- situation, the federal government ment, he will bring his unique strengths and other organizations and served as an merly used at any time by a railroad established the Consolidated Rail to our panel of mediators.” officer and member of the executive com- corporation as a right of way or on Corporation, which comprised the Larry served on the Boston City mittee of the Boston Bar Association. property appurtenant to a former rail- skeletons of several bankrupt North- Council for 10 years and has been inti- To schedule a mediation, arbitration road right of way. eastern carriers, to begin operations mately involved in the development pro- or case evaluation with Larry DiCara, Attorneys are often asked to in 1976. cess in Boston for many decades. While contact Jessica Trenouth at trenouth@ opine relative to the applicability of With federal backing, Con- on the City Council, he actively par- reba.net. For more information about this improvidently drafted statute. I rail began to slowly pull out of the ticipated in many of the decisions that REBA Dispute Resolution, visit www. remember well, 15 years ago, that my red ink, and by the late 1980s was made Boston the city it is today, from the disputesolution.net. late friend Henry Thayer proposed a profitable railroad after thou- legislation to limit the statute’s terms See page 14 Appeals Court ruling addresses condo ‘board-packing’ schemes

BY DAVID M. ROGERS association — seeking to recover unpaid condominium fees — advanced claims Condominium against the record owners of four sepa- developers have rate condominium units. Trustees of the long employed cre- Washington West Condominium Trust v. ative measures for Ashkouri, 89 Mass. App. Ct. 1102 (2016) avoiding liability for (Rule 1:28). deficient construc- One individual, Hisham Ashkouri, tion — whether it’s essentially owned all four of these units baking self-serving through various realty trusts. After the anti-litigation pro- lawsuit was filed, two additional trustees visions into the condominium documents were appointed to the board of the con- or using single-purpose asset-less entities dominium association. These newly ap- to develop the condominium. pointed board members were trustees of One practice that developers have realty trusts that owned “Ashkouri units.” commonly employed — after they have At a special meeting — after Ashkouri In June, the Women’s Real Estate Networking Group hosted a been sued by the association — is to had essentially “packed” the board — the brunch in Hyannis. Justin Manning, president of J.J. Manning “pack” the condominium board with pro- majority of the board voted to dismiss the Auctioneers, was the guest speaker. He discussed the auction developer shills. A 2016 Appeals Court lawsuit and thereafter filed a stipulation business and regaled the brunch guests with stories and decision indicates, however, that courts of dismissal with the court on behalf of anecdotes from his 25 years as an auctioneer. Pictured with may not look favorably on a developer’s the condominium association. Manning is REBA President Diane R. Rubin. board-packing scheme. The defendants also filed a motion In Washington West, the condominium See page 12 PAGE 2 REBAnews SEPTEMBER 2018 Musings of a history nerd

BY DIANE R. RUBIN President’s Message remind us as to what the future holds for conveyancers. They envisage a time An informal survey of lawyers at my when almost no one will be pushing a firm indicates that a sizable percentage pen in the Registry of Deeds and when 295 Devonshire Street, Sixth Floor, were history majors as undergrads. That all that will be necessary to obtain the Boston, MA 02110-1266 includes me. I was an American history pertinent facts respecting a title will www.reba.net major at Brandeis University. When Pe- be to a push a few buttons … and the ter Wittenborg suggested that a brief needed information will pop out on a history of the Land Court might be a broad tape or tube.” President: topic of interest for this message, I dove Payson did not regret this change Diane R. Rubin in. but saw “a rosier and more productive [email protected] Many of us can date ourselves by future,” when the task of conveyancers where the Land Court was located would be “limited to matters of law, in- President Elect: when we first practiced there. My first terpretation and draftsmanship.” Paula M. Devereaux appearance was before Judge Karyn F. More than a decade later, Mark [email protected] Scheier when the “old” Suffolk County Titlebaum forecast that the principal is- Immediate Past President: Courthouse was its home and had been cluding general enforcement of G.L.c. sues before the real estate bar would be so for decades, since 1911. At the time 40A and 41, specific performance of real Francis J. Nolan of my first appearance, there were only estate agreements, and partition cases Initially, Land Court [email protected] four judges of the court; today, there are concurrent with the Probate & Family Treasurer: seven. Court. decisions were Jennifer L. Markowski In recent years, the Land Court Today, we even have provisions to reviewable on appeal has spent time in both the Edward W. withdraw land from registration. Initial- [email protected] Brooke Courthouse on New Char- ly, Land Court decisions were review- to the Superior Court, Clerk: don Street (1999) and leased space on able on appeal to the Superior Court, Causeway Street (2003), before settling but today, of course, it is a full-fledged but today, of course, Neil D. Golden into its current digs in the “new” Suf- division, along with six other courts, of [email protected] folk County Courthouse in Pemberton the Trial Court. it is a full-fledged Square (2010). The commonwealth’s real estate division, along with Executive Director, Editor: Many of us take the Land Court bar has been a longtime friend, advo- Peter Wittenborg and its robust jurisdiction for granted, cate and supporter of the Land Court. six other courts, of the [email protected] but that jurisdiction has evolved over REBA — and its predecessor, the Mas- time, just as the practice of real estate sachusetts Conveyancers Association Trial Court. Managing Editor: law has done so. The Land Court came — and the Abstract Club have collabo- Nicole Cohen into being in 1898, when legislation rated with the court to maintain stan- [email protected] was enacted creating what was initially dards of excellence as our practices have those “dealing with the environment and known as the Court of Registration, evolved into the electronic age. land use, or dealing with financial instru- Legislative Counsel: with the limited purpose of providing a I was reminded of this close rela- ments used in real estate transactions.” system of land registration, based on the tionship when I recently read a short Both predictions have turned out to Edward J. Smith Torrens System of Land Registration, history of the Abstract Club. This jam- be true. Our law practices and the Land [email protected] which originated in Australia. packed booklet includes colorful entries Court have evolved to address the real OUR MISSION... Over time, the Land Court’s juris- by the esteemed Charles Rackemann, property concerns of our modern lives. For over 150 years, REBA’s shared diction has expanded to encompass tax William Payson and Mark Titlebaum, In preparing this brief history, I relied legacy has been advancing the prac- foreclosure, zoning appeals, subdivision dating from 1908, 1972 and 1986, re- on — and I give thanks to — “A Brief tice of real estate law while upholding and boundary disputes. In recent years, spectively. I would like to share a couple History of the Land Court,” by Glen- and promoting fair dealing, profession- we have seen the court’s jurisdiction ex- of excerpts. don J. Busher Jr., as appearing on the al networking and collegiality among pand further to include concurrent ju- In 1972, William Payson provided Land Court’s website, as well as the members of the real estate bar. risdiction with the Superior Court over a prescient vision when he cautioned, prodigious memory of Ed Smith, RE- permit and development disputes, in- “Prophets of doom from time-to-time BA’s sage longtime lobbyist. Today, REBA continues that endur- ing and proud legacy by creating and sponsoring professional standards, advocating in the legislative process Thoughts on a new registry computer system on behalf of our members, mentoring new members of our profession and BY RICHARD P. HOWE JR. By running record book images creating educational programs. From the through an OCR program, we can MENTORING Just before make the full text of all documents — To promote the advancement of the Memorial Day the typewritten ones, at least — fully practice of real estate law, the men- Recording searchable. This would not replace in 2002, a team toring of fellow practitioners is the from a computer our index but would supplement it, continuing professional responsibility company called Desk… adding a new and powerful search of all Association members. REBA’s ACS arrived in tool for those who use land records. officers, directors and section/com- Lowell to be- Index verification mittee members are available to gin the first-ever to begin, but our plan is to make respond to member inquiries relative Having an accurate index is es- Massachusetts the choice and begin deployment in to practice issues as well as the As- sential to the registry of deeds. The installation of the 20/20 land man- 2019. sociation’s Title Standards, Practice 20/20 system uses a process called agement computer application. Just a The new system will perform all Standards and Ethical Standards, “blind rekey verification,” which few weeks earlier, a group of registers existing computer tasks better and with the understanding that advice to works as follows. At the point of re- of deeds assisted by personnel from faster and will add even more capa- members is not a legal opinion. the Secretary of State’s Office had se- bilities. Here are some of the features cording, one employee types informa- lected 20/20 as the preferred replace- I expect to be included. tion from the document into the vari- © 2018 The Real Estate Bar Association ment system for registries of deeds in ous fields of the index. Later, a sec- for Massachusetts. Materials may not be Full text search reproduced without permission. the commonwealth. ond employee “verifies” those entries The Middlesex North installation Optical character recognition by viewing the document and retyp- Postmaster: Send address changes went live on July 1, 2002, and remains (OCR) is an old technology that ing all the index entries without ever to REBA, 295 Devonshire Street, 6th Floor, in use today. With periodic upgrades, keeps getting better. OCR converts seeing what the first employee typed. Boston MA, 02110 20/20 is still a reliable system, but the print in a digital image into If both entries match, the document much has changed in the world of searchable text. Google has scanned is verified and the process is repeated computers over the past 16 years. millions of books, run the result- for the next document. The time has come to replace ing images through OCR, and now If there is a discrepancy, the veri- (ISSN 01967509), 10 Milk St., 10th floor, 20/20 with a new system built with makes the content of those books ful- fier can view the original entries and Boston, MA 02108 the latest features and capabilities. ly searchable. The same can be done then decide whether to restore them (617) 451-7300 • masslawyersweekly.com The formal selection process has yet with recorded documents. See page 15 SEPTEMBER 2018 REBAnews PAGE 3

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www.FirstIndemnity.net 781.581.2508 Boston • New York • Tampa • Chicago • Dallas • Los Angeles • Philadelphia PAGE 4 REBAnews SEPTEMBER 2018 Commercial landlords’ ‘reasonable’ discretion

BY THOMAS BHISITKUL nial was “unreasonable,” and having a third party (a judge, or an arbitrator, Virtually ev- or a jury) make the determination as ery commercial to whether the denial was reasonable lease provides a or not. mechanism for Owing to these vagaries, landlords the tenant to as- are interested in negotiating (and sign the lease should negotiate) to insert standards (or sublease the into the lease to more specifically de- premises) to a fine “reasonableness.” By doing so, third party, and in landlords can, practically and legally, most cases the lease provides that the reserve to themselves a more concrete tenant cannot do so without the land- and defined level of discretion such lord’s consent. that, if challenged by the prime tenant, As with many “standard” commer- a “reasonable” denial of an assignment cial lease provisions, there are count- request will be more defensible. less variations as to the manner in These standards are often drafted PIO3 which such consent must be sought into the lease by the landlord’s counsel and the scope of the landlord’s discre- in the form of a stipulation providing, sent on the basis of the proposed as- ible with the nature or character of tion to say “yes” or “no” to the request in substance, that the landlord’s denial signee’s use would likely not be upheld the center (or building) and the cur- for consent. Almost invariably, the of an assignment request “will not be if challenged. rent tenant mix therein. In order to assignment clause provides that the Retail centers, on the other hand, ensure that this discretion is real (and landlord’s consent “will not be unrea- Assignment provisions present many more opportunities for to avoid the same types of “reason- sonably withheld.” conflict. Retail uses within a given ableness” vagaries previously outlined), While simple in language, and governing the landlord’s center are varied and the tenants of- landlords will want the determination seemingly simple in concept, the “rea- consent to a proposed ten negotiate exclusivity provisions of “compatibility” to be made by the sonableness” of the landlord’s discre- to ensure that no other tenant hav- landlord unilaterally in its “sole discre- tion is fraught with potential confu- assignment of the lease ing the same or similar use can set up tion.” sion and, consequently, often the sub- shop and compete with them within Tenants may (and often do) ob- ject of substantive negotiation. contain many levels the center (for instance, Starbucks will ject that leaving this determination to Well-represented landlords will want to ensure that no other tenant in the landlord’s “sole discretion” tilts the be sensitive to the potential mischief of considerations and the center can sell coffee). balance too far in the landlord’s favor that can result from being subject Accordingly, retail landlords and creates opportunities for the land- to a broad and otherwise undefined resulting complexities. should negotiate, at minimum, for a lord to abuse that discretion. Both are standard of “reasonableness.” If, for stipulation that denial of an assign- valid points and the outcome of the is- instance, a national retail tenant (say, ment will not be deemed “unreason- sue is often determined in accordance Starbucks, to choose an example at deemed unreasonable” if the proposed able” if the proposed assignee will with the relative negotiating positions random) came to the landlord and assignee or its proposed use fall under conduct a use that is (or could be) in of the parties. asked for consent to assign the lease any enumerated proscribed categories. violation of exclusivity rights of other The range of issues regarding the to startup mom-and-pop coffee shop As reflected by the hypotheticals out- existing tenants in the center. proposed assignee’s economic strength with no sales history and negligible lined above, these proscribed catego- Even aside from legal exclusivity is usually a function of that econom- assets, would the landlord be acting ries most often relate to the proposed rights of existing tenants, it is impor- ic strength in relation to that of the “reasonably” if it denied consent to the assignee’s use and to its economic vi- tant to the success of a given center original tenant. At the time of origi- proposed assignee, who operates the ability. that the uses be, to the extent reason- nal lease negotiation, the economic same “use” but has a totally different The range of issues regarding the ably controllable, complementary to strength of the tenant will have driven economic profile? What if Starbucks proposed assignee’s “use” is somewhat each other. Starbucks’ landlord would, many of the key economic terms of agreed to remain principally liable for dependent on the type of property for instance, love to lease other space the lease. If the tenant is a Fortune the lease obligations? involved. If the property is an office in the same center to a bookstore to 500 company, the landlord will have Conversely, what if Starbucks pro- building and the prime tenant’s use is complement Starbucks’ business and the benefit of that tenant’s high credit posed instead to assign the lease to a limited to “office use only,” the oppor- generally create a more cohesive ten- different user who has roughly equiva- tunities for dispute are relatively small. ant mix. and substantially lower default risk, as lent (or better) financial strength, but If the tenant proposes to assign to a Thus, it would be undesirable and well as (in the case of a national retail whose proposed use of the premises is non-office user (which would not only disruptive to the tenant mix in the tenant) the tenant’s national identity “adult entertainment”? Or even a less violate the lease, but would conflict center if Starbucks assigned its lease and recognition, which will add value extreme (but still relatively noxious with the overall nature of the build- to a disco bar whose business would to the reputation and desirability of in comparison to the original coffee ing and use of the other tenants), the be conducted primarily at night when the center. shop) use like a nightclub, or a medi- landlord’s denial would likely be up- the bookstore would be closed. In exchange for those advantages, cal marijuana dispensary? held if challenged. Accordingly, landlords are inter- the landlord may be inclined to offer If the landlord denies consent to And conversely, if the proposed as- ested in having the discretion to deny more favorable economic terms to the an assignment, it is at risk of a chal- signee intended to continue normal consent to an assignment to a new tenant, and also may agree to forgo lenge by the prime tenant that the de- office use, the landlord’s denial of con- tenant whose use would be incompat- See page 14

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BY PAUL F. ALPHEN apartment, which was a critical requirement stating that there was no mention of an ac- for the buyer. I did some quick homework cess easement in her deed, and therefore the Why I am a REBA member… My cousin Vin- and discovered that the building commis- neighbor proposing a new garage on abut- On the first day of my first job nie, the suburban sioner had issued a cease-and-desist order, ting land had no right to use a sliver of her as an attorney, in 1985, I became real estate attor- ordering that the in-law apartment be torn lot for a driveway,” Vinnie said. “When I a member of the Massachusetts ney, made his way down.” tried to explain to her that it would take a Conveyancers Association. Having down to Falmouth My son Chris, who also happens to be review of her chain of title, she argued with the Standards and Forms to refer again this summer a suburban real estate attorney, laughed out me that I should just take her word for it to has been invaluable to my small for a boat ride to loud, and said, “Something like that hap- and write the letter, and eventually she hung practice; having them to rely upon the Vineyard and to pens to me about once a week!” up.” is like being able to run something continue his ongo- Vinnie was on a roll, but paused to or- “A builder bought a lot in an old re- by an infallible seasoned expert. The ing hunt for the perfect Old Fashioned. I der a bowl of chowder and a refill of the tail condominium project and built a very spring and fall meetings provide told him that sometimes it’s not the cock- Old Fashioned. fancy retail store building,” he continued. us with the opportunity to break tail, but the setting, as Vinnie and our gang “In a town in which we had filed appli- “He then engaged counsel to draft a phas- bread with our brothers and sisters, enjoyed the veranda of the Harborview cations for a subdivision for a light industri- ing amendment. Counsel copied, word for and they are an essential source of Hotel. al development, the town meeting enacted word, the last phasing amendment docu- CLE. The case law updates by Phil “Paulie,” Vinnie bellowed between sips, a moratorium on light industrial uses two ment recorded 25 years ago, not noticing Lapatin are alone worth the price “I could not wait for this weekend to come. days before we were scheduled to meet with that the phasing rights expired in 1996. I of admission. I have no idea how I had another crazy week!” I knew that after the planning board,” he went on. “We spend cannot make this stuff up.” anyone practices real estate related taking another sip he would regale us with the night explaining zoning freeze protec- I asked him what happened after that, law without the resources and CLE a description of his work week, and he did and Vinnie said he was still waiting provided by REBA. not disappoint. to find out. Paul F. Alphen “After a buyer and seller could not agree Contemplations, “And while all of this is going Alphen & Santos, PC, Westford on the terms of a P&S, the buyer’s attorney on I represented a seller in a house Member since 1985 recorded the offer to purchase with an af- Ruminations and Musings sale that was supposed to close three fidavit that the seller was not acting in good of a Country Lawyer weeks ago, and still has not closed,” faith,” Vinnie said. “He kinda created his he said. “I counted the emails for mittee and co-chairs the long-term planning own lis pendens without a troublesome trip the week between the attorneys, the committee. He is a partner in the Westford firm to court. This now means that I have to add lender and the brokers: 305 of them!” of Alphen & Santos, P.C., and concentrates in a provision to the few offers I see stating tion to the neighbors. Town counsel and the We all told Vinnie to chill, and enjoy residential and commercial real estate devel- that if the offer is recorded with the Reg- board members are knowledgeable regard- the weather and the view. He took a deep opment, land use regulation, administrative istry of Deeds in any form, the offer shall ing such things, so we are optimistic that breath, and a sip, and started to calm down. law, real estate transactional practice and title things will work out.” become immediately void. True story.” “Contemplations, Ruminations and Mus- examination. As entertaining as he finds the My brother-in-law Bill, who flips hous- “Thank goodness for the Massachu- ings of a Country Lawyer” is Paul Alphen’s practice of law, Paul enjoys numerous hobbies, es, nearly spit out his pale ale. setts Broken Stone decision,” I replied while regular column in REBA News, featuring including messing around with his power boats Vinnie continued, “A buyer called me watching a wedding party posing for pho- Paul’s cousin Vinnie. and fulfilling his bucket list of visiting every Ma- at the last minute after deciding that he tographs in front of the lighthouse. jor League ballpark. Paul can be contacted at should have an attorney review a P&S be- “Yesterday I got a call from a woman A former REBA president, Paul Alphen currently fore signing it. The house had an in-law who wanted me to write a letter to a ZBA serves on the association’s executive com- [email protected]. PAGE 6 REBAnews SEPTEMBER 2018 Report from the Amicus Committee, Part 1

BY DANIEL J. OSSOFF the appellate courts of the common- when a case on appeal presents title or chairs of those sections cases within wealth, and occasionally to the federal other real estate issues on which the their particular area of expertise for a Editor’s note: courts sitting in the commonwealth, court feels the committee’s view would recommendation on whether the case This two-part ar- briefs relating to matters of interest to add value. is worthy of the Amicus Committee’s ticle excerpts re- the real estate bar and its clients. We also monitor decisions coming involvement. Those specialized sec- marks of amicus Though we occasionally do submit out of the lower courts and, where we tions also provide a potential source of committee co-chair briefs at the Appeals Court level, our deem appropriate, may reach out to volunteers to author briefs on cases on Dan Ossoff at a focus has traditionally been on cases the lawyer on the “correct” side of the which the committee elects to partici- meeting of the before the Supreme Judicial Court, case to volunteer an amicus submis- pate. Merrimack Valley where definitive law is made. sion. Finally, and perhaps most im- We do generally attempt to stay Conveyancers As- We rely entirely on volunteers to portantly, we welcome requests from away from cases that are largely poli- sociation. Part 1 author and submit briefs on behalf of REBA members who may be involved cy-oriented, to ensure that the Amicus focusses on the mission of the committee the committee. In consideration of the in a case that they deem appropriate Committee is viewed as a largely im- and a review of a Dukes County access significant time and effort involved for participation by the committee. partial voice dedicated to improving case and an important case in the area in preparing, reviewing and submit- Historically, the cases in which the law. That approach has resulted in of elder law and estate planning. Part 2, ting briefs, we do operate under fairly the Amicus Committee became in- the appellate courts seeking our input, which will appear in the November/De- stringent standards in deciding which volved were almost exclusively cases and also has resulted in those courts cember issue of REBA News, will discuss cases we will become involved with. related to title issues. One of the most giving substantial weight to the views appellate cases in the real estate foreclo- The guidelines that we follow are: interesting developments that I have expressed in our briefs. sure and condominium law areas. Who should prevail in the case? witnessed in my many years of par- Though we have not prevailed on These remarks will address the If there is not a consensus among the ticipation on the committee is that, 100 percent of the briefs that we have appellate advocacy work that is done committee members consulted as to as the focus of both REBA and the submitted, our batting average is sub- by the REBA Amicus Committee, of the correct outcome of the case, we do Abstract Club has expanded beyond stantially better than the .406 famous- which I am co-chair along with Ed not get involved. simply title and conveyancing issues ly accomplished by Ted Williams in Bloom of Sherin & Lodgen. Preferably, the case is of wide ap- to the broader scope of real estate law, 1941. And it is critically important to For those not familiar with the plicability in a particular area of real the cases the committee has taken on us that the courts continue to respect REBA Amicus Committee, it is tech- estate law rather than dealing with a have similarly broadened in scope and and pay heed to our views on issues nically a joint committee of REBA narrow and obscure topic. focus. within our particular areas of exper- and the Abstract Club. The Abstract Finally, the case must have sig- In fact, the proliferation over the tise. Club is an organization limited to 100 nificant precedential value. If a case past 10-15 years of new REBA sec- I thought it might be helpful and members of the bar (together with is so fact-intensive that it limits the tions focused on particular areas of of interest for me to give you a quick emeritus members), by invitation only, precedential value of any decision that the law — the Affordable Housing, snapshot of some of the cases that we traditionally comprised of title gurus may be issued on it, we will typically Litigation, Land Use and Zoning, have been involved with over the last and conveyancers, but now more gen- decline to participate. Commercial Leasing, Environmen- few years. The cases that I am going to erally open to real estate lawyers of all Cases come to the Amicus Com- tal Law, and Condominium Law and mention all were decided since 2016. stripes. mittee in a variety of ways. We are Practice Sections immediately come One case within our traditional fo- The mission of the joint Amicus very often asked by the appellate court to mind — has given Ed Bloom and cus on title matters was Kitras v. Town Committee is to write and submit to itself to consider submitting a brief me the ability to refer readily to the See page 13

The New Lawyers Section hosted its annual summer networking reception at the end of July on the outdoor patio at Tico Boston in Boston’s Back Bay. The section’s guests included law students from Boston College Law School and Suffolk University Law School. SEPTEMBER 2018 REBAnews PAGE 7 Condominium trustees must plan for the future

BY DEAN T. LENNON expertise to properly estimate the use- ful life left in the various common ele- In many con- ments of their building as such exper- versations over tise is simply not commonly possessed. the years, I have The best way to plan for the future is heard trustees re- through use of a reserve study. mark about their A reserve study by a qualified en- pride over not gineer will predict the useful life of all having raised the common elements and create a plan for monthly condo funding the future replacement of each fee during their such element. The study will allow the long tenure on the board. Though I un- board to raise funds sufficient to cover derstand this sentiment, a flat monthly their condominium’s particular needs fee over a long period of time is almost in a thoughtful and well-planned way. always a mistake, and it’s one that the Let’s go through a very simple ex- ownership could pay a large price for in JCPJR1111 ample. In a 10-unit building, a new the future. Over time, the cost of pretty much minium. Such items include master with a very large special assessment. everything increases. Are you paying insurance, management fees, common Though these owners may have been A reserve study by a the same price for electricity that you utilities, landscaping, snow removal and pleased with their low monthly fee, qualified engineer will were in 2010? How about that plow- general maintenance. they will be irate over the $10,000 bill ing contract? My guess is that the price The annual budget also should in- that is due in 30 days. predict the useful life of keeps going up and up. clude a line item for reserves. Generally The key to avoiding such situations all common elements and I recently read that the floods in speaking, reserves should be about 10 is proper planning. Board members Houston and Florida, disasters in percent of the annual budget. Reserves and managers want to budget prop- create a plan for funding Puerto Rico and Massachusetts, and are the condominium’s savings account erly so that the association is putting the future replacement of the wildfires in California have resulted for when capital repairs and replace- aside funds via reserve contributions. in damages of more than $300 billion. ment are needed. That way, the reserve can pay, or at least each such element. It doesn’t take too much imagination to For ABC Condominium Trust reduce, the direct costs to owners for predict that insurance companies will with its flat monthly fee, I suspect that large-scale capital projects. make up for losses by raising premiums. the reserve account, if it exists, is pal- Proper planning requires an exami- roof will cost $25,000. The roof will As costs rise so should the monthly fee, try at best. What happens when the nation of all the common elements to need to be replaced in five years. If because if your fee is not rising, that roof needs replacement? What happens determine the useful life and costs of planning starts now, each owner must means your association is putting less when it’s time to tear up the pothole- replacement. Those elements include the contribute $41.67 extra each month for into reserves. laden parking lot and re-pave? roof, siding, parking areas, HVAC equip- Let’s take a step back. The annual If the money is not available in ment, elevators, pool, clubhouse and ten- the next 60 months in order to raise the budget for every association should your reserve account the simple answer nis courts. The list goes on and on. full $25,000. The reserve study will thus include all costs paid by the condo- is that the owners are going to get hit Most individuals do not have the See page 12

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2018 ANNUAL MEETING MONDAY, NOVEMBER 5, 2018 & CONFERENCE 7:30 AM – 2:45 PM

Four Points by Sheraton Hotel LUNCHEON KEYNOTE SPEAKER BOB1125 RYANBoston-Providence Tpke, Norwood

BOB RYAN The Boston Globe is a sportswriter formerly for . He has been described as “the quintessential American sportswriter” and a basketball guru, and is well-knownGlobe for his coverage of theGlobe sport, including his famous stories covering the Boston Celtics in the 1970s. After graduating from Boston College, Bob started as a sports intern for the and worked with sports writing legends WillThe McDon Bostonough Globe and Leigh Montville. In 2012, Bob announced his retirement from sports writing after 44 years,emeritus once the 2012 Olympic Games concluded. Bob'sAround final the column Horn in was published in August 2012. He continues writing on a part-time basis as a columnist . He also remains a regular on ESPN’s and occasionally guest-hosts Pardon the Interruption with Michael Wilbon or Tony Kornheiser. Bob launched his own podcasts, “Bob Ryan’s Boston Podcast” and “The Sports Reporter’s Pod- cast,” where he has hosted many legendary Boston athletes, including Larry Bird, Steve Grogan, Danny Ainge, Troy Brown and Dave Cowens, to name a few. Many local and national sportswriters and other well-known sports figures have been guests as well. Bob’s longtime involvement in the sports world shines through in each episode as he reminisces about his many years covering everything from all four of Boston’s major teams’. championships to his many Olympic assignments, and all of the relationships he has formed along the way. His show is a must-listen for anyone calling themselves not just a Boston sports fan, but a sports fan in general Scribe: My Life in Sports.

Bob has received numerous sports and journalism awards and authored 13 books, including an autobiography,

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SEPTEMBER 2018 PAGE 9 PAGE 6 REBAnews SEPTEMBER 2018 SEPTEMBER 2018 REBAREBAnewsnews PAGE 7

2018 ANNUAL MEETING SCHEDULE OF EVENTS

MONDAY, NOVEMBER 5, 2018 & CONFERENCE 7:30 AM ‐ 8:30 AM Registration & Exhibitors' Hour 8:30 AM ‐ 9:30 AM CONFERENCE ROOM 103 7:30 AM – 2:45 PM 9:45 AM ‐ 10:45 AM CONFERENCE ROOM 103 8:30 AM ‐ 1:15 PM Breakout Sessions (descriptions below) Four Points by Sheraton Hotel Buying and Selling Contaminated Property 1:20 PM Luncheon Program 1125 Boston-Providence Tpke, Norwood LUNCHEON KEYNOTE SPEAKER BOB RYAN 1:20 PM ‐ 1:40 PM Opening Remarks ~ President Rubin

Hazardous substances are more commonly found in urban and 1:40 PM ‐ 2:00 PM Keynote Address by Bob Ryan BOB RYAN The Boston Globe even suburban and rural real estate than most lawyers may think. 2:00 PM ‐ 2:20 PM Business Meeting, Committee The fact that a property is contaminated does not necessarily is a sportswriter formerly for . He has been described as Reports & Award Presentation mean that the property cannot or should not be purchased, sold or even financed. In this session we will discuss how to manage a “the quintessential American sportswriter” and a basketball guru, and is well-knownGlobe for 2:20 PM ‐ 2:45 PM Concluding Reports transaction involving contaminated property by understanding his coverage of theGlobe sport, including his famous stories covering the Boston Celtics in the 2:45 PM Adjournment the risks and potential liabilities involved and structuring the deal ______1970s. After graduating from Boston College, Bob started as a sports intern for the and advising your clients as to the appropriate action required to reduce______the risks and liabilities to an acceptable level so that the______and worked with sports writing legends WillThe McDon Bostonough Globe and Leigh Montville. In 8:30 AM ‐ 9:30 AM TIFFANY BALLROOM A 11:00 transaction AM ‐ 12:00may proceed. PM ESSEX / LENOX ROOM 2012, Bob announced his retirement from sports writing after 44 years, once the 2012 9:45 AM ‐ 10:45 AM TIFFANY BALLROOM A emeritus Olympic Games concluded. Bob'sAround final the column Horn in was published in eClosings: Preparing for the Future Airbnb: Discussion by Transient Lecturers on Short‐term Rentals August 2012. He continues writing on a part-time basis as a columnist . He also remains a regular on ESPN’s and occasionally guest-hosts Pardon the Short-term rentals like Airbnb can be found almost everywhere these With lenders, home buyers, GSEs (including Fannie Mae and Interruption with Michael Wilbon or Tony Kornheiser. days. Everyone knows someone who is either an Airbnb host or guest. Freddie Mac), and other stakeholders seeking ways to save But while most people are simply looking for a place to stay, others time, reduce costs, and increase efficiency, the landscape of a Bob launched his own podcasts, “Bob Ryan’s Boston Podcast” and “The Sports Reporter’s Pod- cast,” where he has are grappling with bigger issues: zoning and municipal ordinances, traditional residential real estate closing is transforming. From local impacts and NIMBYs, lease implications, violation of local hosted many legendary Boston athletes, including Larry Bird, Steve Grogan, Danny Ainge, Troy Brown and Dave the borrower’s initial loan application through, and including, regulations, and more. Our panelists will discuss some of the issues Cowens, to name a few. Many local and national sportswriters and other well-known sports figures have been guests recording and post-closing, it is now possible in many associated with short-term rentals, including various state and local as well. Bob’s longtime involvement in the sports world shines through in each episode as he reminisces about his jurisdictions to complete a transaction without generating a ______regulations, landlord/tenant issues, and the Governor’s proposed______single piece of paper. Several states have enacted legislation vision for transient rentals in the Commonwealth. many years covering everything from all four of Boston’s major teams’. championships to his many Olympic 8:30 AM ‐ 9:30 AM CONFERENCE ROOM 101 permitting remote online notarization, which allows the signor 9:45 AM ‐ 10:45 AM CONFERENCE ROOM 101 assignments, and all of the relationships he has formed along the way. His show is a must-listen for anyone calling and notary to be in different locations during an themselves not just a Boston sports fan, but a sports fan in general acknowledgement. In this session, we will discuss the practical Notarial Acts Done Right (and Wrong) ~ Practical Skills ______Scribe: My Life in Sports. and legal implications of this shift towards eClosings and what

Bob has received numerous sports and journalism awards and authored 13 books, including an autobiography, 9:45this will AM ‐ mean10:45 for AM your CONFERENCE practice in the ROOM future. 104 This session will include a review of recent case law highlighting the 11:00 AM ‐ 12:00 PM CONFERENCE ROOM 104 unintended consequences of flawed acknowledgments and jurats, COMPLETE AND RETURN THIS REGISTRATION WITH THE APPROPRIATE FEE TO: Gallivan v. ZBA of Wellesley Ten Years Later: along with practical tips on fixing errors and avoiding defects. The REBA Foundation, 295 Devonshire Street, Sixth Floor, Boston, MA 02110 panelists will also include an analysis of REBA-sponsored legislation A Retrospective on Appeals of Building Permits to______update our acknowledgement statute and bring it into closer [email protected] • 617.854.7555 • www.reba.net alignment8:30 AM ‐ with9:30 otherAM jurisdictions.TIFFANY BALLROOM B Gallivan v. Zoning Bd. of Appeals of Wellesley 11:00 AM ‐ 12:00 PM CONFERENCE ROOM 101 By Oct. 29 After Oct. 29 Join our panelists for a discussionGallivan of the judicial decisions in the ten Homestead Statute: Seven Years Later ~ Practical Skills  years following , 71 Mass. App. Ct. 850 (2008). In , the Appeals Court interpreted the

 relevant provisions of G.L. c.40A, §§ 7 &8 to bar an abutter’s challenge YES! Please register me as a REBA member in good standing. $225 $250 With legislation sponsored by REBA, the Massachusetts Homestead to a building permit, where the abutter had notice of the application  Statute was revised in 2011. Join our panelists for a discussion of YES! Please register me as a guest, as I am not a REBA member. $265 $290 for the building permit and an appeal to the local zoning board of how these revisions have been interpreted in the ensuing seven appeals was not filed within 30 days of the issuanceConnors of the perv. Anninomit. A I would like to purchase the conference syllabus, as I am unable to attend. $200 $200 subsequent enforcement action is not available to such an abutter. years by conveyancers, title insurance underwriters and the courts. PAYMENT INFORMATION: GallivanThe Supreme Judicial Court confirmed this rule in , This session will also highlight the unintended consequences of unnecessary homestead release language, the types of homestead $ $ and there have beenGallivan many trial and appellate-level decisions since   interests that can create traps for theReadyCap, unwary, LLC declaring v. Alexander homesteads CHECK CREDIT CARD applying its holding to different fact patterns. The discussion ______for multi-level trusts, the abandonment of homestead rights, and will address the rule itself, the reasoningGallivan behind the rule,

______9:45recent AM court ‐ 10:45 rulings AM including TIFFANY the BALLROOM B case. subsequent decisions and what remains undecided ten years after 11:00 AM ‐ 12:00 PM TIFFANY BALLROOM B the Appeals Court first handed down the decision in 2008. Check No: Card No: Exp: 8:30 AM ‐ 9:30 AM ESSEX/LENOX ROOM 9:45 AM ‐ 10:45 AM ESSEX/LENOX ROOM The Threat is Real: What You Need to Know to Mitigate REGISTRANTDate: INFORMATION Signature: Date: the Risks of Cyber Scams & Wire Fraud ~ Practical Skills MUTC: What Is It Good For?

Many of us know that cyber scams and wire fraud are pervasive in (for name badge) Our experts in estate planning and real estate conveyancing will our industry, but many believe that they would never fall victim to Name of Registrant: Title: address issues that arise when real estate is held by a trust and these scams. Cybercrimes and wire fraud are on the rise and real Call Name : Email: how to properly vest title to real property in a trust for estate estate professionals continue to be a primary target of these scams. Firm/Company: planning. The benefit of the Massachusetts Uniform Trust Code As the cons continue to evolve and become more sophisticated, they for estate planning concerns and resolving title issues are topics become more challenging to thwart. Join FBI Special Agent Michael Address: ______Livingood, and Noel Di Carlo and Colleen Capossela as they describe vital to both real estate practitioners and estate planning law City: State: ZIP: firms and our panel will guide us through the new law. the latest shape and form of these threats. The panelists will also 8:30 AM ‐ 9:30 AM CONFERENCE ROOM 104 offer recommendations on risk management initiatives, including the SELECTTel: YOUR LUNCHEON CHOICE Cell: BELOW Fax: 11:00 AM ‐ 12:00 PM CONFERENCE ROOM 103 ______latest technology and procedures, as well as insurance, and advice on

Practical Considerations When Foreclosing a Condo Lien response12:15 PM planning, ‐ 1:15 PM all to CONFERENCEhelp mitigate the ROOM risk to you103 and your office.  Video simulcasts of presentation in Conference Rooms 101 & 104  Petit Filet Mignon with Wild Mushroom Port Wine Demi-glace Recent Developments in Massachusetts Case Law  ~ Foreclosing a condominium lien presents challenges for condo Parmesan Encrusted Chicken Milanese with a Lemon Velouté Sauce associations, mortgage lenders and future purchasers. This  Eggplant Rollatini with Grilled Vegetable Polenta & Tomato Coulis GFV session will discuss the process of foreclosing condominiums Now in his 40th year at these meetings, Phil continues to draw a  liens, foreclosure considerations unique to association liens, huge crowd with this session. Attending his presentation on None, as I will not be eating at the luncheon title considerations and tips for attorney representing Recent Developments in Massachusetts Case Law is a must for any YOU MAYNone, ALSO as I am REGISTER unable to ONLINEstay for the AT luncheon REBA.NET | For additional information, call REBA at 617.854.7555 associations, lenders and purchasers of properties that have practicing real estate lawyer. Phil is the 2008 recipient of the been foreclosed by the association. Association’s highest honor, the Richard B. Johnson Award. PAGE 10 REBAnews SEPTEMBER 2018 Protecting home buyers from wire fraud schemes

BY CARRIE B. RAINEN • from a “hardline” fax machine (as op- posed to efax); Buying a home • or in hard copy, and usually in person. can be both an ex- When selecting a real estate broker or citing and nerve- lawyer, a prudent home buyer should in- wracking experi- quire as to what policies and procedures ence, as it is likely they have in place to prevent wire fraud. the single biggest Similarly, any buyer or seller should purchase of your always maintain a healthy skepticism to- life. During the ward all communications from any party, process, the home including what may appear to be emails buyers may be asked to send their deposit from their own broker or lawyer. and closing funds by wire transfer. They may be hesitant about sending large sums of money to third parties, such as a real es- tate broker or closing attorney. The truth is The classic example of BRIANAJACKSON their concerns are legitimate. wire fraud involves a party Wire fraud is a billion-dollar business. According to the FBI, more than $5 bil- allowing ownership to be transferred and 21” allowed checks to be processed elec- to the transaction, usually lion was lost to wire fraud between 2013 funds to be disbursed, until the lender’s tronically and cleared, at the earliest within and 2016. settlement agent has actually received the one business day, but sometimes longer. the buyer, receiving wire If wire fraud is such an issue, why do loan proceeds. However, real estate transactions move instructions from another real estate brokers and closing lawyers In the “old days,” a paper check, usu- at nearly the speed of light, and these continue to require wire transfers for real ally a bank or certified check, could take up changes did not ensure “Good Funds” fast party involved in the estate transactions? The short answer is ex- to five business days to clear and become enough. In the past, most lawyers would transaction, usually the pedience. “good funds.” only accept a bank or a certified check at Closing lawyers in Massachusetts must In 1987, the Federal Expedited Funds closing. Because of the delay in getting closing attorney or realtor. comply with the “Good Funds” statute, Availability Act standardized “hold peri- those funds cleared, coupled with the in- G.L.c. 183, §63B, which mandates that ods” on deposits made to banks. In 2003, tense pressure to “get the deal closed,” wire a federal statute colloquially called “Check a deed and mortgage cannot be recorded, transfers became the solution to speed up Carefully scrutinize every aspect of the the conclusion of the transaction. email, including the email address. Com- Unfortunately, there are some who use pare it to the email address that may be on wire transfers to their own nefarious ad- the attorney’s own website. Many times, vantage. The classic example of wire fraud the scammer uses a “dummy” email ad- involves a party to the transaction, usually dress, which transposes one letter, or dupli- the buyer, receiving wire instructions from cates a single character, easily fooling the another party involved in the transaction, recipient. usually the closing attorney or realtor. The best line of defense is always to Later, the buyer receives a new email pick up the phone and call the broker or with “revised” wiring instructions. The revised wiring instructions are sent by a lawyer to confirm the contents of the wire scammer, requiring that funds be wired instructions. Only telephone a number you to an unrelated bank account. The scam- already know. Often, the phone numbers mer may have hacked the broker or closing in dummy emails are also fraudulent, so lawyer’s email, or created a bogus cloned that the scammer picks up. We also rec- email account with an address similar to ommend visiting the company’s website to that of the broker or closing lawyer. There confirm the phone number. Furthermore, are many variations on this scheme, and one should never accept “revised wire in- any party may be affected by it. structions” that are emailed to you. Some closing lawyers have regressed With so many scammers targeting real The Residential Conveyancing Section hosts regional affiliate to a policy of accepting only paper checks, estate transactions and looking to steal a luncheon meetings, known as ‘roadshows,’ throughout the which comes with its own risks. Most buyer or seller’s money, the number one Commonwealth, offering educational programs and networking businesses have incorporated policies and rule remains: be vigilant and exercise cau- opportunities to members who are outside the metropolitan Boston procedures to protect against, or otherwise tion before sending wires. area. Pictured is a recent meeting of the Hampden County regional mitigate, losses related to wire fraud. For Carrie Rainen practices with the Rainen Law Of- affiliate at the Student Prince restaurant, a legendary lunch venue example, closing lawyers are encouraged fice in North Andover, concentrating in commer- for generations of Hampden County lawyers. The roadshows are only to send or accept wire instructions as cial and residential real estate and real estate generously sponsored by Belmont Savings Bank and Landy Insurance. a best practice: • Through encrypted and secure plat- title matters. She can be contacted by email at forms, such as Qualia or ShareFile; [email protected].

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CATIC Speak With Attorney Ad 905x3.687 v2.indd 1 6/12/2018 3:24:24 PM SEPTEMBER 2018 REBAnews PAGE 11 Unintended consequences of rule enforcement

BY JANELLE H. DEMPSEY Why I am a REBA member… They say Soon after being admitted to that good fenc- the Massachusetts Bar, I knew that es make good joining REBA was going to be es- neighbors. In the sential to my career as a real estate condominium attorney for many reasons. REBA’s context, good robust professional network and its rules make good unmatched educational opportuni- neighbors by set- ties make it a clear — if not neces- ting forth what sary — choice for anyone working constitutes acceptable conduct and in real estate. lending a certain level of predictabil- Personally, membership has al- ity to community living. lowed me to connect with count- However, the rules, when en- less others in this field, which I forced, can also anger unit owners have found especially valuable as a who feel unfairly restricted from act- new attorney. I am grateful that my ing freely in their home or on the mentors and colleagues, who are all property they share with others. This longtime REBA members, encour- can become especially problematic MRPUEN aged me to join, and I would do the when such feelings lead to conten- same for anyone considering mem- tious disputes between unit owners bership. and the association or property man- that end, an offending owner can be ficiently malicious. The only directive Janelle H. Dempsey ager. fined for violative conduct. In some provided by the statute is that mali- Moriarty, Troyer & Malloy LLC, What is the recourse when ten- instances, it may be the board that cious conduct is “characterized by Braintree sions rise to such a degree that a unit communicates with the owner, or it cruelty, hostility or revenge.” Member since 2018 owner engages in hostile or abusive may be the property manager’s re- Thus, courts must make a fact- conduct in response to rule enforce- sponsibility to enforce the rules. based, case-by-case determination. It ment? Regardless of the messenger, is insufficient for the actions to have By definition, condominiums re- however, a unit owner who receives been merely disruptive, upsetting, or arise out of a lack of understanding, quire individuals — who otherwise a warning or fine for a violation may logistically and financially problem- misinformed expectations, or poor likely would be strangers — to live feel that they have been treated un- atic. communication, it is important to in close proximity to one another and fairly or that their rights as a property On the other hand, verbally at- maintain an open dialogue regard- share land and possibly more, such owner have been unlawfully impeded, tacking someone, threatening one’s ing rules and possible violations and as walls, utilities, stairways, hallways, and this can lead to contentious dis- job, threatening to harass one relent- establish a fair and transparent pro- and so on. So that this may be suc- putes. In the worst cases, unit owners lessly, refusing to leave an area, and cedure for addressing noncompliance cessful, each unit owner’s interest is who feel wronged may resort to ha- physical aggression (or the threat that can be applied with consistency taken subject to the limitations set rassing behavior toward members of thereof ) may be deemed intentionally for all unit owners. forth in the condominium’s govern- the board or property management. malicious sufficient to warrant a pro- ing documents that address conduct When tasked with the difficult tective order. However, each situation Janelle Dempsey is an associate in the litiga- within common areas as well as the task of rule enforcement, it is im- will be unique, and there is not bright tion and real estate departments of Moriarty, interior of individual units. portant to know when such behavior line rule. Troyer & Malloy LLC, based in Braintree. She For example, most condominiums rises to such a level that it is possible Of course, the hope is that cir- concentrates her practice in condominium prohibit any conduct that causes a to obtain a civil harassment order. cumstances never reach the point and real estate litigation, permitting matters, nuisance or that otherwise negatively The law concerning harassment such that a board member or property and land use litigation, as well as leasing and varies from state to state, and the manager needs to seek a harassment transactional matters. Her email address is A unit owner who standard can be quite high because prevention order from the court. Be- protective orders can have significant cause disputes with unit owners often [email protected]. receives a warning collateral consequences for a defen- dant. or fine for a violation In Massachusetts, a protective order against civil harassment may may feel that they be sought pursuant to G.L.c. 258E. have been treated Under the statute, a civil harassment prevention order is appropriate only unfairly or that their when an individual has committed three or more acts of willful and ma- rights as a property licious conduct (1) that were aimed at a specific person, (2) with the intent owner have been to cause fear, intimidation, abuse, or unlawfully impeded, property damage, and (3) that actu- ally caused said fear, intimidation, and this can lead to abuse, or property damage. Often, the easiest step in the anal- contentious disputes. ysis to overcome is whether the con- duct was “aimed at a specific person.” Even if acts are made toward prop- impacts unit owners’ ability to use erty, a court will look at the timing and enjoy the property, such as play- and scope of the conduct to deter- ing loud music late at night or smok- mine whether the underlying purpose ing a cigarette in a unit or even in of the conduct was to target a specific front of a shared exterior entrance. person. It may also include improperly As to the third step, the court disposing of trash and recycling or will consider the cumulative pattern failing to maintain the property to of harassment as opposed to the re- acceptable standards. Depending on sults of each individual act separately. the nature of the conduct and the Whether the acts were willful and layout of the condominium, the im- malicious, however, may be more dif- In July, former REBA President and longtime Co-chair of the pacted or complaining party may be ficult to establish. Residential Conveyancing Section Susan B. LaRose received a another unit owner or it may be the For a court to grant a harassment fond farewell reception in Waltham. She has relocated to Durham, association as a whole. prevention order, the actor must have North Carolina, to be near her son and daughter-in-law and future To protect the rights of the asso- actually intended to cause fear, intim- grandkids. She has recently adopted Bear, a mixed-breed rescue dog. ciation and all other unit owners ef- idation, abuse, or property damage, fectively, rules must be enforced. To and the conduct must have been suf- PAGE 12 REBAnews SEPTEMBER 2018 Ruling addresses condo ‘board-packing’ schemes

CONTINUED FROM PAGE 1 efforts to shield themselves from li- ing roof problems); Libman v. Zuck- building, and by seeking to make the ability, or otherwise rely upon legal erman (1992)(accepting master’s responsible parties pay for the defi- to dismiss — styled as a “motion in defenses that would bar recovery in finding that the defendants, condo- ciencies (i.e., the developer who per- limine to dismiss plaintiff ’s claims for the condominium context. A Supe- minium developers, were estopped formed the shoddy construction) — lack of standing” — and an “emer- rior Court decision determined that a from raising the statute of limitations as opposed to the unit owners — the gency motion for declaratory judg- provision in the condominium docu- defense, as they had been managers board is serving its fiduciary obliga- ment.” ments, which shielded trustees from of the condominium unit owners’ as- tion to the association. Although a hearing was held on liability, did not apply to the declar- sociation). Pro-developer factions can form the motion to dismiss, the decision ant-appointed trustee, ruling that it Superior Court decisions have during the course of litigation. In on these motions was not issued un- “cannot survive careful judicial scru- also ruled that the statute of repose many instances, these unit owners are til trial. The defendants contended does not bar a condominium board’s not directly impacted by the subject that — because G.L.c. 183A, §10(b) breach of fiduciary duty claim against construction deficiencies, and they do (4), confers standing on the condo- In reality, the volunteer declarant-appointed trustees for the not want to be responsible for fund- minium association to conduct litiga- failure to address construction defi- ing the lawsuit. These factions are tion — the association lost standing board does not take any ciencies. Pederzani v. Guerriere, (1995) often manipulated by the developer, to prosecute the board’s claims once a pleasure in prosecuting WL 1146832, *3 (Mass. Super.). Har- who contends that the board is being majority of the trustees voted to dis- ris v. McIntyre, 2000 WL 942559, *12 led astray with poor engineering and miss the lawsuit. lawsuits, but is simply (Mass. Super.). The trial judge, rejecting the de- greedy lawyers. trying to hold the The Supreme Judicial Court ruled In reality, the volunteer board fendants’ lack-of-standing argument, that the economic loss rule does not does not take any pleasure in pros- concluded that “[g]iven their obvious developer responsible for apply to damage caused by negligent ecuting lawsuits, but is simply trying conflict of interest, it is evident that design and construction of the com- its deficient construction. to hold the developer responsible for the three trustees cannot satisfy their mon areas of a condominium building its deficient construction — rather burden of proving the ‘intrinsic fair- — in a case involving a board’s con- than saddling the unit owners with a ness of the vote and the vote did not struction defects claims against the hefty assessment to deliver the well- harm the Trust.” The Appeals Court tiny when the provision is enacted by developer. Wyman v. Ayer Properties, constructed homes that they believed affirmed the trial court’s ruling, noting the developer to protect the officers it LLC, 469 Mass. 64 (2014). they were purchasing. Fortunately, the that “[i]f the trustees did, in fact, rep- selects to manage the Trust from li- Protracted litigation can be try- resent units that were in arrears, the ability.” ing for any condominium association. Washington West decision provides an trustees were then interested parties, In Harris v. McIntyre, the court Volunteer board members have the indication that a court will not be in- and the court was permitted to strictly found, therefore, that the provision unenviable task of having to maintain clined to allow a developer to torpedo enforce the fiduciary rule against self- was void as violative of public policy the morale of the association while ex- a meritorious lawsuit with a board- dealing and hold invalid the vote of because it so decidedly favored the pensive litigation seemingly drags on packing scheme. the interested trustees.” developer-appointed trustee. The indefinitely. Many unit owners want Practicing at Moriarty, Troyer & Malloy, LLC, It is undoubtedly surprising that a court also concluded that a devel- to give developers, who can be char- Dave Rogers specializes in complex civil litiga- court could rule that a condominium oper could not maintain a statute of ismatic and charming business people, tion at both the trial and appellate levels. He board — despite a majority vote in limitations defense against a condo- the benefit of the doubt. has extensive experience in the area of con- favor of dismissing a lawsuit — could minium trust, which was controlled Unit owners — successful and so- struction litigation. Dave’s practice is focused essentially be compelled to maintain by the unit owners, when the de- phisticated in their own right — often on construction, real estate, and condominium a civil action. While this lawsuit did veloper-appointed trustees failed to find it difficult to accept that they have matters. His clients include condominium not involve claims against the devel- timely sue the developer. Harris; see been hoodwinked by an unscrupulous associations, real estate developers, general oper, the Appeals Court’s decision also Beaconsfield Townhouse Condo- developer. These unit owners need to contractors, subcontractors, and individu- (although unpublished) provides some minium Trust v. Zussman (2000)(us- be reminded that such lawsuits serve als. He is a member of REBA’s Construction authority for challenging the practice ing the date that the condominium to protect their real property invest- Law Section and its Condominium Law and of a developer’s board-packing tactics. trust acquired independent trustees ments. Courts have commonly looked un- as the starting point for a statute of Board members have a duty to Practice Section. Dave can be contacted at favorably on developer’s self-serving limitations analysis in a case involv- maintain the common areas of the [email protected]. Condominium trustees must plan for the future CONTINUED FROM PAGE 7 financial havoc on the condominium aside to fund them through the annual and result in owners having to pay budget. As the saying goes, an ounce of Why I am a REBA member… allow the board to factor the upcoming more to cover their neighbors’ inability prevention is worth a pound of cure. A REBA membership is an roof cost properly into the annual bud- to pay. There is one possible safety net if get for the next five years. absolute necessity as a lawyer in Going back to the roof example your association does not have suffi- the real estate industry. Each year, Will condominium fees increase above, would you prefer to pay $42 a cient funds for major repairs, and that is after a reserve study is done? Almost REBA provides the very best in month for 5 years or $2,500 due in 30 through an association loan. I would en- continuing education geared to- certainly, yes. But it is far better to pay days? Almost certainly, the majority of courage you to contact your legal coun- a bit more per month over a number ward real estate. The bi-annual con- owners will prefer the monthly charge sel regarding the ability of your associa- ferences are a must-attend. More- of years than to come up with thou- due to the inability to come up with tion to borrow money from a lender paid over, led by some of the best legal sands of dollars at one. A recent study the lump sum. over five, 10 or 15 years, or more. minds in the state, REBA is at the showed that only 39 percent of Ameri- Imagine an even better option, forefront of developing and amend- cans have enough money saved to cover Dean Lennon is a partner in Marcus, Errico, however. For those boards planning ing laws affecting the practice of a $1,000 emergency. Emmer & Brooks’s Condominium Practice ahead from day one, that $25,000 roof law and real estate generally. I am Group, where he focuses his practice on lien Such a finding should give pause to charge can be planned for and paid proud to be part of an organization enforcement and rules enforcement mat- boards who wish to rely on special as- over 15 or 20 years, not five. The in- that cares about its members and its ters. Dean additionally drafts condominium sessments to fund capital projects. Spe- crease to the monthly fee over 20 years industry as much as REBA. document amendments and resolutions and cial assessments are difficult to collect, is a mere $10.42. Dean T. Lennon works closely with boards regarding document given that the Massachusetts Condo- Whether or not your particular asso- Marcus, Errico, Emmer & interpretation and general condo governance minium Statute specifically excludes ciation needs a reserve study, the board Brooks, PC, Braintree issues. He can be contacted by email at dlen- them from the priority lien. Unpaid should annually discuss future projects Member since 2012 special assessment can therefore wreak and make sure that funds are being set [email protected].

Visit us online www.reba.net SEPTEMBER 2018 REBAnews PAGE 13 Report from the Amicus Committee, Part 1 CONTINUED FROM PAGE 6 Planning, Trusts and Estate Adminis- tration Section to prepare and submit Why I am a REBA member… of Aquinnah (474 Mass. 132 (2016)). on behalf of the Amicus Committee. When I joined Rackemann, Sawyer bership in my day-to-day practice. The issue in that case was whether The brief addressed the limited issue & Brewster in 1983, it was simply as- As an active and concerned member easements by necessity were created of whether a life estate was a separate- sumed by the firm’s partners that I would of the real estate bar, I appreciate the on- when former Native American com- ly recognizable property interest. become a member of the Massachusetts going efforts of the Legislation Section mon land on Martha’s Vineyard was Though that seemed absolutely ob- Conveyancers Association, now known and the Amicus Committee to ensure partitioned by commissioners ap- vious to us dirt lawyers, we were con- as the Real Estate Bar Association for that the interests of the bar and of our pointed by the Probate Court in 1878. cerned that a decision in this context Massachusetts. The firm’s connection to clients are represented and heard on Bea- The result of the partition was to that found a life estate not to be a sep- the association goes “way” back and all con Hill and in the courts of the com- create more than 500 lots, the major- arate property interest could have un- new lawyers were expected to become monwealth. ity of which were landlocked parcels intended consequences within the real members, almost before they got their As a parent of future homeowners, of land. In creating the landlocked estate world — as well as having the pencils sharpened at their new desks. I treasure the role played by the Unau- parcels, the commissioners did not in- effect of rendering ineffective a good But what is most impressive to me thorized Practice of Law Committee in clude any express grant of rights of ac- deal of Medicaid planning done by es- is how the association has evolved, right preserving the role of attorneys at the cess to those parcels. tate planning practitioners. along with my own practice, and remains closing table to protect the interests of Fast forward to the current day, In its decision, the SJC fully rec- every bit as relevant for me today as it homebuyers in what, for most, will be the and the owners of the landlocked land ognized the life estate as a property were arguing before the SJC that ease- was back in those pre-computer dark largest transaction of their lives. interest separate and distinct from ages. Though it remains the preeminent On top of all of that, some of the fin- ments by necessity arose when the the remainder interest, which was a landlocked parcels were created as organization for conveyancing and title est people I know I have met through clear win for REBA’s membership at lawyers, REBA is so much more. As a REBA activities. My firm’s partners had a result of the partition in 1878. The large. The court also found that under amicus brief that we submitted argued commercial transactional lawyer, the it right in 1983, and it is every bit as right the applicable regulations it was com- growth of the organization to include the today. Get involved and see for yourself! to the contrary. pelled to agree with the argument of Our position was that recogniz- Affordable Housing, Commercial Leas- Daniel J. Ossoff the estate planning bar that Medicaid ing, Commercial Real Estate Financing, Rackemann, Sawyer & Brewster, ing easements by necessity more than planning steps, such as conveying the Land Use and Zoning Sections and oth- Boston 125 years after those lots were created property subject to a life estate, effec- ers has enhanced the value of my mem- Member since 1983 would upset well-settled title rights tively shielded the asset from being and unnecessarily and inappropriately counted for Medicaid eligibility pur- broaden the availability of such ease- poses. ments by necessity under the common But the court also encouraged the law of the commonwealth. applicable commonwealth agencies to The court agreed with our position take a look at those regulations. So that easements by necessity were not this was a win, at least for the time be- created by the 1878 partitioning of the ing, for the estate planning bar as well. land, relying in large part on the fact As I deliver these remarks, there that tribal custom at the time of the are more cases that have been brought partitioning permitted free access over to our attention that, if they are ap- land, including not only land held in pealed, may be worthy of an amicus common but also land that was indi- submission by our committee. This is vidually owned. important work for REBA, and for Given that context, the court was the real estate bar and our clients, and unwilling to find that the commission- it is work that is ongoing and never- ers intended to create easements for ending. access in 1878, as no such easements Should any of you be involved in would have been necessary under the cases that you believe may fit the cri- tribal custom that existed at that time. teria that I outlined earlier, please feel Another case that I want to men- free to bring them to our attention ei- tion shows just how far afield from ther by contacting Peter Wittenborg our original areas of focus the Amicus and the REBA staff, or by reaching Committee sometimes ventures. With out to Ed Bloom and me directly. Your the encouragement and through the participation in our efforts is the best assistance of REBA’s fairly new Estate way to ensure that a case doesn’t slip Planning, Trusts and Estate Adminis- by us that has an adverse impact on tration Section, we submitted a brief the law or our clients. in the case of Daley v. Secretary of Ex- ecutive Office of Health and Human Ser- A former president of REBA, Dan Ossoff is vices (477 Mass. 188 (2017)). chair of the real estate practice group at The issue in that case was whether Rackemann, Sawyer & Brewster, P.C. He is an experienced transactional lawyer handling all the fairly common practice of con- Co-Chair of the Condominium Law and Practice Section Clive D. veying a piece of property to a family aspects of commercial real estate ownership, development and finance, with an emphasis Martin was honored at the June meeting of the association’s board member but retaining a life estate in of directors on his retirement from the practice of law at Robinson the property resulted in the full value on land acquisition and disposition, leasing, and title matters. Dan’s clients include nation- & Cole. Martin is a founding Co-chair of the Section. In his of the property remaining as a count- retirement, he plans to spend time with his grandchildren, visit his able asset of the grantor for purposes al corporations, non-profit institutions, private native U.K. and volunteer as a docent at the Boston Athenaeum. of determining Medicaid eligibility. developers and individual property owners. We dipped our toe in these unfa- Dan can be contacted by email at dossoff@ miliar waters by allowing the Estate rackemann.com.

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The Leading DR Provider in Massachusetts for Business and Real Estate-Related Disputes 295 Devonshire Street, Sixth Floor, Boston, MA 02110 617-854-7558 ♦ [email protected] ♦ www.disputesolution.net PAGE 14 REBAnews SEPTEMBER 2018 The ghost train departs: law on ex-railroad land clarified CONTINUED FROM PAGE 1 vast acreage of former railroad yards in the Supreme Judicial Court held that South Boston, Somerville, West Cam- the statute imposes a “restriction on Why I am a REBA member… sands of miles of excess trackage were bridge, Worcester and Greenfield, to the use of the property, but it does not abandoned or upgraded. Amtrak also My experience may be unique, name just a few cities where land is so affect the owner’s title to the proper- having represented REBA as its was created to organize a chaotic sys- affected. ty….” Even if a title insurance policy tem from the remnants of the private lobbyist for over 30 years. I have fails to take exception for the statute, had other professional organiza- freight railroads’ passenger operations. the existence of this restriction, there- Henry said that c. 40, §54A, was We were unable to tions as clients. The volunteers fore, does not give rise to coverage un- at REBA are among the best in- one of two statutes, the other being get the hard statute der the policy. Somerset Savings Bank G.L.c. 161C, §7, that were intended formed and most articulate advo- vs. Chicago Title Insurance Company, cates before the Legislature and to preserve rights of way for future of limitations, but the 420 Mass. 422 (1995). other governmental bodies whom I transportation needs. Under c. 161C, new act clarifies G.L.c. Henry Thayer wanted a hard stat- have observed. They get results that §7, the Massachusetts Department ute of limitations (50 years made sense support members in their practices. of Transportation (MassDOT), or its 40, §54A, so that land to him) to limit the arbitrary effect of This service to all REBA members designee, has a right of first refusal if that was not used as the statute. He also wanted to get rid is a singular “value-added” benefit any railroad company wishes to sell, of the “property appurtenant thereto” to membership, and one that makes transfer or otherwise dispose of rail- a railroad right of way clause. To that end, REBA filed and me especially proud as a lawyer. road rights of way or related facilities supported legislation for several years. Edward J. Smith to another party. This right of first -re is excluded from its I recall getting it through the Law Office of Edward J. Smith, fusal is clear and easily understood by terms. The clause that House one year, but failing in the Sen- Andover conveyancers. refers to other property ate. Another year, the Senate passed it, Member since 1987 On the other hand, c. 40, §54A, but the House did not. Other REBA was improvidently drafted. Under its “appurtenant thereto” leaders, including former presidents terms, it applies to any lands formerly Steve Edwards and Greg Peterson, Joseph A. Boncore, D-Winthrop, and used as a railroad right of way, and any was eliminated. joined in the advocacy. Rep. William M. Straus, D-Matta- property appurtenant thereto, if ever In recent years, REBA joined poisett. used by any railroad company in the with NAIOP, the premier commer- On Friday, Aug. 10, 2018, the leg- commonwealth. Henry said that this Of course, the customary 50-year cial and industrial real estate trade islation was approved, with an emer- language could encompass property title search generally would not iden- association, to support passage of gency preamble, by Baker. St. 2018, c. and facilities not within, or even in tify railroad land deeded out dur- legislation. Rep. Joseph F. Wagner, 228, §10. proximity to, the right of way. ing the Depression or earlier. I think D-Chicopee, the House chairman of We were unable to get the hard From his knowledge of history, he Henry would appreciate my use here the Joint Committee on Economic statute of limitations, but the new act knew that in Woburn there are former of the metaphor “phantom ghost train” Development, filed NAIOP’s bill. clarifies G.L.c. 40, §54A, so that land woodlots that belonged to the Boston to refer to a fact that may be unknow- Paula M. Devereaux, REBA’s current that was not used as a railroad right and Lowell Railroad in the days when able despite a diligent title search. president-elect, was part of a team, locomotives burned wood. These lots The statute would apply each time coordinated by NAIOP Senior Vice of way is excluded from its terms. The were sold in the 1860s, but they are a property turned over to another President for Government Affairs clause that refers to other property still technically subject to the statute. potential owner. If MassDOT de- Tamara Small, who met with senior “appurtenant thereto” was eliminated. During a 50-year title search, even clines to consent to the issuance of a staff at MassDOT to negotiate a final The act retains the requirement of assuming a recorded plan shows the building permit, the statute reserves bill that we could jointly recommend consent by MassDOT to issuance of former right of way, how would the the land owner’s right to be compen- to the General Court and Gov. Char- a building permit on former railroad examiner know if other property was sated, provided the owner purchased lie Baker. land, and gives MassDOT new dis- appurtenant to a right of way? the land prior to Jan. 1, 1976. If the Wagner and his committee’s Sen- cretion to determine when a public It would not be ascertainable from purchase occurred after that date, the ate chairman, Sen. Eric P. Lesser, D- hearing is required. REBA looks for- the record whether the common- owner may be out of luck. Longmeadow, recommended the leg- ward to the promulgation of regula- wealth, during any particular adminis- A constitutional challenge alleg- islation in an omnibus bill that was tory guidance in that regard. tration, might at some point intend to ing an unlawful taking of property passed at the end of formal sessions Ed Smith has served as legislative counsel to utilize affected land for future transit may follow, although it is not clear in July. Also supporting the legisla- purposes. Henry asked whether the that it would be successful. That may tion were the co-chairs of the Joint the Association since 1987. He can be con- statute was intended to apply to the be the only recourse for the owner, as Committee on Transportation, Sen. tacted by email at [email protected]. Commercial landlords’ ‘reasonable’ discretion

CONTINUED FROM PAGE 4 to allow such tenant to turn around on the original tenant’s economic visions governing the landlord’s con- and assign the lease to a small, thinly strength at that time. If the landlord sent to a proposed assignment of the a security deposit, letter of credit or capitalized tech startup whose abil- is later forced to accept a replacement lease contain many levels of consider- other security for the payment and ity to make future rent payments will tenant with weaker financial strength, ations and resulting complexities. performance of the tenant’s lease ob- be dependent upon the next round of the landlord will be deprived of the Accordingly, it is always in the ligations. venture capital funding (i.e. a tenant benefit of the bargain it reached with best interest of both landlords and The economic strength of the to whom the landlord may not have the economically stronger original tenants to be represented by knowl- tenant may also drive many non- even agreed to lease the premises, let tenant. edgeable and experienced commer- economic terms of the lease, such as alone on the favorable terms it gave Second, the financial equivalence cial leasing attorneys who understand parking rights, more accommodating to the original national retail tenant). determination should be made by ref- these hidden issues and can effec- tenant alteration rights, favorable de- For those and other reasons, land- erence to the economic strength of tively negotiate the complexities in fault terms and cure rights, enhanced lords often will (and should) nego- the original tenant at the time of the a manner to advance (or at least pro- or priority signage rights (in a retail tiate for a stipulation that its denial proposed assignment. If the original tect) the interests of their clients. lease), SNDA and estoppels, and even of consent to an assignment will not tenant’s financial strength has in- more favorable assignment and sub- be deemed unreasonable if the pro- creased, landlords will benefit from A former REBA president, Tom Bhisitkul is a letting terms. Indeed, large national posed assignee does not have at least that increased strength (for many of principal of the Braintree-based firm of Moriarty, tenants are likely to have consider- the same net worth (or other equiva- the same reasons outlined above), Troyer & Malloy, LLC, and chairs its commercial able negotiating leverage, so many of lent measures of economic strength/ and so will arguably suffer a loss if real estate practice area. He is currently co- the negotiable terms of the lease that viability) as the original tenant. This the tenant assigns the lease to a new chair of the Association’s Unauthorized Practice are often determined by the relative financial “equivalence” determination tenant with lower financial strength of Law Committee. Tom has over 20 years of bargaining strength of the parties will should made by reference to the orig- (even if it were nonetheless equiva- experience in representing Fortune 500 compa- tend to be resolved in favor of the inal tenant’s financial standing at two lent to the original tenant’s economic nies, national and local banks, retailers, shop- tenant. distinct moments in time. strength at the time of the original ping center owners, and investors in all facets Accordingly, after having made so First, as of the date of the execu- lease execution). of acquisition, development, operation and many tenant-favorable lease conces- tion of the lease, since the landlord In summary, like many other pro- leasing of commercial real estate throughout sions on the basis of the economic would have negotiated the terms of visions of a commercial lease that strength of the tenant, the landlord the lease (and may have agreed to seem simple in language and straight- the country. Tom can be contacted by email at understandably will be unwilling significant lease concessions) based forward in concept, assignment pro- [email protected]. SEPTEMBER 2018 REBAnews PAGE 15 Thoughts on a new registry computer system CONTINUED FROM PAGE 2 ing). This verification-by-computer will ensure a high degree of accuracy or keep the new values. Although in the spelling of names. rekey verification is more time- But there is a qualitative aspect to consuming than visual verification verification — determining the prop- (something we all call proofreading), er document type, for instance — that it is also thought to be more accurate. will still require human judgment. I believe technology is changing And in those qualitative decisions, it that calculation. With electronic re- is better that the employee doing the cording, which accounts for a major- verification actually see what the first ity of all documents recorded at this employee entered. registry, the customer makes all index For these reasons, I believe that entries and the registry clerk process- the new system should move away ing the document verifies those en- from blind rekey verification to a more basic visual verification method The time has come to operating in tandem with OCR veri- replace 20/20 with a fication. new system built with Standard searches across platforms The 20/20 system employs two the latest features and different search applications: one capabilities. available at the registry of deeds, and MULTIREALISM the other online. Although they pull from the same data and yield the same results, they look and respond tries when the document first arrives. differently. tem has an automated marginal ref- of deeds operate. Still, the most im- To have another registry employee As more and more people use the erence feature that works well, but a portant characteristic for a new regis- then retype those same entries to website for their research, rather than new system could do better. try computer system to have would be verify them a second time seems un- doing it at the registry, this has be- For instance, a deed should have a the flexibility to adapt to technologi- necessary, or at least inefficient. come less of a problem. Nevertheless, link to the recorded plan that depicts cal change that never stops. Beyond that, OCR also has a there should be a single search system the lot conveyed by the deed, which place in index verification. The OCR and that system should work well on would allow the user to toggle quick- Dick Howe’s column, “From the Recording application can detect names and tablets and cell phones. ly between the deed and the plan Desk...,” is a regular feature of REBA News. numbers from the recorded docu- or show both simultaneously. The Dick has served as register of deeds in the ment image, convert them to text and Hyperlinks new system will have this capability; Middlesex North Registry since 1995. He is a then compare that text to the values Long before anyone had heard the 20/20 does not. frequent commentator on land records issues entered into the index by the registry term hyperlink, the registry of deeds This list is far from exhaustive, but and real estate news. Dick can be contacted employee (with walk-in recording) or was using them. They were called it offers some ideas on how a new sys- the customer (with electronic record- marginal references. The 20/20 sys- tem might change the way registries by email at [email protected].

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