In Pobeda RT II, LLC v. Zoning Board of Appeals of Watertown, et al, the Massachusetts Court of Appeals (Middlesex Cty.) affirmed the lower court’s ruling that a residential property owner did not have standing to challenge the Watertown Zoning Board of Appeal’s granting of a special permit for a 3-story research and development building in an adjacent industrial zone.

For those unfamiliar, standing is a requirement for any plaintiff to bring a lawsuit against a defendant. It is the right to bring the suit and can be 1) demonstrated by a showing that plaintiff was harmed by the action or law in question; or 2) granted by law.*

In finding that the plaintiff did not have standing, the court cited the Massachusetts Zoning Act, which gives standing only a “person aggrieved” by the ZBA’s decision. While an abutter is entitled to a rebuttable presumption of aggrievement, the court found that the plaintiff’s argument that the new development would diminish the residential property’s value failed as a matter of law.

This finding follows the doctrine that loss of value by itself does not give value unless "it is 'derivative of or related to cognizable interests protected by the applicable zoning scheme.'" The court then examined the Watertown zoning ordinance and did not find any reference to a goal of protecting individual property value. Rather, the zoning ordinance was enacted to protect the values of the community as a whole, “the very basis upon which the constitutionality of zoning legislation hinges.”

If you are also a zoning dork, you can read the whole decision here: https://www.mass.gov/files/documents/2024/05/31/c22P1154.pdf

*Standing can also be shown in hypothetical situations, a la the chilling effect of the First Amendment. But that is well beyond the scope of this blog.

The eclipse may have 93% coverage but we are 100% taking the afternoon off to watch with our famlies.

Feel free to send messages through the contact page and we will contact you upon our return.

This week, the Massachusetts Supreme Judicial Court issued a decision on a topic near and dear to our hearts - title searches. For those who haven’t read all of our blog posts (as hard as that is to imagine), in Massachusetts, an attorney representing a lender must review at least 50 years of public records in order to issue a certificate of title for a property. This title search is done to find any encumbrances on the property, which could mean many things, but generally attorneys are looking for monetary liens or the rights of other to use the premises.

In Cormier v. Murray, the defendant attorney represented a bank that was giving a loan to the plaintiff homebuyers. During the course of the attorney’s representation, he conducted a title search. However, the title search was only done on the property address and did not include searching by the names of the previous owners of the property. Because of this, the attorney missed an encumbrance for $23,931.42, which should have been paid at the time of closing. Because it was missed, the outstanding payment then became the responsibility of the buyer.

The SJC opinion goes into some legal questions to be resolved on remand, but one of the main takeaways is that a title search done only on a property, as opposed to an owner, does not meet statutory requirements and may be negligent. At Levine Law, we are proud of our reputation as thorough examiners who bug our title companies with nitpicky questions, all the better to protect our clients.

Full opinion here: https://www.mass.gov/files/documents/2023/09/07/i22P0102.pdf

Japanese knotweed is an invasive plant that takes years - and expertise - to eradicate from a lawn. Its incredibly deep root system can create cracks in a foundation and can be ruinous to other plants in the area. As seen in Trites v. Cricones, et al., Middlesex County Superior Court No. 1881cv2939, prospective homeowners and developers should be vigilant when it comes to this pest.

According to decision, the plaintiffs purchased a newly-built home from the developer in 2017. Unbeknownst to the buyers, the developer had been made aware of a knotweed infestation in a pile of soil on the development but (perhaps not being aware of the dangerous nature of the weed) chose to mix it with clean loam and spread it around the property. The homeowners inspected the property before moving in but the knotweed problem didn’t become apparent until after they moved in.

After being made aware of the issue, the developer tried, unsuccessfully, to remove the knotweed, and suggested the Tristes to spray the yard with Roundup. The situation escalated after that, with both sides making their anger known. A lawsuit ensued.

After trial, the jury found that the developer breached the implied warranty of good faith and fair dealing, was negligent, and created a nuisance. The jury awarded the Tristes $186,000.00, the cost of repairing the lawn.

Following the jury’s decision, the judge did not find for the Tristes on a Rule 93A (consumer protection) claim because the contractor did not knowingly harm the plaintiffs.

When buying a home, it may be a good idea to ask your inspector if they know what Japanese knotweed looks like and to keep an eye out. It may save your lawn and your foundation.

The full decision can be found here: https://masslawyersweekly.com/wp-content/blogs.dir/1/files/2023/06/12-023-23.pdf Hat tip to Cameron Burke for pointing me towards this case!

Today, Massachusetts’ top court released an interesting decision in In the matter of the estate of John P. Urban.

To greatly simplify the fact pattern: Mr. Urban was a wealthy, and apparently quite social, man who lived in Massachusetts, spent some time in Florida, and did not have any heirs or descendants. When in Florida, he stayed at a guesthouse on the property of Michelle Finnegan’s parents, where she also lived.

Starting in 2013, Mr. Urban executed four wills prepared by Attorney Singleton. In each of the wills, he spread his estate among 16 or 17 friends and institutions, with the remaining funds to be used for a scholarship in his name. Michelle Finnegan was a beneficiary to the tune of hundreds of thousands of dollars in each will. At some point, Mr. Urban was diagnosed with dementia, but the court heard testimony from the attorney and witnesses to the will that Mr. Urban appeared cognizant when he met with them and signed “of his own free will, without undue influence or constraint.”

In 2016, Ms. Finnegan flew from Florida to Massachusetts and presented Mr. Urban with an agreement, drafted by another lawyer, naming Ms. Finnegan as the personal representative and sole beneficiary of the estate.

In 2019, Mr. Urban passed away at the age of ninety-seven. Attorney Singleton filed a probate proceeding to admit the 2016 will to probate. Soon after, Ms. Finnegan filed a challenge and a claim against the estate for $5 million for care of Mr. Urban when he was in Florida. Eleven beneficiaries of the will, including the scholarship fund, objected to Ms. Finnegan’s challenge.

Ms. Finnegan’s challenge stated that the 2016 will was a product of ‘undue influence,’ that is “'that an (1) unnatural disposition has been made (2) by a person susceptible to undue influence to the advantage of someone (3) with an opportunity to exercise undue influence and (4) who in fact has used that opportunity to procure the contested disposition through improper means.'" In other words, beneficiaries of the will forced Mr. Urban, who was susceptible to influence due to his illness, to leave them property.

Normally, the challenger to the will has the burden of proving the undue influence. However, when the proponent is a financial beneficiary the burden shifts to the proponent of the will to prove the absence of undue influence. The court found that, because Mr. Urban executed his will with the assistance of independent legal counsel, the burden had been met, and the lower court’s decision in favor of the beneficiaries was proper.

As for the 2016 agreement, the court found it to be a product of undue influence. Mr. Urban was proud of his scholarship plan and intended to leave his many close friends with bequests, hence it would have been unnatural indeed to scrap his plans and to name Ms. Finnegan as the sole beneficiary.

As a capper, the court observed in a footnote that Mr. Urban’s will contained an in terrorem clause, meaning that if any beneficiary challenged the will, their claim was forfeited. So in the end, Ms. Finnegan’s gambit will prove costly.

Full text of the decision can be read here. If you need your own independent legal counsel, contact the team at Levine Law.

Imagine this scenario - someone buys a parcel of land, and when they go to sell it or divide it, it’s discovered that a portion of the land was not included in the purchase deed. Almost always, even the seller thought they were including the forgotten land.

Sometimes, enough time has passed since the purchase that the sellers have passed away. If the court has not determined the seller’s heirs, there is literally no one to sign a deed correcting the mistake. So what does our beleaguered property owner do? You can probably guess from the title that they have to bring a lawsuit (the grounds of which will be covered in another post).

The problem is, normally, a lawsuit must name a specific person or entity as defendant. Then the lawsuit must be personally served. That is, a notice of the suit is actually handed by the county sheriff to the person being sued.

So in the example above, what can be done? First, the property owner names as defendant the original seller’s heirs or anyone else who may have an interest in the property. Next, the property owner asks the court for permission to publish a legal notice in a local paper rather than personally serve the lawsuit, as that would be impossible. If the legal notice is published and no one responds, the lawsuit can continue to eventual, unopposed, victory.

Finding yourself in such a difficult situation requires creative legal solutions. The team at Levine Law would be happy to help.

Pictured: a cute puppy on a front lawn. It’s very hard to find a picture of the area bordering a street.

When a client asks us about building on an undeveloped lot of land, the first thing we look at is the frontage and square footage of the lot. These are easy enough to understand - frontage is the length of the plot of land of land along a way and square footage is the total area of the lot. For example, if you have a 100 ft x 100 ft square lot, the frontage is 100 ft and the area is 10,000 sq ft.

Why are we concerned with those measurements? Towns and cities having zoning bylaws setting minimum requirements for buildable lots. For example, East Longmeadow bylaws for the Residential A district require a minimum of 140 ft frontage and and an area of 25,000 sq ft. Thus, at first glance, our lot above is not buildable and the town would not issue a building permit.

An important exception can apply, however. Massachusetts General Laws c. 40A s. 6 was enacted to ensure that zoning bylaws cannot render a previous buildable lot as unbuildable* as long as the lot has 50 ft of frontage and 5,000 sq ft in total. Thus, a lot in existence at the time zoning bylaws were enacted can be buildable.

Of course, there is one further wrinkle. The pre-existing lot, at the time of the bylaw enactment, could not be held jointly with an adjoining lot. So if, at the time the bylaw was put into place, our fantasy lot owner had an adjoining, identical lot, the owner can not now partition the lot and re-create the pre-existing lot.

If that sounds complicated, it sometimes is! That’s why you should contact the team at Levine Law if you have questions about your potentially pre-existing lot.

*For residential purposes only.

In Massachusetts, liquor license holders can hire a company to operate the establishment serving liquor, usually resulting in an outside company running a restaurant or bar. The Massachusetts Alcoholic Beverages Control Commission (ABCC) reviews and approves the agreements between the license holder and the management company. The license holder is typically a hotel or a chain restaurant. In fact, management agreements have always been used to run a bar or restaurant, until today.

Levine Law was approached by a package store owner who was looking to have an employee run the day-to-day operation of the store while the owner maintained financial control and oversight. While this seemed like a reasonable goal, we knew it was out of the norm for management agreements. We contacted the ABCC and were told by the executive team that it had never been done before but, if the management agreement was carefully drafted, it could be approved.

Today, after city approval and on the ABCC investigator’s recommendation, the ABCC approved the package store license with a management agreement, the first of its kind in Massachusetts! Our client had an out-of-the-box idea and is very happy we got it through.

If you have a unique liquor license issue in Massachusetts, give the team at Levine Law a call.

Most real estate contracts in Massachusetts have a paragraph stating that Seller shall deliver the premises free of all tenants (unless listed in the contract) and in the same condition as the house was when the contract was signed, normal wear and tear excepted.

The contract also typically says that the premises shall be delivered in “broom clean” condition and that the buyer has a right to inspect before closing to make sure this clause is complied with by seller. Great, you might be saying, but what does “broom clean” mean? Well, it’s not defined in the agreement, and unfortunately the parties may have very different interpretations.

At a bare minimum, the real estate industry generally agrees that “broom clean” means the house should be free of all of Seller’s possessions and all surfaces swept, vacuumed, or wiped down. Buyers have the option of conducting a walk-through the night before or the morning of their closing to make sure that the sellers haven’t left anything behind, be it furniture, debris, or just an old-fashioned mess. Buyers will also be on the lookout for any damage that may have occurred during the moving process.

If a buyer is unhappy with the state of the house, the buyer can request specific cleaning or for items to be removed from the house. The buyer can also request funds to pay for repairs or a professional cleaning after closing. In some circumstances, this process can delay or even prevent a successful closing.

For a seller, it is best to err on the side of cleanliness. A good scrubbing and a final “sweep” for errant possessions will make closing day go a lot smoother.

You’ve agreed to purchase a business with a liquor license or are applying for an available license from a town or city. Great! But now you need to get your license approved by both the Local Licensing Authority as well as the state Alcoholic Beverages Control Commission, and it can be difficult getting all your ducks in a row. Here are some of the oft-overlooked requirements that you will need for the state and the local licensing authority to approve your submission.

• Business structure documents for the license holder (Articles of Incorporation or Articles of Organization)

• From the transferor, proof that all employment and unemployment taxes are up to date.

• A manager application listing employment history, criminal history, and past liquor license violations.

• CORI background check forms for the manager of record, officers, directors, and owners of the license

• Proof of citizenship for the manager of record (the manager must be a US citizen)

• Supporting financial records (either bank statements or loan documents from a lending institution)

• For new licenses or transfers of location, a floor plan of the establishment

• A legal right to occupy the premises (a lease or a deed)

The team at Levine Law has experience in getting licenses approved and can make that daunting list seem easy to tackle. Visit us at levinelawma.com.

Happy new year from all of us at Levine Law! May 2022 be happy, healthy, and (hopefully!) unsurprising for everyone.

To say we are in a sellers market is surely not news to you. In fact, you’re thinking of taking advantage of the unprecedented demand and putting your house up for sale. If so, keep the following in mind when reviewing offers:

• If you are planning to buy another house with your proceeds, you will want a contingency allowing you to not only find suitable replacement housing, but also a simultaneous closing.

• Make sure you have enough time to find another home. You’re getting a great price because there are few houses on the market and buyers are putting in very competitive bids.

• If you get an offer beyond your wildest dreams and your buyer is taking out a mortgage, be aware that the appraisal may come in lower than the sales price. You can work with your realtor and attorney to include appraisal options in the accepted offer.

Don’t accept an offer that won’t work for you - discuss the above with your realtor and run your offer by an experienced team like Levine Law before you sign. Give us a call at (413) 525-5757 or visit www.levinelawma.com today.

When you purchase a home or take out a new mortgage on your property, it’s no secret. In Massachusetts, the deed and mortgage are recorded in your county’s registry of deeds and can be found online for the curious.

This also means that marketers may purchase lists of new owners or refinancers in order to offer their wares by snail mail. For homeowners new to an area, this may be a helpful way to find contractors, services, or even restaurants. Or it may just mean a lot of junk mail to deal with along with unpacking, but it’s harmless.

Unfortunately, undesirables may also purchase these lists. We often hear from clients who receive offers from companies that will provide new owners a “certified copy” of their deeds for the low low price of $100.00. This is unnecessary. First, after closing, we provide our clients with a package of all their relevant documents, including the original recorded deed. And second, you can always get a copy of your deed , which is all you would likely need, from the registry of deeds for free.

You may also receive letters from companies purporting to be associated with your lender offering to set up automatic payments for a one-time fee or for a small fee tacked on to each payment. Even if the companies do what they say and set up your automatic payments, your lender would likely have offered automatic payments for free. There is no need for a middleman.

Of course, there are other much more insidious scams to be on guard for, such as malcontents purporting to offer a low refinance rate in an attempt to steal your personal information. If you are looking to refinance, make sure you are initiating the contact or you are dealing with someone at the bank you trust. And when in doubt, talk to the team at Levine Law to make sure you are on the right path.

Estate planning is one thing that everyone has (or should have) on their to-do list but it is too often pushed off. While some folks may required complicated estate plans, everyone should have, at least, a will, a power of attorney, and a health care proxy. A brief explanation of each is below.

• A will, at its core, allows you to direct how your finances will be handled after you pass and who is responsible for the administration of your wishes. Even more importantly, for those with minor children, a will allows you to make a considered choice in choosing a guardian for your children, rather than letting the courts decide.

• A power of attorney designates someone you trust to make financial decisions and sign documents on your behalf in the event that you become ill, incapacitated, or otherwise unavailable.

• A health care proxy appoints someone to handle your medical decisions, including end of life care, if you are too ill to communicate or make your preferences known.

Estate planning can come with tough conversations and decisions, but it’s something everyone should do before it’s too late. Levine Law can offer you guidance that comes from decades of experience. Visit us at www.levinelawma.com

Refinancing remotely may be just around the corner.

The past weeks have seen mortgage rates vary and you may have been tempted to refinance your mortgage. As always, the experienced team at Levine Law can help you with the process. But given social distancing requirements, you may have wondered how you will sign your mortgage and related bank documents while keeping yourself safe and healthy. As part of the Commonwealth’s response to the threat of COVID-19, there is a remote online notarization bill making its way through the legislature. If enacted, this would allow an attorney to notarize a document via video conferencing if the signing party is also within Massachusetts for the duration of the state of emergency.

If you are refinancing, you want an experienced team on your side that will use technology to keep you safe. Contact Levine Law at info@levinelawma.com; 413-525-5757, or by Facebook message.

This blog has previously covered the importance of estate planning, no matter your age, here.

In our busy lives, estate planning is one of those “I’ve been meaning to do that” tasks. With many of us practicing social distancing, working remotely, and cutting out social engagements, it’s a perfect time to work with Levine Law in crafting a personalized estate plan. In order to keep everyone safe and healthy, here’s how the process would go:

1. Email us at info@levinelawma.com.

2. We will send you an estate planning questionnaire in a fillable-pdf format. This 8-page document will give us an idea of your financial picture, potential probate assets, and your ultimate goals.

3. After you’ve completed the questionnaire, we will set up a phone or video conference to fill in any gaps or follow up on any questions. We will also explain the options for your estate plan.

4. After our meeting (and any follow ups, if necessary), we will draft your requested documents and send them to you for review. We can continue revising until you understand the documents and are completely satisfied.

5. Once you are satisfied with your estate documents (will, trusts, health care proxies, powers of attorneys, etc.), we will create a plan for execution of the documents. In doing so, we will consider the health of our clients and the latest guidance from local, state, and federal governments and health care authorities.

If you are healthy but respecting social distancing advisories, you’ve probably thought that this is an opportunity to finally finish up some long gestating tasks. Estate planning is a prime example of this, and you can contact Levine Law at info@levinelawma.com to finally check that box.

Levine Law’s office will be open during normal business hours until further notice. In an effort to combat the spread of COVID-19, we ask the following of anyone who has an appointment: 

-Please wash your hands for 20 seconds in the restroom next to our front door.

 -Please forgive us for not shaking hands.

 -If you are feeling ill or have been in contact with anyone who has known contact with a person with COVID-19, please call us to reschedule your appointment.

 We appreciate your cooperation. Stay healthy!

The last thing you want when purchasing a home is a surprise repair after closing. But aren’t sellers required to tell buyers about outstanding issues of which they have knowledge? Not exactly.

Massachusetts law requires that sellers disclose only two issues: the presence of lead paint in the home and if the home has a septic system. Otherwise, Massachusetts is a “caveat emptor” or “buyer beware” state. The good news is that most purchase and sale agreements include contingencies for structural and termite inspections so that the buyer is not flying blind.

The structural inspection contingency allows a homebuyer, or ideally a licensed home inspector, to conduct a thorough inspection of the house and flag any current issues or ones that may come up shortly after closing. Common finds are improper kitchen or bathroom electrical wiring, leaky roofs or ones nearing the end of their usable life, and rotten door or window frames. Based on the inspection findings, buyers can request repairs or an adjustment to the sales price. And, of course, if the buyer is not happy with the inspection, the contingency allows for termination of the deal and deposits to be returned.

Even if a seller has indicated that repairs will not be forthcoming, you should still seek an inspection to avoid surprises down the line and give yourself the option to walk away, if necessary.

Termite inspections can typically be added on to the structural inspection for a reasonable fee. A termite inspector can find evidence of wood-destroying insects or past damage, and a buyer will want both addressed. A typical purchase and sales agreement will require the seller to pay the first $1,000.00 of any treatment or repair.

Experienced attorneys like Levine Law will often add addenda to the purchase and sales agreement asking sellers to make additional disclosures, such as the presence of underground fuel storage tanks or the presence of chlordane, a harsh chemical. You’ll want us on your side during the entire home purchase process. Give us a call at (413) 525-5757 if you are thinking of purchasing a home.

At the beginning of November, towns and cities across the Commonwealth mail out a flurry of renewal applications to all good license holders, whether liquor, common victualer, frozen goods, or any other locally mandated licenses. Select boards or license commissions make a list and check it twice (against other departments), and decide who is naughty or nice (current with their taxes). It is, of course, crucial to get the renewal licenses in on time, or issues will arise before the second verse of Auld Lang Syne is over (the one with all the Scottish phrases).

License renewal season is also a time to gather with those you hold dear (managers of record and shareholders) and determine if any changes occurred in the past year that are not reflected on your license. If so, your wish list should include a visit to Levine Law to discuss the license amendment application process and how to prevent state or local licensing authorities from putting coal in your stocking this year.