Justia Real Estate & Property Law Opinion Summaries

In a proceeding under Chapter 7 of the Bankruptcy Code, a question arose concerning the application of the Commonwealth's homestead protection statute, G.L.c. 188, section 1, to a beneficiary of a trust. Finding no controlling precedent in the court's decisions, the Bankruptcy Court judge certified the following question: "May the holder of a beneficial interest in a trust which holds title to real estate and attendant dwelling in which such beneficiary resides acquire an estate of homestead in said land and building under G.L.c. 188, section 1?" The court confined its answer to the 2004 version of the homestead statute and answered the certified question in the negative. The court rejected the debtor's claims and concluded that even though the debtor resided in the Lowell property and used it as her home, as the owner of a fifty percent beneficial interest in the trust that holds to the property but who did not direct or control the trustee, she could not validly claim a homestead exemption for the property under the 2004 act.

Wayside, owner of a mobile home park in the town of Shirley, sought a special permit from the town's zoning board of appeals in order to expand its mobile home park, a lawfully nonconforming use, from 65 to 75 units. The board refused to grant the special permit, finding that Wayside had failed to establish that the expansion would not be substantially more detrimental to the neighborhood than the existing mobile home park. The court concluded that the expansion complied with the zoning bylaw at issue, which the court interpreted as imposing minimum lot size dimensions on the entire mobile home park and not on individual mobile homes, governed only by the board of health regulations. The court further agreed with the Land Court judge that there was no evidence that either the density within the mobile home park expansion or the modest increase in traffic would be detrimental to the surrounding neighborhood. Therefore, the court affirmed the decision of the Land Court judge.

This case concerned a family dispute over ownership of what had been the family home in Woburn. At issue was whether a party could establish that she lacked the capacity to contract, thus making the contract voidable by her, in the absence of evidence that she suffered from a medically diagnosed, long-standing mental illness or defect. The court concluded that its evolving standard of contractual incapacity did not in all cases require proof that a party's claimed mental illness or defect was of some significant duration or that it was permanent, progressive, or degenerative; but, without medical evidence or expert testimony that the mental condition interfered with the party's understanding of the transaction, or her ability to act reasonably in relation to it, the evidence would not be sufficient to support a conclusion of incapacity. In this case, the evidence was insufficient to support a determination of incapacity where Susan, among other things, understood at the time that she was participating in a mediation to discuss settlement of the lawsuit, was aware that the subject of the mediation was to resolve the dispute regarding the family home, participated in the mediation, and listened to the arguments of counsel. Therefore, the court vacated the motion judge's order and remanded for entry of an order enforcing the settlement agreement.

Smaland, together with third-party defendants, appealed from a Superior Court judge's order disqualifying their attorney from representing them in a real property dispute against the Genovas. The judge disqualified the attorney based on his conclusion that the attorney was a necessary witness because his clients had raised an advice of counsel defense and he had assisted various witnesses in submitting errata sheets that substantively changed their deposition testimony. The court concluded that the judge failed to engage a sufficiently searching review of this fact-intensive issue. Consequently, the court vacated the order and remanded the case for a further hearing. The court also considered the scope of disqualification orders under Mass. R. Prof. C. 3.7(a), and to clarify the proper use of errata sheets in altering deposition testimony under Mass. R. Civ. P. 30(e).

This case arose when plaintiffs commenced an action in the Superior Court, alleging fraud, violation of G.L.c. 93A, and other claims arising from their purchase of a house which, they alleged, contained numerous undisclosed latent defects that rendered the house uninhabitable. Plaintiffs subsequently filed a "Notice of Violations of the Code of Judicial Conduct," alleging that the judge was in violation of the Code in several respects. Plaintiffs requested that the single justice remove the judge from the case and the single justice denied relief on the ground that plaintiffs had adequate alternative remedies. The court held that the single justice did not err or abuse her discretion by denying extraordinary general superintendence relief and affirmed the judgment.

This case stemmed from the enactment of St. 2010, c. 258, on August 7, 2010, which prohibited institutional lenders and certain financial institutions who owned foreclosed properties from evicting residential tenants without just cause. At issue was whether the act required dismissal of a no-cause summary process case that was already pending when the act went into effect, or whether the application of the act to such a case was impermissibly retroactive. The court held that the provision of the act that prevented eviction without just cause was properly applied to protect all residential tenants on foreclosed properties who, on or after August 7, 2010, had yet to vacate or be removed from the premises by an eviction, even where the owner purchased the property before the act's effective date, and initiated a summary process action before that date. Because the tenant, in this case, was still residing on the property on August 7, 2010, and the owner was seeking to evict him without just cause, the court held that the Housing Court judge properly applied the act to dismiss the pending claim for possession.

This case stemmed from the proposed redevelopement of private property within the Middlesex Fells Reservation. Plaintiffs commenced an action against Fellsway Development LLC; Langwood Commons LLC; the Secretary of the Executive Office of Energy and Environmental Affairs (Secretary); and the Commissioner of the Department of Conservation and Recreation (DCR), seeking a declaratory judgment and injunctive relief from alleged violations of the Massachusetts Environmental Policy Act (MEPA), G.L.c. 30, section 61-62H, and regulations promulgated thereunder, 301 Code Mass. Regs. 11.00. Defendants filed separate motions to dismiss for lack of subject matter jurisdiction and for failure to state a claim. The court affirmed the judgment of the Superior Court dismissing Counts I, II, and III of plaintiffs' complaint, brought under section 7A and G.L.c. 231A, against the Secretary for lack of subject matter jurisdiction. As against the developers and the DCR, the court reversed only the judgment dismissing plaintiffs' complaint seeking declaratory and injunctive relief under section 7A, and alleging a violation of MEPA's antisegmentation regulation promulgated at 301 Code Mass. Regs. 11.01(2)(c). Therefore, the case was remanded for further proceedings.

This case arose when plaintiff, Bank of New York (BNY), asserted that it acquired title to the home of defendant pursuant to foreclosure proceedings. At issue was whether the Housing Court had jurisdiction to decide the validity of a challenge to a title, raised by a former homeowner as a defense to a summary process eviction action by a party acquiring the property pursuant to a foreclosure sale. The court vacated the allowance of summary judgment and remanded for further proceedings because the court concluded that the Housing Court had jurisdiction to consider the validity of plaintiff's title as a defense to a summary process action after a foreclosure sale pursuant to G.L.c. 239, section 1.

Boston Edison Company ("Boston Edison") brought an action under G.L. c. 79, 12 to recover damages caused by four eminent domain takings by the Massachusetts Water Resources Authority ("MWRA") on property known as the Fore River Station ("site") in the town of Weymouth and city of Quincy. The parties raised issues related to the reasonable probability of residential development on the north parcel of land; limiting damages on the south parcel of land to those caused by the actual taking or the public project for which the taking was made; and the calculation of interest. The court held that a rational jury, viewing the evidence in the light most favorable to Boston Edison, reasonably could have found that it was reasonably probable that the north parcel could be rezoned for residential use and developed even though it was in a designated port area. The court also held that damages arising from a planned taking were not compensable and therefore, the jury must distinguish between damages arising from the actual taking and those arising from the planned, but unrealized, taking. The court further held that there was no error in the calculation of prejudgment or postjudgment interest where the court failed to see what basis remained for claiming the preamendment rate of interest when Boston waived any constitutional challenge to the statutory rate of interest. Accordingly, the court affirmed the rulings and remanded for further action consistent with the opinion and the judge's allowance of the motion for remittur.

The Real Estate Bar Association of Massachusettes ("REBA") claimed that certain activities undertaken by the National Real Estate Information Services ("NREIS") constituted an unauthorized practice of law. At issue was whether NREIS's activities, either in whole or in part, based on the record and as described in the parties' filings, constituted the unauthorized practice of law in violation of Mass. Gen. Laws ch. 221, section 46 et seq. Also at issue was whether NREIS's activities, in contracting with Massachusetts attorneys to attend real estate closings, violated Mass. Gen. Laws ch. 221, section 46 et seq. The court held that certain of the real estate settlement activities undertaken by NREIS did not constitute the unauthorized practice of law but the court could not determine based on the record whether the other described settlement activities did. The court also held that the closing or settlement of the types of real estate transactions described in the record required not only the presence but the substantive participation of an attorney on behalf of the mortgage lender and that certain services connected with real property conveyances constituted the practice of law.