Pierce & Mandell, P.C.

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Phone: (617) 720-2444
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Real Estate Law and Litigation

Michael C. Fee Helps Boston Bar Association's Zoning Reform Bill Become Law

Joseph Coupal - Friday, August 12, 2016

Pierce & Mandell, P.C. partner, Michael C. Fee, a member of the Council of the Boston Bar Association, recently participated in the BBA's efforts to pass a zoning reform measure that the organization has championed since 1995.  House Bill 3611 was signed into law by Governor Baker on August 5, 2016 and provides much needed clarification to the Massachusetts Zoning Act, G.L. c. 40A, § 7.

Most do not realize that the Massachusetts zoning statute was first enacted into law in the 1920's. While it underwent significant overhaul in both the Fifties and Seventies, in many ways it remains today an historical anachronism, full of dense language and land use principles perhaps better suited to less complicated times.  Every legislative session in recent memory has seen efforts to promote comprehensive zoning reform, however, there is rarely consensus among the most highly interested stakeholders. Neither, developers, builders, housing advocates or municipalities appear able to agree on what is right, and what is wrong with G.L. c. 40A.

Consequently, the more effective approach, and the one pursued by the BBA in this instance, is to propose legislation that tackles the most glaring ambiguities in the zoning statute, section by section. House Bill 3611 amends G.L. c. 40A, § 7, which requires municipalities to bring enforcement actions against non-compliant structures or uses no later than ten years after the inception of such structure or use. The problem with the old provision was that it was silent as to the legal status of those structures which survived the applicable statute of limitations. One would think that such structures would automatically become pre-existing, non-conformities, subject to the grandfather rights explicitly detailed in G.L. c. 40A, § 6. However, G.L. c. 40A, § 7 omitted any such explicit reference, and left non-compliant structures that had survived the statutory limitations period in a kind of legal limbo.

The issue came to the forefront recently, as several appeals court panels issued inconsistent rulings regarding the status of such surviving structures. The newly enacted legislation cures the section's ambiguity by granting these structures recognized legal status as a preexisting non-conformities protected under G.L. c. 40A, § 6. The change will provide greater clarify to owners, buyers and lenders that participate in transactions involving these types of property rights. To read the BBA's press release regarding the recent enactment of H3611, click here.

Michael Fee Responds to Lawyers Weekly Editorial on Land Court Rule Changes

Joseph Coupal - Wednesday, June 01, 2016

Michael Fee is a member of the Land Court’s Alternative Litigation Options Working Group, which assisted the Land Court in drafting proposed rule changes designed to make trial practice in that forum more speedy and cost-effective. The proposed rule changes have proven somewhat controversial, however, and the editorial board of Massachusetts Lawyers Weekly recently took issue with some of them in the May 12 edition, suggesting that the right to waive written findings of fact and conclusions of law would inappropriately tempt litigants “to trade fundamental rights for speed.” Mr. Fee and other members of the Working Group respectfully disagree, and their recent response to the Lawyers Weekly editorial can be viewed here.

 

 

 

House and Senate Pass BBA Bill Promoting Development

Joseph Coupal - Monday, May 16, 2016

Michael C. Fee recently assisted the Boston Bar Association’s lobbying efforts in support of House and Senate Bills designed to clarify the scope of General Laws Chapter 40A, § 7, and codify the principle that non-compliant structures and uses that survive applicable statutes of limitations should be granted the status of a pre-existing, non-conforming structure or use, subject to the protections of G.L. c. 40A, § 6.

Michael testified before the Judiciary Committee, worked with Senate Ways and Means Committee staff, and conferred with Senator Keenan in an effort to move the bills forward.

The Senate version, S. 2259, passed last week, and the legislature is currently in the process of reconciling it with a House version (H. 3611) which passed last June. Click here to read the BBA’s press release on these endeavors.

Michael Fee served as a Boston Bar Association representative to the land Court

Joseph Coupal - Thursday, May 05, 2016

Michael Fee served as a Boston Bar Association representative to the land Court’s Alternative Litigation Options Working Group. The Group has recently proposed rule changes designed to make litigation in that court more speedy, efficient and less costly.

 

 

 

Strict Compliance with Massachusetts’s Mechanic’s Lien Statute Paramount in Real Estate Lawsuits

Joseph Coupal - Monday, October 05, 2015

By Scott M. Zanolli, Esq.

Pierce & Mandell, P.C. recently obtained the dismissal of a Superior Court action brought by an equipment rental subcontractor to enforce a mechanic’s lien against our property developer client.  The dispute arose when the general contractor hired by the developer failed to pay for equipment furnished for the project.  As a result, the equipment rental company attempted to perfect a mechanic’s lien against development property.  It failed, however, to list the proper record owner of the development property on the Notice of Contract and Statement of Account recorded with the Registry of Deeds, as required by G.L. ch. 254, § 4.

Attorneys Michael C. Fee and Scott M. Zanolli argued that the failure of the equipment rental subcontractor to accurately list the proper record owners on the Notice of Contract and Statement of Account rendered the purported lien fatally defective.  The Court agreed and dismissed the case.  In the Court’s view, strict compliance with G.L. ch. 254, § 54 is required “otherwise, subsequent purchasers who buy upon the faith of the registry title are liable to be misled.” National Lumber Co. v. LeFrancois Construction Corp., 430 Mass. 663, 670 (2000).

When title to real property is impacted, courts will carefully scrutinize the language and purpose of the applicable laws to insure that marketability of title will not be improperly impaired.  Handling these types of matters takes considerable skill and knowledge of the applicable law.  Pierce & Mandell’s experienced real estate litigators routinely employ such skill and knowledge to vigorously protect their clients’ rights in land.

Testimony of the Boston Bar Association In Support of House Bill 1284

Joseph Coupal - Monday, June 29, 2015

In May, Michael Fee testified at the State House on behalf of the Boston Bar Association in support of BBA bill H3611  (formerly H1284). H3611 passed the House this week.  The bill helps to protect consumers and other owners of improved real estate that is nonconforming when the applicable statute of limitations for zoning enforcement by a municipality has passed.  The legislation gives formal recognition to these structure as legally nonconforming, and grants the attendant protections afforded such structures by law.  The prior statute was ambiguous, and was the source of much uncertainty for owners and their lenders.  To learn more, read Michael’s testimony.

Michael C. Fee was quoted in this week’s Lawyers Weekly article

Joseph Coupal - Tuesday, June 10, 2014

Michael C. Fee was quoted in this week’s Lawyers Weekly article entitled: “Choice of remedies after P&S breached”.

 

Michael Fee Quoted in "Lawyers Weekly" Article

Joseph Coupal - Thursday, August 15, 2013

Michael C. Fee was quoted in this week’s Lawyers Weekly article entitled: Broker gets fee despite no lease.

Medical Marijuana in Massachusetts Marches On!

Joseph Coupal - Thursday, April 11, 2013
By: Michael C. Fee

The Massachusetts Department of Public Health recently posted its draft regulations regarding the use of medical marijuana. They can be viewed online using this link:
 
http://www.mass.gov/eohhs/docs/dph/legal/med-marijuana/med-marijuana-propose-reg.pdf

Public comments on the draft regulations will be received until April 20, 2013, and the Department of Public Health will hold three concurrent public hearings on April 19th in Plymouth, Boston and Northampton to receive additional input.

Details on the specific locations and times of the public hearings will be posted.  Stay turned for more breaking developments as Massachusetts implements new procedures for the humanitarian use of medical marijuana in the Commonwealth.

Estoppel Certificates: A Primer for Commercial Tenants

Joseph Coupal - Tuesday, March 05, 2013
By: Michael C. Fee

A spike in recent client inquiries to evaluate proposed estoppel certificates may signal brighter times ahead for the commercial real estate market.  Hope springs eternal, and now seems an opportune time to review the basic principles, and potential pitfalls, associated with estoppel certificates.

First, an estoppel certificate is a written form generally requested from tenants when a commercial property owner is attempting to sell or refinance property.  The buyer or lender, in the course of its due diligence, seeks confirmation of the status of all leases at the property, and estoppel certificates once executed, are binding and will serve to prohibit a party from later claiming some different state of facts.

Typically, a tenant is asked to certify: (i) whether the tenant’s lease is in full force and effect and has not been assigned or amended; (ii) whether the landlord has performed its obligations under the lease; (iii) whether any required tenant improvements or buildout allowances have been provided; (iv) whether there are any claims or defenses which tenant may assert against the landlord; (v) whether rent has been paid more than one month in advance; and (vi) whether a security has been paid.

As noted, the contents of an executed estoppel certificate are conclusive, and bind both landlord and tenant.  Black’s Law Dictionary, 572 (7th Ed. 1999); Plaza Freeway Limited Partnership v. First Mountain Bank, 81 Cal. App. 4th 616 (2000).  For this reason, tenants should carefully evaluate requested estoppel certificates, and ensure that the terms of any oral agreements with a landlord, or any other material issue regarding the tenancy that is not contained in the lease, gets memorialized.  In addition, tenants need to be wary of an over reaching landlord, buyer, or lender who attempts to insert tenant terms or obligations into an estoppel certificate that are not contained in the lease.  A tenant who fails to carefully evaluate a proposed estoppel certificate risks being held to such additional terms or obligations at some later date.

A good form that we have used as a model Estoppel Certificate can be found here. If you have questions about estoppel certificates, or any other aspect of commercial leasing, the business lawyers at Pierce & Mandell, P.C. can assist.