Pierce & Mandell, P.C.

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Boston, Massachusetts 02108-3002

Phone: (617) 720-2444
Fax: (617) 720-3693

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.

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.

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.

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”.