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Real Estate Law and Litigation

"Massachusetts Real Estate Litigation” by P&M Shareholder Michael C. Fee

Monday, July 30, 2018
Michael C. Fee, Pierce & Mandell, P.C., Boston, MA

Pierce & Mandell shareholder Michael C. Fee has authored the recently published LexisNexis® Practice Guide to Massachusetts Real Estate Litigation (2018 Edition). The book is intended to offer practical guidance on some of the most significant real estate issues currently being litigated in Massachusetts, and contains nearly 400 practice tips, forms and checklists. Designed to be useful to both new and experienced practitioners, the guide strives to provide succinct, easily accessible yet comprehensive analysis in the following areas:

  • Adverse Possession
  • Trespass
  • Nuisance
  • Construction Liens
  • Public Works Bonding
  • Easements
  • Restrictive Covenants
  • Eminent Domain
  • Foreclosures
  • Real Property Receiverships
  • Residential and Commercial Landlord Tenant
  • Broker Litigation, and
  • Community Associations

For more information about “Massachusetts Real Estate Litigation (2018 Ed.)”, go here.

A Cautionary Tale for Municipal Officials: The SJC clarifies the Open Meeting Law’s “deliberation exemption”

Thursday, May 17, 2018

Pierce and Mandell, P.C.By: Michael C. Fee

      The Massachusetts Supreme Judicial Court’s recent ruling in Boelter v. Board of Selectmen of Wayland (SJC-12353, April 5, 2018) interprets and clarifies, for the first time, the meaning of the term “deliberation,” which was added to the Open Meeting Law in July 2010. The Open Meeting Law requires that, with the exception of executive sessions, “all meetings of a public body shall be open to the public.” General Laws c. 30A, § 20 (a). The statute defines a “meeting” as “a deliberation by a public body with respect to any matter within the body’s jurisdiction,” subject to certain limited exclusions. G.L. c. 30A, § 18.

      A “deliberation,” is “an oral or written communication through any medium, including electronic mail, between or among a quorum of a public body on any public business within its jurisdiction.” The Open Meeting Law provides, however, that the term “deliberation” does not encompass the “distribution of a meeting agenda, scheduling information or distribution of other . . . reports or documents that may be discussed at a meeting, provided that no opinion of a member is expressed.” Id.

      While the importance of the Open Meeting Law cannot be understated, it is clear that the parameters it places on public officials are myriad and sometimes not entirely intuitive. Prior to the Legislature’s amendment of the statute in 2010, the Open Meeting Law defined “deliberation” as “a verbal exchange between a quorum of members of a governmental body attempting to arrive at a decision on any public business within its jurisdiction.” See G.L. c. 39, § 23A, as appearing in St. 1975, c. 303, § 3. The 2010 amendment broadened the law’s definition of “deliberation,” and affirmed that a “deliberation” could encompass “any medium,” not just verbal communication. At the same time, however, the Legislature made clear that public bodies could distribute materials internally in advance of public meetings without running afoul of the statute’s proscription on “deliberation.”

      In Boelter, the chair of the Wayland Select Board had circulated to all members, in advance of a public meeting where the town administrator’s evaluation was to take place, the members’ individual written evaluations of the town administrator’s performance, as well as a composite evaluation. At the meeting, the Board reviewed, discussed and approved the composite evaluation, and the meeting minutes memorialized that the Board “praised [the town administrator] for his availability and responsiveness to the public, his work ethic, his relationship with town staff, and his accessibility to board and committee members.” Both the composite and individual evaluations were only released to the public following the open meeting.

      The process followed by the Board was subsequently challenged, and plaintiffs argued that the public should have total access to the decision-making process whenever a town official is evaluated. See, e.g., School Comm. Of Wayland, 455 Mass. at 570 (“It is essential to a democratic form of government that the public have broad access to the decisions made by its elected officials and to the way in which the decisions are reached”). Upon review, the Boelter Court acknowledged that the exemption allowing distribution of some materials was likely in response to the practical realities of governmental service, and that by permitting officials to review certain administrative materials and reports in advance, the Legislature sought to enable the more efficient administration of public meetings. It also noted, however, that the overarching purpose of the Open Meeting Law is to ensure transparency in governmental decision-making, and the Legislature specifically outlawed the expression of opinions by board members in any documents circulated to a quorum prior to an open meeting. See Revere v. Massachusetts Gaming Comm’n, 476 Mass. 591, 610 (2017) (“the new version of the Open Meeting Law does not alter our belief that ‘[i]t is essential to a democratic form of government that the public have broad access to the decisions made by its elected officials and to the way in which the decisions are reached’” [citation omitted]).

      In parsing the Wayland Select Board’s actions, the Court took particular note that the materials privately distributed to the members contained “appraisals” of the Town manager’s performance. Although there was no conversation, there was nonetheless an exchange of “thoughts, impressions and conclusions” that was inconsistent with the Open Meeting Law’s requirement that all deliberations take place in public. The Court concluded that the effect of the circulation of the evaluations was that all five board members were aware of the opinions of the other four members in advance of the meeting. As a result, the circulation constituted a deliberation, or a meeting, to which the public did not have access.

      Noting that the Open Meeting Law was intended to ensure that the public is able to see for themselves how public decisions are made, See Revere, 476 Mass. at 610, the Court found that distribution of the individual and composite opinions to a quorum, prior to the meeting, violated the statute’s purpose. See G.L. c. 30A, § 18. Compare School Comm. Of Wayland, 455 Mass. at 570 (“Open meetings provide an opportunity for each member of the governmental body to debate the issues and disclose their personal viewpoints before the governmental body reaches its decision on a matter of public policy” (emphasis supplied); McCrea v. Flaherty, 71 Mass. App. Ct. 637, 641 (2008) (Open Meeting Law “provides for public access to the decision-making process when it is in a formative stage, several steps removed from the eventual result”).

      The ruling in Boelter is both an affirmation of the Open Meeting Law’s overarching goal, transparency in governmental decision-making, and a challenge to public officials striving for administrative efficiency. The decision makes clear to municipal officials that there are now only two types of materials which may be safely distributed to a quorum outside of a public meeting: first, purely procedural or administrative materials (such as agendas), and second, reports or documents to be discussed at a later meeting, so long as such materials do not express the opinion of a board member. Careful municipal officials should consider adopting a general practice of not communicating by email at all except for distributing meeting agendas, scheduling meetings and distributing documents created by non-members to be discussed at meetings, all of which are ministerial tasks specifically sanctioned under the Open Meeting Law.

      Pierce & Mandell partner Michael C. Fee practices in the firm’s real estate and litigation departments. He is a former Town Moderator, Planning Board and Water District Chairman in Sudbury, and a current member of the Truro Open Space Committee. He frequently advises individuals and municipalities regarding public official liability under 42 U.S.C. § 1983, the Open Meeting Law, and matters involving public records, zoning, permitting, and land use.

Complexities in the Division or Sale of Multiple Parcels in Partition Proceedings

Monday, April 30, 2018

Michael C. Fee, Pierce & Mandell, P.C., Boston, MABy: Michael C. Fee

Petitions to Partition, often brought in the Land or Probate Courts, allow the division of land owned by two or more individuals. The right to partition is absolute, and does not require the consent of other co-owners. For an excellent overview of general partition principles and practice, see Jeff Angley’s primer entitled "Partition of Land".

The process of partition becomes complex when the land to be divided consists of multiple parcels. While courts strive to balance the rights and equities of the parties in partition proceedings, Schore v. Johnson, Land Court Misc. Case No. 29096, July 14, 2008 (Piper, J.), quoting Gonzalez v. Pierce-Williams, 68 Mass. App. Ct. 785, 787 (2007), and Moat v. Ducharme, 28 Mass. App. Ct. 749, 751 (1990), in cases where multiple parcels are involved generally “division in kind” becomes the favored method of partition, i.e. awarding parcels of equal value to each party. However, a court may also order sale of all of the parcels and equitable division of the proceeds when it determines that the land cannot be divided “advantageously.” G.L. c. 241, § 31. Delta Materials Corp. v. Bagdon, 33 Mass. App. Ct. 333 (1992) and Buell v. Rubin, Land Court Misc. Case No. 310497, November 9, 2005 (Long, J.).

The General Rule

The proposition that the “primary” method of partition is by division derives principally from historical cases involving homogenous parcels where an equitable result could be derived from simple subdivision. For example, in Mello v. Mello, 322 Mass. 69 (1947), the SJC noted:

The primary method of partition is by division of the land itself by mete and bounds among the tenants in common. Until St. 1870, c. 257, and St. 1871, c. 111, § 1, later Pub. Sts. (1882) c. 178, § 65, a sale for the purpose of partition could not be ordered. Ramsey v. Humphrey, 162 Mass. 385, 386. Clough v. Cromwell, 250 Mass. 324, 330, 331. The existing statute intimates that sale may be ordered only of land "which cannot be divided advantageously." G. L. c. 241, § 31. See also § 6.

Similarly, in Buckley v. Lombard, Land Court Misc. Case No. 306156, November 30, 2007 (Scheier, J.), the Court recognized that “division in kind, or on the land, is the favored method of partition,” Id. at 7), but only after the court determines “by a preponderance of the whole evidence that the land cannot be advantageously divided before ordering a sale.” Id. at 7, citing Delta Materials Corp. at 338 (further citations omitted). In Buckley, the Court expressly recognized that G.L. c. 241, § 311 (the statutory provision authorizing sale) must be read in conjunction with G.L. c. 241, § 142, “which further instructs the Court to consider whether the land may be divided or set-off to one co-tenant without ‘great inconvenience’ to the co-owners.”

The Meaning of Statutory Terms “Inconvenience” and “Disadvantage”

What constitutes “inconvenience” or “disadvantage” has been addressed by several courts, with the inquiry focused squarely on conditions that create pecuniary inequities. For example, in Heald v. Kinnard, 180 Mass. 521, 523 (1902), the court struggled with the partition of a cranberry bog, which because of the particular way in which water flowed through the parcel, could not be divided such that each party would receive equal value. The Court observed:

In this case the advantageousness of the division was in part a question of market values, and from this point of view we are of opinion that the judge was warranted in considering the de facto condition of the premises.

Id. at 523. Although the Heald Court analyzed in depth the physical attributes of the land and the resulting options for division in kind, the key factor in determining “disadvantage” was whether division would result in a loss of value or money to a party:

The considerations which determine whether land can be divided advantageously no doubt have reference mainly to the physical conditions of the land to be divided, but the advantage or disadvantage generally must be pecuniary. Citing Vesper v. Farnsworth, 40 Wis. 357, 361, 362.

Similarly, in Clough v. Cromwell, 254 Mass. 132 (1925), a case involving parcels of land held by tenants in common on Martha’s Vineyard, the evidence established that the majority of value for the entire property was attributable to shooting privileges, and as a result the trial court found that the parties’ interests were best served by a sale of all of the land. The SJC affirmed, and relied on Heald for the proposition that the court had broad discretion to determine whether division would result in pecuniary disadvantage or monetary loss to any of the parties:

If a division by partition of the different parcels would cause great damage and loss to the owners, as the judge has found, we cannot say that he was not amply justified in ordering a sale of all of the lands, and a division of the proceeds in proper proportions.

Id. at 137.

Also instructive is the ruling Buckley v. Lombard, a Land Court case involving a partition petition for a small lot in Wellfleet, where the respondent urged division in kind to enable her to retain a right to access beach property. Citing Delta Materials Corp. and Clough v. Cromwell, Judge Scheier noted that G.L. c. 241, § 31 instructs the court to direct its inquiry “mainly to the physical conditions of the land to be divided, but the advantage or disadvantage must be pecuniary.” Id. at 9 citing Clough v. Cromwell at 332-33. The court next evaluated G.L. c. 241, § 31 in conjunction with § 14, which requires determination regarding whether division in kind could be accomplished without “great inconvenience,” and subsequently rejected the respondent’s “personal and subjective view of the value of locus” as “not the type of retained value that the partition statute contemplates.” Id.

As Buckley, Clough and Heald make clear, paramount in the Court’s analysis as to whether it can divide multiple parcels is the central determination of whether one party or another will suffer a loss of value or money as a result of a division. If such case, courts may conclude that the property cannot be “advantageously divided” and a sale of all parcels, and equitable distribution of the proceeds, is likely to follow.

The Concept of Owelty

Also critical are the provisions of G.L. c. 241, § 14 which provide that “[I]f all the land cannot be divided without such inconvenience, the whole or any part thereof may be set off to any one or more of the parties, with his or her consent, upon payment by him or them to any one or more of the others of such amounts of money as the Commissioners award to make the partition just and equal.” The statute envisions a partition resolution whereby willing owners agree to a division in kind that, although inconvenient, is acceptable. In cases where a division in kind will result in a loss of value because the parcels sold collectively are worth more than the sum of their parts, such “disadvantage” or “inconvenience” will often prohibit division unless the parties consent.

The concept of owelty in partition jurisprudence is ancient, and the principle that a party may not be forced to pay sums of money in order to establish equity in a partition proceeding has endured. In Hodges v. Pingree, 76 Mass. 14 (1857), the Supreme Judicial Court held that in partition, if the premises cannot be divided without damage to the owners, “the whole estate may be set off to any one of the parties who will accept it by paying such sums of money by way of owelty as may be awarded by the commissioners.” Id. at 15. Today, the concept of consent to owelty remains explicit in G.L. c. 241, § 14 and is often a critical component of any division of multiple, diverse parcels.

When multiple parcels are involved, partition proceedings can become complex, time consuming and costly. Experienced legal advice is essential to any party contemplating or involved in partition. Pierce & Mandell partner Michael C. Fee is a member of the firm’s real estate and litigation practice groups and represents clients in all forms of real estate litigation, including petitions to partition.

1G.L. c. 241, § 31 provides, in pertinent part, as follows:

In partition proceedings, the court may order the commissioners to sell and convey the whole or any part of the land which cannot be divided advantageously, upon such terms and conditions and with such securities for the proceeds of the sale as the court may order, and to distribute the proceeds so as to make the partition just and equal.

2G.L. c. 241, § 14 provides as follows:

If a part of the land cannot be divided without great inconvenience to the owners, or is of greater value than the share of any party, or if all the land cannot be divided without such inconvenience, the whole or any part thereof may be set off to any one or more of the parties, with his or their consent, upon payment by him or them to any one or more of the others of such amounts of money as the commissioners award to make the partition just and equal.

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

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

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

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

Tuesday, June 10, 2014

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

 


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