Our real estate
department is involved in all aspects of real estate practice. At any given
time, we may be busy with the purchase or sale of a condominium unit with a
purchase price of anywhere from $50,000 to over $1 million, or a single family
house or townhouse anywhere in the Greater Boston area or on Cape Cod or the
Islands. In recent months we have handled the purchase, sale and financing of
commercial properties worth a few hundred thousand as well as a group of
parcels with a combined price of $56 million. Our leasing practice, whether on
the side of the landlord or the tenant, runs the gamut from offices to
warehouses to commercial, industrial and retail space, and from a few thousand
square feet of office space to a building containing 400,000 to 500,000 square
feet. We have recently represented developers of housing from small
subdivisions to large tracts of single family homes, and from two-unit
condominiums to multi-use condominiums containing hundreds of units, as well as
retail and commercial space. We also get involved with zoning and other
administrative processes, foreclosures, tax deferred exchanges, and real estate
tax abatements and exemptions. Our clients include homeowners, developers,
investors, lenders and businesses of all kinds, and we also represent two large
real estate management firms.
Here are a few recent developments which may be of interest...
The new legislation allowing the public access to information on local
sexual offenders (“Megan’s Law”) has prompted interesting
developments in real estate conveyancing. Megan’s Law allows the public to
obtain information about sex offenders who may be residing in their area.
Several of our clients have used this new law to determine whether or not to
purchase an house in a particular location. Some have even made their purchase
contingent upon the satisfactory results of a Sexual Offender search. With our
assistance, one client was able to terminate a Purchase and Sale Agreement
containing such a contingency when they found that a sexual offender would be
residing across the street. Requests for information on Megan’s Law
searches may be made to the local police department. Clients are always urged
to seek counsel before entering into any offer or other contract to purchase
real estate.
Many clients are confused about a Seller’s responsibilities to disclose
certain facts. A recent Massachusetts law has clarified this issue as it
relates to “psychological impacted properties”. Chapter 294 of the
Massachusetts Acts of 1998 states that unless specifically asked, a Seller has
no duty to disclose the fact or belief that a property is psychologically
impacted. “Psychologically impacted” is defined by the statute to
include: (1) a property where a person with HIV or AIDS has recently resided
(or a person with any other disease which is highly unlikely to be transmitted
by occupancy of a dwelling), (2) a property that was the site of a felony,
suicide or homicide or (3) a property that was the site of an alleged
parapsychological or supernatural phenomenon. We offer no referrals to
Exorcists in the area; concerned prospective purchasers are therefore
encouraged to seek detailed information about the history of a property before
submitting their offer.
Sellers of real estate who overlook the details of a transaction often find
trouble. For example, Sellers are often confused about fixtures that are
included in and excluded from a sale. One client removed treasured wall sconces
from the living room walls after accepting an offer. The Buyers became incensed
that the Seller would not include the wall sconces in the transaction. They
argued that the holes in the raw silk wallpaper caused by the removal of the
sconces significantly devalued the property. Intense negotiations began and
culminated in the termination of the transaction and the Sellers finding a new
appreciation for their wallpaper. The house was taken off the market and the
Sellers are still enjoying their treasured sconces -- and wallpaper. Buyers and
Sellers are urged to carefully note in the Offer and Purchase and Sale
Agreement all fixtures and other personal property included in and excluded
from a sale.
Imagine this scenario: Buyer signs a written offer to purchase real estate
and Seller accepts. The offer contains several terms, including the property
address, purchase price and deposit amount. The offer also states a deadline by
which the parties must enter into a mutually satisfactory Purchase and Sale
Agreement. Until recently, such offers were typically considered to expire
after the deadline for execution of a Purchase and Sale Agreement had passed.
However, a recent case decided by the Massachusetts Appeals Court reminds both
Buyers and Sellers to read the fine print. In McCarthy v. Tobin, decided in
February of 1998, the Court found that the Seller was bound by an offer to
purchase even though no Purchase and Sale Agreement had been signed by the
deadline stated in the offer. The Court cited the following Notice provision as
a sign that the parties intended to be bound: the offer to purchase “is a
legal document that creates binding obligations. If not understood, consult an
attorney.” The Court concluded that the offer to purchase contained all
the material terms of the agreement and that the parties understood it was a
binding agreement. The court also cited language which Buyers and Sellers might
insert into an offer to purchase to manifest their intent not to be bound until
the signing of a Purchase and Sale Agreement. Our conclusion? To avoid
surprises, we recommend prospective Buyers and Sellers read the fine print and
seek legal advice before entering into any legal agreements.
Under Massachusetts law, a homeowner is entitled to declare his or her residence
to be a "homestead" by recording a "Declaration of Homestead"
at the Registry of Deeds for the County in which the property is located.
The consequence of doing this is that the first $300,000 of equity in
the property is protected from the reach of creditors. Predictably,
the Massachusetts law says that this protection does not apply against
debts and claims that are already in existence at the time of the filing
of the Declaration. But a recent decision of the U.S. Court of Appeals
in Boston has determined that in the Bankruptcy Court the Massachusetts
homestead exemption is valid even against such prior debts. This could
make the filing of a Homestead Declaration an even more valuable tool
than before.