Real Estate Law

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Real estate law includes legal issues relevant to condo law, the purchase and sale of property, leases, and zoning and land use.

Buyer/Seller Representation
Condo Law
Land Use/Zoning
Landlord/Tenant Law
Buyer/Seller Representation

A sale of real estate is a major transaction that involves substantial funds and timely coordinating of multiple actions. Whether you are a buyer or a seller, the best way to make sure your interests are being looked out for is to have a knowledgeable real estate attorney on your side. 

Condo Law

All condominiums (the entire property as a whole as opposed to an individual unit), whether residential or commercial, are created and governed by the master deed. The master deed is the controlling document in a condominium. Essentially, it establishes the rights and obligations of the individual condo unit owners and provides the means by which those rights and obligations may be modified. If the master deed is not properly drafted, for example, a required provision is omitted, then there will likely be conveyance issues when the developer begins selling units because the condominium was not properly created. 

Condo unit ownership differs from the ownership of a traditional stand-alone home or commercial building. When you buy a condo, whether it be residential or commercial, you acquire both individual ownership rights and collective ownership rights. The individual rights are those exclusive rights that you have in your specific condo unit. The collective rights are those that pertain to your undivided share in the common areas and facilities that you acquired from your unit’s appurtenant interest. All condo units, have an appurtenant interest in its condominium’s common areas and facilities. However, there are differences between the appurtenant interest of a residential unit and that of a commercial unit.

Residential Condos

Owning a residential condo unit provides an opportunity to own your own home without the hassle of traditional home ownership chores such as landscaping and snow removal. Unlike a traditional home purchase where the separate parcel bought is the lot with a building on it, in a condo unit purchase, the separate parcel is the unit and its appurtenant interest in the common areas. A condo unit owner has exclusive rights in his unit and an undivided share in the common areas. Although a condo unit owner has the right to use all the common areas, he cannot apportion any part of the common areas for his own personal use despite owning a proportionate percentage of those common areas. 

Given the differences that exist between a condo unit and a traditional home, there are some factors that a potential condo unit buyer should consider, that differ from those of a traditional home buyer. One such factor is the condominium’s overall budget, consisting of an operating budget and a reserve fund. Condominiums are required by statute to maintain an adequate reserve fund. However, the statute does not define adequate. Nor is there a blanket definition applicable to all condominiums. Whether a reserve is adequate depends on many factors, some of which may not be uniformly applicable. Likely consequences of an underfunded reserve include large special assessments in the future, buildings and equipment in disrepair, and poorly maintained grounds. The ultimate effect is the cost gets passed on to future owners.

Commercial Condos

Unlike residential condominiums where common expenses must be charged proportionately to the unit owners, in commercial condominiums, common expenses may be charged to the unit owners in a manner other than proportionately to their respective percentages of undivided interest in the common areas and facilities. Thus, businesses can be assessed common expenses in proportion to their use of common areas. Commercial condominiums may also have limited common areas which are specific areas where one condo unit has exclusive use, or maybe some units but not all have shared use.

Land Use/Zoning

Essentially, zoning is the regulation of real property use for the purpose of preserving natural resources and promoting the health, safety, and the general welfare. Home buyers should always familiarize themselves with the zoning laws and regulations that apply to the property and the area in which it is located. Knowing the extent of the legal limitations on private property rights, is especially important when buying a vacant lot on which a new home will be built or when purchasing an existing home, with the intent to add-on in the future or tearing it down and then building. 

In addition to the governmental restrictions of zoning, private restrictions are increasingly more common. The recent trend in private restrictions and covenants has for the most part been in connection with condos, planned unit development, and subdivision projects. Unlike the government restrictions of zoning, which must be within the constitutional powers of the municipality and adopted pursuant to the Zoning Act, private restrictions and covenants may directly control land use or impose restrictions on personal choice. 

One area of zoning that seems to consistently cause frustration to homeowners is wetlands. Much of the frustration is likely due to the burden that wetlands can place on a homeowner’s property rights. For example, nearly any type of work performed within a wetlands resource area or within the 100-foot buffer zone, requires filing with the conservation commission.

Landlord/Tenant Law

The rights of landlords and tenants generally depend on two things. First, whether the tenancy is residential or commercial, and second, whether there exists a rental agreement or lease.

Residential

Implied Warranty of Habitability

Before trying to rent out a residential premise, landlords should inspect the unit and all utilities that are vital to the use of the premises in order to confirm that the implied warranty of habitability will not be breached. The implied warranty of habitability guarantees that the premises are suitable for dwelling purposes. It applies to all residential premises in Massachusetts and cannot be waived under any circumstances. Only after confirming that the premises are not in breach of the implied warranty of habitability should the landlord market it as available to rent. Breach of the warranty can get costly, especially if the landlord knew of the breach and did not attempt to make the necessary repairs.

Rental Application

Once on the market, the landlord can require prospective tenants to fill out a rental application that asks for information such name, income, and prior rental history. The landlord should also ask prospective tenants to supplement the rental application with references from prior landlords and their credit history. An important point for landlords to keep in mind when meeting with potential tenants is that, whatever the landlord asks of the first one, he asks of every other until the premises is rented. However, there are some things that a landlord should never ask any prospective tenant. A landlord should never ask potential tenants for any information relating to race, color, religion, creed, national origin, sex, sexual orientation, marital status, age, ancestry, or handicap. 

Lease

After the landlord finds a tenant, he must provide the tenant with a written lease if the tenancy will be a lease for a term of one year or longer. After the parties have signed the lease, the landlord must return a copy of the signed lease to the tenant within thirty days. 

Security Deposit

At the beginning of the lease period, the landlord can ask for first and last month's rent, and a security deposit. The respective amounts cannot be greater than the amount of the initial rent charge. The landlord can also ask for the cost of a new lock and key and may require the tenant to pay a broker’s fee if a licensed broker was involved. One of the biggest pitfalls for landlords is the security deposit. Landlords are held strictly liable for mishandling security deposit funds and must pay an automatic penalty of three times the amount of the security deposit, plus attorney fees, and costs incurred by the tenant. Penalties for mishandling funds paid as last month's rent are not as severe.

Eviction

A landlord who seeks to regain possession of a rented premises must go through summary process. However, before a landlord can start a summary process action, the lease must have expired, or the tenancy must be terminated. Usually, the landlord will terminate the tenancy by serving the tenant with a written notice to quit that states when the tenant must vacate the premises. The length of the notice period, is determined by the type of tenancy (lease or tenant-at-will) and the reason for termination. Also, the notice period, which begins on the date that the tenant actually receives the notice must be clearly spelled out in the notice. Only after the notice period has expired may the landlord commence the summary process case. 

Commercial

Essentially, the primary difference between a residential and a commercial tenancy is that a commercial tenancy is a business to business transaction whereas a residential tenancy is transaction between a business (landlord) and a consumer (tenant). As a result, the law affords fewer protections to commercial tenants than their residential counterparts. Given the financial risks that commercial tenants are generally exposed to due to prior investments and the custom of multi-year leases among other things, it is important to review and understand every aspect of your commercial lease, including how it differs from a residential lease.