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Real Property - MA Distinctions
Terms in this set (61)
Limitations on Possibilities of Reverter and Rights of Entry
-In MA, a fee simple determinable or a fee simple subject to a condition subsequent will become a fee simple if the specified contingency does not occur within 30 years from the date the defeasible fee becomes possessory.
-The fee tail is still recognized in MA, but the entail may be destroyed by conveying a fee simple interest in the property rather than the life interest that the grantor, strictly speaking, owns.
Life Estates by marital Right (Legal Life Estates)
-Inchoate spousal rights have been eliminated in real property in MA, but a surviving spouse holds a 1/3 life estate in all land owned by the deceased spouse at death.
-This estate, known as a tenancy by dower, is subject to any encumbrances on the land.
-To claim such a tenancy, the SS must file his or her election and claim in the registry of deeds within 6 months after the approval of the bond of the executor or administrator of the deceased's estate.
-If this tenancy is claimed, the spouse may not take under the will or waive the will and take an elective share.
The Rule Against Perpetuities - Statutory Reforms
MA has adopted the Uniform Statutory RAP, under which:
-nonvested property interests;
-general powers of appointment not presently exercisable because of a condition precedent;
-special powers of appointment;
-and general testamentary powers of appointment
Are invalid unless they:
i) satisfy the traditional RAP, or
ii) actually vest or terminate within 90 years after their creation.
Tenancy by the Entirety - creation
-In MA, creation of a tenancy by the entirety requires an express statement that a tenancy by the entirety is being created.
-Creation of a joint tenancy also requires express language.
-Thus, a conveyance to a husband and wife without other language creates a tenancy in common.
Tenancy by the entirety - encumbrances
-A tenant by the entirety may encumber her interest in the property without the consent of the other spouse and without destroying the tenancy.
-Such encumbrances, however, are subject to the continuing rights of the other spouse.
-Recall that SS do not take the predeceasing spouse's interest; rather, the survivor takes free of it.
-Thus, if W encumbers her interest but dies before H, the H takes free of W's interest and free of any encumbrances that W had placed on her interest.
Concurrent estates - Rights of creditors
-Both spouses are jointly and severally liable for debts incurred on account of necessaries furnished to either spouse or to the family.
-The definition of necessaries is NOT confined to food and clothing required to sustain life.
-The interest of a debtor spouse in property held in a tenancy by the entirety will not be subject to seizure or execution by a creditor so long as such property is the principal residence of the nondebtor spouse.
-Nevertheless, the property can be attached to protect the creditor as against other creditors.
MA labels these "tenancies at wil."
An oral lease creates only a tenancy at will.
-Tenancies at will may be terminated by either party by three months' notice in writing or, if the rent is payable at periods less than 3 months apart, by notice equal to the interval between the days of payment unless such interval is less than 30 days.
-In the latter case, 30 days' notice must be given.
-Tenancies for years terminate automatically at their termination dates.
Termination - Nonpayment of rent
-In cases of neglect or refusal by a tenant AT WILL to pay rent due, his tenancy may be terminated by 14 days' notice to quit, in writing, in the form prescribed by statute, unless the tenant tenders the full amount of rent due within 10 days of receipt thereof and has not received another similar notice within 12 months next preceding receipt of such notice.
-A written lease may be terminated for nonpayment of rent upon 14 days' written notice to quit unless the tenant tenders rent, interest, and costs on or before D's answer is due in an action by the landlord to recover possession.
Termination - Hold-over tenants
Hold-over tenants are protected by the MA eviction statute.
-Thus, they may be evicted only through judicial summary process and not through an action for ejectment or trespass.
Termination - tenancies in rooming houses
-The LL can terminate by 7 days' notice if rent is payable daily or weekly AND if the tenant is committing a nuisance, substantially damaging the unit, or substantially interfering with the comfort, safety, or enjoyment of the LL or other occupants.
Forcible Entry Statutes
-If a tenant is evicted without court order, the LL is liable for 3 times the tenant's damages or for 3 months' rent, plus attorneys' fees.
-Self-help evictions are NOT permitted when the tenant's use of the premises constitutes a public nuisance because of its use for prostitution, assignation, lewdness, illegal gambling, or the illegal keeping, sale, or production of alcoholic beverages or controlled substances.
-Instead, the owner may seek to expeditiously recover possession of the premises.
Eviction of a Handicapped Person or Person over 60
The court may stay the execution of an eviction for up to 12 months.
Licenses Distinguished from Tenancies
-Whether a tenancy or license is created in a particular situation depends upon the intent of the parties.
-To determine whether a tenancy is created in situations where a buyer occupies early, an employee is supplied accommodations, or a tenant shares the premises with a roommate not on the lease, MA courts look to the extent the occupant had control of the premises.
-A lease for more than 7 years is not valid, except as against the grantor, his heirs or devisees, and persons with actual notice thereof, unless the lease or proper notice thereof is recorded in the appropriate registry of deeds.
Waiver of Jury Trial
-A lease provision whereby a tenant agrees to waive his right to jury trial is void as against public policy.
Landlord's Entry of Premises
-A lease may not allow a lessor to enter the premises except to inspect, make repairs, or show property to prospective tenants.
-The lessor may enter if the property appears to be abandoned or to inspect during the last 30 days of the lease period.
Lease Provisions Concerning Children
Provisions terminating a tenancy if the tenant has children who will occupy the premises are void.
i) dwellings contain 3 units or less, one of which is occupied by an elderly or infirm person for whom the presence of children would be a hardship;
ii) temporary leasing or temporary subleasing by the owner or sublessor who ordinarily occupies the unit as a principal place of residence; and
iii) leasing of one dwelling unit in a two-family dwelling, the other unit of which is owner-occupied.
In MA, at the time a tenancy begins, a LL's pre-possession charges are limited to:
i) the first month's rent;
ii) the last month's rent;
iii) a security deposit equal to a month's rent; and
iv) a key and lock fee.
If a security deposit is accepted, the LL must provide the tenant with a written statement of conditions within ten days after the start of the tenancy.
-The security deposit must be held in a separate bank account, and the LL must pay interest on any security deposit and last month's rent.
-The security deposit must be returned within 30 days after termination of the lease, unless validly retained by the LL.
Quiet Enjoyment / Habitability - and illegal activity
-The presence in the common areas of uninvited persons engaged in unlawful activity breaches the warranty of quiet enjoyment, but does not breach the implied warranty of habitability because such conduct does not concern the provision, maintenance, and repair for the physical facility.
Implied Warranty of Habitability
-A LL of any real estate except an owner-occupied 2-3 family dwelling must, within a reasonable time following receipt of written notice of an unsafe condition, exercise reasonable care to correct the unsafe condition.
-A tenant, or any lawful visitor, injured as a result of the failure to correct the unsafe condition within a reasonable time has a right of action.
-Any waiver of this provision in any lease agreement is void.
-Formerly, this statutory warranty applied only to residential leases, but it now applies to commercial leases, so long as the required notice has been provided.
-The presumption that an eviction is retaliatory applies if eviction is within 6 months of a tenant complaint or valid withholding of rent.
-If the LL is found to have threatened or taken reprisals, the LL is liable for not less than one month's rent or more than 3 months' rent, or actual damages sustained, whichever is greater, and costs of suit, including reasonable attorneys' fees.
-A tenant's waiver of this right is void.
-The provision applies to retaliatory evictions for joining a tenant's union as well as for reporting code violations.
Landlord Duties - Discrimination
Prohibited in the sale or rental of dwellings - discrimination based on:
-sexual orientation (except if sexual orientation involves minor children as the sex object);
-age (except housing expressly for those 55 or 62 years and older);
-and marital status.
When is lessor of a dwelling liable to a fine or imprisonment
The lessor of any dwelling (with certain exceptions) is liable to a fine or imprisonment for:
i) intentional failure to comply with his agreement to furnish heat, light, water, hot water, power, gas, elevator service, telephone service, janitor service, or refrigerator service;
ii) willful interference with quiet enjoyment; and
iii) attempting to regain possession by force or without benefit of judicial process.
Agreements with respect to furnishing heat, light, or water
Obligations to furnish water, heat, etc. cannot be waived in a lease.
Landlord's Tort Liability
-By statute, MA grants a right of action against a RESIDENTIAL landlord to any tenant or third party lawfully on the premises injured because of an unsafe condition not caused by the tenant of which the LL had received written notice.
-This does not apply to owner-occupied 2-or-3 family dwellings.
-Waiver of this liability in the lease is void.
Landlord's Responsibility for Lead Paint
-Whenever a child under 6 resides in any premises containing lead paint or other lead-containing structural materials, the owner must remove or contain the lead paint or other lead material.
-Failure of the premises owner to comply with this statute will result in owner's strict liability for damages to the child resulting from such child having unsafe levels of lead in her blood.
Limitations Period for Restrictions or Conditions
-Conditions or restrictions unlimited as to time, by which the title or use of real property is affected, are limited to a term of 30 years after creation except in cases of gifts or devises for public, charitable, or religious purposes.
-If the restriction has a definite expiration date, it expires in 30 years unless rerecorded, in which case it runs for either 20 additional years or to the original expiration date, whichever is shorter.
Enforcement of Restrictions
No restriction will be enforceable unless it is determined that the restriction is an actual and substantial benefit to a person claiming rights of enforcement.
View Easement in MA
-In MA, a view easement is affirmative (rather than negative), even though it prevents or restricts the obstruction of a view, because the easement holder has been vested with the affirmative right to ensure the protection of the view.
The following restrictions are void:
-restrictions against installation of solar energy systems or
-prohibiting the use of property for community residences for disabled persons.
Scope - Changes in Use
-By MA statute, an owner of real estate abutting a private way with rights of ingress and egress upon that way can place utilities on and through the way if the utilities do not unreasonably obstruct the private way, and if such use of private way does not interfere with the existing use.
Effect of Abandonment of Public Way
When a public way is abandoned by a city or town, a private easement to use the road does not arise unless there are facts that would create an easement by necessity, an easement by prescription, or an express easement by grant.
Equitable Servitudes - Common Scheme
-SOF provisions are strictly applied in MA.
-Thus, where a common grantor has not bound his remaining land by a recorded writing, the SOF prevents enforcement of restrictions against the grantor or subsequent purchasers of a lot not expressly restricted.
-This is so despite the presence of a common scheme.
-In effect, MA does not recognize implied equitable servitudes.
Adverse Possession - Running of Statute
-The period of uninterrupted open possession required is 20 years.
-But this does not apply to actions by nonprofit organizations to recover land for conservation, parks, recreation, water protection, or wildlife protection.
Adverse Possession - Continuous Possession
The need for continuity is paramount and is strictly interpreted.
MA courts have held that a 3 week break in a 20 year period was sufficient to render the possession noncontinuous.
Land that Cannot be Adversely Possessed
-Registered land may not be adversely possessed, nor may anyone obtain an easement across it by adverse prescription.
-Title to wild or woodland may not be adversely possessed unless it is enclosed or reduced to cultivation.
De Minimis Encroachment
-Generally, a landowner is entitled to equitable relief to compel removal of an encroachment on his property.
-However, MA recognizes a narrow exception to this rule where:
i) the D's encroachment on the landowner's land is de minimis;
ii) D acted in good faith; and
iii) the cost to D of removing the encroachment is grossly disproportionate to the benefit conferred by its removal.
In such a case, damages is the remedy.
Land Sale Contracts - SOF Applicable
MA courts will consider the effect of all 3 elements of part performance in determining whether to render an oral contract for the sale of land enforceable.
Doctrine of Equitable Conversion - Risk of Loss
-Equitable conversion is not recognized in MA, nor has MA adopted the Uniform Vendor and Purchaser Risk Act.
-The party in possession of the property prior to closing bears the risk of loss.
-An exception to this rule will be made only if damages are not substantial; the buyer must still buy, and a court of equity can make appropriate adjustments to the price.
Real Estate Brokers
A broker earns her commission when:
i) she produces a buyer who is ready, willing, and able to purchase the property;
ii) the buyer enters into a binding contract with the seller to do so; and
iii) the buyer actually closes, or fails to close because of the seller's default.
If the buyer defaults, the broker is not entitled to her commission.
Deeds - Formalities
-Deeds will not be accepted for recording unless the contain the full name, residence, and post office address of the grantee and a recital of consideration.
-The property must be adequately described or the conveyance is void.
Deeds - Description of land conveyed- Rules of construction
-If there is a conflict btw monuments, courses, and distances, more weight is given to monuments than courses, and courses are given more weight than distances.
-Where a plan is referenced, the plan controls.
Deeds - Boundary cases
-Every instrument passing title to real estate abutting a way, watercourse, wall, fence, or other monument includes the fee the grantor had in such boundary unless the grantor retains other land along the boundary.
-The grantor may expressly reserve the fee as well.
Conveyancing - Presumptions relating to delivery
-Recording does more than raise a presumption of delivery in MA.
-The record of a deed or other instrument affecting title to land, duly acknowledged or proved, is conclusive evidence of delivery of such instrument, in favor of purchasers for value without notice.
Conveyance for Title and Estoppel by Deed (what are the types of deeds called in MA)
-The warranty deed in MA carries the same guarantees as do warranty deeds in other jurisdictions.
-The special warranty deed is called a 'quitclaim deed" in MA.
-The quitclaim deed is called a 'release deed" in MA.
MA is a notice jurisdiction.
Marketable Title Acts
-Defects or irregularities in deeds are cured once the deeds are on record for 10 years unless, within the 10 year period, a proceeding is commenced on account of the defect, and notice is recorded.
Land Registration - purpose
-MA allows for the registration of land as an alternative recording system.
-The purpose of land registration is:
i) to secure by decree of court title to land impregnable against attack;
ii) to make a permanent and complete record of the exact status of the title, with all liens, encumbrances, and claims against it; and
iii) to protect the registered owner against all claims or demands not noted on the book for registration of titles.
Land Registration - process
-To register title, one files a petition with the land court.
-That court researches the title, orders notice to be given to interest parties, holds a hearing, and then decides whether to register title.
-Furthermore, any encumbrances other than tax liens are not effective unless they are listed on the certificate of title on file at the registry of deeds.
-Upon request, the land court will also confirm title by issuing a decree of ownership.
Conveyance by Will - Abatement
In MA, legacies are subject to abatement, pro rata within each category, in the following order (absent a contrary will provision):
i) property passing by intestacy;
ii) the residuary estate;
iii) general legacies; and
iv) specific devises and bequests.
Possession Before Foreclosure - theories of title
MA is a title theory state.
Foreclosure - Statutory Redemption
MA law provides a statutory right of redemption that allows the mortgagor to reclaim the property after default by paying the entire amount of the mortgage debt before the mortgagee has been in possession for 3 years or has held a foreclosure sale.
Water Rights - Watercourses
MA applies the riparian doctrine.
-But great ponds (bodies of water 10 acres or more in size) are available for use by the general public, not just the riparian owners.
Water Rights - Surface Waters
MA applies the reasonable use theory.
Water Rights - Littoral Rights
-Owners of oceanfront property own down to the low water mark subject to the public's right under the Public Trust Doctrine to hunt, fish, fowl, and to navigate between the high water mark and the low water mark.
Condominiums - Creation
-To create a condominium in MA, one must record a master deed at the registry of deeds.
-This master deed must state that the owner intends to create a condominium to be governed by chapter 183A and must describe
-the number of units,
-each unit's percentage interest of the condominium,
-the method by which the master deed may be amended, and
-the name of the entity that will manage and regulate the condominium.
Condominiums - Common Assessments
-Common area assessments (AKA condo fees) are amounts levied for the upkeep and maintenance of common facilities.
-Assessments are based upon the percentage of individual interest in the common areas and facilities which correspond to the percentage an individual unit size bears to the size of a condo.
-If the common assessments are unpaid, MA law gives the condo association a super priority lien for up to six months of unpaid fees plus attorneys' fees and collection costs.
-This lien takes priority over any mortgage and any other liens except federal tax liens.
-Moreover, the condo association may collect rent from any tenant in the unit after giving the owner notice of the unpaid assessments and the intent to collect rent.
-Should a unit owner be owed money by the condo association, the owner has no right to set off the debt owed against common expenses.
Condominiums - Right to Partition
-Condo unit owners hold title to common elements, including the land, as tenants in common in proportion to their individual interests therein as provided in the master deed.
-If partition is desired, 75% of the unit owners must agree, and after partition the property is held by all unit owners as tenants in common.
-The condo association has the power to grant to any unit owner an easement to use exclusively any limited common area or facility, but only upon the written consent of any owners abutting the limited common area or facility and of any unit owners directly affected thereby.
Estate of Homestead
-An owner who occupies a home as a principal residence may record an estate of homestead at the registry of deeds.
This renders $500,000 of the property exempt from the laws of:
-levy on execution, and
-sale for payment of debts or legacies.
However, the property is NOT exempt from the following:
i) sale for taxes,
ii) debt contracted prior to acquisition of the homestead or for the purchase of the home, or
iii) a decree for support of a spouse or minor children.
-The declaration of homestead must state whether the owner or other benefitted family member is a servicemember entitled to protection under the Servicemembers Civil Relief Act.
-Only one estate of homestead may be acquired by a family.
-The homestead may be terminated by a deed from the owners or by a release recorded at the registry of deeds.
-Absent a valid declaration of homestead, an automatic homestead exemption exists in the amount of $125,000.
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