I AM BUYING/SELLING MY HOME, DO I NEED A REAL ESTATE ATTORNEY?

Posted in Blog, Real Estate by on January 9th, 2017

By: Attorney Patricia E. Couto| Associate

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Buying or selling a home is not an easy process and involves many different people, stacks of paperwork, complex legal documents, and occasionally several attorneys. Buying or selling your home will be one of the most important financial decisions that you face and it is important to make sure you know the parties involved, understand the documents you are signing and make yourself aware any legal obligations. Having an attorney present during your real estate transaction will ensure you know what is going on every step of the way and that the process runs as smoothly as possible.

BUYER’S ATTORNEY

The buyer’s attorney represents the interest of the buyer’s during the real estate transaction. The responsibilities of a buyer’s attorney include:

  • Reviewing and amending the Offer to Purchase and Purchase and Sales Agreement with the seller, the seller’s realtor and the seller’s attorney
  • Negotiating the terms of the Offer to Purchase and Purchase and Sales Agreement with the seller, the seller’s realtor and the seller’s attorney
  • Communicating with the buyer’s lender, the lender’s attorney, the realtors and the seller’s attorney to resolve any issues between the buyers and sellers or the buyers and the lender and to confirm that any requirements from the buyer’s lender have been met
  • Review the buyer’s closing disclosure and any documents the buyer’s may sign at the closing
  • Attend the closing with and explain all the closing documents to be signed

Depending on the lender, buyers can sometimes choose their own attorney to represent both their lender and themselves at their closing. The role of the Lender’s Attorney or “Closing Attorney” is generally to represent only the lender. However, Massachusetts allows one attorney to represent both the lender and the buyer at the closing as long as there are no apparent unresolved disqualifying conflicts between borrower and the lender.  This is because both parties are interested in protecting their interests to ensure marketable title and that the seller has discharged all liens and mortgages. Working with one attorney benefits the buyers by saving them money on legal fees.  The buyers only pay one attorney to review the title, communicate with all the parties, obtain any documentation needed for the closing and prepare and review all buyer closing documents.

SELLER’S ATTORNEY

The seller’s attorney represents the seller’s interest in the real estate transaction. The duties of a sellers’ attorney includes:

  • Creating the Purchase and Sales Agreement
  • Reviewing and amending  the Offer to Purchase and Purchase and Sales Agreement with the buyer, the buyer’s realtor and the buyer’s attorney
  • Negotiating the terms of the Offer to Purchase and Purchase and Sales Agreement with the buyer, the buyer’s realtor and the buyer’s attorney
  • Resolving any title issues that may be discovered during the title examination. NOTE: As the sellers, you are obligated by the purchase and sales agreement to deliver marketable title, meaning it is your responsibility to remove any defects in title.
  • Coordinating with the realtor or with the sellers to obtain a smoke certificate, any final utility readings, or a 6d certificate if a condominium is involved
  • Obtain mortgage payoffs or provide the closing attorney with authorization to obtain the payoff
  • Draft the quitclaim deed or any other legal documents that the sellers may need for the closing
  • Reviewing the sellers’ closing disclosure and any other documents that the sellers may have to sign at closing
  • Attending the closing

If you are thinking of buying or selling your home and have questions or would like assistance, from an experienced attorney, please call Wynn & Wynn, P.C. or request a free consultation.

MASSACHUSETTS RESIDENTIAL LANDLORD MISTAKES TO AVOID

Posted in Blog, Business Law, Real Estate by on April 4th, 2016

By: Attorney Ryan Prophett | Associate

 

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Many individuals in Massachusetts view buying rental property as a good investment and an alternative to putting their money in the stock market where they have no control.  However, most new landlords do not hire an attorney to advise them and create the necessary lease documents to protect their interests.  The two biggest mistakes that we see new landlords make are:  (1) failing to comply with the Massachusetts Security Deposit Law, M.G.L.c 186 ’15b; and (2) waiting too long to send a Notice to Quit after a tenant defaults for the first time.

 

 

 1.Failure to Comply With the Massachusetts Security Deposit Law.

To a new landlord, the Massachusetts Security Deposit Law can be complex and confusing.  While some new landlords are able to research and figure out that they are required to put the security deposit in an interest bearing account, most fail to comply with the other technical aspects of the law. This can result in the immediate forfeiture of the security deposit and, more importantly, the potential for an award of treble damages and attorneys’ fees in the tenant’s favor.

First, a landlord must always give a tenant a receipt when they receive a security deposit.  When a landlord receives a security deposit from a tenant or prospective tenant, they must provide a receipt indicating the amount of the deposit, the name of the person who received it, the date in which it was received, a description of the premises and the receipt should be signed by the person receiving the security deposit.  Second, either upon receipt of the security deposit or no later than ten (10) days after the commencement of the tenancy, the landlord must provide to the tenant a separate written statement indicating the present condition of the premises.  The Statement of Condition must be a comprehensive list of all damages in the premises including sanitary and building code violations, must contain the statutory required language, and must be signed by the landlord.  The tenant is then to submit a list of separate damages and has fifteen (15) days to return the list to the landlord.

Third, the security deposit must be placed in a separate, interest bearing Massachusetts account.  The security deposit cannot be comingled with the lessor’s assets.  Many landlords make the mistake of putting the security deposit in an interest bearing account and fail to separate the same into an identifiable separate account.  The Security Deposit Law was written this way so that the security deposit is not subject to attachment by the landlord’s creditors.  Finally, after putting the security deposit into a separate account, the landlord must give the tenant a receipt indicating the name and location of the bank, the deposit amount and the account number within thirty (30) days.

If the landlord fails to comply with any of the aforementioned steps, the same will require an immediate return of the security deposit to the tenant if they so demand pursuant to M.G.L.c. 186 ’16B(3)(a).  If after demand, the landlord continues to refuse to turn over the security deposit, Massachusetts Law provides that the tenant may be entitled to three times the amount of the security deposit and their attorneys’ fees incurred in enforcing that claim.  Massachusetts Courts consider this law strictly even if tenant has failed to comply with the provisions of the lease or they owe any back rent to the landlord.

As an attorney representing landlords, we see this time and time again.  A landlord, who has complied with its obligations under a Lease Agreement, is still required to return the security deposit to a tenant who breached the Lease. However, Wynn & Wynn, P.C. can prepare these documents and can assist a landlord in protecting their rights and their properties.

 2. Failure to Immediately Send Out a 14 Day Notice to Quit After the First Instance a Tenant is Late With its Monthly Payment.

Most new landlords do not realize that the eviction process can take months to reach completion.  Even the simplest eviction can be continued due to no fault of the landlord. This allows a tenant who has failed or refused to pay their rent, to continue to live in the property rent free.

All eviction actions are governed by the Uniform Summary Process Rules of Massachusetts General Law 186.  All procedures that are not governed by the Uniform Summary Process Rules are governed by the Massachusetts Rules of  Civil Procedure.  When a tenant fails or refuses to pay rent as is required by a Lease, the landlord may terminate the Lease either (i) in accordance with the provisions of the Lease; or (ii) in the absence of such Lease provisions by a 14 Day Notice to Quit given in writing to the tenant.  The Notice to Quit should be served upon the tenant/defendant by a person authorized to make service of process such as a Constable or Sheriff.  The 14 Day Notice to Quit must include statutory language that informs the tenant that if they have not received a Notice to Quit for nonpayment of rent within the last twelve (12) months, they have the right to prevent termination of their tenancy by paying the landlord the full amount of rent due within ten (10) days of the receipt of the 14 Day Notice to Quit.  This safeguard provision gives the tenant the right to prevent a termination of the Lease by paying or tendering to the landlord the full amount of rent due within ten (10) days after the receipt of the Notice to Quit.  The tenant may only cure if they have not received the Notice within the last twelve (12) months.

Many landlords wait too long to serve a 14 Day Notice to Quit.  Landlords want to believe tenants who indicate that they will have the full amount of rent the following month or at a later point in time.  While the tenant may be telling the truth, a landlord may potentially waste valuable time if they fail to serve a 14 Day Notice to Quit and the tenant does not pay.  The safer option is to serve the tenant with the above-referenced 14 Day Notice to Quit the first time the tenant is late on paying their rent.  This will begin the eviction process in the event the tenant does not pay their rent in the following months.

While owning an investment property can be profitable, landlords should be aware of the potential risks they take on when entering into Lease Agreements with prospective tenants.  One bad tenant can significantly hurt your investment and therefore, we always recommend that landlords hire legal representation to assist them with all matters involving their property.

If you are a landlord and have any questions or would like assistance, please call the attorneys at Wynn & Wynn, P.C. at 1.800.852.5211 or request a free consultation.

“The Importance of Optional Insurance Coverage for Motorcycle Operators”

Posted in Blog, Insurance, Personal Injury by on July 27th, 2015

Patricia Alexandre, Esq. | Law Clerk

Homestead-Massachusetts-Taunton-AttorneyWith the warmer weather here and the days longer, you will notice many people taking their motorcycles out for a ride. Although this may be a source of fun and entertainment, accidents can happen at any time. In the event of an accident, most drivers believe if they have motorcycle insurance, they are automatically covered for medical bills and other related expenses; however, this is a common misconception. Therefore, it is imperative to be educated and have the proper insurance coverage for your motorcycle as well as yourself.

In Massachusetts, every person who owns an automobile is required to have automobile insurance. There are two basic categories of insurance, Compulsory Insurance and Optional Insurance. Massachusetts requires you by law to purchase Compulsory Insurance which covers Bodily Injury to Others, Personal Injury Protection, Bodily Injury Caused by an Uninsured Auto, and Damage to Someone Else’s Property. Massachusetts requires that every automobile insurance policy provide Personal Injury Protection (PIP) benefits. PIP benefits are designed to provide reimbursement for medical bills, and other related expenses regardless of who is at fault within the first two years following the car accident in which you were injured. Through your automobile insurance policy, PIP benefits are available to the insured driver, any passenger in the insured’s vehicle, or any pedestrian struck by the insured’s vehicle. The amount of PIP benefits available depends on whether or not the injured party has health insurance. If the injured party has health insurance coverage, PIP benefits will cover the first $2,000 of medical and related expenses. If the injured party does not have health insurance coverage or has insurance coverage by a publically funded plan, like Mass Health, Medicaid and Medicare, PIP benefits will cover up to $8,000 in medical and related expenses.

Massachusetts requires Compulsory Liability Insurance for all registered motorcycles, with minimum requirements of $20,000 per person, $40,000 per accident for bodily injury to others and $5,000 for property damage for property damage coverage. However, PIP benefits are NOT AVAILABLE to motorcycles, unlike automobiles. No insurance company is required to provide PIP benefits for motorcycle owners, operators or passengers who suffer bodily injury. Only, pedestrians struck by motorcycles are entitled to PIP benefits.

There are Optional Insurance coverages that may be purchased by motorcycle operators. Some include: Optional Bodily Injury to Others, Medical Payments and Bodily Injury Caused by an Underinsured Auto. Since PIP is not available to motorcycle operators, the most important Optional Insurance Coverage is Medical Payments. Under this option, the insurance company will pay reasonable expenses for necessary medical and funeral services incurred as a result of an accident, expenses resulting from bodily injuries to a passenger at the time of the accident and expenses resulting from bodily injuries to the insured or any household member if struck by an automobile or if occupying someone else’s auto at the time of the accident. Medical Payments can be purchased in varying amounts ranging from $5,000 to $25,000.

Ultimately, it is vital that motorcycle operators have sufficient insurance to cover medical treatment and related expenses sustained as a result of a motorcycle accident. Moreover, it is important to be educated and understand the importance of Optional Insurance Coverage in the event of an accident.

If you are in an accident and need help understanding your insurance coverage, please call the attorneys at Wynn & Wynn, P.C. at 1.800.852.5211 or request a free consultation.

BANKRUPTCY IS NOT THE “DEATH KNELL” OF DEBT RECOVERY

Posted in Blog, Business Law by on June 29th, 2015

By: Kevin P. McRoy, esq. | Partner

Recovering-Money-In-Massachusetts-When-Someone-Files-Bankruptcy You are owed money. You have made demand. That didn’t work, so you brought a lawsuit. Maybe you have even received a judgment. Just when you think you’re finally there, you receive a telephone call, or a letter from an attorney, or a notice from the court – the party that owes you money has filed for bankruptcy. Now what? Is all hope lost? Should you just throw your hands up? What should you do? Is there anything you can do?

The Bankruptcy Code is an extremely particular area of the law. The Bankruptcy Court, a branch of the federal court system, is the authority charged with implementing the Code. It is a completely different arena than the civil and criminal courts which people most often deal with. Once somebody (or some entity) files for bankruptcy, a creditor can often automatically think that the debtor is “broke” and that any hope of collection is effectively lost. However, this is not always the case. The nature of the money owed to you, the type of assets owned by the party that filed bankruptcy, and even the type of bankruptcy filed, can affect your ability to collect. Sometimes, the bankruptcy filing, itself, can actually serve to speed up recovery in certain instances.

The Type of Claim

There are essentially three different types of claims which a creditor can hold: secured, unsecured, and priority. The holder of a secured claim is a creditor which received collateral or otherwise has some type of lien on the assets of the debtor. For example, when people buy a home, they often get a loan from a bank, giving the bank a mortgage as collateral for the repayment of the loan. That mortgage lender is the holder of a secured claim. If need be, the bank can look to the property (and sell it via foreclosure) in the event of default or breach in repayment. Other types of secured creditors include parties that have received attachments (whether on real property or otherwise), and other types of creditors, such as a contractor which is owed money and has protected itself through compliance with the Massachusetts Mechanic’s Lien Statute.

An unsecured claim is the exact opposite – there is no collateral or lien which secures the money owed by the debtor. The classic example of an unsecured creditor is a credit card company. Other examples can include parties that are owed money pursuant to contracts, personal loans from family members, etc.

The third type of claim, known as a “priority claim”, is technically an unsecured claim. However, this type of claim receives treatment (and, if possible, payment) prior to general unsecured claim holders (addressed above). The most common examples of this type of claim are claims for unpaid taxes.

The Most Common Types of Bankruptcy Filings

The type, or “chapter,” of bankruptcies which are available depend on several factors: whether the party is an individual or a corporation; the amount of debt which the person or entity owes; the type of debts owed (secured or unsecured); and, even whether the debtor has filed before and, if so, how long ago.

The Chapter 7 Bankruptcy:

The Chapter 7 bankruptcy has historically been the most common type of case. It is, by its very nature, a “liquidation” case, meaning that all non-exempt assets of the debtor are liquidated, or sold, and turned into cash. Any creditors whose claims are secured by the property sold are paid first from the proceeds. If any funds remain, or if there were no liens on the assets sold, those funds would then be used to pay expenses of the bankruptcy estate (trustee fees, commissions, trustee’s attorney’s fees, etc.), and any amounts remaining would then be distributed to priority unsecured creditors and then to unsecured creditors (or at least those who have filed proofs of claim). Many times, a Chapter 7 case is designated as a “no asset” case, meaning that it is anticipated that there will not be any monies available for distribution to unsecured creditors. Both individuals and entities (corporations, LLCs, etc.) can file Chapter 7 bankruptcy petitions.

The Chapter 13 filing:

The second type of most commonly filed bankruptcy petitions is a Chapter 13 petition. Chapter 13 bankruptcy cases are appropriate for individuals with regular income and who have secured and unsecured debts below certain levels. In this type of bankruptcy case, the Debtor will effectively file a “plan” to pay certain claims over a period of time (usually three or five years). Essentially, the excess amount of the individual’s income over expenses is paid to the Chapter 13 trustee (the party assigned with administering the case) on a monthly basis. If an individual does not have a surplus of income over expenses on a monthly basis, he or she is generally not an appropriate Chapter 13 debtor. This type of bankruptcy is not available for companies or corporations – only individuals with regular income.

A Chapter 11 case:

Oftentimes, we hear of companies which have “gone Chapter 11.” This does not mean that the company is going out of business – in fact, it is often the opposite. A Chapter 11 bankruptcy is, quite basically, a reorganization. The company continues in business while its debts are restructured. A Chapter 11 case is complex in nature, as a debtor will propose both a disclosure statement and a plan by which the Debtor proposes to pay its debts, or a portion of its debts over a period of time. The length of the plan will depend upon what payment terms are proposed and the debtor’s ability to generate income. Both businesses and individuals can file Chapter 11 cases.

How Do You Protect Yourself?

What do you do if you find out that a party that owes you money has filed for bankruptcy? Do you go it alone? Do you hire an attorney? It is your decision if you want to hire an attorney. There are particular deadlines by which certain things must be filed (i.e. proofs of claim). There are also certain opportunities that parties have to question the debtor as to assets or how they intend to proceed in the case (such as attendance at a 341 creditors meeting or otherwise taking an examination of the debtor pursuant to Bankruptcy Rule 2004). There is also a finite period of time in which a creditor can file what is called a “proof of claim” in the bankruptcy case. It is critical to note that if there is a deadline for filing a proof of claim and the proof of claim is not filed by that date, and a motion to extend the time for filing a proof of claim has not been filed or allowed, the ability to collect at all from the debtor can be, and is most often, lost.

Are There Any Benefits To the Bankruptcy Filing of a Party That Owes You Money?

Strangely enough, there can be benefits to a bankruptcy filing by a party that owes you money. Pursuant to the provisions of the Bankruptcy Code, a debtor is required to prepare, under oath, and file bankruptcy schedules and statements. These schedules and statements provide some information as to what assets and debts a debtor has, what income they have had over the preceding years, and what claims they may have as to third parties which might entitle them to payments or other assets. Other times, under certain circumstances, the trustee involved can bring claims against debtors in appropriate cases to have assets or payments returned to the debtor. All of these possibilities can lead to an increased payment to the creditor under the right circumstances.

In short, is a bankruptcy filing a death knell for collection efforts? There is no straightforward answer, other than “not necessarily.” However, under the right circumstances, the party that is owed money can actually use a bankruptcy filing as a means to bring the matter to a head and potentially increase its chances of recovery.

Navigating bankruptcy and debt recovery in Massachusetts and Rhode Island can be challenging. If you have any questions or would like assistance with these matters, please call the attorneys at Wynn & Wynn, P.C. 1.800.852.5211 or request a free consultation.

Attorney Changes Lives by Teaching Sports in Uganda

Posted in Blog by on April 13th, 2015

By: Kevin O’Malley | Partner

This past January I traveled to Uganda, Africa for two weeks with my lifelong friend Matt Breslin and his daughter Allie. We volunteered through Clemency Uganda, a nonprofit based in Bugembe (one of THE poorest slums in Jinja, Uganda). Clemency has identified more than 80 kids in the community whose lives are most at risk due to abject poverty. Most of them are orphans living with relatives. Many of their parents died from AIDS. Too many of these beautiful kids are HIV positive themselves.

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Before leaving on our journey, through the generosity of my coworkers at Wynn & Wynn, friends, family and the local community, we collected and/or purchased over 1000 pounds of basketballs, footballs, sneakers, nets, clothes, books and school supplies which we brought with us and distributed in Bugembe.

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We ran a basketball and American football program twice a day for a week for 80 boys and girls age 4-17 under the BLAZING African sun. Allie stayed behind and is teaching. She will return home in May. The program was a HUGE success. These kids, who every day face challenges unthinkable to you and me, are just kids looking for an opportunity to play, get some attention and just be kids! I will never forget their smiling faces, their gratitude and genuine affection.

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Since returning home, I have sought sponsors for the kids in most desperate need. For $35-$45 a month the kids are provided tuition for school (where they are fed twice a day, the only guarantee they will eat at all…), school uniforms, school supplies and incidentals. In short, a chance for a better life. Again through the generosity of Wynn & Wynn, my coworkers, friends, family,  colleagues and the local community, we have secured sponsorships for 15 kids (and counting) and additional donations of $250.

This will have a huge impact on the lives of these precious kids. Thank you!

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