Real Estate Law Service From A Gloucester Attorney

It isn’t possible to think about real estate without thinking about the location. Real estate is not just the building but the place it sits, and because of that, a piece of property will always need the attention of a local attorney.

Attorney Sal Frontiero, founder of Frontiero Law Office, P.C., has decades of experience with real estate law in Gloucester and across northern Massachusetts. He helps his clients with attentive, thorough service. His dedication and care are significant benefits to you in all your real estate law concerns.

Commercial And Residential Real Estate Insight

Pursuing an income-producing commercial property as an investment is one of the safer choices a business or individual can make. Sal Frontiero has the experience both residential and commercial real estate clients need and has regularly assisted all clients with such issues as:

• Closings
• Title searches and title insurance
• Sales contract
• Boundary disputes
• Zoning
• Landlord/Tenant

These central matters will have as much impact on a commercial property as they will on a residential one. Your needs matter, and you deserve an attorney who will pursue the outcome you deserve.

Answering Your Most Pressing Questions

Sal Frontiero is a lawyer who takes immense pride in the knowledge and skills that come with his decades of service. To help you understand some of what is ahead of you, here are the answers to questions he gets the most:

What is abandoned property?

As opposed to lost property, discussed in last week’s column, abandoned property is generally defined as property to which the owner has voluntarily relinquished all rights, with the intention of forever terminating his ownership of the property. This intention must be accompanied by a clear and unmistakable act by which the owner somehow indicates a purpose to forever surrender ownership of the property.

Needless to say, it is much more difficult to prove that an item has been abandoned than it is to prove that it has been merely lost. This is because once the elements of an abandonment are established, the property is presumed to have been abandoned, and the holder immediately acquires absolute ownership of the property. The former owner cannot reclaim abandoned property. However, in the case of lost property, the true owner can reclaim the lost property for up to one year in most cases.

Under some Massachusetts laws (statutes), some particular kinds of property, such as money, security deposits and life insurance proceeds, are not presumed to have been abandoned until certain statutory conditions are met. Because these types of property are often of high value, and one would not ordinarily abandon such property, the statutes are designed to provide extra safeguards to ensure that such valuable property has indeed been abandoned and not just forgotten by the owner.

What is “adverse possession?”

Many people are familiar with the phrase “adverse possession,” but few truly understand what it means. In short, adverse possession is the acquiring of title (ownership) to land through the passage of time. However, this definition is deceptively simple. In order to establish ownership of land through adverse possession, the person seeking to establish the ownership (the “adverse possessor”) must demonstrate that she possessed the land of another in the following manner: (1) uninterruptedly, (2) exclusively, (3) openly (in an unconcealed manner), and (4) “adversely” (without the owner’s permission). Most importantly, the adverse possessor must show that such a possession continued for a period of at least twenty years. Thus, adverse possession is extremely difficult to establish and must be evaluated on a case-by-case basis.

In Massachusetts, unlike most states, land owned by state and local government is usually subject to adverse possession. Also, in limited situations, an adverse possessor who has possessed land for less than twenty years is entitled to add on, or “tack,” the previous user’s adverse possession in order to reach the twenty-year period. However, one cannot obtain land by adverse possession if that land has gone through the Land Court registration process such that the title is “registered.”

What is “the home improvement contractor law?”

Many home improvement contractors are unaware of state Home Improvement Contractor Law. Most home improvement contractors are covered under this law and are required to be registered with the state. Generally, this law governs the conduct of these contractors when dealing with homeowners. Failure to comply with the provisions of the law could subject the contractor to triple damages, court costs, and attorney’s fees in a lawsuit filed by a homeowner. Also, the state is given broad power to enforce this law through such means as suspension of registration and assessment of fines.

If you are a home improvement contractor and are unaware of whether you are complying with this law, the assistance of an attorney could help ensure that you are adequately protecting yourself.

Your rights under the home improvement contractor law

When choosing a home improvement contractor, homeowners should ensure that the contractor they choose has complied with the Massachusetts “Home Improvement Contractor Law.” The law, enacted in 1992, is designed to protect homeowners against unscrupulous contractors and their shoddy work.

The law applies to many types of home improvement work on one to four-unit owner-occupied primary residences and adjacent structures, such as detached garages. However, the statute does not cover central heating and air conditioning work, energy conservation devices, landscaping, interior painting, wall and floor covering, fencing, above-ground pools, shutters, awnings, patios, driveways and freestanding masonry walls. Additionally, professionals who are required to attain standards of competency and experience as a condition of their license, such as plumbers and electricians, are not covered.

The law’s main device for protecting homeowners is a requirement that contractors register with the Massachusetts Director of Home Improvement Contract Registration. Contractors are required to display their registration number on all advertising, contracts, and permits, and all contractors are issued a valid registration card. At a minimum, if a contractor has the wherewithal to register, it is a good indication that the contractor is a reputable one.

The law requires covered home improvement contracts over one thousand dollars to be in writing. Additionally, such contracts must contain certain language, including language addressing a homeowner’s right to cancel the contract, a completion schedule and a final cost.

Failure by the contractor to comply with the contract language requirements or other provisions of the law may result in the suspension of the contractor’s registration and fines.

The act prohibits certain conduct on the part of the contractor. For example, the contractor cannot substantially deviate from the specifications contained in the contract without the consent of the owner. Also, the contractor may not assist a homeowner in obtaining financing if the financing is secured by a mortgage on the home.

If a homeowner is dissatisfied with the work of a contractor, the law provides the homeowner with the option of taking the dispute to arbitration. However, absent an agreement from the homeowner, a contractor with a dispute with a homeowner does not have the arbitration option. Arbitration can be a very attractive option to a homeowner because it is less time-consuming and less expensive than an actual lawsuit.

In order to ensure full protection under the law, the homeowner should be sure that the contractor, and not the homeowner, obtains any necessary building permits. If the homeowner obtains the permit, he or she will lose the potential right to collect from the “The Residential Contractor’s Guaranty Fund.” This fund is funded from assessments paid by registered contractors and provides a “last resort” for homeowners who have been unable to collect a judgment against a contractor despite all reasonable efforts to do so.

This article merely summarizes the detailed Home Improvement Contractor Law. It is important to note that, if your home improvement project is not covered by the statute, you are not without recourse. If you are dissatisfied, you may have a remedy based upon breach of contract, negligence, and Massachusetts consumer protection statutes.

When does a land use restriction go too far?

The state or a municipality, through the use of its “police power,” has broad discretion to regulate the use of private land to promote public health, safety, welfare, or morals. Zoning laws are a common example of the police power in action. However, when a regulation goes too far, it will be considered a “taking” of private property without just compensation. In such an instance, the restriction is unconstitutional and the landowner must be compensated for the loss.

Whether a regulation constitutes a taking is a difficult question that is decided on a case-by-case basis. Generally, a regulation on land use will be considered a taking if it strips the land of all its practical value thereby leaving the owner only with the burden of paying property taxes. Denial of only the best or most profitable land use will not constitute a taking.

Finding lost property

The general definition of lost property is the property that the true owner has involuntarily misplaced or left behind. This may be through neglect, carelessness, inadvertence, accident or plain old absent-mindedness. Whoever finds lost money or goods which are valued at $3.00 or more, must report the finding to the police within 2 days. If notification is thus made, and the owner does not appear within one year, the property becomes that of the finder.

This duty of the finder to give notice also applies to finders of stray animals. If the finder does not give proper notification of the find as described above, she is not entitled to compensation from the true owner for any expenses she may have incurred in taking care of the stray animal. Anyone who finds a stray animal learns the identity of the true owner, conceals the animal until the owner offers a reward, and then returns the animal and claims the reward, is guilty of stealing (which may amount to larceny if the animal is worth $250 or more). However, if the finder complies with the notice requirements, and the true owner appears within three months of the find to claim the stray animal, the finder is entitled to compensation from the owner for all reasonable expenses incurred by the finder in taking care of the animal. If no owner appears within one year, the stray animal becomes the property of the finder, provided that the finder complies with the notification requirements.

Mislaid property

We have recently been making the distinction between lost and abandoned property. When has the property been merely mislaid? What’s the difference between something being lost and being mislaid? Lost property is property which the owner has involuntarily and unintentionally parted with. That is, the owner parted with her possession without knowing it and does not know where the property is. In the case of mislaid property, the owner voluntarily and intentionally placed her possession in a certain location or spot, but inadvertently and unintentionally forgot it there.

If the owner voluntarily and intentionally laid the property down in a public place, in a place of business, or some other place, and then forgets she has done so (or forgets where she put the property down), the property is not lost but only mislaid. Mislaid property, unlike abandoned property and unlike lost property, is still in the possession of the owner. Because the owner does not have actual possession of the property, the owner has what is called “constructive” possession of the property.

Therefore, if someone finds a wallet on the floor of a coffee shop, she is the finder of lost property and may take the property away (having a duty of notice discussed in an earlier column). Whereas, if someone finds a wallet on a table in the coffee shop, she is a finder of mislaid property, and may not take the property away because it is still in the (constructive) possession of the owner. Importantly, it is the owner of the coffee shop, and not the finder of the mislaid property, who has the right to the custody of the wallet. The owner of the coffee shop holds the mislaid wallet as trustee for the true owner.

What is a “nonconforming use?”

People often discuss a “nonconforming use” when dealing with zoning issues, but few people understand its meaning. A nonconforming use is one which was lawful at its creation, but which no longer complies with zoning laws. A common situation involves a land use that predates the passage of a zoning law that would otherwise prohibit the use in question. The “Mom and Pop” convenience store located in a residential neighborhood is an example.

Nonconforming uses are subject to many restrictions which are designed to phase out the use and to force compliance with current zoning. For example, the use in question may not be changed to another nonconforming use. Also, the structure in which the use takes place may not be expanded. However, the protected property may change ownership and still retain its nonconforming status.

There are many such land use issues that confront today’s property owners.

Understanding the residential security deposit law

Most rental agreements today require a tenant to deposit with the landlord a security deposit equaling one month’s rent. Many landlords believe that merely collecting the deposit will protect them in the event that the tenant damages the apartment or moves out before the lease term ends. However, those same landlords are unaware that they may lose their right to keep the deposit and, in some cases, become liable to pay the tenant triple the deposit amount, court costs and attorneys’ fees if the landlord fails to comply with the security deposit law. Further, a clause in a lease which purports to excuse the landlord from complying with this law is void and unenforceable.

Although the requirements of the law are detailed, compliance with it is not difficult. Consultation with an attorney before accepting a security deposit can protect the landlord in the future, should a problem arise.

Can a landlord keep a security deposit?

Many landlords require tenants to pay a security deposit upon moving into a rental unit. A problem arises when a tenant is charged for damages caused by a previous tenant. How can this be avoided?

When a landlord receives a security deposit, he or she must give the tenant a Statement of Condition relative to the condition of the rental unit. This Statement lists the damages already present in the rental unit when the tenant takes possession. If the Statement is accurate, the tenant signs it. If the landlord does not give the tenant such a Statement, the landlord cannot keep the security deposit. In this case, if the landlord does not return the security deposit to the tenant, the landlord is subject to treble (triple) damages. If the landlord did give the tenant a Statement of Condition, the landlord cannot charge the tenant for those damages which are listed on the Statement of Condition.

Do the new title 5 revisions apply to your property?

Revisions to Title 5 took effect on March 31, 1995. Under the revisions, real estate which has a septic system or cesspool is required to be inspected whenever there is a “transfer of title.” If the real estate is connected to a municipal sewer system, no inspection will be required.

Whenever the title to real estate is “transferred” or changes hands, it must be inspected. For example, if the owners put the real estate into a trust of which they are not the beneficiaries, it is a “transfer” and an inspection is required. Additionally, although the death of one owner in a joint tenancy or tenancy by the entirety (husband/wife) will most likely not trigger an inspection, the death of the survivor (with the property passing through probate) probably will trigger an inspection! Conversion of a single-family home to a multifamily home will also trigger an inspection. There are penalties and fines (up to $25,000 per day) for failure to make a required inspection. These and others are complicated issues for which an attorney who is aware of the new revisions should be consulted.

If you are buying or selling a home or other real property, you should especially consult an attorney about these changes. The cost of an inspection will probably cost from $600 to $1,500, and the cost of having to upgrade a cesspool or septic system is very expensive. These are delicate issues to be negotiated before the purchase and sale agreement is entered into.

A High Standard Of Service

Attorney Sal Frontiero makes a commitment to his client: high-quality service and attentiveness. He cares about the work he does and pursues the outcomes his clients deserve. Contact him today to get a free consultation on your real estate issues by calling 978-528-3778 or sending an email.