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*REAL ESTATE LAW INFORMATION

Mortgage / Foreclosure

Buying / Selling Property

Property / Environmental

Landlord Tenant


Mortgage / Foreclosure

How does a loan modification work?
A loan modification is a written agreement you enter into with your mortgage lender to change the terms of your loan. It may include such things as rolling your missed mortgage payments and late fees into the principal amount of the loan to bring you back up to date on your payments, making a change in your interest rate, extending the term of your loan, or reducing the amount of principal owed on the loan. If your lender agrees to offer you a loan modification, both you and your lender will sign a Loan Modification Agreement describing the terms of the modification, and that agreement may be recorded with the Registry of Deeds where your original mortgage was recorded. You should contact your lender to find out whether you qualify for a loan modification and, if so, exactly what paperwork they will need from you to review your application. You may also want to hire an attorney to help you understand the terms of any loan modification agreement your lender may offer you. Your lender is not required to suspend the foreclosure process while they negotiate a loan modification with you, and in most cases they will not. Do not assume the foreclosure process has been suspended unless you receive written notice from the lender or its foreclosure attorney notifying you that they have done so.

How many payments can I miss before my lender puts my house in foreclosure?
When your lender can declare you to be in default for failing to make payments and start a foreclosure is dictated by the terms of your promissory note and mortgage, and may vary. For a standard residential mortgage from an institutional lender, however, the lender generally has the right to declare you to be in default after you miss just one payment, and may start to assess late fees and other charges if any payment is more than 15 days overdue. The lender will then send you a written notice letting you know that you are in default and how much you must pay, and by what date, to bring the loan back into good standing. If you fail to do so, the lender may then decide to start the foreclosure process. Many lenders will wait until you have missed two or three payments before sending you a default notice, but even if you have not received a notice, you may still be in default if you have missed just one payment.

How much time do I have in my house after a notice of default is filed?
Once you are in default, your lender must send everyone who signed the mortgage a Notice of Right to Cure before it may start to foreclose on your house. A Notice of Right to Cure is a written notice that states the total of your past-due payments, accrued late fees, and other penalties you need to pay to bring your mortgage loan back into good standing. Under the current law in Massachusetts, the lender may give you 90 days to bring the account back to good standing if it has engaged in a "good faith effort" to negotiate an alternative to foreclosure; otherwise the lender must give you 150 days. Most lenders are currently using the 150 day period, but that practice may change, and you should review any notice you receive from your lender carefully to understand exactly how long you have to bring the loan up to date. Once that period has expired and you have not brought the loan up to date, the lender may accelerate the loan, which means the entire outstanding amount of the loan will be due, and the lender may proceed with the foreclosure and schedule a foreclosure auction. If you or one of the other owners of the property is on active military duty, or have been within the past nine months, you may have certain rights to delay the foreclosure of your property under the Servicemembers Civil Relief Act.

What is a short sale?
An alternative to foreclosure, a short sale is the sale of your property to a third-party when your property is worth less than the amount you owe on your mortgage, sometimes referred to as being underwater or upside-down on your mortgage. Your lender has no obligation to agree to a short sale, and is not required to suspend the foreclosure process while they negotiate a short sale with you, and in most cases they will not. Do not assume that the foreclosure process has been suspended unless you receive written notice from the lender or its foreclosure attorney notifying you that they have done so.

Generally, your lender will require that you have a signed offer to purchase from a prospective buyer before they will review your eligibility for a short sale. Once you have an offer, the lender will review the terms of the offer, the status of your mortgage payments, your personal financial status, and the value of the property and determine whether they are willing to agree to a short sale. If you have more than one mortgage on your property, you must negotiate with each mortgage lender separately to get their approval for the short sale, and if you have private mortgage insurance (PMI) on your property, your PMI company will also need to approve the short sale. On average, it takes about three to six months to negotiate a short sale. If your lender agrees to a short sale, they will require that all of the proceeds from your sale be paid to the lender. Your lender may also require that you repay them for all or a portion of the amount of your mortgage that will not be paid off from the sale of your home (referred to as a "deficiency"), and in some cases your lender will have you sign a new promissory note which sets out the terms for you to repay the deficiency.

Before deciding to list your property as a short sale, you should consult with an attorney to make sure you include language in any offer to purchase to protect you in case your lender does not agree to the short sale and with a tax professional to understand your tax obligations before starting a short sale.

Buying / Selling Property

How much should I offer to buy a house for sale?
There are a number of factors to consider when deciding how much to offer for a home. They include: the asking price, how the asking price compares to that of other similar homes on the market, the state of the market, how long the property has been for sale, what repairs or improvements are necessary or desirable and how much you desire the particular property or neighborhood. A real estate agent or appraiser can help you determine the market value of the property.

Do I need an attorney to create a real estate transaction contract or purchase agreement?
No, you do not need an attorney, but it is advisable to have one. While brokers generally provide completed forms for the offer and sometimes the purchase and sale agreement as well, both documents create serious legal obligations binding on the parties. Do not be fooled by the fact that both documents usually are standard forms. Lawyers representing both sellers and buyers usually make significant changes to these forms. Working with an experienced attorney before you make your offer can help you by including important terms and conditions which are vital to your purchase. If you are financing the purchase, the attorney representing the lender will make sure that you are getting satisfactory title, but will not protect your rights and interests under the purchase and sale agreement.

Do I need to use a real estate agent to sell my home?
No, you do not need a real estate agent to sell your home. However, an experienced real estate agent will help you establish a fair price for your home, set the initial asking price, market the home and sell it faster and probably for a higher price than you could get on your own. An agent will also help if you are not comfortable letting strangers into your home to view it. The amount of the commission and whether the listing is exclusive or "open" can be negotiated with your agent.

What is the process of purchasing a home?
In Massachusetts, the process usually begins with an offer to purchase which sets forth the price and date of the closing. It will also provide for a modest deposit, a period of 10-14 days to conduct various inspections and a mortgage financing contingency. To make your offer more attractive to the seller and to determine how much you can afford, it is advisable to obtain a "pre-approval" letter from a mortgage lender prior to making an offer.

If the inspections are satisfactory, the parties then enter into a purchase and sale agreement. This agreement spells out the terms of the deal in greater detail, including a more substantial additional deposit, the mortgage financing contingency, and any repairs that the seller agrees to make to the property.

Once the buyer receives approval for the mortgage loan, the closing will follow a few weeks later. At the closing, most of the documents relate to the buyer's mortgage loan. The seller does not receive the purchase price until the deed to the buyer is recorded.

Property / Environmental 

Can I stop a neighbor from installing a fence on our property line?
It's critical that you know where your property line is located. If in doubt, pay to have it surveyed by a professional land surveyor. Check with your municipality to see if a permit is required. If a permit is required, make sure your neighbor has filed the necessary papers. On fences more than 6' tall, often referred to as spite fences, a permit may be required. However, if the fence is on the property line, the neighbor has every right to install it. Setback requirements usually do not apply to fences. Although normal protocol dictates the front of the fence be facing the abutter's property, it is not required. There is one practical issue: If your neighbor does erect a fence on the property line, he/she will need your permission to enter your property to paint or otherwise maintain the side facing your property.

My neighbors tree fell in my yard and damaged my property. Who is responsible for paying for the repairs?
If the tree was healthy and it was an act of God, no one is legally liable. You cannot impose liability from a healthy tree falling. For repairs -- make a claim under your homeowner's insurance policy.

If the tree was rotting or began to lean over and eventually fell, the harmed party would have to show the neighbor had a duty to prevent the tree from falling. Courts will weigh the risk of harm against the burden of inspecting the tree for damage. Does the risk of harm outweigh the burden of inspecting? If so, the court will probably find the neighbor had a duty to inspect the tree, thus breached their duty of care, and damages would be awarded. Your insurance company will still cover any damage (subject to the applicable deductible).

As a property owner, what is my responsibility for snow and ice removal?
In 2010, the Massachusetts Supreme Judicial Court overruled 125 years of legal precedent by ruling that all Massachusetts property owners are legally responsible for the removal of snow and ice from their property. Under the prior law, owners were not responsible for naturally accumulated snow and ice. What this means for residential and commercial property owners is that once the snow and ice storm stops, reasonable efforts must be made in clearing areas in which the public and visitors have access.

In most urban areas sidewalks are legally owned by the municipalities. However, many cities, including Boston, now require by local ordinances that owners clear sidewalks in front of their residences and businesses within a specified period of time following a storm.

Landlord / Tenant

When must a landlord return all or part of the security deposit?
A landlord is obligated to account for the security deposit within 30 days after a renter terminates occupancy under a tenancy-at-will agreement or the tenancy as specified in a rental agreement. If the landlord claims that the tenant has damaged the rented property, then landlord must produce an itemized list of damage and written evidence indicating the actual or estimated cost of repairs to correct the damage. The deposit or the balance after the deduction for damages, must be paid to the tenant within the 30-day period. If the landlord fails to provide such a list of damages and estimated costs or to return the tenant's security deposit within 30 days, the tenant is entitled to treble (triple) damages and attorney's fees (if the tenant has to institute a legal action to enforce the tenant's rights).

How much can a landlord charge as a security deposit?
A landlord cannot charge more than one month's rent as a security deposit. The landlord must provide a written receipt for the security deposit to the tenant within 30 days, hold the security deposit in a separate interest-bearing account and provide the tenant with the bank name and account number.

Can a landlord enter my apartment without notifying me when I am not home?
Under Massachusetts law, the only instances when a landlord may enter into a rented residential property are as follows:

  • To inspect the premises;
  • To make repairs to the premises;
  • To show the same to a prospective tenant, purchaser, mortgagee or its agents;
  • Pursuant to a court order;
  • If the premises appear to have been abandoned by the tenant; or
  • Within the last 30 days of the tenancy or after either party has given notice of termination of the tenancy, to inspect the premises to determine if there is any damage that needs to be repaired, and if so, to estimate its cost.

With the exceptions of items five and six above, a landlord could have breached the tenant's rights if the other entries are made without notice, at inconvenient or unreasonable times or jeopardize the tenant's safety.

Can I stop an eviction notice once I have been served?
That depends on the reason for the eviction.

If the eviction is for nonpayment of rent and you have a lease, you may stop the eviction by paying the full amount owed. If you have already received a summons and complaint, you must pay the rent owed, any accrued interest and your landlord's court costs by the answer date in order to stop the eviction.

If the eviction is for nonpayment of rent and you do not have a lease, you may stop the eviction by paying the full amount owed within 10 days of receiving the eviction notice. You do not have a right to stop the eviction, however, if you received a previous eviction notice for not paying rent within the past 12 months.

You can also defend against or postpone the eviction by filing in court your defense or counterclaim, which could include violation of the sanitary code, breach of the rental agreement, unlawful discrimination, eviction is based on your status as a victim of domestic violence, among other reasons. Under certain circumstances you may also ask the court to postpone the eviction for up to six months; or 12 months if a resident of the premises is disabled. 

What can I do if I disagree with the security deposit amount that was kept or refunded?
You may send your landlord a security deposit demand letter that explains why you believe you are entitled to the return of any additional amount of your security deposit. You should mail this letter by both certified and first class mail. Your landlord must respond within 30 days with a reasonable offer of settlement. If you don't believe the offer is reasonable, or if the landlord does not respond, you may bring a court action. If the court determines that the landlord withheld more of the security deposit than he or she was entitled to, or that the landlord did not respond to your demand letter with a reasonable offer of settlement, you may be entitled to treble (triple) damages, costs and reasonable attorney's fees.

*These answers do not constitute legal advice and are written for general information purposes only. Individuals should consult with a lawyer for specific legal advice.




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