Collecting money from customers and clients is not something most contractors want to spend their time on. Somerville contractors that I deal with have many other things to do such as bidding jobs and making sure work get done correctly and in a timely manner. Mechanic’s liens and real estate attachments are a couple ways to help a contractor collect money that is owed from a customer. While both a mechanic’s lien and an attachment are effective ways to tie up a property while the contractor tries to collect what is owed to him, they have significant differences.
A mechanic’s lien is a right that a contractor is given and is mandated by statute. If a contractor has worked on the subject property in which the mechanic’s lien is being recorded against, and the contractor follows all of the steps according to the statute, the mechanic’s lien will be perfected and very helpful in collecting the money owed.
A real estate attachment is different. In Massachusetts, a contractor or person owed money can obtain an attachment if he can demonstrate (1) a likelihood of success on the merits of the case, and (2) show that the defendant (person who owes the money) does not have liability insurance to satisfy a potential judgment against him. A plaintiff can also ask the court for an “ex parte” attachment in which there is no notice to the other side. In this case the plaintiff must show that there is a likelihood that the property is going to be conveyed, destroyed or the property is beyond the jurisdiction of the court.
I have worked on cases recently which involved both mechanic’s liens and attachments. In one case, where the Malden contractor worked on the property over 2 years ago we were unable to perfect a mechanic’s lien. Instead we sought an ex parte attachment because the defendant had a history of fraud in the past. The judge allowed our ex parte motion for attachment but allowed the defendant to come in and give his side of the story a few days later. We ended up getting the attachment allowed even after the defendant opposed it, but it was much more work than pursuing the mechanic’s lien.
It is important that Somerville contractors hire an attorney who is familiar with these issues. I have dealt with collections in Somerville, Medford and several other surrounding communities.
If you would like to obtain more information on Massachusetts mechanic’s liens or would like to discuss how our office can help you please call 617-628-1110 Ext. 3. We represent contractors on collection matters from Somerville, Medford, Malden, Winchester, Cambridge and surrounding towns.
In most cases we do not get paid until we recover the money you are owed.
There have been recent changes to the Massachusetts Mechanic’s Lien law which now gives protection to design professionals. On July 1, 2011, Massachusetts-licensed or registered architects, landscape architects, professional engineers, licensed site professionals and land surveyors will share the same mechanics’ lien rights that contractors, subcontractors and materialmen have benefited from for at least the past fifteen (15) years.
This change to the Massachusetts mechanics lien law will give design professionals, as well as general contractors, subcontractors and suppliers, and laborers on all private projects which improve real estate, security for the value of their services, labor and materials furnished. It is still important to design professionals to comply with rigid statutory requirements in order for them to perfect a mechanic’s lien.
Most of the Massachusetts mechanic’s lien law will remain the same. It is important to remember that Massachusetts real estate encumbered by a mechanic’s lien will most likely not be able to be sold or refinanced until the mechanic’s lien is released. In many cases, even when a Massachusetts mechanic’s lien is not properly perfected, it still causes problems for the property owner. A Massachusetts mechanic’s lien is a very powerful tool for a general contractor, subcontractor, lumber yard, supply house and now architect or surveyor.
The recording of a mechanic’s lien in Massachusetts is something that must be taken very seriously, with close attention to detail. It is important that contractors and property owners alike consult with a competent Massachusetts real estate attorney when dealing with a Massachusetts mechanic’s lien.
IS YOUR HOME PROTECTED?
Last month the Massachusetts Homestead Law changed significantly. These changes became effective on March 16, 2011. The old statute allowed a homeowner protection so long as a declaration of homestead was recorded at the appropriate land recording office. The following are some changes that occur with the new statute:
- Declared Homestead Exemption- This form of homestead is similar to what was available under the old statute and is created by the recording of a declaration of homestead in the appropriate recording office. It allows for a homestead exemption of $500,000.00
- Elderly or Disabled Persons- This exemption gives persons aged 62 and older as well as disabled persons $500,000.00 in protection by filing a written declaration of homestead
- Automatic Homestead Exemption- This is a new automatic exemption for the benefit of the owner and the owner’s family who occupy the dwelling as a principal residence. It gives an exemption of $125,000.00
- Property held in Trust-Trustees of a property held in trust can now file declarations of homestead on behalf of the beneficiaries of the trust who occupy the property as a principal residence
- 2-4 Family Homes- These multi-family properties are now clearly covered by the act if they are the primary residence
Clients often ask me if they should own their Massachusetts real estate in a trust. There is really no definitive answer to that question without knowing the facts. Each and every situation is unique. The most important service I can provide is to make sure that my clients are well informed so that they are able to make a decision that best suits their needs.
A trust is a manner in which to hold property, whether that property is real property or personal property. By that, I mean that the property owned by the trust can be almost anything. For example, a trust can hold your home, an apartment building, cash or that original Picasso hanging over your fireplace. I usually deal with clients inquiring about putting their Massachusetts real estate into trust.
A Trust is a legal entity that can hold title to property for the benefit of one or more other persons or entities. The person who establishes the trust is called the Grantor, Trustor, Donor, or Settlor.
A Trust has the ability to separate the ownership or title of the property held in the Trust. The ownership is made up of “legal title” and “equitable title”.
The person or entity that controls the Trust and is responsible for managing the Trust assets or property is called the Trustee. The Trustee holds the legal title, but not the full title, to the property that is in the Trust. This means that the Trustee can only use the assets and proceeds from the Trust property for the benefit of the people the Trust is set up to benefit, not for his or her own profit.
The persons who are intended to benefit from the Trust are known as Beneficiaries. Beneficiaries own what is called the equitable title to the property held by the Trust. This means that they have a right to have the assets used for their benefit in the way directed by the Trust provisions.
These parties to the Trust need not be different people. However, historically courts concluded that there was no need for a Trust when the Trustee was also the Beneficiary. In these situations the legal and equitable titles were said to have “merged.” In some cases, when done properly, a Trust Grantor may establish a revocable Trust, serve as the initial Trustee and be able to obtain benefits as a Beneficiary from Trust property.
The property that is transferred to a Trust becomes the Trust estate. The Trust estate is also called the Trust corpus, Trust res, or Trust principal. A Trust estate consists of all of the property, rights, and obligations that are transferred to the Trust. It is common for Massachusetts real estate to be transferred to a Trust.
The Trust estate is managed according to the terms and conditions of the document creating the Trust, which is called the Trust agreement or declaration of Trust. This document sets out the purpose of the Trust, the identities and powers of the Trustees, the names of the Beneficiaries, how the Trust assets should be managed, and how they should be distributed to Beneficiaries. Depending upon how the Trust document is drafted, a Trustee may act at the direction of the Beneficiaries or may act on his own with respect to the management of the Trust estate.
An “inter vivos” trust is set up during the Grantor’s lifetime. This means that the Trust comes into being and functions while the Grantor is still alive. A Testamentary Trust is set up by a Will and does not come into being or begin to function until after the death of the Grantor.
Trusts are also revocable or irrevocable. This is pretty self explanatory; a revocable Trust can be revoked or amended by the Grantor and the Grantor can reclaim the Trust assets. An irrevocable Trust cannot be revoked once it has been set up. The Grantor in unable amend or revoke the trust and take the trust assets back.
In my experience, many lenders will not lend money against real estate if the title is held in a Trust. They will usually require the real estate to be deeded out of the trust and into an individual borrower in order for the closing to take place. I have found that it is easier to close in a trust with smaller local banks as opposed to the big national lenders. I understand that the big lenders want someone to be personally liable for the debt; however, this can easily be accomplished by the execution of a personal guaranty.
Feel free to call me at 617-628-1110 Ext. 3 with any questions.
I received a plot plan back from my surveyor recently, and as usual, I took a quick glance at it and matched it up to the metes and bounds description in the deed. This is what a Massachusetts real estate lawyer is supposed to do. Everything looked normal, until I noticed that on the purchase and sale agreement, the description of the property listed approximately 25,000 square feet. After doing some quick math by adding up the boundaries on the plot plan I noticed that we only had about 19,000 square feet on this plot plan. This was a problem. I immediately looked further back into the title examination and saw that there was an extra parcel of land owned by the title holders in previous years. Somewhere in the chain of title this extra parcel of land was left out of a deed. This was done more than a decade ago and it had never been caught. For more than 10 years these property owners thought they owned 6,000 square feet of land that they did not own. What is worse is the fact that I had to tell a young couple planning on purchasing the property and moving into it in a few days that they couldn’t. This title issue had to be dealt with. After further investigation it was learned that the prior owners had died and now this extra parcel of land had to go through probate. This could take several months to clear up. That means that the buyers can’t buy and the sellers can’t sell. Title problems can be a very time consuming and expensive to fix. They can also kill deals.
There are two lessons to be learned here: 1) Pay attention to the plot plan. Make sure it resemble the property you are dealing with; and 2) Get owner’s title insurance. Problems like this will be taken care of by your title insurance company.
Selling your home doesn’t have to be stressful. By working with the right professionals and following these simple steps you will be ready for the closing like you’ve done it a million times.
1. Have your Massachusetts real estate lawyer review all offers before you sign.
2. Have your Massachusetts real estate lawyer draft or review the Purchase and Sale Agreement before you sign.
3. Make sure you have working smoke detectors and carbon monoxide detectors located in the right places in your home. Call your local fire department to schedule an inspection so you can obtain the required certificates.
4. Have your local water/sewer department perform a final reading before the closing. You can pay it in full before the closing or have the closing attorney at it at the closing.
5. If your city or town has municipal electricity or gas get a final reading before the closing.
6. If your property has a septic system have it inspected pursuant to Title V.
7. If your home is heated by oil find out how much oil is in the tank so you know how much the Buyer needs to credit to you at closing.
8. Have your Massachusetts real estate attorney prepare the deed that you will sign for the closing.
9. Provide the settlement agent with your current mortgage information such at account number, lender name and telephone number and your social security number.
10. Bring your driver’s license or other photo I.D. to the closing.
Follow these simple steps and the sale of your home will be easier than you think.
For more information please call 617-628-1110 Ext. 3.
As a Massachusetts real estate lawyer I often get asked if owner’s title insurance is necessary when buying a home. For most people, buying a home is probably the biggest investment they will ever make in their life. It is important to protect this investment. The term “title” when referring to Massachusetts real estate is the legal evidence that a person or entity has the right to own and possess land. It is possible that someone other than the seller may have a legal right to the property. This can be caused by a number of problems that remain undisclosed even after the most thorough examination of the public records at a Massachusetts registry of deeds. The title problems can remain undiscovered for years or even months after you purchase your Massachusetts home. If a title problem or “defect” is discovered, it can take years and thousands of dollars in legal fees to fix it. This can be stressful and can prevent a person from being able to sell their home when the time comes.
Over the past several years I have witnessed circumstances where title defects have held up sales and in some cases have killed the deal. These cases are usually when a seller did not have an owner’s policy of title insurance. In some cases it was not their fault. Title insurance was not available several decades ago and therefore people could not buy it even if they wanted it. In other cases they were not told it was available. However, in each case, if they had an owner’s policy of title insurance the title insurance policy would have indemnified the owner and the title insurance company would have allowed them to sell the house and they would fix the problem.
Most lenders require a borrower to buy a lender’s policy of title insurance to protect the lender. For a few extra bucks you can have the comfort of knowing that if a title defect is ever discovered you will not have to worry about it. In my opinion buying owner’s title insurance is worth the money.
If you have any questions about title insurance in Massachusetts please call 617-628-1110 Ext. 3.
Having adequate insurance on your home is very important when it comes to owning real estate in Massachusetts. As a Massachusetts real estate lawyer I have seen the risks some people face by not being well informed when it comes to their homeowner’s insurance. Massachusetts dog owners are a group that must pay close attention to their insurance policies to be sure they are protected by their Massachusetts homeowner’s insurance policy.
Many Massachusetts insurance companies are unwilling to provide you homeowner’s insurance coverage if own a certain breed of dog. Certain types of dogs have been identified as risks by insurance companies on account of the rising occurrences of dog-bites associated with them. The list of uninsurable dogs includes German shepherds, Labrador, Dobermans, Pit bulls and Rottweilers; however, it seems to be getting longer as breeds keep getting added to the list. Also, if your dog has caused an injury to a person in the past or has exhibited aggressive behavior, an insurance company may deny you coverage.
The reason some Massachusetts insurance companies refuse to insure certain dogs is because dog bite claims cost insurance companies a huge amount of money. An estimated 4.7 million injuries occur from dog bites each year in the United States, with 800,000 requiring medical treatment. Insurance companies pay out approximately $250 million a year in dog bite claims.
If you are purchasing a home in Massachusetts and you own a dog, make sure you have proper coverage. Disclose the breed of your dog to your insurance agent so that they may bind the proper coverage on your new home. In many cases, if you own a dog on the uninsurable list, you can obtain coverage from the Massachusetts FAIR (Fair Access to Insurance Requirements) Plan. This coverage can be obtained by working with your insurance agent.
If you get a dog on the uninsurable list after you have already purchased homeowner’s insurance, the insurance company can cancel your policy. Therefore, make sure you check with your insurance agent before you get a dog to see what steps must be taken to maintain coverage.
Being a Massachusetts real estate attorney means that I am not an expert in insurance; however, I always advise my clients to ask the important questions to their insurance agents to make sure they are protected with adequate coverage. I have heard so many people say that their dogs would never bite someone, and hopefully that is true, but anything can happen. If it does happen, you want to make sure your insurance covers you.
If you have any questions on purchasing a Massachusetts home or Massachusetts real estate law feel free to call me at 617-628-1110 Ext. 3.