Massachusetts Lawyer Blog

Massachusetts laws prohibiting discrimination against people with disabilities in Massachusetts disability cases, arising under Federal and MA Discrimination laws, may have different meanings in different contexts.

If you are being discriminated against due to a disability or perceived disability there may be a number of legal claims for you to consider to aid in protecting your rights.The enforcement of disability discrimination laws can involve different courts or commissions and may require various types of expert evidence and testimony.

The MA Disability Law Center offers a chart on Massachusetts laws prohibiting discrimination against people with disabilities and provides some examples of legal resources which may be available as a starting place.

Attorney John Parry has authored the book, Disability Discrimination Law, Evidence and Testimony. A Comprehensive Reference Manual for Lawyers, Judges and Disability Professionals, which covers a host of topics your lawyer or disability advocate may consider in handling your disability discrimination case.

Additionally, The Massachusetts Office on Disability (MOD) has prepared an online pamphlet to:

increase awareness of the rights of persons with disabilities, both by persons with disabilities themselves and by the larger community. Other goals of the Office include: the elimination of discrimination against persons with disabilities; the creation of a barrier free environment; the improvement of the state’s services delivery system for persons with disabilities, and the creation of fully integrated and accessible education, housing, transportation and employment in the public and private sectors.

Topics listed include:

• INTRODUCTION
• ABUSE / NEGLECT / TREATMENT CONDITIONS
• ARCHITECTURAL ACCESS
• AUTOMOBILES & TRANSPORTATION
• DISABILITY COMMISSIONS
• EDUCATION
• EMPLOYMENT
• EQUAL RIGHTS
• HATE CRIMES
• HOUSING
• PUBLIC PLACES & PROGRAMS
• SERVICE ANIMALS
• TELECOMMUNICATION AND TECHNOLOGY
• VOTING
• WHEELCHAIRS
• ZONING

Attorney Kevin Whitaker serves as a town councilor and as an appointed member of the Town of Weymouth, MA Commission on Disabilities.

Boston.com article, "Mass. woman kills self before home foreclosure," reports:

A 53-year-old wife and mother fatally shot herself shortly after faxing a letter to her mortgage company saying that by the time they foreclosed on her house that day, she would be dead.

According the the article, her husband did not know the foreclosure was scheduled today because his wife took care of the bills and mail.  The article also indicates the woman may have thought that life insurance proceeds could be used to pay for the home -- this isn't true.  No life insurance company that I'm aware of is going to pay any amount of an insurance policy for a suicide claim.  Let me be clear, suicide in not a solution.  This tragedy does, however, speak to the problem being faced by many -- times are financially tough and many people don't know what to do.

I'm seeing more despair and anxiety in my Weymouth law office with both new and old clients.  Often I'm meeting with distressed individuals, families, and business owners who break down in tears as they tell their story.  Many are relieved just by talking to someone or by getting their problems off their chest.  Later, when they learn alternatives to bankruptcy and foreclosure may exist for them, they ask, "Why didn't I do this sooner?"

If you are feeling overwhelmed by debt, the harassing phone calls, and threatening letters, then you need to seek help. You deserve the opportunity to explore all of your available options and to do so with an objective adviser.  There should be no guilt, or shame, or judgment associated with doing this.  Getting help is the responsible thing to do and it can often put you on the path toward a fresh start.  A new beginning without the burden and distraction of constant worry and anxiety could be right in front of you without you even knowing it.

Do you know what's being said about you on the internet? Whether you're a Massachusetts small business owner, an individual, or a parent, are you monitoring the conversations about you, your business, or your family taking place on the internet?

Check out What Should Every Company Be Monitoring? for a list of ideas.

You can't respond to what you don't know about. I use alerts and RSS feeds to help stay on top of issues and conversations involving our Weymouth, MA law firm and our Massachusetts clients. With more and more reputation attacks and defamation cases arising on the internet (as well as speculative and plainly erroneous information), this is likely to be growth area in law and business.

This morning my daughter suggested we take the net (from that game where you hit the thing that looks like an empty ice cream cone) and use it to play volleyball.  I knew immediately she was talking about the net from the old badminton set because the "empty ice cream cone" was certainly the birdie we hit back and forth about a month ago.  In communication and in law context is everything -- both combined can lead to real value.

You shouldn't need to talk in legal mumbo jumbo to get your point across or to achieve the result you desire.  Find a lawyer who knows the law but also gets where you are coming from.  Seek out an attorney who will invest in building a relationship with you.  This is the foundation for providing value -- a real value that seeks to first understand and then meet your needs.  Anything else is just an empty ice cream cone...

If you are thinking of buying or selling a home in Massachusetts, perhaps you wondering what "is" the MA market doing? This Massachusetts Association of Realtors (MAR) data sheet provides data on items such as number of sales and median selling prices (for single family homes and condominiums.)

I think it might be interesting to look at the data for prices when foreclosures and distressed sales are removed from the picture as these are likely to skew the numbers, especially with respect to median selling price.

Sample data from MAR (see link for full data):

Historical Monthly Sales of Single Family Homes and Condominiums by Month & Year: Single Family, then Condominiums

• May 07: 3,884 2,173
• June 07: 4,959 2,352
• July 07: 4,363 1,933
• Aug 07: 4,700 2,235
• Sep 07: 3,108 1,384
• Oct 07: 3,047 1,309
• Nov 07: 2,986 1,245
• Dec 07: 2,532 1,107
• Jan 08: 1,984 843
• Feb 08: 1,857 827
• Mar 08: 2,339 1,093
• Apr 08: 2,803 1,286
• May 08: 3,491 1,640

A recent Massachusetts Superior Court decision shows some of the complex issues that can be raised in tenancy agreements.  This particular case involved a commercial lease, but a review of the areas covered provides general insight into leases and agreements whether you are a consumer, a business, lessor, lessee, owner, tenant, guarantor, or landlord.

Seven Issues To Consider in Lease Agreements & Tenancy Litigation

1. Fraud in the Inducement - To establish fraud in the inducement you must show misrepresentation of a material fact, made to induce action, and reasonable reliance on the false statements to the detriment of the person relying.
2. Chapter 93A - General Laws c. 93A, § 2 makes unlawful all unfair or deceptive acts or practices in the conduct of any trade or commerce. Conduct is deceptive if it possesses a tendency to deceive -- could reasonably have caused a person to act differently than he or she would have.
3. Breach of Contract & Integration Clause - When an agreement, such as a lease, is unambiguous and contains an integration clause, a party to the lease may not rely on evidence extraneous to the four corners of the lease to claim rights under the lease.  The contract will be enforced according to its express terms.
4. Quantum meruit - A theory of recovery based on unjust enrichment.
5. Implied Covenant of Good Faith and Fair Dealing - Contracts are subject to an implied covenant of good faith and fair dealing.  A party may not appeal to the covenant, however, to create rights and duties not otherwise provided for in the existing contractual relationship.
6. Negligence - Where a contract has a valid integration clause, claims of negligent misrepresentation are barred.
7. Rescission - Without a viable claim for breach of a lease agreement, a claim for rescission based on breach of the lease agreement must fail.

(NOTE: I've cut and pasted language in the decision, changed sentence structure here and there, changed some words around, and removed all legal citations to focus on the general nature of these issues.  I also added links to general information, not MA law.  The full decision which is much better than my piecemeal approach is available in Middlesex Superior Court Civil Action No. 07-3147.)

Contract Lesson: Be careful of any representations being made and review what's in (and what's not in) your tenancy agreement.

A recent law firm survey of 100 corporate clients indicated 53 percent of respondents "had a negative outlook on the economy" with 31 percent considering a "recessionary economy" to be the biggest threat.

Whether from Boston, Weymouth, Cape Cod, or elsewhere in MA, anecdotal evidence from talking with attorneys, accountants, and Massachusetts business owners confirms the same.  As a result, Massachusetts small business owners and family businesses are now taking pause and seeking ways to help them protect their assets, both personal and business.

If you have concerns, here are some questions you should be considering today:

• Have you been too busy growing or focusing on your businesses and not made the time to protect your home and family assets?
• Are you conducting risky business in business entities that may not limit your liabilities?
• Are personal guarantees placing your family's assets at risk?
• Do you own companies and assets under one umbrella, possibly exposing everything to liability when an issue arises?

This is my advice whether you are just starting a business or are an existing business owner with liability concerns:

First, take an inventory of your personal assets and personal liability exposures.

Second, take proactive steps to protect yourself and your family.

Third, reduce business liability issues with proper planning and by making use of ordinary and creative options.

While insurance and accounting practices are good steps toward your goals, adding a combination of legal protections with these is a more powerful approach.  Don't wait until you get knocked down and it's too late to take advantage of all your options.  Begin taking stronger strides towards keeping what you have protected, especially while weathering fluctuations in an uncertain or even a recessionary economy.

In this instance it is far better to take arms against a sea of troubles, and by opposing end them...

A previous post discussed Massachusetts short sales. This post explains Massachusetts workout agreements. In Massachusetts an alternative to defaulting on a loan or entering foreclosure is to renegotiate the terms of your loan.

This may be called:

a) A workout agreement,
b) Loan restructuring,
c) Debt workout,
d) Loan modification, or
e) Other names.

Basically the lender (mortgagee) agrees with the borrower (mortgagor) to restructure the terms of a loan or the repayment period. The bank benefits by not proceeding with costly foreclosure and the borrower keeps the property but with loan terms they can handle. These arrangements may be available to residential or commercial borrowers or loans secured by residential or commercial real estate. In general, the sooner you seek a workout agreement, the better your chances of success are.

A recently passed law in Weymouth, Massachusetts prevents level three sex offenders from establishing residency within 1,500 feet of places that children frequent. The law was recently covered in a Boston Globe article by Johann Seltz. The same topic is covered by in the Patriot Ledger's article by Jack Encarnacao as well as the Weymouth News article authored by Ed Baker. In the interest of full disclosure, I'm quoted in each article as Chairman of Weymouth's Ordinance Committee.

Lawyers are generally aware of changes in court rules that deal with electronic evidence, but many small businesses don’t have inside counsel or general counsel available to them who can keep them apprised of what to do and also, what not to do. An article in Law Technology Today: March/April 2008, “Are You Litigation Ready?” by Matthew W. Blake, found,

Most American corporations are ill-prepared to respond to electronic discovery requests and go to court. … In a survey of more than 100 information technology managers in medium and large American corporations, only 6 percent said they “immediately and confidently” can field electronic discovery requests. Just 9 percent told pollsters they receive proper legal guidance and funding for electronic discovery procedures; 40 percent said they receive no guidance at all. Fewer than half feel they have IT professionals competent to testify in court regarding electronically stored information (ESI). More than half said their companies have no enterprise search tools. Three-fourths lack effective e-mail intelligence systems.

Blake recommends taking these three steps: Assess What You Have; Map Out Your Data; and Strengthen Your “Hold” on the Data Giant

He argues failure to take these steps can lead to increased future litigation costs. I agree and would add that failure to take the right steps could also lead to sanctions, fees, and liability in matters that were not handled the way they should have been. Is your Massachusetts business ready for these issues if you were sued today? Do you have a lawyer who understands litigation, local rules of court, and can advise your managers and IT staff on what to do to protect your business interests? As the saying goes, "forewarned is forearmed."

Can you sell your Massachusetts home or commercial real estate for less than you owe on it without facing foreclosure?

For some the answer is “yes.” After a committee hearing in Weymouth recently (where the topic of foreclosures and the local economy was brought up), I was asked by a board member, “What is a ‘short sale’ of real estate?”

There are times when a borrower can’t make payments on their current loan or mortgage. A short sale is an alternative method of selling a property instead of losing real estate in foreclosure. In Massachusetts a lender may agree to adjust the amount owed to sell a property. This is a “short sale” of real property (real estate). Under this type of sale, the sale’s proceeds fall “short” of what is owed on the mortgage. A lender may allow a “short sale” and forgive the remainder owed under the mortgage. Why?

Foreclosure can take time, be costly, and lead to a decline in sales price at auction (especially in a declining market). A lender may permit the sale of real property (where the fair market sale price is less than the loan balance) for many reasons. Some examples are to prevent abandonment and waste of a property or to avoid the additional costs incurred by upkeep, maintenance, accruing taxes, legal fees, auction fees…

A Massachusetts real estate lawyer can offer a borrower alternatives to consider. A short sale being one of them, and one that an attorney can negotiate with your lender and structure to best protect your interests. A “short sale” is, however, only one alternative to consider. In others instances a lender may accept a deed in lieu of foreclosure or negotiate a workout agreement. These are topics for later posts.

A Massachusetts Continuing Legal Education (MCLE) emailed press release quoted a Boston Herald April 14, 2008 article finding

"One Massachusetts homeowner in 48 will lose their property to foreclosure in the next two years. . .32,976 Bay State homeowners will face foreclosure by about 2010."

While a Boston Globe April 25, 2008 article states:

"Foreclosures during the first three months of the year topped 2,800 … up about 140% over the same period last year."

Recently, more small business owners have been raising issues about their businesses and how to go about protecting their personal assets.

Are statistics on small business owners next?

Recently a relative in Massachusetts requested my help in obtaining her security deposit from her previous landlord. Her situation was unique, but the Legal Assistance Corporation of Central Massachusetts offers a site that may be helpful to Massachusetts consumers looking to make a written demand for the return of their security deposit. The site/form allows a user to select up to five reasons for seeking the return of a security deposit.

The site allows users to choose from the following reasons for the return of the security deposit:

1. Landlord didn't return security deposit within 30 days after tenant moved out or give me notice of what he/she was using the security deposit for;

2. Landlord didn't put the security deposit in a separate interest-bearing Massachusetts bank account;

3. Landlord didn't give the tenant a written receipt;

4. Landlord did not let the tenant see the security deposit records; or

5. Landlord did not give tenant written notice of bank account number and bank address where deposit is held.

While this list may not apply to all cases, the site was easy to use and may help many. I recommend sending your security deposit demand letter certified mail return receipt requested (so you have proof the letter was sent and received.) If your security deposit is not returned, you may consider filing a small claims action in Massachusetts.

You’re a Massachusetts small business owner. Do you have a plan to pass your business down to the next generation? Who will take over for you? How much is the business worth? How does your estate plan address your business interest? How will employees be treated? How will you preserve the mission of your company and protect what you've worked so hard to build?

Small Business Notes states,

Ninety percent of U.S. businesses are family-owned, and one-third of the Fortune 500 are either family-owned or family-controlled. Yet only 30 percent of family-run companies today succeed into the second generation. An even smaller 15 percent survive into the third generation. The reason, according to many experts, is obvious - the lack of an orderly succession plan.

Although it's information may be dated (1991), a Small Business Association article's "Appendix" contains several forms that may assist a business owner considering succession planning. Download file

As a MA business owner, designing a succession plan is an important undertaking. Our law office has worked with many small business owners on the South Shore who are looking for legal counsel but want to avoid the time involved traveling into Boston. As a smaller firm (by choice) we are able to form quality relationships allowing us to understand the dynamic challenges you may face over time. Our personalized approach allows us to help you with both your business and personal planning. When an issue unexpectedly arises, our clients can pick up the phone and talk with a lawyer they know and who knows them. Regardless of the law firm you work with, the assistance of someone who understands your goals provides you with an enhanced opportunity for your life's work to succeed both now and in the future.

A recent Massachusetts Appeals Court case examined the issue of fiduciary duty and contract law in a commercial real estate dispute arising between general partners and limited partners.

The case involved, “…various transactions by the general partners, including their purchase, without the involvement of the limited partners, of large real estate parcels neighboring the building project for which the limited partnership was formed….”

The Court found. “As the limited partnership agreement expressly allowed the general partners' actions, we affirm the judgment rejecting all the limited partners' claims.”

See Slip Opinion 07-P-422 Appeals Court, Robert L. Fronk, Jack Saltiel and Maila L. Walter v. John P. Fowler, Jeffrey A. Millman, Robert Lee Wolff, Jr., Maple Leaf Cambridge Corporation, and The Cambridge Company, Inc.

Several cases were cited that should be considered when entering a contract or any business venture: "the obligations of the parties are determined by reference to contract law, and not by the fiduciary principles that would otherwise govern." Chokel v. Genzyme Corp., 449 Mass. 272, 278 (2007). See Blank v. Chelmsford Ob/Gyn, P.C., 420 Mass. 404, 408 (1995) ("questions of good faith and loyalty with respect to rights on termination or stock purchase do not arise when all the stockholders in advance enter into agreements" concerning those issues); Sonet v. Timber Co. L.P., 722 A.2d 319, 322 (Del. Ch. 1998) ("principles of contract preempt fiduciary principles where the parties to a limited partnership have made their intentions to do so plain"). … "[W]here sophisticated parties choose to embody their agreement in a carefully crafted document, they are entitled to and should be held to the language they chose." Anderson St. Assocs. v. Boston, 442 Mass. 812, 819 (2004).

This case serves as a reminder that it’s important to have an agreement in writing, but also to fully understand the rights and duties the agreement creates. If you’re a business owner in Massachusetts, it’s unwise to think of contracts or agreements as just routine boilerplate language. You should question each provision and understand what it means for you and your business interests.