Law Office of Jennifer L. DiCarlo, PLLC

Author Archives: jd1carl0

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It looks like my neighbor’s tree is about to fall on my house. What can I do?

I swear I get some version of this question at every family reunion or barbecue. It seems a lot of folks are concerned about trees falling and injuring their property or worse, their children. Or maybe a tree is continuously dropping branches and debris on their car, has become unsightly or looks to be on the decline. It may not seem apparent, but there are lots of legal implications when it comes to these green giants. Trees are incredibly important. They provide shade, fruit, habitat for animals, privacy, landscape ornamentation, lumber, and even the air we breathe. In thinking about how valuable trees are, my mind wanders to Shel Silverstein’s children’s book, “The Giving Tree.” First published in the 1960’s, it’s a fable centered on a boy and his apple tree. Over the course of the boy’s life the tree provides him with a place to play, food, wood to build a house and, ultimately, a lowly stump for the now elderly man to rest. I think my kids make me read this book to them just to watch me cry! Every. Single. Time. Aside from how heartbreaking it is to witness the exploitation of the tree and its journey to stump-hood, the story demonstrates at its surface the vital status trees have in our ecosystem. It is not surprising then that our laws place high value on them and provide for harsh penalties when trees are damaged or cut without permission.

Massachusetts General Laws Chapter 242, Section 7 imposes damages if someone willfully cuts down, harvests, or destroys trees owned by someone else without their consent. Under certain conditions, the damages can be trebled (tripled). Even if the perpetrator mistakenly thought they were on their own land, single damages can be awarded to the rightful owner of the tree(s) harmed. In awarding damages, the Massachusetts courts have identified several methods for measuring the injury caused to the tree owner. Examples include the cost of restoration, value of the lost timber, and diminution in market value of the property affected. These approaches provide a broad spectrum of financial consequences to the cutter.

The goal of the restoration method is to restore the affected property to its condition prior to the loss of trees. Using this method, the valuation of smaller trees is simple enough using the cost of similarly sized replacements from a nursery or garden center. Valuing mature trees, which are often practically impossible or prohibitively expensive to replace, presents a more challenging scenario. The “trunk formula” for valuing mature trees, described in a 2013 Land Court case (Pelullo v. H&R Development, LLC), takes the cost provided by a nursery or garden center for a smaller, younger version of the lost tree and multiplies that based on the age of the tree at the time of loss. Each square inch of the trunk area is then adjusted based on factors like the type of tree, its health at the time it was damaged or cut, where it was planted, the conditions existing at the site and so forth.

Short of restoration, a property owner may seek recovery based on the actual value of the tree, including its aesthetic value, or the timber that was lost. Expert testimony may be necessary to establish the values under this theory of recovery. According to the Massachusetts Department of Conservation and Recreation, standing timber values can be based on a number of factors including “timber quality, distance to market, accessibility of property, sale volume, market demand, season skid distance, landowner requirements, and logging costs.” Aesthetic value is even more nebulous.

Another method to determine damages requires analyzing the value of the affected property both before and after the tree loss. To determine this, the judge in Larabee v. Potvin Lumber took the value of the property following the tree loss and subtracted it from the purchase price to calculate the loss in value.

Because G. L. c. 242, § 7 does not mandate which method must be utilized, property owners have wide latitude to pursue the method of recovery that would most benefit them. Notwithstanding, the damages must still be reasonable. For instance, restoration damages will not be applied if restoration is not necessary or the cost of restoration greatly outweighs the injury to the tree owner. This was the outcome in the aforementioned Pelullo case where the judge determined that the trees had not been essential in providing privacy and the property owner admitted as much in initially seeking only the value of the lost timber. Contrast this to the outcome in a 2006 decision in another Land Court case (Ritter v. Bergman), where the judge, citing the loss of privacy and shielding from neighboring homes, awarded trebled damages amounting to $130,782.00 for trees that were removed from a 5,000+ square foot area. In a 2008 Superior Court case involving property on Martha’s Vineyard (Glavin v. Eckman), a judge awarded trebled damages of $90,000 when a property owner seeking to improve his ocean view cut down a stand of 10 mature oak trees on his neighbor’s property. In reaching their decision, the judge noted the shade created by the lost trees as well as their aesthetic qualities.

Notwithstanding their high worth given the significant damages awarded for their unauthorized removal and injury, trees can pose several hazards and, when dead or dying can create nuisances for which liability may arise. Diseased or damaged trees can be at risk for falling on homes and automobiles and susceptible of causing injury to life and limb (no pun intended). Branches can interfere with overhead utility wires while roots can wreak havoc on underground utilities like septic systems causing sewage backup and even creeping into gaps in foundations. Dropped fruit, leaves and branches and insect infestations are also annoyances. But what if the tree causing all the damage belongs to your neighbor or straddles the property line?

It has long been settled that if you own a property with a tree that stands completely within your property’s boundaries, then you own that tree and the rights, privileges and responsibilities associated with it. The trimming and maintenance of trees on one’s own land are generally in the property owner’s discretion unless the trees are located within an area that is within the jurisdiction of a regulating entity such as a local conservation commission or the Department of Environmental Protection or subject to some other municipal regulation providing for the protection of trees. In those instances, a property owner should consult with the local regulating authority before taking any action. The rights shift a bit where a tree is located within a property, but its branches and roots extend onto abutting land. In that case, a neighboring landowner may engage in self-help to remove the offending branches and roots. It is not necessary that the over-extending branches and roots be causing damage to the abutter’s property. The branches and roots need only to extend over the property line and the abutting property owner can cut them back to the property line, but no further.

When a tree straddles the property line dividing two properties, matters get a little more complicated. The ownership of the tree is actually vested in each of the property owners whose land the tree encroaches upon. Each owner has the same rights to cut limbs and roots that invade their property. However, this right is not unlimited. One cannot prune the invading portions of the tree in such a way that would cause injury or death to the entire tree. One must use reasonable care in pruning the tree taking into consideration the effect it will have on the health and lifespan of the tree. To permit otherwise would result in one property owner having unfettered authority to kill the tree to the detriment of the other property owner.

Now, despite the law recognizing the right to cut overhanging branches and invading roots, the discord with your neighbor that may ensue might not be worth their removal. With the help of the following practical tips, you may be able to avoid seeming un-neighborly and still be able to manage the offending tree:

1. Determine on whose land the tree is actually located with the assistance of a land survey. Knowing where a tree is located is the first step in determining what you can do with it. Do not rely on a mortgage plot plan, sketch plan or drawing or other unverified plan. If the survey still leaves open the question of location or it shows that the tree straddles the property line, your neighbor’s cooperation is going to be necessary if you want to remove the tree entirely.
2. Determine whether the tree is located in wetlands, wetland buffer zones or some other jurisdictional area that will require authorization from a regulating authority.
3. If your desire to remove a tree is based on your perceptions about its age, health, condition, proximity to structures, etc., be sure to consult with an arborist and get their professional opinion in writing. When approaching a neighbor about removing their tree, it helps to know what you’re talking about! An arborist’s opinion will provide that boost and will also show your neighbor that you’re serious and that your opinion is based in fact.
4. Consult with a tree removal professional to discuss methods of pruning and removal, including how the tree will be accessed, the equipment that will be used, whether and how the stump will be removed, how the area will be restored and what will be done with the timber once the tree is cut down. Get a few estimates in writing. If you are looking to share the cost with your neighbor, they will come in handy. If you are looking to give a carrot to your neighbor to induce them to agree to the tree’s removal, offering to pay may help that effort.
5. Now, kindly approach your neighbor to discuss your concerns and plans and get their written consent to your action plan to avoid liability later. Listen to your neighbor’s concerns. After all, that tree may have resided on their property for many years and provided them with a view that they perhaps, haven’t considered living without. Be considerate, kind and open to working together. Entering into the task jointly may have the unintended benefit of strengthening neighborly ties whereas unilateral action can have devastating consequences.
6. Be sure to obtain necessary permits or government approvals prior to engaging a tree professional and ensure that your contract with the tree professional is thorough and that they are sufficiently insured. Getting references goes without saying.

A practical approach, that is considerate and takes into account legal rights and responsibilities is “gurantreed” to put you on the right “root” to getting the task on the chopping block (all puns intended)!

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Extra! Extra! The extras no real estate offer should be without.

As a real estate attorney frequently representing buyers, I rarely receive an offer for review before it has already been accepted by the seller. Unfortunately, in this scenario it can be very difficult to fix a poorly crafted offer after the fact. The seller may be adamant about sticking to the terms originally proposed by the buyer and reticent to let an attorney include more or different terms.

But, if a buyer comes to me before submitting their offer to the seller, there’s a lot I can do to beef up boilerplate terms. Buyers too often put misplaced reliance on their real estate agent when it comes to putting together their offer. After all, some might argue that memorializing the offer is a form of providing legal services – something best left to the attorneys. That said, I thought I would offer up my wish list of extras I would love to see become standard in all real estate offers. Here goes:

1) Appraisal contingency – if you are applying for a mortgage to finance your purchase, always include a provision in your offer requiring the property to appraise at or above the purchase price. This puts the seller on notice that you are not going to overpay for the property and gives you an out if value becomes an issue. In today’s volatile real estate market, value can become problematic during the appraisal if there are limited comparable sales or the property has unique attributes that can’t easily be valued.
2) Mutually satisfactory P&S – never settle on the parties executing a standard form or boilerplate purchase and sale agreement. By specifying that you’re only interested in the execution of a mutually satisfactory agreement, you’re acknowledging up front that you anticipate the parties, through their counsel, will be negotiating additional terms. Relying on standard form documents for the most important purchase of your life is a fool’s game.
3) Appliances and systems in good working order – if you’re paying top dollar for the property, it makes sense that you would expect all appliances and systems, such as the furnace, central air conditioning, and so on, will be delivered in good working order at closing. If you don’t specify this, you can expect them to be delivered in the same condition they were in at the time of your home inspection with reasonable wear and tear. If it’s a short sale, or post-foreclosure sale, that’s another story altogether. Most sellers in those cases will make no guarantees about appliance or system performance at closing and will typically require a buyer to accept their condition as-is. No matter what the case, be sure to also specify which appliances are to be included in the sale so there is no confusion about what is staying and what is going.
4) Mortgage Contingency – of course your offer is going to include a mortgage contingency. But, did you bother to check with your lender to confirm the loan amount and how much time they will need before a mortgage commitment will be issued? Make sure to doubleback with your lender before agreeing on dates. And, if your mortgage is going to be other than the garden variety conventional -type, be sure to specify that (i.e. FHA, VA, USDA, etc.). FHA and other federally insured loans have additional requirements and additional paperwork and certain buyer-protections that a seller may want to know about when assessing an offer.
5) Inspection Contingency – now while almost every boilerplate offer form I’ve ever seen includes an inspection contingency provision, they often don’t get into the specifics of inspections or provide for instances where test results may be delayed and will require time for assessment. If you are planning to have a property tested for radon, for example, you’ll want to be certain that you are going to be able to collect the sample, send them off to the lab and have time to analyze the results all before the contingency expires. If you won’t have enough time, then be sure to modify your offer to account for these sorts of items. Another big one involves private well testing. Not only will you need time to have the well tested, but you’ll want to ensure that the results meet established minimum water quality standards like those established by the EPA or the local Board of Health. If they don’t, you’ll want the opportunity to either terminate the deal or require the seller to rectify the water quality issue.
6) Property to be delivered vacant – this is particularly important if you are buying a property occupied by tenants and the expectation is that it will be delivered vacant at closing. Alternatively, if some or all of the tenants are to remain, it is incumbent on the buyer to inspect rental agreements and obtain information about security deposits and last month’s rent from the seller. These demands for information should be set forth in the offer. It will also be vital to find out which appliances belong to the tenant or to the seller as the former won’t be included in the sale of the property.
7) Review of condominium documents – if the property is a condominium unit, the buyer should specify that the transaction is subject to the seller providing the buyer with all of the current condominium documents including, but not limited to, the master deed, declaration of trust, bylaws, rules and regulations, recent meeting minutes and budget. Issues commonly come up with respect to the terms and conditions under which a condominium unit may be rented should the buyer want to do so now or in the future, parking and pet ownership. These can be deal breakers for some buyers. The condo documents will shed light on these items. It’s important not only to specify what documents the buyer wants to review, but also set deadlines by when the documents will be provided and buyer’s review will be completed. An offer for a condominium that has a mortgage contingency should always specify that the transaction is conditioned on the unit being Fannie Mae warrantable. And, buyers should always ask for seller’s to disclose the monthly condominium fees and any pending or planned increases or special assessments as these will impact the buyer’s financing and bear on their financial situation directly.

While the above list is not exhaustive, it should help you get started when thinking about all that has to be done in order to purchase real estate. Every Massachusetts property is unique and should be reviewed with care in light of crafting an offer. I always encourage prospective and returning clients to contact me early so we can proactively approach the offer stage in order to remove barriers further down into the process. Fine-tuning an offer to address the buyer’s expectations also helps to manage the seller’s expectations and promotes a smooth transaction and property turnover.

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In the World of Real Estate, Timing Is Everything

Interest rates are up, and then they go down.  Prices fall sharply then, almost overnight, they’re on the rise again.  For some, it’s all just a matter of timing.  You took the time to save up your down payment, now you’re ready to find your dream home.  The money’s in the bank, you’re prequalified and you’re working with an agent.  Will your dream home be out there now that you’re ready?

The same holds true for the inner workings of a real estate deal – it’s all just a matter of timing and sometimes timing is everything.  Having been involved in hundreds of real estate transactions, the one thing I’ve found to be consistent with the smoothest ones is the fact that the timing from submission of an offer to passing papers at the closing table has been calculated with some level of precision.  The buyer wasn’t succumbing to pressure to close the same month their lease was expiring or some date fixed by the seller to accommodate their vacation schedule and the lender wasn’t promising to deliver according to some unrealistic deadline just to get the loan.  Instead, a set of very achievable deadlines was chosen for each of the major steps of the process after consultation with all of the necessary parties and consideration of all that must be accomplished before a closing can occur.  This is the way real estate transactions should always be handled.  But, that’s rarely the case.

Often when an offer comes across my desk for review, it’s already been accepted and that was after some negotiation back and forth.  The first thing I always look at is the timing of the transaction.  When is the home inspection deadline?  When do the parties need to execute the Purchase and Sale Agreement?  What date did the buyer’s agent include for the application and mortgage contingency deadlines?  When are we closing?  Is there enough time to get the tax and title information, resolve title issues and prep for closing?  Or, are we going to be requesting extensions of all of the deadlines right out of the gate?

If there was some back and forth between the parties, it’s typically not because of timing but more a matter of pricing or inspectional issues.  The parties hash out their differences and the offer gets modified with a new price, or some seller concession.  But, the parties never bother to revisit the dates of the original offer and now it is one week, two weeks or even longer since it was first submitted.  Those original deadlines have now been shortened and we’re not even at the Purchase and Sale Agreement stage!  Furthermore, the buyers may not have even had a full conversation with their lender about how much time it will take to process their mortgage application, order and review an appraisal, review title issues and so on.

The agony that ensues because of poorly chosen dates is difficult for any of the parties to deal with.  Often a title examination requires additional work because of possible defects or a complicated history.  This then delays the issuance of the mortgage commitment, which in turn holds up the lender from clearing the loan to be closed.  If there are true title defects, it can take weeks of discussions to come up with possible resolutions.  Not only can this slow the mortgage process, but it can drive the whole transaction to a screeching halt.  The ramifications go on and on.  Imagine the scenario where the seller has already gone and put a replacement property under contract with the intention of using the proceeds from the sale of their existing home, which may or may not close in the near future!

So, what is the answer?  There are three actually:  planning; diligence; and flexibility.  When making and accepting offers, the parties must plan well by reviewing their needs, the lender’s needs and those of other affected parties as well as considering how much time is needed to complete the various tasks.  The parties, especially the buyer, must be diligent in responding to document requests from their lender, timely completing inspections and other due diligence and maintaining constant communication with their attorney, agent and lender.  Sellers need to be diligent about making negotiated repairs or vacating the property.  Finally, the parties must be flexible.  They have to understand that despite negotiated deadlines and best efforts, some transactions just can’t close on time as originally planned due to issues that could not be foreseen or resolved as quickly as desired.  If the parties contract with each other installing these three attributes into their transaction, a successful closing will not be too far off.

 heir

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When and how can a Massachusetts landlord charge a tenant for water?

According to Massachusetts General Laws Chapter 186, Section 22, a landlord must follow very specific procedures before they can require a tenant to pay for water.  When a unit is not directly connected to a meter installed by a water company, the law requires installation by a licensed plumber of separate submeters for the individual units and the common areas as well as a primary meter for the building so that all water being used in the building is measured by the primary meter and the individual submeters serving particular units or common area.  So, for example, if a building contains 4 dwelling units and a basement where water is utilized for the entire building, a landlord would need to have 5 submeters installed in addition to the primary meter that measures the building’s water use in its entirety.  But that’s not all.  A landlord must also have a licensed plumber install low-flow showerheads, faucets and toilets meeting statutory flowage requirements.  The installation and subsequent maintenance of the equipment are solely at the landlord’s expense.  When the metering and water conservation devices are in place, the landlord must certify to the local board of health or health department that they have complied with the statutory prerequisites.   Once a building has been retrofitted with the proper equipment and the landlord has given their certification, a tenant may be charged for water usage subject to a few more requirements.  First, a landlord may only begin charging a tenant for water usage at the commencement of a new tenancy.  They cannot start charging a tenant for the first time mid-tenancy.  Further, the landlord and tenant must enter into a written rental agreement that unambiguously discloses how the tenant’s water usage will be measured and details the billing arrangement between the parties.   If a tenancy begins in the middle of a billing period before the landlord has received a bill from the water provider, the landlord must take a reading on the unit’s submeter on the first day of the tenancy and mail it to the tenant.  The tenant’s first bill from the landlord for water usage must take into account this initial submeter reading.  Each bill must include the current and last submeter readings with dates for each, the amount of water used by the tenant since the prior reading, the cost per unit of water, the total due and the payment due date.  A landlord cannot recover from the tenant any additional servicing, administrative, establishment, meter-reading, meter-testing, billing, or submetering fee or other fee whatsoever, however denominated, that is charged to the landlord by the water provider.

If a landlord bills the tenant for water usage on a monthly basis, payments are due from the tenant 15 days after the mailing date of the bill; if billed at intervals greater than a monthly basis, a tenant has 30 days after the mailing date of the bill to pay.  While service cannot be shut off or refused to a tenant on the basis that they have not paid their bill, landlords can find some solace in the fact that a tenant’s failure to pay for water usage when due is a material breach of the parties’ written rental agreement subject to judicial action.  A landlord who engages in self-help by willfully failing to furnish water or directly or indirectly interfering with the furnishing by another of water, or transferring responsibility for payment for water to the tenant without their knowledge or consent, is punishable by a fine of not less than $25.00 nor more than $300.00 , or by imprisonment for not more than 6 months and is liable for actual and consequential damages or 3 month’s rent, whichever is greater, and the costs of the action, including a reasonable attorney’s fee. If a tenancy terminates in the middle of a billing period for which the landlord has not yet received their water bill, the landlord must take a reading on the unit’s submeter on the last day of the tenancy and provide a final bill for water usage that starts with the prior reading and ends on the last day of the tenancy. The rate charged in the final bill, which is immediately due and payable by the tenant, shall be the same charged in the prior bill.  If not immediately paid by the tenant, the landlord may deduct the final billing amount from any security deposit paid by the tenant so long as procedures set forth in the security deposit law, and not discussed here, are followed.  If, when the landlord is finally billed by the water provider, a lesser rate is charged, the landlord shall refund the difference to the tenant.   Any landlord considering charging a tenant for water usage should carefully consider the ramifications of doing so.  While this article is an overview of the subject, it is in no way comprehensive.  Obtaining legal advice is recommended for any landlord considering submetering in light of the stiff penalties imposable for failure to follow the law’s burdensome requirements.