Frequently Asked Questions

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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 in 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

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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 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.”

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IS BANKRUPTCY THE RIGHT DECISION FOR YOU?

Many people who have credit cards cannot even use them because the available credit line is “maxed out,” and has been for some time. Many people acquire other credit cards in order to continue being able to charge purchases. What happens next is that these people are sometimes faced with having to use one credit card to pay the payment due on another. These people suddenly find themselves in the rut of paying only the “minimum amount due.” If you are like others in this situation, you keep paying and paying and yet, the balance seems to remain the same. This is because the “minimum amount due” barely pays the interest due on the balance.

Bankruptcy laws are designed to aid those people who are drowned in debt and cannot get out from underneath its burden. After consulting with an attorneys, you will have a clear picture if bankruptcy is the best solution to your particular financial situation. Someone who “goes bankrupt” is no longer is responsible for the payment of most, if not all, of their debts, and his or her creditors can no longer contact him or her about the amount owed. The bankruptcy laws give the debtor a new and fresh start. On the downside, the person’s credit is damaged for approximately 10 years. However, if the person is in the position where he or she is entitled to go bankrupt, then his or her credit is probably already in bad condition. We have morning, daytime, evening and weekend appointments available for consultations, which can be by phone or by an office visit, whichever you prefer.

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WHAT IS THE DIFFERENCE BETWEEN A “CHAPTER 7” AND A “CHAPTER 13” BANKRUPTCY?

Most people are familiar with the basics of the Federal bankruptcy system, but few people understand the difference between a chapter 7, 11, or 13 bankruptcy. In short, the difference depends on whom is filing for the bankruptcy and what chapter is the most applicable to their situation.

For example, chapter 7 is available to both businesses and individuals. It is the “liquidation” type bankruptcy where a debtors “nonexempt” assets are available to pay creditors. This type of bankruptcy is well suited to an individual who has mostly assets that are exempt from the bankruptcy estate, and therefore not available to pay creditors.

By contrast, chapter 13 is available only to individuals and allows that individual to pay a small percentage of their total debt off over a period of three to five years. This type of bankruptcy is well suited to an individual or couple that own a home, a nonexempt asset, and wish to retain it and also have too much income to qualify for a Chapter 7 bankruptcy.

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BUYING A HOME: ARE YOUR INTERESTS BEING REPRESENTED?

An important question to ask when buying a home is, “should I have my own lawyer?” Many buyers run into problems after the closing because they were under the misconception that their interests were being represented and taken care of by the bank’s attorney. These problems can involve unfavorable tax consequences, P&S Agreement terms, etc. Unless otherwise agreed upon, the bank’s attorney is hired by the bank, and is primarily concerned with the bank’s interests.

The purchase and sale of a home is not ordinarily a confrontational process. As a result, buyers often feel a false sense of security that the bank is “on their side.” Banks are very conscientious and fair in their dealings with the buyer. However, a buyer must be aware that while many important issues are not applicable to the bank’s interests, they may seriously affect the buyer’s interests and must be addressed.

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WHAT INJURIES ARE COVERED UNDER THE WORKERS’ COMP. LAW?

According to Massachusetts law, the workers’ compensation act applies to injuries “arising out of and in the course of employment.” Many lawsuits have centered on whether a particular injury does in fact arise in this manner. The key question is whether the employment duties placed the employee within the area of risk which resulted in the injuries suffered. Whether the employer is at fault is irrelevant.

Whether a particular injury is covered under the act is determined on a case-by-case basis. For example, the act applies to some lunch-hour injuries. If an employee is sent away on a business trip, he or she is covered twenty-four hours per day, unless the employee is injured while engaged an activity that is in no way related to the business purpose of the trip. By contrast, injuries occurring while traveling to and from work are generally covered only if the injury occurs while on the employer’s property.

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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 devises, landscaping, interior painting, wall and floor covering, fencing, above ground pools, shutters, awning, patios, driveways, and freestanding masonry walls. Additionally, professionals who are required to attain standards of competency and experience as a condition to 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 suspension of 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’s 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, obtain 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 homeowner’s 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.

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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.

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SHOULD YOU INCORPORATE YOUR BUSINESS?

Many people operate their businesses as sole proprietorships or “DBA’s” without ever considering the advantages or disadvantages of incorporating their businesses. For example, many business owners are unaware that their personal creditors can often reach and attach their business assets if they operate as sole proprietorships. Conversely, creditors of a sole proprietorship or DBA can often reach and attach the personal assets of the business owner, including the family home, if the assets of the business are insufficient to cover the amount owed to the creditor. A properly formed and managed corporation can avoid such problems. On the downside, corporations must follow certain “corporate formalities” and are generally subject to greater regulatory requirements than unincorporated businesses.

In deciding whether to incorporate, advice from attorneys and accountants will allow the business owner to make a well informed, intelligent decision.

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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 the 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.

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HOW DO YOU GO ABOUT CHOOSING THE RIGHT LAWYER?

The choice of a lawyer is a very important decision. Massachusetts law, and Federal law for that matter, is in a constant state of shaping and reshaping. When choosing a lawyer, you must select one who has kept abreast of these changes in the law.

An important question to ask when choosing a lawyer is “how much of the work is actually being performed by lawyers?” You must remain informed as to whom is doing work on your case. At particularly critical stages of a case, you will feel secure to know that a lawyer is handling the situation.

You should meet with the lawyer for an initial consultation before hiring him or her. This will provide an opportunity for you to meet the lawyer face to face. The success of your case is dependent upon the utmost cooperation between you and your lawyer. Additionally, you will learn what rates the lawyer charges for his or her services, an important factor in choosing a lawyer.

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FINDING LOST PROPERTY

The general definition of lost property is property which 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 complied with the notification requirements. Next week, we’ll discuss abandoned property, which is different from lost property.

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MEDICAID ELIGIBILITY AND THE PRIMARY RESIDENCE

The prospect of leaving the family home and entering a nursing home is a realistic concern for many elderly people. What’s more, many elderly people face the prospect of losing their family home, a most treasured asset, in order to qualify for the Medicaid needed to pay for their nursing home care. However, under current Medicaid law, there are situations where a person can retain their family home and still qualify for Medicaid eligibility.

For example, if the stay at the nursing home is not permanent and an individual intends to return home, their primary residence will not be a “countable asset” for the purposes of determining Medicaid eligibility. Also, if a person has long term care insurance complying with Medicaid regulations, the home will not be a countable asset. The house will not be counted if the Medicaid applicant’s spouse still lives in the home. There are also exceptions dealing with the applicant’s children, siblings, and other dependents.

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MISLAID PROPERTY

We have recently been making the distinction between lost and abandoned property. When has 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 of 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.

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WHEN IS A CITY OR TOWN LIABLE FOR NEGLIGENCE?

Under the Massachusetts Tort Claims Act, a city or town can be held liable for the negligent acts of its employees, as long as the negligent act did not result from a “discretionary function” of the city or town. Discretionary functions are those acts that result from a town’s judgment or policy decisions, rather than negligent acts resulting from carrying out an established policy. For example, a town’s decision on whether to allocate funds for the upkeep of a playground would be a discretionary function. However, once the town allocates the money, the town can be held liable for the negligent upkeep of the playground.

Even if the city or town is held liable, the injured party can collect no more than $100,000 in damages. In addition, any such claim must be presented to the city or town within six months of the event in question. If you have been injured, the advice of an attorney can help you determine if you have a case.

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WHAT IS “NEGLIGENCE?”

People often use the term “negligence” without truly understanding what constitutes negligent conduct. To establish negligence, a plaintiff must prove: 1) that the defendant owed a duty of reasonable care to the plaintiff, 2) that the defendant “breached,” or failed to uphold, that duty to the plaintiff by failing to use reasonable care, 3) that the plaintiff suffered damages, and 4) that the defendant’s negligent conduct caused the plaintiff’s damages.

Whether a defendant breached a duty owed to a plaintiff is generally determined by the “reasonable person” standard. The duty is breached where a defendant fails to exercise the degree of care that a reasonable person would exercise in the same situation. Most personal injury actions are based upon a defendant’s negligence. If you have suffered a loss and you believe that someone else’s negligence may have caused that loss, the advice of an attorney can help you determine whether you have a case.

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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 owner.

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WHEN ARE PERSONAL INJURIES COMPENSABLE?

Massachusetts’ law protects its citizens from the dangerous and negligent actions of others. Every citizen has a right not be hurt by the carelessness or recklessness of another. If you have been harmed by the negligent actions of another, you must determine whether the law will allow you to be compensated for such harm.

The Massachusetts’ personal injury laws are designed to 1) compensate the victim for the losses and harm suffered as a result of the negligence or recklessness of another, and 2) to discourage the negligent actor from similarly harming someone else in the future. Every citizen has the duty to exercise reasonable care in conducting their activities, whatever they may be, and not to create an unreasonably dangerous risk to others. If someone creates an unreasonable risk and you are harmed while rightfully within that area of risk, it is your right to access the laws and seek compensation accordingly.

Don’t be hesitant because you feel you might not have a “big” case or a “good” case. If you have legitimate injuries or losses and feel that someone else is responsible for them, call us. We will determine whether you have a compensable case. Remember, if someone else has carelessly caused you or your loved ones to suffer harm, no case is too small. We have morning, daytime, evening and weekend hours available for consultations.

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WHAT IS A PRENUPTIAL AGREEMENT?

Although nobody expects it to happen to them, over fifty percent of today’s marriages end in divorce. Prenuptial agreements are an easy, inexpensive, and responsible way for spouses to settle their differences before they even arise. Despite the fact that these agreements are often made the brunt of jokes, they actually provide security and trust for the couple who are mature enough to deal with such issues at the outset of the marriage.

These agreements, recognized in Massachusetts as valid and binding contracts, address the issues of property division, child custody and the like. The formation of these agreements is not a confrontational process and is often a comforting experience for the couple. Dealing with these issues in the beginning can avoid a lot of grief and expense in the long run.

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PROTECTING YOUR HEALTH CARE WISHES

To most of us, decisions regarding desired medical treatment are extremely important. Yet, quite often a patient is too sick and unable to communicate these decisions when the time arises to make them. However, this problem can easily be avoided if the patient previously executes a “health care proxy.”

A health care proxy is a document authorized under Massachusetts law that allows people to spell out their treatment wishes before they get sick. It allows patients to appoint a “health care agent” to follow their wishes and make treatment decisions in the event that they become too sick to do so themselves. A health care proxy is an inexpensive yet effective way to preserve patients’ medical treatment wishes in the event that they are unable to communicate those wishes.

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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.

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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.

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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 multi-family 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.

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WHAT IS A TORT?

What is a tort? The word “tort” is a legal term derived from the Latin word “tortus,” or “twisted.” Today, it is used in the legal context to describe the wrong that is committed by someone who is under a legal duty to use reasonable care in their activities not to harm others.

Some examples of torts include: defamation, assault, battery, invasion of privacy and robbery. Another tort is negligent conduct (that is, negligence) which causes and results in harm to the real estate, personal property or personal interests of others. For instance, a car accident caused by one who was driving recklessly, and which results in bodily injury to another, is an example of negligent conduct. In a civil tort lawsuit, the negligent driver, as long as he or she was more at fault than the injured person, must compensate the victim for any bodily injuries and other harm suffered by the victim.

All citizens owe each other the duty to use reasonable care not to participate in activity which puts others at an unreasonable risk of harm. If you feel that someone has put you within an area of unreasonable risk through their failure to use reasonable care, and you or your loved ones have been injured as a result, consult an attorney.

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WHAT IS A TRADEMARK?

A trademark is a “distinctive mark” of authenticity through which the products or services of one manufacturer or organization may be distinguished from another. A trademark can consist of words, symbols, or signs. Once a company obtains a trademark, it has rights to the exclusive use of that mark.

In order to establish trademark status, the owner of the mark must show that the public associates the mark the producer or owner of the goods. Marks that are “inherently distinctive” or unique, such as the McDonald’s golden arches, easily gain trademark status. However, for marks that are not inherently distinctive, such as Copy Cop’s three English Bobbies, the manufacturer or organization must show that the mark has attained a “secondary meaning” in the public such that it is now associated with a particular organization or manufacturer. Once trademark status is attained, the owner of a mark can sue anyone who makes use of the same or similar mark such that it causes a “likelihood of confusion” in the public as to the source of the goods or service.

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WHY HAVE A WILL? 

A Will offers you the luxury of having the peace of mind to know that it will be your wishes, and not the State’s or someone else’s, that are carried out when you die. For parents with young children, it is not pleasant to think that both parents can die simultaneously. However, in our dangerous world, it is responsible planning and caring for your children to realize that such an unfortunate tragedy can happen. A will gives you the opportunity to name the person or persons that you wish to act as the legal guardian of your children upon your deaths, and allows you to state how you want your property distributed.

Today, many people also execute other instructions together with their Will. For instance, many people execute Living Wills and Health Care Proxies. These documents go into effect when a person becomes physically or mentally unable to make certain health care decisions on their own. Depending on which of these documents you use, you can include instructions concerning what kind of health care treatment you wish to be used or not to be used, when it is to be used, how much of it and for how long. Many people also execute burial/funeral instructions and anatomical gifts apart from their Will. Also, people often include a Durable Power of Attorney in which they appoint a trusted person to make various important decisions for them if they are unable to do so themselves. Together, these documents are an effective way for you plan for future events, both unpredictable and predictable.