Security Deposits? In Massachusetts, They Are Not Worth The Risks

This was originally published on September 30, 2014.

Real Estate & Estate Planning

Many term leases run from September to August.  For these leases, today is the last day for Landlords to take care of their Tenant’s security deposit. Landlords must return deposits within 30 days after the Tenant vacates for a tenant at will or the 30 days after the expiration of a term lease.

For the most part, a Landlord may deduct unpaid rent in certain circumstances and the cost of damage to the premises, reasonable wear and tear excepted.  Landlords must follow the law precisely or risk triple damages (three times the security deposit) and attorneys fees.  The Landlord must provide an itemized list of damages, itemizing in detail the damage and the repair necessitated. The Landlord must provide written evidence, indicating the actual or estimated repair cost. Landlords must sign the itemized list under the pains and penalties of perjury. Be careful, what constitutes a repair as opposed to…

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Don’t Sign That Offer Before You Talk to an Attorney

An issue I see all too often in the residential real estate transaction: Involving Your Attorney AFTER Entering A Legally Binding Contract.  In Massachusetts, a Buyer will usually submit an offer to purchase on some version of a standard form “Offer to Purchase” created by one of the local or regional Realtor associations like the Greater Boston Real Estate Board.  In most cases, once the Seller accepts the offer, the material terms of the contract have been set and the parties are bound to the Offer and the conditions agreed upon.

Contained in the Offer to Purchase is: a description of the property; the purchase price; the deposit and the conditions under which the deposit becomes the property of either of the parties; the expiration date of the offer; the manner in which the offer may be accepted; the nature of the title to be conveyed; the items of personal property and fixtures that are either included in or excluded from the transaction; and the time and place for the delivery of the deed.  These forms will also contain language similar to “NOTICE: This is a legal document that creates binding obligations. If not understood, consult an attorney.”

One of the conditions, contained in the Offer to Purchase is that the parties will execute a Purchase and Sale Agreement that is agreeable to both parties.  This is the point where many Buyers and Sellers will first involve their attorneys.  It is very important that the parties use an attorney in the negotiation of the Purchase and Sale Agreement.  However, for numerous reasons, it is prudent to have an attorney review the Offer to Purchase before the material terms are set.  In a future posting, I will discuss in detail why an attorney is needed in the negotiation of the Purchase and Sale Agreement.

For the Buyer, I like to include a valuation contingency, so that if the property does not appraise for the sale price, the Buyer has the opportunity to either renegotiate the sale price or back out of the deal and receive their entire deposit back which can be as high as five percent of the sale price.  Additionally, I like to add some warranties and representations to the Offer to Purchase.  For the Seller, it is important that they identify personal property that they may be leaving behind or fixtures, such as chandeliers, that they intend to take with them. If you want to take your Mother’s prized cherry tree with you when you sell, it better be in the offer.

There is no such creature as the “routine” residential real estate transaction. Each parcel of real estate is unique and each party to the transaction has individual needs and desires. For both parties, it is always a good idea to have a trained, experienced set of eyes review the terms and make sure the client’s interests are best represented and that the client fully understands the implications of the documents they are signing.

Even on weekends, there is enough time to have your attorney review the offer before it needs to be submitted or accepted.  In my practice, I charge a flat fee for representing Buyers and Sellers and that fee includes the review and/or drafting of the Offer to Purchase and all other documents a Buyer or Seller would need to sign from broker disclosures to listing agreements.  I can even help explain and compare different mortgage quotes for my Buyers.  For most Buyers and Sellers, this is one of the biggest transactions in their lives.  I strongly recommend any Buyer or Seller to talk to an attorney as early on in the process as possible.

WHAT IS A DECLARATION OF HOMESTEAD? THE MASSACHUSETTS HOMESTEAD ACT: MASSACHUSETTS GENERAL LAWS CHAPTER 188

For most of us, our home is our largest asset. We live in our homes today and we count on our home’s equity for retirement tomorrow. We have homeowner’s insurance to protect that investment from fire and casualty. However, most homeowner’s fail to take the simple steps to protect their home from the reach of creditor’s and lawsuits. A homeowner is entitled to homestead protection for their principal residence. The homestead estate exempts equity of a home from attachment, seizure, execution on judgment, levy and sale for unsecured debts. The homestead will not protect the homeowner against government taxes, assessment and liens, mortgages, child support orders, execution on judgments based upon fraud, mistake, duress, undue influence or lack of capacity. It should be noted that any liens recorded or vested prior to the creation of the homestead estate are also not subject to homestead protection.

Protection is available for owner-occupied, residential one to four-family homes, condominium units, cooperative apartments and manufactured homes. Once again, the homeowner is only entitled to protection for their principal amount. If there are more than one homeowner, they would share the exemption. A non-owner spouse who lives with the owner is also entitled to share in the homestead protection, as well as, any minor children. If an unmarried owner declares a homestead then subsequently marries, then the declaration will automatically benefit the new spouse upon marriage. Divorce or remarriage will not affect the homestead of the spouse who remains in the home as their principal residence.

A homeowner can increase their homestead up to $500,000.0, if they make a written declaration and record the declaration in the appropriate registry of deeds for the county or district where the home is located. For a principal residence held in trust, the trustee can declare a homestead for the beneficiaries who occupy the home as their principal residence. Homeowners, 62 years of age or older, as well as disabled persons, are entitled to homestead protection of $500,000 for each separate owner who files a declaration. This protection for the elderly and disabled are not shared among co-owners. By way of example, elderly spouses who are co-owners of their principal residence each receive the full $500,000.00 exemption for an aggregate exemption of $1,000,000.

Declaration of Homestead forms may be obtained online from the Massachusetts Secretary of State office and most Registry of Deeds. To find your Registry of Deed, you can look up your city or town here. Fill out the form completely and execute the form in the presence of a Notary Public. There is a $35.00 filing fee. The Declaration of Homestead form can be mailed in or filed in person. The registries will accept personal checks for Declarations of Homestead.  If you are looking for convenience, my office can take care of all the details for a nominal charge in addition to the filing fee.

Homeowner’s pay hundreds, even thousands of dollars, on a yearly basis to protect our homes from fire or other disasters. Yet, so many homeowners fail to protect themselves and their homes from lawsuits and creditors. For the negligible cost and effort to take advantage of the Homestead of Act, it only makes sense.

Small Business Owners Commercial Leasing Tip #2: What are you paying for rent? Do you have one of these: Net Lease, Net-Net Lease, Triple Net Lease or Modified Gross Lease.

Traditional Definitions of Rent:

A. Net Lease: Tenant Pays Real Estate Taxes
B. Net-Net Lease: Tenant Pays Real Estate Taxes and Insurance Premiums
C. Triple Net Lease: Tenant Pays Real Estate Taxes Insurance Premiums and Repairs
D. Modified Gross: What ever the lease says it is.

No matter which terms are stated in the lease, it’s the details that make the difference. Important questions to ask: Are the total pass-through costs such as Taxes and Insurance paid by the tenant? Does the tenant only pay an increase over a Base Amount?

Commercial leases are often confusing and unclear.  Often, the most confusing and complex provisions are about pass-through costs. Having your attorney review and negotiate your lease is a prudent investment to avoid costly surprises down the line.

Security Deposits? In Massachusetts, They Are Not Worth The Risks

Many term leases run from September to August.  For these leases, today is the last day for Landlords to take care of their Tenant’s security deposit. Landlords must return deposits within 30 days after the Tenant vacates for a tenant at will or the 30 days after the expiration of a term lease.

For the most part, a Landlord may deduct unpaid rent in certain circumstances and the cost of damage to the premises, reasonable wear and tear excepted.  Landlords must follow the law precisely or risk triple damages (three times the security deposit) and attorneys fees.  The Landlord must provide an itemized list of damages, itemizing in detail the damage and the repair necessitated. The Landlord must provide written evidence, indicating the actual or estimated repair cost. Landlords must sign the itemized list under the pains and penalties of perjury. Be careful, what constitutes a repair as opposed to maintenance or some other cost is a tricky proposition.

Keeping part or all of a security deposit, without strictly adhering to the law is costlier than the damages.  The good news for Landlords is they can still seek their damages, but need to file a separate lawsuit.  The bad news is that many Tenants are judgment proof and the Landlord will never recover.

I advise all my Landlord clients to not collect a security deposit.  It is too complex for the casual Landlord and even some professionals. If a Landlord violates the law, the only cure is to return the security deposit immediately upon demand.

Small Business Owners Commercial Leasing Tip #1: The Lease is more than just a contract between the Landlord and the Tenant.

This starts a series in which I will discuss topics that small businesses should be aware of when signing a commercial lease.

The Lease: The lease is both a Contract and a Leasehold, or interest in property. Simple contract analysis is not enough. The commercial tenant needs to be aware of traps that go along with a leasehold interest. Many of these issues will NOT be addressed in the lease proposed by the Landlord. It takes knowledge and experience to make sure you are protected against unknown or unforeseen risks.

The Simple Rules of Small Condominium Finances

1. Simple Budget: You need a budget. This is important to plan for the expenses of the condo and make sure funds are available. Pay as you go is a risky proposition. Just add the recurring expenses: master insurance, utilities, maintenance, etc., and divide by 12. This monthly condo fee should then be assessed on each unit based on the condominium documents. Some condos assess by percentage interest, while other condos pay equally. Whatever you do, follow the condo documents.

2. Condo Reserve: Condominium documents may vary, but underwriting guidelines at most lenders will require a 10% reserve. Every time a unit owner purchases with a mortgage or refinances their current loan, the bank will need the condo to keep up the reserve. This means 10% of the actual budget. Open a bank account in the name of the condominium for your reserve. Use this account to collect the monthly condo fee and payout expenses.

3. Sixty Days Late: When the monthly condo fee is due, an automatic lien on each unit arises in favor of the condo association. If the condo fees are not paid within sixty days, to the tremendous advantage of the condo association, this lien can take priority over the first mortgage on the unit. The association should involve an attorney every time a unit owner is sixty days late. The Unit Owner would be responsible for attorney’s fees and costs. All the condo fees and collection costs will be an enforceable lien on the unit and some of these fees and costs might enjoy priority of the first mortgage on the unit.

Whether your association has two units or six, follow these simple rules and you will take a major step toward a healthy condo.