Elliott S. Topkins Massachusetts Real Estate and Title Atty

Like everyone else's business, my business as a Massachusetts title lawyer runs in spurts. Lately, i have been involved in three situations concerning Easements. In one situation, a client of mine is buying a guest house while the Seller is retaining the major home. All the systems, however, run through the major home. To make things more complicated, some of the utility lines actually leave the street and pass over the land my client is purchasing. A reciprocal Easement is needed to protect both sides in terms of repair and access. We are working on same as we speak.

The other Easements were retained restrictions imposed a realtively long time ago by a land owner who wanted to protect the environment. Since these Easements were put in place, the Towns where the property is located have become much more vigilant in enforcing local and state conservation laws and codes. The people who put on the restrictions originally now are willing to remove some of the more onerous restrictions.

Because they represent encumbrances of the title, all Easements start with an accurate title report. Until we know who are the current lien holders on the property, we cannot complete the Easement work. In the case of the major home-guest house, the owner of the major home has a mortgage on his property. A Subordination of this mortgage to the Easement must be obtained before the Easement can be fully in effect. This takes some time, so we will hold back some funds from the Seller until the Seller delivers the Subordination. One never knows how long obtaining the Subordination will take. I am going to request that 1.5% of the purchase price be held back. That should "encourage" the Seller to act quickly.

In the restrictive Easements situations, my goal is to either eliminate, or weaken, the effect of the restrictions. That will take some negotiating and compromise, but restrictions like these, while laudable, can really make the value of property diminish.

The last issue is whether a full certified Plan is necessary for an Easement. I have prepared Easements where a sketch of the property lines and rights of way is adequate. Naturally, I would prefer a Plan prepared by an Engineer in recordable form. Most of these considerations are financial, but unless there is precision in Easement drafting, which includes accurate depiction of the property in question, the money saved in the present tense may be spent many times over in the future.

I am not going to divulge the name of ths person. It is important to me, but really is not germane to the point of this post. Suffice it to say that this person liked some of the material I have been writing and re-blooged it on her own blog. She and I have made contact, and we are going to meet soon for a cup of coffee to explore future joint undertakings. The prospect of a new person to work with interests and excites me. To paraphrase a sports metaphor "It's why we play the games".

I have written almost 80 posts since February, 2009. I was reluctant to write at first. I have been more confident about writing posts in the last few months. To me, writing posts is like submitting a paper or a blue book in college. Once I am finished with the work, it is up to the reader to assess whether my work is relevant or useful. I have done all I can by writing the material.

So, when a person not only reads my stuff but thinks it is useful enough to include in his or her blog, that makes me feel that the effort is worthwhile. I can honestly tell you that I now have no idea whether something I write is going to achieve "Featured Post" status (it has happened a couple of time) or crash and burn. That outcome is totally out of my hands. All I can do is continue to observe and analyze, and then write things down.

I am a Massachusetts real estate lawyer. Through my writing on ActiveRain, I may have made an important connection to grow my business. That is a serendipitous result from my real pleasure in writing for the Active Rain nation. I have this to be thankful for, and I wanted all of you who have commented on prior posts to know how appreciative I am of your feedback. It gives me ideas and insights. What more could I ask from any audience?

Yesterday, i was in a meeting with the Sales Manager of a local thrift institution. Her Bank portfolios all of their adjustable rate loans and all their jumbo product. They sell conforming product in the secondary market. This person informed me that on one day last week, she received an aggregate of 85 changes in the FNMA/FHLMC?FHA rules. In effect, her head was spinning.

She told me that her Bank was still lending the way it has successfully for the last twenty years. They try to understand the Borrower. They obtain information about the property and the Borrower which they deem important. They then make the decision about the loan. They try not to go way beyond their community for loans or Borrowers. At present, they have eleven(11) of their residential loans in foreclosure. They must be doing something right.

The point of this post is this. This IS the time for your local thrift. Their small size and intimacy with their customer base can now serve you and your customers. Stop in to day hello to the originator at the branch. Start introducing these peole to your Buyers. They are much more accessible than those bargain deals on the Internet, which crash and burn with regularity.

Stay close to home. The money is there for your customers, and, ultimately, for you.

My 20 year old daughter has already told me she will be mortified if I use a vaguely suggestive title to drawpeople to this post. The bottom line is that we are all in the marketing business, and I write to reach the broadest section of AR Nation that I can, so, perhaps, prudes need not read further.

Of course the "T Spot" refers to engendering trust from those you work for, and with. Once trust is established, everything gets easier. In Massachusetts, where I practive real estate law, attorneys are responsible for the mortgage loan closing. The typical Borrower comes into my office ready to distrust, and dislike, me and my firm. There is no question that we are only involved to take advantage of them in some way or other.

To combat this generalized notion, I try to prepare for the closing. I look at the Form 1003 to see if there is some common ground between me and the Borrower. "Oh, you are a nurse; you know, my sister-in-law is a nurse". "Oh, you have kids in college; so do I. Can you believe how much college costs?" I need some door opener to convince the Borrower that I have the same kinds of hopes, dreams and concerns that they have. I need to make myself into a human, not a robot who is going to make it difficult for them to own their new home.

It is hard to say when the moment of trust will occur. Sometimes, I can go deep into the closing before I feel the pendulum swing, and the Borrower starts to loosen up and enjoy the process. Sometimes, it never happens, and I can chalk one up to experience.

The point of this post is to articulate how important it is for all of us to gain our client's or customer's trust. We do this by being friendly and congenial. We do this by working at our trade, so we really do have most of the answers. We also do this by having enough humility to tell the customer that we don't know the answer but we will try to find it and get back.

It is starting to happen again. Just like it did in the late 1980's and early 1990's. Condominiums are in financial trouble, I have previously written a Featured Post about delinquent condominium Unit Owners and what Trusttes MUST do to collect common area fees from them.

A similar, but potentially much more serious, situation obtains with the Condominium developer. As most of you probably know, as soon as the Master Deed is recorded, each Unit in the recorded document must start paying common area fees. There is some question whether each Unit needs to contribute the required amounts to the reserve account. That varies from state to state. Let's just stick with the fee for each Unit for operations.

The law is that the developer must pay condominium common area fees for his unsold Units. I am afraid that this requirement is "more honored in its breach than in its observance", as the Bard would say. Cash flow is generally tight for new developers, and they perhaps cannot afford to pay. They can deliver a Certificate at the closing, indicating that the common areas fees are paid with respect to the Unit which is being purchased. It may well be a different story for the unsold Units.

My suggestion in this area is that the real estate professionals representing the BUYER need to be militant. Place a provision in the Purchase and Sale Agreement or Rider where the SELLER makes an affirmative statement that the comon area fees for all Units owned by the SELLER are current. Require the SELLER to demonstrate that fact at the closing by bringing a Condominium Bank Statement which proves that payment has been made.

Once the SELLER understands that there will be no closing without everything being current, there will be a great incentive to make matters right. The numbers can really "explode" unless some approach is taken to require the developer to keep up the monthly payments. It is not a pleasant situaion for a new BUYER to walk into a situation where there are financial problems at day one. All of us need to work hard to try to prevent this.

If you are looking for suggested P & S language for these situations, please contact me at etopkins@topbev.com. I am a Massacusetts real estate attorney, but I am reasonably confident that the language I have developed will hold up in other jurisdactions, as well.