Elliott S. Topkins Massachusetts Real Estate and Title Atty

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.

Recently, I was representing a young couple buyingt their first home with an FHA mortgage. The Purchase and Sale Agreement was signed in early March. The closing was set forth for late April. Plenty of time for the Lender. The written mortgage commitment issued in late March with standard conditons. My clients easily fulfilled them.

THREE days before the scheduled closing, the Lender informed my client that "they were backed up and all closing were being pushed back for FIVE days." The Seller had scheduled a day off for the orignal closing date to dothe final walk-through. My clients are looking a being homeless if there any any further delays. There were no suggestions of underwriting probelms. The Lender was "backed up" and that was all there was toit.

When you consider all of the things that all real estate professionalts need to do to have a successful closing, this "walk away" approach by the Lender is simply not acceptable. The SELLER in my case wants to be paid (at least a per diem for the delay). My clients are in jeopardy of not having a roof over their heads. Do you think there is any way that the Lender will "chip in"" on this? Personally, I do not.

As an undustry, we really need todevelop ways tomake the Lender more accountable for this type of behavior. I would suggest substantial fines for each time it happens, some of which could be paid to FNMA/FHLMC and some which can be paid tothe Borrowers. Maybe, the state Banking Commission should suspend licenses of Lenders who do this more than "X" times in a given period. I am a real estate attorney in Massachusetts, and in our state, the attorney conducts the closing, I am fed up with the insouciance of the Lender. We all suffer when closings donot take place, and allowing the Lenders to run "roughshod" over our industry is unacceptable.

I would appreciate your view and suggestions. In this time of reduced activity, every closing is important. Lenders must be hed accountable for not realizing how many people they hurt when they are "backed up". Hire some more people!!!Work longer hours!!! Stand up and be responsible!!!

It was the late 1980's. Condominiums in Massachusetts were literally going "broke" because unit owners were not paying their common area fees. That meant that water bills and common electricity bills were not being paid. The towns and utilities tried to work with the Trustees to the extent they could. In many situations, Condominiums went bankrupt because the amounts due and owing got "out of hand".

But help was on the way. Condominium Trade groups organized in states across the country started drafting new, and effective, legislation which gave Condominiums some clout with the Unit Owners. Massachusetts adopted this statute in 1992. It should have proved a Godsend, but unfortunately, it has not. There are still condominiums in trouble because of delinquencies. The statute involved, which has become part of Section 6 of Chapter 183A, is not being used to its fullest capacity.

In effect the new statute gave the Trustees tremendous power to collect. Fall behind by 60 days or more, and the Trustees can commence an action against you, force you to pay penalties and legal fees, and if you do not get caught up, sell your Unit at foreclosure and wipe out all mortgagees.

The last sentence is the important one. Once this type of action is commenced, the only thing the Trustees need to do is notify the Mortgage Lender(s) for the Unit. It has been my experience that the Unit Coomon area fees get "caught up" in days. WHY, you ask? Because if the Lender does not pay, in full (including attorneys fees and penalties) the Lender will lose out on the collateral.

So, my advice to each and every person reading this post who owns a condominium is to question your Trustees to make sure they have an automatic procedure for collectionm once Common Area fees become 60 days deliquent. If they so not, they should, and there should be zero tolerance for not proceeding. The enforcement action costs the Condominium nothing!!!!

If any of you have further questions on enforcement procedures, please contact me at etopkins@topbev.com. This is an important Condominium right, and SHOULD NOT EVER BE IGNORED OR DELAYED.

The post set forth above was originally included in my blog, www.realtorsresourceblog.com, which is intended to assist the real estate profession with various topical issues. I am an experienced Massachusetts real estate and estate planning attorney. I hope you will find these materials useful.

In Massachusetts, and possibly in other states as well, siginifcant protection is given to the non-debtor spouse if the married couple elects to take title as "husband and wife, tenants by the entirety". There are other advantages to tenancy by the entirety, such as avoiding probate, but the principal advantage is one of protection. The botton line is this: IF YOUR PRINCIPAL RESIDENCE IS PROPERLY PUT IN YOUR NAME WITH YOUR SPOUSE, AS "HUSBAND AND WIFE, TENANTS BY THE ENTIRETY" A CREDITOR CANNOT ATTACH YOUR HOUSE, OR FORECLOSE ON YOUR HOUSE, FOR AN OBLIGATION INCURRED BY THE OTHER SPOUSE.

It is important to note that, in Massachusetts, you must be married at the time you take title, the property must be your principal residence, and the deed must include the "husand and wife, tenants by the entirety" language. A deed to only "husand and wife" creates a tenancy in common. A deed to "married persons" creates a joint tenancy without the protections described above. A deed to unmarried persons as "tenants by the entirety" also creates a severable joint tenancy.

Even though "tenancy by the entirety" creates important protection to a married couple, I still recommend that one of the married owners record a Declaration of Homestead. There is a $35 filing fee involved, and a small fee for producing the document, but that is the spouse's only exposure. In exchange, a Massachusetts Homestead declarant receives insulation of up to $500,00 of equity in his or her home (subject to some "anti-fraud" provsions in the Federal Bankrupcty Law and a few other exclusions). This type of portectin is especially helpful in the following situations:

1. The obligations involved are "joint" so that tenancy by the entirety will not protect.

2. There is a divorce or death, which has the effect of terminating a tenancy by the entirety.

3. There are minor children in the home, who are protected by a Declaration of Homestead.

There may be circumstances, mainly for wealthy clients who need to establish individual assets for estate planning reason, where tenancy by the entirety is not the proper choice for ownership. In more than forty years of practicing real estate law, I have not identified ANY situation where filing a Declaration of Homestead is not advantageous. I would be more than happy to discuss any aspects of this post with potential Massachusetts property owners, or out of state individuals who are considering a purchase of real estate in Massachusetts. The consequences of the choices susch as the ones described herein can be important, and you need to know what you are getting into before deciding which type of ownership is best for you.

While my principal office location is on Newbury Street in Boston, Massachusetts, I spend a considerable amount of time in my Braintree, Massachusetts office (150 Grossman Drive, Suite 405, Braintree, Massachusetts: 781-849-5906; Facsimile 781-848-3656). Real estate attorneys are finding out every day that their physical location is critical to garnering clients who buy and sell homes, and require real estate mortgage financing.

Braintree, Massachusetts is lterally the "Gateway to the South Shore" of Massachusetts. Located approximately 14 miles southof Boston, Braintree offers convenience for South Shore real estate transactions to many thriving residential communities like Norwell, Hingham, Scituate, Cohasset and Milton.

I have enjoyed having an office in Braintree for more than 15 years. There are cultural advanatges in Braintree; Thayer Academy is located there. There are wonderful restaurants and one of the most active shopping Malls in Massachusetts. The Public Library is well-run as are other muniipal services.

Please do not hestitate to contact me for all of your South Shore real estate transactions. I am available at any time, at any place, to give you the kind of legal service which you deserve. For those of you in the Western suburbs, Topkins & Bevans also has a full-service office at 255 Bear Hill Road, Waltham, Massachusetts (781-890-6230; Facsimile: 781-466-6982).