Property Law Disputes February 9 2023
Scenarios OF Note
Shifting LANDSCAPE FOR ACCELERATED Rent CLAUSES IN Business LEASES
Cummings Houses, LLC v. Hines, 21-P-1153 (Mass. App. Ct. Sept. 9, 2022)
The Massachusetts Appeals Courtroom not too long ago regarded as no matter whether a lease acceleration clause uncovered in a business lease was enforceable as a liquidated damages provision, or unenforceable as a penalty clause. The Court docket concluded that the acceleration clause was unenforceable as a penalty clause.
In Cummings, the operator of a organization specializing in assistance of authorized paperwork (Hines) entered into a 5-12 months professional lease for office room in Woburn, Massachusetts, at annual base hire of about $16,000. The plaintiff (Cummings) was the landlord. Hines signed the lease on behalf of his organization (named MCO), as perfectly as a personal warranty. Under the phrases of the lease, in the function of a payment default (and failure to get rid of within just 10 times), Cummings experienced the electricity to terminate the lease and speed up assortment of rent for the entire lease phrase.
In July 2016, only 3 months following the lease was executed, MCO lost a main agreement. Whilst Hines and Cummings initially negotiated an choice payment plan for the stability deposit, MCO before long failed to remit rent payments and Cummings declared default. In subsequent litigation, just after a bench trial, the trial court choose held that Hines was “sufficiently sophisticated” to be held to the phrases of the lease, especially the rent acceleration clause. Judgment was entered from Hines in the total of $82,143.01 (about five several years of rent beneath the lease), representing “damages, prejudgment curiosity, and charges.” The Court docket entered this judgment notwithstanding the simple fact that, in the spring of 2017 (about a person 12 months into the original 5-12 months lease phrase), Cummings correctly re-enable the premises through a four-calendar year professional lease.
The Appeals Court docket reversed. The Court started off from the premise that a hire acceleration clause, in which a defaulting lessee is required to fork out the lessor the total volume of the remaining hire due underneath the lease, could represent an enforceable liquidated damages provision so extensive as it is not a penalty – and courts will originally presume that these a clause is not a penalty. Certainly, a liquidated damages provision will usually be enforced if (1) “at the time the settlement was made, possible damages had been complicated to identify,” and (2) “the clause was a acceptable forecast of damages predicted to take place in the party of a breach.” However, the clause is very likely to be interpreted as a penalty clause where the liquidated damages are “grossly disproportionate to a acceptable estimate of precise damages’ produced at the time of deal development.”
In this circumstance, the Court determined that the clause was a penalty since it would permit Cummings to obtain a sum of funds differing so significantly from the true damages arising out of the breach. In Cummings’ watch, the acceleration clause permitted it to retake possession of the premises, relet it, and collect hire from a new tenant without the need of possessing to account for the lease gained from the new tenant. The Court held that this procedure of the clause would have no realistic marriage to expected damages.
Cummings arguably alterations the landscape when it will come to the enforcement of rent acceleration clauses in commercial leases in Massachusetts. Time will convey to how stringently it will be followed in long term circumstances.
SJC CLARIFIES Amendment TO ZONING ACT Part 17
Marengi v. 6 Forest Street LLC, SJC-13316 (Mass. Dec. 14, 2022)
In Marengi, the Supreme Judicial Court docket clarified a latest modification to G.L. c. 40A § 17, which permits courts, in their discretion, to require a plaintiff difficult a determination approving a distinctive allow to publish a surety or dollars bond (in an amount not to exceed $50,000). At concern was (1) whether the bond provision set out in Section 17 applies to in depth permits issued less than G.L. c.40B, § 21, (2) what charges are recoverable underneath the bond provision, and (3) no matter whether, in this circumstance, the demo court’s imposition of a $35,000 surety or funds bond was realistic.
In November 2020, a developer (6 Forest Highway LLC) used to the Zoning Board of Appeals of Salisbury for a in depth permit to construct seventy-six condominium models. In late July 2021, the Board granted the thorough allow, matter to 96 ailments.
In mid-September 2021, plaintiffs Terrence Marengi, Jr. and many others challenged the Board’s decision in Exceptional Court docket. Among plaintiffs’ worries had been the validity of 6 Forest Road’s acquire of the web page, the financial justification for the number of models staying created, and the project’s impacts on h2o top quality and quantity to the plaintiffs’ houses. 6 Forest Road asked the demo court docket to order plaintiffs to article a $50,000 surety or funds bond, citing increased project prices that would come up from the hold off triggered by Plaintiffs’ charm. In accordance to 6 Forest Avenue, the highest bond was required to counterbalance the prices, estimated at $250,000, together with “price improves for lumber and framing elements attorney’s expenses . . . the charges of website traffic, engineering, and environmental industry experts that could conveniently exceed $50,000 and fascination amount will increase boosting the price of financing . . .” Plaintiffs opposed the movement arguing, amongst other factors, that Section 17’s bond provision does not implement to appeals of comprehensive permits and, even if it did, plaintiffs did not bring the charm in bad religion or with malice (which according to them was a pre-requisite for this kind of a bond). In the different, the plaintiffs argued that the $50,000 bond was unreasonable on its fact. The trial courtroom choose granted 6 Forest Road’s motion in portion, necessitating plaintiffs to post a $35,000 bond. Just after plaintiffs appealed the conclusion to a single justice of the Appeals Court, the SJC transferred the case sua sponte.
The SJC initially concluded that the bond provision applies to appeals of thorough permits. This is since an enchantment of a determination issued below G.L. c. 40B § 21 is taken pursuant to G.L. c. 40A § 17. The SJC also reasoned that the legislative background and reason of the bond provision is served by this interpretation since the major intent of the comprehensive allowing method is to streamline the development of inexpensive housing and the bond provision discourages frivolous or terrible faith appeals.
Future, the SJC clarified that a bond is generally ideal only where a plaintiff’s attraction appears so devoid of advantage that it might be reasonably inferred to have been introduced in undesirable religion. The SJC stated that the stated goal of the bond provision is “to safe the payment of expenses,” and fees are to be awarded only in extraordinary situation – such as where an attraction is brought in bad religion.
Last but not least, the SJC provided some clarity as to what “costs” may well be regarded as in location a bond. Notably, the Court docket identified that the fees for which a litigant may perhaps search for a bond below Area 17 are the very same as “costs” recoverable below G.L. c. 93A (Massachusetts’ Unfair Level of competition Statute). According to the Courtroom, by that measure, recoverable expenditures consist of the “actual, reasonable costs” specifically incurred by litigating the charm. In Marengi, those expenses would be the more advisor service fees (engineering, targeted traffic, environmental) that 6 Forest Road experienced to fork out in order to provide testimony all through the training course of the charm. On the other hand, “costs” do not include attorneys’ fees or expenses incidental to the attraction – such as losses from delayed design. The SJC did not rule on the reasonableness of the demo court’s final decision to impose a $35,000 bond, owing to a constrained report.
In mild of this selection, professional authentic estate builders really should be aware that a courtroom will only situation a bond upon a preliminary dedication that a plaintiff’s assert is so devoid of merit as to represent bad faith or malice. Additional, even if a court docket is eager to get a bond, the scope of charges that that bond may deal with is minimal to only costs immediately ensuing from the enchantment.
MULLIGAN FOR Golfing Training course IN EASEMENT Circumstance
Erik Tenczar & a further v. Indian Pond Country Club, Inc., SJC-13297 (Mass. Dec. 20, 2022)
In late-April 2017, plaintiffs, Erik and Athina Tenczar purchased a household subsequent to a golfing system (known as Indian Pond). The property was constructed in just a subdivision issue to selected covenants and constraints related to the golfing training course which have been mirrored in a recorded declaration of covenants and constraints. A single provision of the declaration (which was amended to apply to the Tenczars’ ton prolonged just before they ordered their residence) offered Indian Pond a “perpetual appropriate and easement” for golfers to retrieve errant golf balls on unimproved areas of neighboring household tons. One more provision (as amended) furnished that Indian Pond retained the appropriate to “reserve or grant easements for [its] reward for . . . the reasonable and efficient procedure and maintenance of the golf course and its services in a customary and usual fashion,” over the Tenczars’ lot.
Immediately after their household was allegedly strike by quite a few errant golfing balls, the Tenczars sued Indian Pond for trespass. The Tenczars testified that over 600 golf balls had strike their assets, top to the breaking of nearly ten home windows and harmful both equally the railing and siding of the house.
At demo, the Tenczars sought to exclude Indian Pond from asserting that it experienced an easement for the intrusion of golf balls. The choose dominated in the Tenczars’ favor, but, in accomplishing so, targeted only on the ball retrieval provision of the declaration, and not the provision that allowed Indian Pond to retain a golfing course “in a customary and common method.” The Tenczars were eventually awarded $100,000 for property harm, $3.4 million in emotional distress damages, and an injunction which prohibiting Indian Pond type functioning in such a way that golf balls would hit the Tenczars’ house or garden.
On attractiveness, the Supreme Judicial Courtroom reversed, concluding that the demo choose erred in his interpretation of the easements simply because he interpreted only the ball retrieval provision without having thought of the other provision which permitted Indian Pond to run and keep a golf class on the Tenczars’ whole lot. A appropriate interpretation, the SJC reasoned, would include consideration of the context and attendant instances, which would have to include the normal effects of golfing system operation, and, extra particularly, the intrusion of golfing balls on to the residence. Intrusion of the golfing balls was, according to the SJC, the servicing of a golf system in the customary and normal manner. The case was remanded for a further trial.
Tenczar provides a reminder to each developers and potential buyers that easement and covenants are generally interpreted as a total – and exactly where their demands plainly permit the ongoing purpose of close by business enterprise exercise, challengers may perhaps not locate significantly sympathy from Massachusetts courts.
2023 Goulston & Storrs Laptop. Nationwide Legislation Critique, Volume XIII, Selection 40