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Healey, Deshaies, Gagliardi & Woelfel, PC
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Results through Quality Representation
Results through Quality Representation

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The Truth is Out There. See the ABA Legal Fact Check at abalegalfactcheck.com

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Attorneys Michael Tucker and Solen Moriarty were pleased to attend this year's Newburyport Bar Association Barrister's Bash. Happy Holidays!
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Attorneys Robert Deshaies and Althea Volper were pleased to attend the 2017 Real Estate Bar Association (REBA) Annual Meeting and Conference. They attended various breakout sessions including: Alternatives to Subdivisions: Condominiums and Ground Leases, How to Handle Condominium Liens in a Mortgage Foreclosure and Commercial Title Insurance Endorsements.
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Security Deposits - A Short Warning to Massachusetts Landlords
By Michael A. Tucker

Congratulations! You have spent the money to buy and renovate a building you hope will be an income property. Maybe it is a three or four unit residential building and you look forward to the day that a group of rent checks will arrive with regularity on the first of the month to be added to your bottom line. I wish you all the luck in the world, and toward that end, I have some words of caution. In this first note, I suggest that you spend some time on the question of whether to demand a security deposit from a tenant who has passed your intake process.

There are, of course, many other related matters that need your attention, but the security deposit is, by far, one of the most troublesome issues you have to address. The Supreme Judicial Court in Massachusetts has granted us new wisdom on the function and burden of the prepaid security deposit for residential tenants in Massachusetts. The case Phillips v. Equity Residential Management, LLC was delivered to the reporters on October 25, 2017. It makes clear that the security deposit is not really a tool intended to make the landlord secure. It is designed, instead, to balance the power between the landlord and the presumably less powerful tenant.

You believe the security deposit is a way of insuring that you can correct any damage or loss that a thoughtless, negligent or downright vengeful tenant might cause while they live in your property. Maybe it will help you to fund the risk you undertook when you purchased the place. It often doesn’t work out that way. The law requires a landlord to maintain and account for security deposits and report their location and existence so precisely, that it becomes almost impossible for a small landlord to consistently do it correctly. A portion of the obligations you inherit with your deposit include its maintenance in a separate account. It is to be titled and identified by the property address and its purpose. The interest on the account must be paid or offered to the tenant each year. The funds cannot be co-mingled. When a tenant leaves or is evicted, your work is just beginning.

A landlord must return the security deposit right away or explain right away what if any portion is not going to be returned. If you apply the security deposit to some non-permitted but legitimate expense or fail to provide a proper accounting (attested to under the penalties of perjury no less) the tenant has both a defense to an eviction and worse yet a cause of action with which to sue you. This is where it really becomes interesting. The law permits the tenant to sue you for three times the amount of the security deposit or the amount in dispute, and better still to ASSESS THEIR ATTORNEY’S FEES TO YOU. It is a tremendous encouragement to tenants to litigate their termination or sue you for any cause of action when they believe that you will be paying their attorney as well as yours.

Getting rid of a problem tenant can eat up a good deal of the rent that they ever paid you if the base line of damages is thought to be the security deposit times three plus their lawyers’ expenses. So perhaps it makes sense to give some thought to avoiding the whole issue. I suggest that you at least consider not taking a security deposit in the first place. After all, the amount of the deposit is often not very large and would not cover very much damage if the property is damaged. You can still sue them in a separate cause of action for significant damage assuming that they have the assets to pay in the first place. It also helps to avoid litigation in the first place. It has been my experience that when both parties expect to have to pay their lawyers, they are less likely to take their issues to court.

There is certainly no single correct answer for every landlord and a security deposit may be something that you want to be a part of your relationship with tenants. However, if you are going to go that route, I suggest as gently as I know how that you consult a lawyer when you draft your lease and set up your accounts. Learn the procedures that are required and keep an eye out to see when they change. If you have a question, ask your counsel to help you get it right. His or her fee will be considerably cheaper than learning the rules after you have violated them and a tenant is expecting a check from you rather than the other way around. You did not become a landlord to end up making payments to your tenants. You undertook the risk and expense of providing residential housing to people. Only, by planning ahead and protecting yourself can you hope to make the risk worthwhile and avoid the migraine headaches that come from watching your bank account be drained rather than supported.

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Join us tonight for the Amesbury Downtown Trick-Or-Treat!
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Does a Jury Hear about a Breath Test Refusal in Massachusetts?
By Michael A. Tucker

You have been arrested for Operating a Motor Vehicle under the Influence of Alcohol. In Massachusetts, that is OUI. You exercised your right not to take the breath test. That seems a reasonable choice unless perhaps you had nothing to drink of any kind at all. After all, the breath and drug test results have not proven to be especially reliable in Massachusetts in recent years. You have a constitutional right not to incriminate yourself by testimony or voluntary access to physical evidence. However, that refusal comes at the cost of a burdensome additional license suspension. Now you have to go to court and are wondering what if anything the jury will hear about the breath test.

Well, in Massachusetts, the law has just shifted. The case is known as “Commonwealth v. Wolfe” and the highest court in the Commonwealth has just sent us a message on October 13th. For a long time it has been true that a refusal of the breath test is not something that the jury should hear testimony about. Because you have the right to refuse, there should be no negative consequences at trial for using your constitutional right not to incriminate yourself. This is especially true when the breath test results and drug lab results have been consistently attacked for accuracy. Just this week however, the Supreme Judicial Court has preserved a question for you to puzzle through with your attorney at trial.

It used to be pretty simple. Your breath test refusal did not come before a jury unless you or your attorney made the mistake of mentioning it during the trial. Even then, there might be a hearing and a ruling by the judge sitting at the trial. Now, you and your attorney must decide whether to ask the judge to make the jury pay attention to the fact that there are no breath test results in your case and they are not permitted to take that into their deliberations. This is a step beyond the procedure that was available before. Do you want to highlight for the jury that they cannot base a verdict on evidence that they have not heard? That is a tricky decision and one best made by experienced trial counsel after the jury has been seated and observed.

Isn’t it a simple question? No. Maybe your jury, or some of its crucial members, did not seem to pay attention to the fact that there is no breath test. Do you want to point out to them that it does not exist? Most jurors are familiar with the “Miranda” rights and the breath test machine in a simple ‘Operating under the Influence’ case. Maybe, instead, have they been waiting to hear testimony related to that test? In that case, it may be helpful to let them know it is not lawful for them to speculate about that test. It is our choice. If we think it has been overlooked, should we inform them and risk waking them up? Should we keep quiet and not have a judge call attention to the fact that you did not take a breath test? These decisions can only be made with your lawyer in the context of your trial with a specific fact pattern and a specific jury. In fact, the decision is only best made at the very end of your trial when the trial evidence is complete and the closing arguments are getting started.

At that point, you can’t Google “what should my lawyer do now?” There is no “Legal Answer Man.com” for a trial. If the case is entitled “Government vs. You”, you need a good lawyer with trial experience against the government. By the way, if you do not have any funds or assets, the state will choose you a lawyer. You can’t be sure who you will be assigned, but it is that important. Beyond that you are on your own. This is in your hands. YOU HAVE TO BE IN CHARGE OF GETTING A LAWYER THAT CAN HANDLE THIS PROBLEM.

When the trial evidence is concluded, your attorney should ask you, “Should I tell the judge to tell the jury that they should not pay attention to the lack of a breath test?” Does that draw too much attention to my refusal? What do you decide? Under the new case law of Commonwealth v. Wolfe, the choice belongs to you and your attorney. Make a good one.

I can help you in either Massachusetts or New Hampshire, but this new case law relates to Massachusetts. In New Hampshire your rights are different.

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Happy Fall!
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How Does a Drug Dog Testify?
By Michael A. Tucker

You are confused. The police show up at your apartment. While you are handcuffed and sitting on the floor they start to search. You have cooperated and they have not found any reason to make an arrest. They radio dispatch and another officer arrives, with a dog. While you are watching carefully, the dog goes through the entry hall and each room. Aside from what seems to be random barking and a frequent chorus of “good boy” cheers from the police, you don’t see anything suspicious in the dog’s behavior.

They take you out in cuffs and to the station for booking. You don’t have a lawyer yet, maybe you haven’t even asked for one. When you read the police reports later, they say the dog signaled to them that there were drugs in your bedroom and in the kitchen of the apartment. The charges are serious and your attorney tells you that this is something to be worried about. You should probably expect a motion to suppress the drugs to be filed in your case and a trial will take place afterwards if the motion does not succeed.

It is simple. If the state can’t get in the drugs, it can’t win the case. If you get rid of the dog’s testimony, you get rid of the drugs. How does the drug dog tell the judge or the jury what he smelled or how he knew it was drugs? How does your attorney cross examine a dog? What about the officer that works with the dog? The questions have to be put to the dog’s handler/partner. That officer is about to tell your jury what the dog was thinking. The jury rocks forward in their seats. What will he say? How does he know? Why should we believe him?

The federal court for this jurisdiction has just handed down a case that helps answer the question. The judge in your case has to make certain that you have a fair trial. Therefore, you are entitled to know in advance whether the dog handler is going to testify as just another witness or are they going to tell the jury that he is an “expert” on drug dogs. You are entitled to know in advance the details of any training that the dog received. You should also have information about any training that the handler received. How long have they worked together? When was the last time they went to school? Has the dog made mistakes in the past? What other arrests have they made together? Were any of those cases overturned?

You are entitled to this discovery. The name of the most recent case from September 15 of 2017 is U.S. v. Naranjo-Rosario. It is a federal decision from the First Circuit that includes Massachusetts and New Hampshire. How can your lawyer defend you if he or she can’t cross examine a dog? The lawyer has to get the maximum amount of discovery about the dog and the handler as far before motion or trial as he or she can. The judge and jury love dogs. Your lawyer has to convince them that this one can’t be trusted. That takes facts.

Indigent Guardian’s Right to Counsel
By Solen G. Moriarty

The Supreme Judicial Court, recently in Guardianship of K.N., 476 Mass. 762 (2017), held that while de facto guardian parents do not have a liberty interest sufficient to warrant a procedural due process right to counsel, the equitable powers of the Probate and Family Court allow a judge to grant a motion requesting the appointment of counsel for an indigent guardian who is subject of a removal proceeding where the judge concludes that doing so would materially assist in determining the best interest of the child and parental fitness.

The facts in Guardianship of K.N. included a maternal grandmother being appointed permanent guardian to a child born to a fifteen-year-old in 2005 when the baby was a few weeks old. The biological mother filed a removal petition in 2015 and several months later filed an emergency motion to remove the child from the guardian’s care, which was allowed by the court. The guardian filed a motion for appointment of counsel which was denied. A week later, the judge ordered that the child be returned to the guardian.

The child, through counsel, filed a motion to appoint counsel for her guardian, which was denied. The child asserted that guardians who are de facto parents have a procedural due process right to appointed counsel in contested guardianship removal proceedings. In Guardianship of K.N., the court acknowledges that the concept of de facto parenthood has been recognized by the court and defined as “one who has no biological relation to the child, but has participated in the child’s life as a member of the child’s family. The de facto parent resides with the child and, with the consent and encouragement of the legal parent, performs a share of caretaking functions at least as great as the legal parent.” E.N.O. v. L.M.M., 429 Mass. 824, citing Youmans v. Ramos, 429 Mass. 774, 776 (1999). The court further recognizes that because disruption of a child’s preexisting relationship with a nonbiological parent can be potentially harmful for the child, the court has held in the past that de facto parents may be granted visitation rights over the objection of the legal parents. Guardianship of K.N. at 765. The SJC points out, however, that these visitation rights are not based on any liberty interest that de facto parents have in their relationship with the child in question, but rather derive from the Probate & Family Court’s equitable powers under G.L. c. 215, §6, to protect the welfare of children. Id. The interests of parents in their relationship with their children has been deemed fundamental and is constitutionally protected. Care & Protection of Jamison, 467 Mass. 268, 283 (2014). Guardianships, by contrast, are solely creatures of statute and therefore do not rise to a protected liberty interest in the relationship with his or her ward. Id.

The SJC states that the Probate & Family Court has equity jurisdiction over “all matters relative to guardianship,” G.L. c. 215, §6, and its equitable powers are “broad.” Youmans, 429 at 782-783. The Court further recognizes that guardianship removal proceedings require judges to “make complex determinations that consider numerous factor regarding the child’s best interest and the parent’s fitness” and that appointment of counsel for the guardian may help reach the best possible result for the child. Guardianship of K.N. at 766. As such, the Court held that the equitable powers of the Probate and Family Court allow a judge to grant a motion for appointment of counsel for an indigent guardian who is the subject of a removal proceeding where the judge, based on the excersise of his or her sound discretion, concludes that doing so would materially assist in determining the best interest of the child and parental fitness. Id.

Unmarried Cohabitant’s Right to Restitution
By Solen G. Moriarty

The Massachusetts Appeals Court in Bonina v. Sheppard (No. 16-P-771) ( June 1, 2017) recently upheld a Superior Court judge’s award of restitution to an unmarried cohabitant for his contribution of funds and labor to improve the home in which the parties lived during their relationship, but owned individually by the Defendant.

The parties in the Bonina case were involved in a long-term relationship, living together for sixteen years. The plaintiff, a contractor, expended significant funds and labor while living in the home, including various improvements and additions totaling approximately $156,913. The Superior Court judge found that the Plaintiff had received the benefit of these items and awarded him this amount in restitution, representing his costs to purchase the materials and the fixtures to improve the home.

Upholding the Superior Court’s decision, the Appeals Court reasoned that while cohabitation does not create the relationship of husband and wife or the incidents afforded to such a relationship, unmarried cohabitants may lawfully contract concerning property, financial, and other matters relevant to their relationship. See Wilcox v. Trautz, 427 Mass. 326, 332 (1998). Equitable relief is also available, including restitution for unjust enrichment. See Santagate v. Tower, 64 Mass. App. Ct. 324, 329 (2005). Unjust enrichment occurs when a party retains the property of another’s “against the fundamental principles of justice or equity and good conscience.” Id. The court in Bonina found that a parties’ romantic relationship does not prevent the Plaintiff from recovering from the Defendant under unjust enrichment theory. In Massachusetts there is no presumption that claimant’s contributions during a romantic relationship are gratuitous. Id.

The Bonina court cites to the Restatement (Third) of Restitution and Unjust Enrichment § 28(1) (2011) in support of their holding: “[I]f two persons have formerly lived together in a relationship resembling marriage, and if one of them owns a specific asset to which the other has made substantial, uncompensated contributions in the form of property or services, the person making such contributions has a claim in restitution against the owner as necessary to prevent unjust enrichment upon the dissolution of the relationship.” Id. Recovery is allowed because the claimant would not have conferred the benefit, “except in the expectation that the parties’ subsequent relationship would be something other than it proved to be.” Ibid. The court in the present case found that the Plaintiff’s contributions were substantial and uncompensated as the Defendant did not reimburse him. Therefore, the Bonina court concluded that the Plaintiff could seek restitution for his contributions to the Defendant’s home under an unjust enrichment theory. (No. 16-P-771).
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