Real Estate Disputes

  • In March of 2023, successfully defended a case brought against the seller of a multi-residential unit building in Worcester, MA from claims made by the buyer of (1) breach of the P&S, (2) misrepresentation, (3) violation of Chapter 93A. The plaintiff-buyer was an LLC owned by a dentist from Boston turned real estate venture capitalist. The plaintiff-buyer purchased a cluster of apartment buildings on one parcel in Worcester in 2018. Prior to closing there had been a fire in one of the buildings, leading to a renegotiation and reduction of the agreed sale price, which was still lower than the appraised value of the property in its then-fire damaged condition. Moreover, the P&S included, at buyer’s request, a due diligence clause. The property closed in November of 2018. Buyer claimed he did not know that the building had been condemned until April of 2019 despite having walked and inspected the buildings multiple times with his team, which included his father, his lawyer, his property manager, his commercial real estate broker, and his contractor. The Plaintiff-buyer testified at deposition that he really did not conduct any formal due diligence himself and he failed to delegate such tasks to anyone on his team. The depositions of two City of Worcester officials and the renovation contractor revealed that the damages that the Plaintiff-buyer was seeking to recover were not causally related to either the fire or condemnation order as was alleged in the suit. The City of Worcester Chief of Inspectional Services also identified an alleged city order produced by the Plaintiff in discovery as “fake”, as the author of that alleged order no longer worked in the inspectional services department as of the order’s date and it was not found anywhere in the City’s searchable electronic file. Following those depositions, the Plaintiff-buyer agreed to drop the suit and the Defendant-sellers agreed to not seek sanctions against the Plaintiff under Ch. 231, §6F. Landmark Apartments, LLC v. Salisbury-Worcester, LLC, Worcester Superior Court, 1985CV01647 (Yarashus, J.)
  • In September of 2022, successfully defended the record title holders of multiple properties who were subjected to claims by their adult sister of “resulting trust” and “constructive trust”. When it became obvious to the Plaintiff and her counsel that she did not remotely possess the evidence required to prove her claims, she voluntarily dismissed the case less than one week before the case was to go to trial. The Defendants have a pending motion for the recovery of attorney fees pursuant to M.G.L. ch. 231, section 6F and/or Rule 11. Germano v. Germano-Valdez, et al., Land Court, 20 MISC 000331 (Vhay, J.)
  • In 2022, successful pursued an adverse possession claim on behalf of a mobile home park operator against an abutter. The parties reached an agreement for a small buyout of a certain strip of land subject to the adverse possession claim in lieu of continuing with costly and protracted litigation of the same. Wood v. Januskiewicz, Land Court, 20 MISC 000379 (Rubin, J.)
  • In December of 2021, successfully defeated a plaintiff’s efforts for injunctive relief regarding a common driveway easement. In evaluating the likelihood of immediate and irreparable harm to the plaintiff, the court found that the evidence in the record did not indicate convincingly that the presence of a portion of the Defendants’ newly-installed split rail fence within the record easement area materially impaired the Plaintiff’s ability to navigate her car in and out of her property. Judge Piper specifically noted that there was “compelling support” for the Defendants’ contention that the Y-shaped intersection of the parties’ driveways provided sufficient room for vehicles exiting backwards from plaintiff’s lot to reverse direction so that they can drive head-first out to the public street over the remaining length of the easement area, and that this maneuver can be accomplished reasonably and without any material difficulty. Judge Piper further found that the record showed that there also was adequate space within the currently paved driveway area directly abutting the Plaintiff’s garage for her to conduct her preferred maneuver—a three-point-turn in front of her garage—without being impeded by the fence. He further found that the Plaintiff has for some considerable time been successful in driving safely from the plaintiff’s property to Old Dunstable Road using the paved portions of the easement area, making adequate maneuvers to reverse direction and proceed head first to the public way without the need to depart from the paved area, i.e., without the necessity of using the unpaved shoulder (and certainly not the portion of the unpaved area recently limited by the new fence). The Plaintiff failed to sufficiently show a need to use the unpaved area to perform maneuvers of this sort safely (after many years of not having needed to leave the pavement). In fact, the video submitted by the Defendants showing a passenger vehicle leaving the garage of the Plaintiff’s dwelling, backing easily down the first segment of the easement area that long has been paved, and then reversing direction efficiently to proceed head-first the remainder of the length of the driveway to the street, greatly undermined her arguments and candidly put her credibility in question. Judge Piper also specifically found that her contention about her ability to accomplish either maneuver will be hampered significantly by snow and ice during the winter season was minimal and unpersuasive. Vollmar v. Pelletier, Land Court, 21 MISC 000521 (Piper, J.)
  • In June of 2021, successfully defended against an adverse possession claim made by an abutting neighbor to a parcel of land being developed by a local contractor. The abutter filed a verified complaint last October making certain factual allegations in support of a claim for adverse possession. The Verified Complaint asserts that the abutter and his predecessors in title had continuously, exclusively and adversely used and/or occupied portions of the property in question for more than twenty years. The evidence revealed during the discovery phase of the case reflected otherwise. With respect to the alleged driveway, it did not exist before the abutter created it. Same for the retaining wall. With respect to the prior in ground swimming pool, the Building Department’s records reflected that the plan filed showed the in-ground pool to have been installed entirely within the property boundaries. The deposition testimony of the prior resident was further damaging to the abutter’s case, as she testified on a number of points, including (1) the lack of a retaining wall while she lived there; (2) lack of any encroaching fences; and the most fatal was (3) the receipt of permission to use the alleged adverse area by the title owner. Moreover, the abutter admitted that he built the retaining wall referred to in recent years himself and that he failed to seek a building permit to do so. The abutter agreed to voluntarily dismiss the action as long as the defendant title owners agreed to not seek relief pursuant to Mass. Gen. L. Ch. 231, sec 6(f) and/or Rule 11. Nunes v. Jeanson Builders Contracting, Inc., Middlesex Superior Court, Lowell, 2081CV02497. (Barry-Smith, J.)
  • In November of 2020, assisted the Trustee of a nominee trust in defending against and settling the claims made by two of the four beneficiaries (Trustee’s own siblings). In November of 2014, Edward A. Zullo, father of the parties in this action, and then of 89 Union Street, Natick, Massachusetts, executed a Declaration of Trust known as the Zullo Realty Trust. The Declaration of Trust was recorded at the Middlesex South Registry of Deeds on November 14, 2014. A copy of the same is attached to the Complaint as Exhibit A. The Declaration of Trust identifies Loretta Presutti as the sole nominee Trustee. On September 12, 2016, Edward A. Zullo, father of the parties in this action, passed away. On May 1, 2018, the Plaintiffs, Edward M. Zullo and Christine MacGregor, sued their sister, Loretta Presutti claiming (1) failure to provide any accounting, (2) breach of fiduciary duty, and (3) request for her removal as the Trustee. RE: Zullo Realty Trust, Barnstable County. (Cannone, J.)
  • In February of 2018, the Court issued a final disposition in a case that began as a contempt action and ended as a receivership action. Sartini Law, PC defended the property owner with the goal of minimizing any fines and/or attorney fee awards the Town may have been entitled to recover.  The action stemmed from the property owner’s alleged failure to comply with the orders of the Town’s health agent with respect to his septic system.  There was no discovery conducted and the case never went to trial.  It was not a complicated case.  But it was clouded by the fact that the Town required the property owner to obtain permits before commencing any corrective work, which he could not afford.  This essentially created a catch-22 situation.  The matter eventually led to the appointment of a Receiver, who obtained the necessary permits and oversaw the completion of the corrective work.  Once the work was completed and the property in compliance, it was sold in order to compensate the Receiver and the contractors who completed the work at the property.  The Town of Groton sought to recover its attorney fees associated with its prosecution of the property owner.  There were more court appearances than anyone in the case ever expected, through no particular fault of any one party or the Court.  The Town’s Counsel, KP Law formerly known as Kopelman & Paige, had billed the Town of Groton in excess of $25,000.00 on a simple contempt action.  It is difficult to conceive how this much time was charged on this particular matter.  Scira responded to the Town’s fee applications and appeared in Court to argue the lack of reasonableness of the same.   The Court ultimately disposed of the matter without taking any action on the Town’s fee applications, awarding it nothing.   Town of Groton v. Scira, Middlesex Superior Court, 1381CV-05110 (Inge, J.)
  • In March of 2017, obtained a defense verdict following trial wherein the plaintiff alleged that the defendant breached an oral contract regarding the removal and replacement of a home heating fuel tank. The plaintiff called seventeen (17) witnesses in his effort to prove his case.   The evidence ultimately showed that the Defendant did not breach the contract and that the Plaintiff was the sole cause of his own damages, as the Plaintiff had the sole responsibility for applying for and securing a permit in order to hire a licensed technician to properly and legally reconnect the tank.  Beardsley v. Wood, Ayer District Court, 1648CV000001 (Cremens, J.)
  • In September of 2016, obtained a judgment for the defendant following a trial where the plaintiff home purchaser claimed that he defendant seller misrepresented the working condition of the boiler in the house. When the plaintiff made an offer to purchase, it was conditioned on having the opportunity for a licensed home inspector to inspect the premises.  Upon inspection, the inspector was not able to run the boiler and the home purchasers requested that the sellers have a heating company maintain the boiler.  The sellers hired a heating company to inspect and clean the boiler.  It turned out that the emergency shut off switch was activated when the home inspector was at the premises.  The heating company cleaned the boiler and it was in working order at the time of the final walk through and before the date of closing.  Jernberg v. Kilmer, Clinton District Court, 1668CV000090.
  • In July of 2016, tried a case in the Land Court regarding a boundary dispute between two residential abutters, pursuant to M.G.L. Ch. 185, § 1 (k) involving the right, title and/or interest in real property and Gen. L. c. 185, §1(o) for trespass. The key witnesses for each party were their respective surveyors, who reached different conclusions regarding the proper boundary lines subject to the deeds.  Jean v. Perez, Land Court, Misc. 15Misc.000112 (Piper, J.)
  • In June of 2016, assisted the Trustee of a real estate trust in selling the real property subject to the trust sold and thereafter dissolving the trust. RE: Winter Street Irrevocable Realty Trust, Norfolk County.
  • In May of 2016, settled a claim on behalf of homeowners in a misrepresentation claim against the prior homeowner regarding a residential property in Stow, MA. The homeowners’ purchased a residential property based on the representations made by the seller in the Seller’s Statement of Property Condition and their home inspector’s report.  Within that Seller’s Statement, the seller averred that there were no water drainage problems; no water in the basement; and no problems with the floor.  The home inspector noted in his report that the majority of the basement slab was not visible due to floor covering so there was no opportunity to fully inspect the basement for water or moisture problems.  Based on this information, the homeowners were led to believe that there were no water problems with the house.  However, the reality is that the premises had a chronic problem with water and mold that was not disclosed.  In their effort to identify the source of the problem, the homeowners discovered evidence of prior efforts to correct and/or hide the problems.  As a result, they had the air vents inspected and tested and learned they contained mold.  Once presented with the evidence, the prior homeowner reluctantly agreed to a reasonable and confidential pre-suit settlement.  Re: Shaw, Middlesex County.
  • In November of 2015, represented a landowner in an equitable claim brought in the Land Court pursuant to M.G.L. Ch. 185, § 1 (k) involving the right, title and/or interest in real property. The claimant landowner asserted a claim of adverse possession.  The claimant landowner and record title holder subsequently settled the issue by agreeing to enter a mutual land use license. Wood v. New England Power Co., Land Court, Docket No. 15MISC000162.
  • In August of 2015, successfully represented a family from Hong Kong in enforcing a purchase and sale agreement. The seller was forced to specifically perform and convey clear title to a residential property located in Lexington, MA.  The seller would not convey clear title at the closing unless the buyers agreed to assume a 20-year solar panel contract.  The buyers had no interest in the solar panels as they planned to tear the house down and rebuild.  The Seller and/or his attorney failed to timely disclose the existence of the solar panel contract and/or ever make the same a contingency of the sale.  As a result, the seller, who unsuccessfully tried to force the buyers into accepting an assignment of the solar panel contract, had to pay the solar panel company an early cancellation and installation removal penalty in excess of $20,000.00 in order to be able to convey clear title.  The Seller also paid the buyer’s legal fees and costs incurred in their efforts to enforce their legal rights when the closing occurred.  Gao, et al. v. Bergmann, Middlesex Superior Court, Civil Action No. 1581CV04845.
  • In March of 2014, successfully defended a family who was wrongfully sued by a real estate broker over a sales commission. The broker alleged that the homeowners owed it a sales commission despite the fact that the homeowners house sold after the broker’s exclusivity period had expired and to a buyer that the broker did not introduce to the homeowner’s property.  In turn, the homeowners counter-sued the real estate broker on the grounds that the broker’s claims were frivolous and brought in violation of Ch. 93A for unfair and deceptive acts against a consumer.  The homeowners were granted summary judgment on the broker’s claim and although the Court entered findings that supported the homeowners’ 93A claim against the broker, it declined to award the homeowners separate 93A damages.  Realty Team, Inc. d/b/a Century 21 Realty Team v. Ewen, Leominster District Court, Docket No. 1261CV000275 (Virzi, J.).
  • In January of 2014, secured a substantial Judgment, which included the recovery of attorney fees, against a seller of a large commercial property for failing to return a purchase deposit to the buyer after it was determined that the seller could not convey clear title. Charlton Management, LLC v. Ara Eresian, Trustee of the Main/Hitchcock Realty Trust, Worcester Superior Court, WOSV2013-01436 (Wrenn, J.).
  • In April of 2011, obtained a Judgment and Order authorizing the foreclosure of a mortgage on an 83-acre parcel of land by entry and sale. Funari v. Cronin, Worcester Superior Court, Worcester Superior Court, WOCV2008-00323 (McCann, J.).  This action stemmed from Funari v. Cronin, Worcester Superior Court, WOCV2004-01949 (Agnes, J.).
  • In January of 2011, successfully obtained a recovery in a legal malpractice action against a residential real estate conveyancing attorney who failed to provide the plaintiff home buyers with a certificate of title and also failed to submit the owner’s title insurance premium to the carrier. The settlement occurred after the defendant was unsuccessful in its effort to obtain summary judgment.  Bhamidipati v. Norton, Barnstable Superior Court, BACV2008-00636 (Muse, J.).
  • Final Judgment entered in November of 2009 following an action that had been tried in 2007 and appealed in 2008 on behalf of a developer for specific performance that arose from a failure to tender performance under a P&S agreement for an 83-acre tract of land. Funari v. Cronin, Worcester Superior Court, WOCV2004-01949 (Agnes, J.); Appeals Court, 2008-P-1980.