In general, the fact that I have been practicing for over 40 years in Massachusetts puts me in a position where I can honestly say “I’ve seen that, and I believe I know what to do to fix it” rather easily. This past week I encountered three (3)  difficult scenarios, and I am fixing them, but (1) there was a lot more work involved than I will get paid for and (2) I wish I were a little more certain that my solution to each problem is going to work.

1. The Case of the Totally Mismanaged, and Misdrafted, Nominee Realty Trust. In Massachusetts,people use nominee realty trusts  for numerous purposes . The main reason is anonymity, I believe, although there are recent Supreme Judicial Court decisions which suggest that the names of the beneficial (i.e. real) owners can be determined by discovery if there is litigation. In any event, my client is the Buyer purchasing a single family residence from a nominee trust. Seems rather simple, no? It isn’t. The Trust was poorly drafted; two of the beneficiaries have died during its pendency. Probates will be required. We certainly will NOT be closing on January 8, 2010. I have working on a use and occupancy agreement. I must make sure that this document will not adversely affect my client’s financing. These days, anything you do can affect your client’s financing!!!

2. The Case of the Abutter’s Deck having a part thereof on the land my client is purchasing. Fortunately, the Abutter is, in effect, the same person as the Seller. The names on the titles are different so that the two lots are not merged, since neither one of them is a conforming lot for zoning purposes. My solution here is an Abutter’s Agreement, between the Buyer, Seller and Abutter. I am putting this document on record, so it will   who purchase the Abutter’s property. The Abutter’s Agreement will give the Abutter a couple of months to trim his deck. If he does not do it, my client can do the trimming and obtain reimbursement from the Abutter. If the Abutter does not pay, the Abutter has consented to a lien being attached to his home. We can close on this basis; I always worry whether I am opening up a hornet’s nest not getting the work done before closing. There is more than a foot of snow on the ground in Massachusetts. The delayed resolution seems the only one available.

3. The Case of your water and sewer connections going through my land. This case is not so very different from Case #2, except the solution is below ground and continuing. Again, a common owner scheme, so my Buyer had an opportunity to formulate a proposed solution. The plan here was an Easement, which would reference a Engineer’s Plan, which would be recorded at the Registry of Deeds. This is an expensive solution, but I was able to convince the Seller to pay for the Engineering work and my drafting. I guess my concern here is just how careful the Seller will be if he has to dig up my client’s lawn to do a water line rupture. I have included  what I consider “necessary language” regarding indemnification,  but I never can be sure that it will prove to be adequate.

So, these are three situations where creative thought, and drafting are required. Many people ask me how I can continue to do residential real estate transactions because they are so repetitive and boring. Solving the problems set forth above certainly do not qualify in those categories. besides, helping people buy the home of their dreams is really never boring. Ditto, the fact that every client has a different story, and their individual story, which I gain insight into while working with them, enriches my own life experiences.