Judges
Juries and jury service
- See also: Law about juries and jury service
Butler v. Perry, 240 U.S. 328 (1916)
"the Thirteenth Amendment ... was adopted with reference to conditions existing since the foundation of our Government, and the term involuntary servitude was intended to cover those forms of compulsory labor akin to African slavery ... It introduced no novel doctrine with respect of services always treated as exceptional, and certainly was not intended to interdict enforcement of those duties which individuals owe to the State, such as services in the army, militia, on the jury, etc."
Comm. v. Bennefield, 482 Mass. 250 (2019)
"At a criminal trial in the District Court, an oral waiver of the right to be tried by the full complement of six jurors is valid, as long as the defendant waives this right knowingly and voluntarily."
Comm. v. Chambers, 93 Mass. App. Ct. 806 (2018)
"Discussion of the standard of review of the determination by a judge of juror impartiality."
Comm. v. Chalue, 486 Mass. 847 (2021)
Where polling the jury, a single juror disagreed with the verdict slip. The appendix to this case offers an approach for a judge to take "where, as in this case, a judge is faced with a juror who indicated a verdict at odds with the verdict slip when polled, and who refused to reenter the jury room to deliberate."
Comm. v. DiBenedetto, 94 Mass. App. Ct. 682 (2019)
Once a verdict is affirmed by the jury and recorded by the clerk, it is final. When a judge learns, after a guilty verdict has been affirmed and recorded, that the jurors misunderstood the unanimity instruction, he should have accepted the original verdict, instead of sending the jurors out to continue deliberations.
Comm. v. Fernandes, 483 Mass. 1 (2019) Instructing grand juries on lesser offenses and mitigating circumstances
"It is generally advisable for prosecutors to instruct grand juries on the elements of lesser offenses and defenses whenever such instructions would help the grand jury to understand the legal significance of mitigating circumstances and defenses."
Comm. v. Fujita, 470 Mass. 484 (2015)
A list of jurors must be "retained in the court file of the case and be made available to the public in the same manner as other court records; further, this court concluded that only on a judicial finding of good cause, which may include a risk of harm to the jurors or to the integrity of their service, may such a list be withheld."
Comm. v. Grassie, 476 Mass. 202 (2017) Grand Jury proceedings must be recorded.
"[T]he entire grand jury proceeding - with the exception of the grand jury's own deliberations - is to be recorded in a manner that permits reproduction and transcription. This shall include any legal instructions provided to the grand jury by a judge or a prosecutor in connection with the proceeding, as well as a record of all those present during the proceeding, excluding the names of the grand jurors."
Comm. v. Hebert, 379 Mass. 752 (1980) Jury nullification.
"Although it is improper for a juror to disregard the law as given by the judge, it remains within the power of a juror to vote his or her conscience."
Comm. v. Lassiter, 80 Mass. App. Ct. 125 (2011)
Held that a jury cannot be called back to re-deliberate once a verdict has been accepted.
Comm. v. Moore, 474 Mass. 541 (2016)
Detailed discussion of Mass. R. Prof. C. 3.5 (c), "regarding an attorney's ability to communicate, postverdict, with jurors who deliberated on, or were discharged from, the attorney's client's case," including a suggested jury instruction on contact by attorneys.
Comm. v. Ralph R., a juvenile, 490 Mass. 770 (2022)
Conviction vacated and set aside over lack of jury bias inquiry. "In order to safeguard a defendant’s right to an impartial jury, when a judge receives preverdict information that reasonably suggests that a statement reflecting racial, ethnic, or other improper bias was made during jury deliberations, the information 'cannot be ignored.'"
Comm. v. Shea, 460 Mass. 163 (2011)
Provides a short history of allowing juror note taking, while strongly encouraging note taking to be routinely permitted. "We believe that an accurate memory of detailed facts is as important in a court room as it in a lecture hall or board room, where notetaking is almost invariably permitted. We refer the question whether we should revise our rules to require that jurors be permitted to take notes during some or all trials, or whether we should continue to leave such decisions to the discretion of the judge, to this court's standing advisory committees on the rules of criminal and civil procedure."
Comm. v. Tiscione, 482 Mass. 485 (2019)
Discharging distressed juror. "At a criminal trial, the judge erred in discharging a deliberating juror, where, as revealed during a colloquy with the juror, her distress was based not on personal issues alone but also on events that took place in the jury room with her fellow jurors."
Comm. v. Werner, 81 Mass. App. Ct. 689 (2012)
Juror use of social media. "More explicit instructions about the use of social media and the Internet may.. be required. Instructions not to talk or chat about the case should expressly extend to electronic communications and social media, and discussions about the use of the Internet should expressly go beyond prohibitions on research. Jurors should not research, describe, or discuss the case on- or off-line. Jurors must separate and insulate their jury service from their digital lives."
Doull v. Foster, 487 Mass. 1 (2021)
The court decided "that a but-for standard, rather than a substantial factor standard, is the appropriate standard for factual causation in negligence cases involving multiple alleged causes of the harm."
Jury selection
- See also: Law about jury selection
Federal cases
Batson v. Kentucky, 476 U.S. 79 (1986)
"Exclusion of black citizens from service as jurors constitutes a primary example of the evil the Fourteenth Amendment was designed to cure."
Flowers v. Mississippi, 588 U.S. __, 139 S.Ct. 2228 (2019)
"The trial court at Curtis Flowers’ sixth murder trial committed clear error in concluding that the state’s peremptory strike of a particular black prospective juror was not motivated in substantial part by discriminatory intent...Reversed and remanded."
Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501 (1984)
The court held that the guarantees of open public proceedings in criminal trials embodied in the First Amendment to the U. S. Constitution cover voir dire examination of potential jurors. Trial court cannot close without specific findings that an open proceeding threatened the defendant's right to a fair trial and the right to privacy of the prospective jurors and without considering available alternatives.
Waller v. Georgia, 467 U.S. 39 (1984)
Articulates the 4 requirements for closure of a courtroom — overriding public interest, narrowly tailored closure, consideration of reasonable alternatives, and judicial findings supporting closure.
Weaver v. Massachusetts, 582 U.S. 286, 137 S. Ct. 1899 (2017)
"[W]hile the public-trial right is important for fundamental reasons, in some cases an unlawful closure might take place and yet the trial still will be fundamentally fair from the defendant’s standpoint...Thus, when a defendant raises a public-trial violation via an ineffective-assistance-of-counsel claim,...the burden is on the defendant to show either a reasonable probability of a different outcome in his or her case or... to show that the particular public-trial violation was so serious as to render his or her trial fundamentally unfair."
Massachusetts cases
Comm. v. Alves, 96 Mass. App. Ct. 540 (2019)
Jurors can't be dismissed simply because they think a witness's use of the "N word" would affect their credibility.
Comm. v. Carter, 488 Mass. 191 (2021)
"Sexual orientation is a protected class for purposes of objections alleging discrimination in an opposing party's peremptory challenges to potential jurors."
Comm. v. Colon, 482 Mass. 162 (2019)
Racial and ethnic prejudice. Going forward, in cases involving murder, rape, and sexual offenses against children ..., judges should grant a defendant's request for individual voir dire on the issue of racial or ethnic prejudice, if the defendant and the victim are of different racial or ethnic backgrounds."
Comm. v. Downey, 78 Mass. App. Ct. 224 (2010)
"Conviction must be reversed because the closure of the courtroom during jury impanelment violated his right to a public trial guaranteed by the Sixth Amendment to the U. S. Constitution."
Comm. v. Espinal, 482 Mass. 190 (2019)
Non-English speaking defendant. "[W]here the fact of a defendant's inability to speak English is reasonably likely to become known to the jury, we urge the trial judge to inquire, upon the request of the defendant, whether any prospective juror harbors bias toward non-English speakers."
Comm. v. Heywood, 484 Mass. 43 (2020)
Blind juror. Given the type of evidence to be presented in a case, it was appropriate to allow a blind juror to serve.
Comm. v. Mitchell, 102 Mass. App. Ct. 831 (2023)
Bias--Juror Questionnaire. "A criminal defendant failed to demonstrate that a juror's inaccurate disclosures during voir dire deprived him of the intelligent exercise of his right to peremptory challenges and entitled him to a new trial without a showing of prejudice."
Comm. v. Shea, 460 Mass 163 (2011)
Outlines best practices for voir dire. "The better practice is to ask jurors to raise their hands in response to each question when they answer in the affirmative, request court officers to read the juror numbers of those raising their hands into the record, and allow the parties, the judge, and the court clerk to know (and the record to preserve) who answered "yes" to which question, so that a juror can be reminded of the answer if the juror fails to mention it at sidebar during individual voir dire, and appropriate inquiry can take place."
Comm. v. Robertson, 480 Mass. 383 (2018)
"Where a juror’s membership in a protected class is reasonably in dispute, trial judges...ought to presume that the juror is a member of the protected class at issue.
Comm. v. Sanchez, 485 Mass. 491 (2020)
Dismissing potential jurors because of race. The court "retired the specific language of Commonwealth v. Soares, 377 Mass. 461, 486, 489-490, cert. denied, 444 U.S. 881 (1979), "that requires, at the first step of an inquiry into potentially improper peremptory challenges on the basis of race, a showing of a "pattern of conduct" and a "likelihood" of exclusion based solely on group membership, and this court adopted the language employed in Federal cases, i.e., that the presumption of propriety in such challenges is rebutted when the totality of the relevant facts gives rise to an inference of discriminatory purpose."
Comm. v. Toolan, 460 Mass. 452 (2011)
Defendant was entitled to new trial based on possible juror prejudice where judge failed to question prospective jurors in a way that he could determine each juror was impartial despite exposure to media coverage
Comm. v. Williams, 481 Mass. 443 (2019)
Where a prospective juror had expressed the opinion that "the system is rigged against young African American males," the court held that " asking a prospective juror to put aside his or her preconceived notions about the case to be tried is entirely appropriate (and indeed necessary); however, asking him or her to put aside opinions formed based on his or her life experiences or belief system is not."
Juvenile justice system
- See also: Law about the juvenile justice system
Comm. v. Baez, 480 Mass. 328 (2018)
Juvenile offenses can be used as predicate offenses for enhanced penalties.
Comm. v. Cole C., 92 Mass. App. Ct. 653 (2018)
Discusses in detail the jurisdiction of the Juvenile Court over individuals who are indicted as youthful offenders after they turn 18.
Comm. v. J.A., a juvenile, 478 Mass. 385 (2017)
A juvenile cannot be indicted as a youthful offender based on charges of cruelty to animals and bestiality, "given that the language in G. L. c. 119, § 54, the youthful offender statute, allowing a juvenile to be tried as a youthful offender for an offense involving the infliction of "serious bodily harm," does not apply to animal as well as human victims."
Comm. v. Manolo M., 486 Mass. 678 (2021)
"[M]ultiple minor misdemeanors arising from the juvenile's first episode of minor misdemeanor misconduct must all be dismissed as a 'first offense.'"
Comm. v. Newton N., 478 Mass. 747 (2018)
"Where a complaint obtained by a police officer is supported by probable cause, a judge cannot dismiss the complaint prior to arraignment even when the judge determines that dismissal before arraignment would serve the best interests of the child and the interests of justice."
Comm. v. Nick N., 486 Mass. 696 (2021)
The rules of evidence in Commonwealth v. Durling, 407 Mass. 108, 114-119 (1990), apply to Wallace W. hearings. The Juvenile Court should promulgate rules for discovery in Wallace W. hearings to provide clarity going forward.
Comm. v. Preston P., 483 Mass. 759 (2020)
Discussion of the differences between pretrial probation and pretrial conditions of release, and the standard of review for revoking pretrial probation.
Comm. v. Quinones, 95 Mass. App. Ct. 156 (2019)
"For Miranda purposes, a juvenile's age must be considered in determining whether the juvenile was subjected to the functional equivalent of police questioning."
Comm. v. Smith, 471 Mass. 161 (2015)
Going forward, 17 year olds "must be afforded a meaningful opportunity to consult with an interested adult before waiving Miranda rights."
Deal v. Commissioner of Correction, (Deal I) 475 Mass. 307 (2016); and Deal II, 478 Mass. 332 (2017)
Dept. of Correction must consider juvenile homicide offenders' suitability for minimum security classification on a case-by-case basis. Describes the classification process in great detail.
In the Matter of a Juvenile, 485 Mass. 831 (2020)
Due process requires that Juvenile Court judges stay transfer hearings pursuant to G. L. c. 119, § 72A, until the criminal defendant becomes competent to stand trial.
In the Matter of an Impounded Case, 493 Mass. 470 (2024)
The SJC ruled that a petitioner's youthful offender records should be sealed under MGL c. 276, § 100B (the "juvenile delinquency sealing statute") rather than § 100A (the "adult criminal record sealing statute").
Kenniston v. Dept. of Youth Services, 453 Mass. 179 (2009)
The SJC held that the law permitting DYS to hold 18 year olds for an additional 3 years if they "would be physically dangerous to the public" (G. L. c. 120, §§ 17-19) is unconstitutional "because it violates substantive due process requirements."
Millis Public Schools v. M.P., 478 Mass. 767 (2018)
CRA/Truancy. We conclude that a child "willfully fails to attend school" when he or she acts purposefully, such that his or her behavior arises from reasons portending delinquent behavior." The court vacated a CRA judgment "where nothing in the record suggested that the child's behavior exhibited problems or tendencies that could lead toward juvenile delinquency, and where nothing in the record showed that a modification of the child's custody arrangements would help improve the child's attendance record."
Ulla U. v. Commonwealth, 485 Mass. 219 (2020)
Discussion of transfer hearings under M.G.L. c. 119, § 72A and motions to dismiss for bad faith or inexcusable delay.
Wallace W. v. Commonwealth, 482 Mass. 789 (2019)
MGL c.119, § 52 requires dismissal of the first minor misdemeanor committed by a juvenile, not the first offense of each different minor misdemeanor. Case creates a court procedure to determine that a juvenile has already committed a first offense.
Sentencing
Comm. v. Perez, (Perez I) 477 Mass. 677 (2017)
"Where a juvenile is sentenced for a nonmurder offense or offenses and the aggregate time to be served prior to parole eligibility exceeds that applicable to a juvenile convicted of murder, the sentence cannot be reconciled with art. 26 of the Massachusetts Declaration of Rights unless, after a hearing considering the appropriate factors, the judge makes a finding that the circumstances warrant treating the juvenile more harshly for parole purposes than a juvenile convicted of murder."Comm. v. Perez (Perez II), 480 Mass. 562 (2018)
Clarifies "the extraordinary circumstances requirement justifying longer periods of incarceration prior to eligibility for parole for juveniles who did not commit murder than for those who did."Comm. v. Terrell, 486 Mass. 596 (2021)
A Juvenile Court judge can't order credit for time served ("preadjudication detention credit") when sentencing.Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655 (2013)
The SJC concluded "that the imposition of a sentence of life without the possibility of parole on juveniles who are under the age of eighteen when they commit the crime of murder in the first degree is unconstitutional..."Diatchenko v. District Attorney for the Suffolk Dist., 471 Mass. 12 (2015)
Juvenile homicide offenders serving mandatory sentences of life without parole have a right to counsel at their initial parole hearing, including the right to have counsel appointed if they are indigent. They also have the right to "public funds, if they are indigent, in order to secure reasonably necessary expert assistance at their initial parole hearing." In addition, a juvenile homicide offender who is denied parole has a right to obtain judicial review of the parole board's decision through an action in the nature of certiorari, brought in the Superior Court.
Landlord and tenant
- See also: Law about landlord and tenant
Ardon v. Kaivas, 92 Mass. App. Ct. 1110 (2017)
Intentionally depriving a tenant of access to a common area basement for a period of less than a month did not, without more, rise to the level of a substantial interference with her tenancy.
Blake v. Hometown Communities, Inc., 486 Mass. 268 (2020)
A manufactured home community charged newer residents $96 per month more than they charged other residents. This requirement that some renters pay additional rent for essentially the same lots was a violation of the Manufactured Home Act, G. L. c. 140, § 32L (2).
Creatini v. McHugh, 99 Mass. App. Ct. 126 (2021)
A landlord does not bear responsibility to a passerby in the street for injuries caused by a tenant's dog after the dog leaves the landlord's property.
Karaa v. Yim, 86 Mass. App. Ct. 714 (2014)
Discusses mitigation of damages, stating "who bears the burden at trial regarding the mitigation of damages within the landlord-tenant context is the subject of some uncertainty in Massachusetts." See footnote 10 in the case for an explanation of the uncertainty regarding burden of proof of mitigation of damages, with cites to various sources.
Nutt v. Florio, 75 Mass. App. Ct. 482 (2009)
Liability for bite by tenant's dog. A dog bite victim sued the landlord of the owner of the dog, a pit bull. The court stated that the pit bull is a breed "commonly known to be aggressive." "While the defendants may not be held strictly liable by virtue of Tiny's breed, knowledge of that breed and its propensities may properly be a factor to be considered in determining whether the defendants were negligent under common-law principles."
Phillips v. Equity Residential Management, L.L.C., 478 Mass. 251 (2017)
Triple damages apply to deductions wrongfully made from a deposit, and not to defects in the statement of damages, such as the failure to include the required statutory pains and penalties wording in the statement.
South Boston Elderly Residences, Inc. v. Moynahan, 91 Mass. App. Ct. 455 (2017)
In a warranty of habitability case, the Appeals Court, applied the tort principle that “the defendant must take its plaintiff as it finds him or her” and held that where material breach of the warranty of habitability occurred, a tenant’s special sensitivity to a condition in the apartment may be considered in the determination of the “diminished value to him” of the premises due to its defective condition. The Appeals Court also held that a lease which permits a landlord a right to access an apartment for purposes of inspection and repair does not create blanket authority for the landlord to enter at any time without the tenant’s permission in derogation of a tenant’s quiet enjoyment rights under statute.
Worcester v. College Hill Properties, LLC, 465 Mass. 134 (2013)
The SJC held that dwellings (apartments) rented to college students are not lodging houses and that landlords do not have to be specifically licensed as operators by the city.
Lawyers
Lead poisoning and control
Marriage
Massage therapy
Mechanics' liens
- See also: Law about mechanics' liens
Blount Bros. Corp. v. Mondev Mass., Inc., 22 Mass. App. Ct. 96 (1986), affirmed, Blount Bros. Corp. v. Lafayette Place Assoc., 399 Mass. 632 (1987)
If the date in notices does not correspond to the date in a contract (or informal extensions of a contract), no lien attaches.
City Electric Supply Co. v. Arch Insurance Co., 481 Mass. 784 (2019)
A "target lien bond" dissolves a mechanic's lien that already has attached to a property. This case explains what is needed to enforce a target lien bond.
East Coast Steel Erectors v. Ciolfi, 417 Mass. 602 (1994)
A valid lien was established by a notice of contract in which the contractor specified an estimated completion date, none being set forth in the contract, to which the owner did not object within five days of notice.
J & W Wall Systems, Inc., v. Shawmut First Bank & Trust Company, 413 Mass. 42 (1992)
A bank that took a deed in lieu of foreclosure was held to be a "purchaser" under MGL 254, § 7, entitled to priority over a notice of lien recorded shortly after the deed.
Mammoet USA, Inc. v. Entergy Nuclear Generation Co., 64 Mass.App.Ct. 37 (2005)
Subcontractor's transportation and delivery charges for shipment of large equipment are not subject to contractor's lien as the equipment did not constitute an "improvement of real property."
National Lumber Co. v. United Casualty and Surety Insurance Company, Inc., et al., 440 Mass. 723 (2004)
A mechanic's lien recorded pursuant to MGL c.254, § 4 does not include contractual interest and attorney's fees incurred in enforcing the lien.
Tremont Tower Condominium LLC v. George B.H. Macomber Co., 436 Mass. 677 (2002)
Clarifies when the right to a mechanics' lien arises, and concludes "the voluntary dissolution of a mechanic's lien under G. L. c. 254, 10, does not prevent a contractor's later recording of another timely notice of contract."
Volpe Construction Co. v. First National Bank of Boston, 30 Mass. App. Ct. 249 (1991)
Lien is automatically dissolved if action to enforce is not begun within required period from filing of statement.
Waverly Coop. Bank v. Haner, 273 Mass. 477 (1930)
Liens do not have a priority over a mortgage unless the work was actually begun prior to the recording of the mortgage.
Medicaid (MassHealth)
Medical marijuana
Medicare
Mental health issues
- See also: Law about mental health issues
Commonwealth v. A.Z., 493 Mass. 427 (2024)
The SJC held that "it is unconstitutional, as applied, for a court to hospitalize a pretrial defendant under § 15 (b), for a clinical evaluation and observation of competency, absent a finding by the judge, by clear and convincing evidence, that hospitalization is the least restrictive means available to determine adequately a criminal defendant's competency to stand trial."
Garcia v. Commonwealth, 487 Mass. 97 (2021)
The temporary involuntary hospitalization of a criminal defendant at a facility other than Bridgewater State Hospital, following a finding that he was not criminally responsible by reason of mental illness violated the defendant's substantive due process rights, where the hospitalization implicated a fundamental liberty right, and where the temporary commitment was not narrowly tailored to a compelling government interest.
In the Matter of D.B., 2020 Mass. App. Div. 74 (2020)
"By executing a health care proxy, an individual can determine in advance that her attorney or another competent person of her choice, rather than a judge, will make ... medical decisions on her behalf," including decisions about antipsychotic medication.
In the Matter of G.P., 473 Mass. 112 (2015)
"Discussion of G. L. c. 123, § 35, which authorizes... involuntary civil commitment ...where there is a likelihood of serious harm as a result of the person's alcoholism or substance abuse, or both..." Clear and convincing evidence as standard of proof.
Massachusetts General Hospital v. C.R., 484 Mass. 472 (2020)
Discusses "boarding" of mentally ill patients in emergency departments until an appropriate bed can be found.
Pembroke Hospital v. D.L., 482 Mass. 346 (2019)
Discharge. If a judge denies a petition for involuntary commitment, the hospital must release the person from involuntary restraint. "A mental health facility discharges an individual under G. L. c. 123 only when that individual is set at liberty from involuntary restraint, and not when he or she is released from care."
Rogers v. Commissioner of the Dept. of Mental Health, 390 Mass. 489 (1983)
Outlines the requirements to be met in order to involuntarily administer anti-psychotic medications.
Minimum wage
Modifications of family law judgments and orders
Ardizoni v. Raymond, 40 Mass. App. Ct. 734 (1996)
The standard for modification of child custody/visitation is a material and substantial change of circumstances since the prior judgment was entered and the desired change of child custody/visitation is in the child's best interest.
Barnes v. Devlin, 84 Mass. App. Ct. 159 (2013)
A father could not unilaterally stop paying child support under an agreed-upon separation agreement, where he argued that the conditions do not comply with MGL c.208, § 28. His "proper recourse, as the judge stated, would have been to initiate appropriate modification proceedings, as opposed to unilaterally stopping payments."
Cabot v. Cabot, 55 Mass. App. Ct. 756 (2002)
If an incorporated separation agreement or a divorce judgment fails to provide for a child's education, a modification complaint may be brought on the ground that the educational costs are a material and substantial change of circumstances.
Calabria v. Calabria, 91 Mass. App. Ct. 763 (2017)
“In the circumstances of this case, in which the parties expressly provided for retroactive adjustment of child support in their separation agreement, and where the adjustment fosters the best interest of the couple's minor child and does not derogate (deviate) from the purposes of G. L. c. 119A, § 13, such a retroactive award was within the judge's equitable authority.”
Cavanagh v. Cavanagh, 490 Mass. 398 (2022)
Alimony Reform Act does not prohibit an award of alimony when child support has been ordered, interpreting G.L. c.208, § 53(c)(2).
Feinstein v. Feinstein, 95 Mass. App. Ct. 230 (2019)
In this case, the Appeals Court found: “A probate Court has the power to modify a child support order in the context of either a complaint for contempt or a complaint for modification. A modification on a complaint for contempt may occur even in the absence of a contempt finding.”
Malachi M. v. Quintina Q., 483 Mass. 725 (2019)
"In a proceeding to modify a child custody decision, the judge must consider evidence of domestic abuse that occurred before the entry of the divorce judgment."
Morales v. Morales, 464 Mass. 507 (2013)
"We conclude that the trial judge ... erred in applying a standard requiring a material and substantial change in circumstances (material and substantial change standard) rather than the standard set forth in G. L. c. 208, § 28... which provides that a child support order shall be modified 'if there is an inconsistency between the amount of the existing order and the amount that would result from application of the child support guidelines'. (inconsistency standard)."
Smith v. Edelman, 68 Mass. App. Ct. 549 (2007)
"A substantial post-divorce increase in the income of the noncustodial parent did not [warrant] an increase in child support, where the children's needs were well met and where there was no material disparity in the standards of living between the custodial and noncustodial households." “The goal of maintaining the standard of living of the family as though it had remained intact is not without limit; an increase in child support based solely on an increase in income of the noncustodial spouse may have the effect of constructively distributing the noncustodial parent’s estate, and is accordingly disfavored.”
Whelan vs. Whelan, 74 Mass. App. Ct. 616 (2009)
A “judge must determine whether claimed business deductions are reasonable and necessary to the production of income, without regard to whether those deductions may be claimed for Federal or State income tax purposes.”
Mortgage foreclosure
- See also: Law about mortgage foreclosure
Bank of NY v. Bailey, 460 Mass. 327 (2011)
"[T]he Housing Court has jurisdiction to decide the validity of a challenge to a title, raised by a former homeowner as a defense to a summary process eviction action by a party acquiring the property pursuant to a foreclosure sale."
HSBC Bank USA, N.A. v. Morris, et al., 490 Mass. 322 (2022)
A borrower can assert a Predatory Home Loan Practices Act (PHLPA) counterclaim in a summary process action brought by a mortgage assignee to obtain possession following a nonjudicial foreclosure. Includes discussion of the claims that can be brought under PHLPA.
HSBC Bank USA, N.A., Trustee v. Matt, 464 Mass. 193 (2013)
An oft-cited case in the Land Court concerning the limited scope and nature of a Servicemembers case in the larger context of a foreclosure.
James B. Nutter & Co. v. Murphy, 478 Mass. 664 (2018)
A reverse mortgage did not contain the formal language of "statutory power of sale," but only said that the company could “invoke the power of sale and other remedies permitted by applicable law." The SJC held that, given that this was a reverse mortgage, and not a traditional mortgage, "where the lender cannot hold the borrower personally liable for the debt, and where the lender’s only recourse on default is to obtain repayment through a foreclosure sale," "the only reasonable and practical interpretation of the mortgage was that it incorporated the statutory power of sale."
Lenders Commercial Finance LLC v. Pestilli, et al, Southeast Housing Court (Feb. 3, 2017)
A bank that purchased a home at foreclosure could not evict the former owners with just a 30-day notice to quit. "The Court finds that there is no evidence in this action that there was ever any agreement between the parties for the defendant to pay any rent to the plaintiff, or for any definite rental period. Accordingly, the court finds that G.L. c. 186, s.12 requires that the plaintiff terminate the defendant's tenancy at will by service of a 90 Day Notice to Quit for possession."
Property Acquisition Group v. Ivester, 95 Mass. App. Ct. 170 (2019)
Before conducting a foreclosure sale, the mortgagee must use reasonable diligence to determine the fair market value of the property.
Tyler v. Hennepin County, Minnesota, et al., 598 U.S. 631 (2023)
Home equity. Profits exceeding what is owed during a foreclosure belong to the former property owner as it "constitute[s] a taking of property without just compensation, in violation of the Fifth Amendment."
US Bank National Association v. Ibanez, 458 Mass. 637 (2011)
Upholds the ruling in in U.S. Bank National Association v. Ibanez, 17 LCR 679, Land Court MISC 08-384283 (October 14, 2009), regarding the requirement that mortgage holders must be accurately identified in a foreclosure proceeding. "We agree with the judge that the plaintiffs, who were not the original mortgagees, failed to make the required showing that they were the holders of the mortgages at the time of foreclosure. As a result, they did not demonstrate that the foreclosure sales were valid to convey title to the subject properties, and their requests for a declaration of clear title were properly denied."
Mortgage loans, brokers, and lenders
Name changes
Neighbors and trees
- See also: Law about neighbors and trees
Bassin v. Fairley, 22 LCR 251 (11 MISC 451773) (Land Court, 2014)
Where a healthy tree straddles the property line, the property owners "each hold title to a portion of [the tree], and thus neither can take any action against their portion of [the tree] that would injure [the tree] as a whole." Furthermore, (in accordance with the Restatement of the Law, Torts 2d) a person can only enter property to cut the tree of another if it is an emergency situation, or if they have permission.
Evans v. Mayer Tree Service, Inc., 89 Mass. App. Ct. 137 (2016)
A tree company cut down trees at the specific direction of a Federal official who mistakenly believed that the plaintiff had given written permission to have the trees destroyed. Appeals court vacated the dismissal and remanded to Superior Court. "So long as the act of cutting was intentional and the act was without license, liability exists -- albeit for single damages only -- even where the person cutting the trees had "good reason to believe" he was "lawfully authorized" to do so."
Glavin v. Eckman, 71 Mass. App. Ct. 313 (2008)
Martha's Vineyard property owners and their tree contractor cut down ten mature trees on a neighbor's property to improve their own view of the ocean. The court upheld a jury award granting the wronged property owner the $30,000 replacement cost of the trees, rather than damages measured by the worth of the timber or diminution of the property's value.
Jones v. Town of Great Barrington, 273 Mass. 483 (1930)
Town was liable for injuries caused by a falling tree where the town, "although notified of its condition, had permitted to stand within the limits of the way for so long a time and in so decayed and dangerous a condition that it constituted a nuisance: ... that the tree was within the exclusive control of the tree warden ... and that his power to remove the tree was limited and prescribed by the terms of G. L. c. 87, did not relieve the defendant of liability for the nuisance."
Kurtigan v. City of Worcester, 348 Mass. 284 (1965) **(Superseded by Statute as Stated in Hanna v. Town of Framingham, Mass. App. Ct., February 11, 2004)**
City was held liable for damages caused by limbs of dead tree falling from property which city acquired for nonpayment of taxes. "Public policy in a civilized community requires that there be someone to be held responsible for a private nuisance on each piece of real estate, and, particularly in an urban area, that there be no oases of nonliability where a private nuisance may be maintained with impunity."
Levine v. Black, 312 Mass. 242 (1942)
Court refused to grant an injunction barring one neighbor from cutting down a tree sitting on the property line, where evidence showed that previous work on the tree had reduced it to "a trunk and two limbs."
Michalson v. Nutting, 275 Mass. 232 (1931)
The owner of a tree is not responsible for the damage its roots cause to neighboring property, but the neighbor's "right to cut off the intruding boughs and roots is well recognized."
Ponte v. DaSilva, 388 Mass. 1008 (1983). "The failure of a landowner to prevent the blowing or dropping of leaves, branches, and sap from a healthy tree onto a neighbor's property is not unreasonable and cannot be the basis of a finding of negligence or private nuisance."
Ritter v. Bergmann, 72 Mass. App. Ct. 296 (2008)
Clarifies that the "Glavin case does not require that there be a personal reason to support utilizing restoration cost as a measure of damages...Here, the damage to the Ritters that resulted from the cutting down of trees on the lot adjacent to their home was not only the potential loss in the value of the land that they hoped to sell, but the loss of their own privacy -- regardless of whether lot 11 was sold or retained."
Shiel v. Rowell, 480 Mass. 106 (2018)
Upholds the "Massachusetts rule" that "an individual whose property is damaged by a neighbor's healthy tree has no cause of action against a landowner of the property upon which the tree lies." Property owners who are disturbed by their neighbor's trees are "not without recourse," though. They remain free to remove any part of the tree that crosses the property line.
Wellesley Conservation Council v. Pereira, Civil No. 17-863 (Norfolk Super. Ct.) (2018), 35 Mass. Law Reporter 113 (2018)
A conservation council, as grantee of the conservation restriction on defendants' property, may not recover monetary damages from defendants because defendants cut trees on their property in violation of the conservation restriction.
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| Last updated: | March 26, 2024 |
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