It was a pleasure to work with Alan at a time when I was at a low point emotionally. Having to go through litigation was a difficult time for me as I did not know what to expect and Alan turned out to be a blessing. I was able to get through it knowing he was involved and looking out for my best interests.

Then you quickly see the bloom come off the rose.

Large cracks appear in the walls.    Those beautiful floors are buckling.   You see leaks appear on the ceiling.    The windows are drafty.  It might even get worse.

In their zeal to maximize profits,  builders often take shortcuts,  quickly lose attention to detail,  and use substandard materials.    The end result is a home that has much luster but brittle “bones”.

The questions people who are placed in such horrible circumstances are common:

(a) Who can I sue?

(b)  What are my chances of recovering the lost value in my home?

1.  WHO CAN I SUE?

            In any situation such as this,  there are up to five people or entities that could be sued.   They are as follows:

a.   The builder or developer of the condominium.     They could be under many legal theories.    The largest impediments to suing a builder/developer are limited warranties that provide coverage for defects for only one year after purchase;   problems with the condo that are not so life threatening that they implicate the “implied warranty of habitability,  which cannot be curtailed by a limited warranty but which only applies to health or safety issues;  and, of course,  the ability to collect any judgment from the developer,  which might have liquidated the assets of the company that developed the condo following the sale of the final unit (the developer himself can be held personally responsible, but the legal burden to prove such responsibility is greater.

b.   The developer’s real estate agent.    Sometimes real estate agents make statements in marketing materials about new construction that are gross exaggerations or outright falsehoods.   In other instances an agent knows that the builder has a terrible reputation and has been sued repeatedly on other projects,  but fails to disclose that to a prospective buyer.   Any of these misstatements or omissions can lead to liability to under what is known as Chapter 93A,  the Massachusetts Consumer Protection Act,  which prohibits “unfair and deceptive practices” by businesses against consumers.    The law provides for up to three times damages,  together with attorney’s fees.

c.   The architect for the project.    Builders generally hire architects to design and oversee the construction of multi-unit construction projects.    Architects are required to supervise construction and certify that the project was built according to the plans and specifications.    An architect that incorrectly makes such a certification may be legally responsible to persons who buy their units,  but only if they relied upon the architect;’s certification as given to the municipality.

d.   The home inspector.    Although purchasers of a new home often (and mistakenly) elect not to have a home inspection prior to signing a purchase and sale agreement,   those who do hire an inspector may be able to sue the inspector for failing to detect on inspection certain defects that an inspector conducting “reasonable care” would have detected.    Home inspectors in Massachusetts are required to carry errors and omissions insurance.

e.   The condominium trustees.     Condo trustees control the “common areas” of the condominium.   Some of the defects from new construction may be in these common areas; these include heating or air conditioning problems,   ceiling leaks,  or problems with windows or floors.        While the trustees have discretion in determining the repairs that can be made,   they do have an obligation to make repairs which, if not made,  would affect the health or safety of a unit owner.

2.  WHAT ARE MY CHANCES OF RECOVERY?

This is, of course, the $64,000 question when it comes to this case or any case.    There are any number of factors that go into determining your chances of recovery,  including the personality and financial condition of the developer,  and obviously the perception by the defendants of your likelihood of success on your claim against that particular defendant.      Your chances of recovery overall are enhanced by early action;  I’ve seen far too many people wait until a developer has “folded its tent” before deciding to sue.

If defects appear,   they should be immediately documented through photos and even video.   You should also consider hiring a “forensic building inspector” who can examine your condo and provide a comprehensive assessment of the defects and their likely causes.

Massachusetts real estate litigation attorney Alan Fanger is an experienced real estate litigation lawyer. He serves the entire Greater Boston and Boston metrowest region including Norfolk County, Suffolk County, Middlesex County and the communities of Arlington, Boston, Braintree, Brookline, Cambridge, Canton, Concord, Dedham, Dover, Framingham, Lexington, Milton, Natick, Needham, Newton, Norwood, Quincy, Sherborn, Sudbury, Waltham, Wayland, Wellesley, and Weston, Massachusetts

While their relationship was poor,  the father had changed his will to deliberately exclude the client.   She thought the reconciliation was enough to warrant her inclusion in the will, and she resented the fact that he hadn’t gone about changing his will to reflect the improvement in their relationship.

For so many people who find themselves “disinherited”,  this cuts to the heart of the matter.

When a person—particularly a child—challenges a will,  in most instances that challenge is based either on the parent’s lack of mental capacity to execute the will,  or “undue influence”.     When we talk about undue influence,  we focus on whether a disposition is “unnatural”.     In deciding that question,   a court takes a snapshot of the deceased at the very moment he/she executed the will,  and asks the following question:

“Does the deceased’s will reflect the state of the relationships in their life at the time he/she made the will?”

For kids who have reconciled with their parents,  but whose parents didn’t take the time to change their will to account for that reconciliation,   the law seems unfair and inconsistent with morality.   But the unalterable,  cold reality is that a parent who makes peace with a child after years of conflict is under no obligation to change their will to reflect that change in the relationship.

People are conditioned to believe that inheritance is a “right”.  In fact,  that was the case in medieval times.    But in the modern world it’s not a right,  but rather more a product of circumstance and, to some extent,  luck.

This is not to say that people who are disinherited should be told to “deal with it” and to understand that love is stronger than money.     There are innumerable instances where that “snapshot” shows a person establishing an estate plan that is wildly inconsistent with the relationships they had when they put the plan into place.   And that inconsistency is generally brought about by other children,  siblings, neighbors, financial professionals, and even attorneys whose greed is a fist behind a velvet glove of trust.     Those are the kinds of cases that end up being bitterly litigated.

Attorney Alan Fanger is a Boston Inheritance attorney concentrating in will contests, challenging the validity of a will,  and other inheritance matters. Alan serves the entire Greater Boston and Boston metrowest region including Norfolk County, Suffolk County, and Middlesex County, and the communities of Arlington, Boston, Braintree, Brookline, Cambridge, Canton, Concord, Dedham, Dover, Framingham, Lexington, Milton, Natick, Needham, Newton, Norwood, Quincy, Sherborn, Sudbury, Waltham, Wayland, Wellesley, and Weston, Massachusetts.

Powers of Attorney

A power of attorney is itself danger waiting to happen. POAs give the holder (or the “attorney-in-fact”) the right to act on behalf of the person granting the POA. The powers given range from writing checks, controlling investments, bringing and defending lawsuits, making gifts, and forgiving debts.

Some POAs are made effective immediately, while others have “springing” powers; that is, they only go into effective upon the occurrence of a certain event, such as the declaration by a physician that the grantor of the POA has lost the mental capacity to manage his/her own affairs. People who exploit elders are often able to get them to sign POAs with immediate validity, and no sooner is the ink dry on the signature than the holder begins draining the holder’s bank accounts. If you see a POA that has been made effective immediately, and if the elder in question was not in immediate need of a POA, you should be suspicious.

Nominee Trust

Nominee trusts have long been used as vehicles for owning real estate. A nominee trust is very simple in its design: The trustee, usually a family member, friend or attorney, appears in the registry of deeds as the record owner of the property. However, the true owner, the beneficiary of the trust, has their ownership interest set forth in a document that is not recorded in the registry. This type of arrangement satisfies two objectives: (a) it creates an anonymity of ownership relative to the property; and (b) deters creditors from looking to the property to satisfy any debts owed by the beneficiary (even though the property can be reached by creditors), since creditors may not be aware of the beneficiary’s ownership interest.

But beneath this veneer lies an awful truth: While a trustee is not permitted by law to sell property held in a nominee trust without the consent of the beneficiaries, a relatively recent change in Massachusetts law allows a trustee acting with an evil motive to sell property without actually obtaining such consent. Section 35 of Chapter 184 of the General Laws provides that a certificate, signed by a trustee of a nominee trust, certifying that the beneficiaries have given the trustee their consent to sell the property, can be relied upon by third parties who purchase the property. With this new law in place, all a trustee need do is falsely state in the trustee certificate that he/she obtained the consent of the beneficiaries. The trustee can then sell the property, have the check for the sales proceeds made payable to him/her, then liquidate the trust without paying the beneficiaries.

Attorney Alan Fanger is a Massachusetts probate attorney concentrating in matters pertain to Power of Attorney and Real Estate Trusts. He serves the entire Greater Boston and Boston metrowest region including Norfolk County, Suffolk County, and Middlesex County, and the communities of Arlington, Boston, Braintree, Brookline, Cambridge, Canton, Concord, Dedham, Dover, Framingham, Lexington, Milton, Natick, Needham, Newton, Norwood, Quincy, Sherborn, Sudbury, Waltham, Wayland, Wellesley, and Weston, Massachusetts.

The closing attorney for the sale of my home in Wellesley was aware of the necessity to payoff my FHA loan at a certain time to avoid additional fees. The payoff was rejected by my lender because is wasn’t a “certified check, cashier’s check, or bank wire”, as required by the lender’s Payoff Statement. After being contacted by the lender, he then sent a certified check which was received after the deadline and I was charged additional interest and fees. He admitted to ignoring the lender’s requirements, but refuses to reimburse me because he was not responsible for the payoff of my loan. What can I do?

ATTORNEY ANSWER:

You could file a complaint against the attorney in small claims court (I assume your damages are less than the $7,000 limit for small claims cases).   If the payoff statement made it clear that the funds had to be certified,  you likely have a viable claim against the closing attorney.  Alternatively,  you could hire an attorney on an hourly basis to make a demand of the closing attorney’s malpractice insurer. 

Attorney Alan Fanger is a Massachusetts real estate litigation lawyer and professional malpractice attorney. He serves the entire Greater Boston and Boston metrowest region including Norfolk County, Suffolk County, Middlesex County and the communities of Arlington, Boston, Braintree, Brookline, Cambridge, Canton, Concord, Dedham, Dover, Framingham, Lexington, Milton, Natick, Needham, Newton, Norwood, Quincy, Sherborn, Sudbury, Waltham, Wayland, Wellesley, and Weston, Massachusetts.

Alan’s clients’ father had separated from his second wife,  and after the separation the father amended his will to name the children as  executors and beneficiaries (his second wife had been the primary beneficiary under the earlier will).    Several months later the father reconciled and moved back in with his second wife,   and the father executed an amended will (though Alan’s clients questioned the circumstances that led to that will’s signing).

After the father died,   the children submitted for probate the will that the father had signed that had left the estate to them.      As part of the probate process,  the children’s attorney sent notice of the probate petition to the father’s second wife,  and published the notice in the weekly newspaper in the town in which the second wife lived.    She did not file an appearance or otherwise contest the will,  and the will was admitted to probate.

Several months later,  the second wife submitted for probate the will that her late husband executed after they got back together.   Alan filed an objection on behalf of his clients,   on the grounds that the earlier will had already been submitted for probate without objection.      Subsequent to filing the objection,  Alan moved for summary judgment on his clients’ behalf,   and the court allowed the motion.

Rejecting the second wife’s contention that she had only recently learned of the contents of the will benefitting the children,  the court stated that the second wife “knew at the time [the earlier will] was probated that [the later will existed].   The fact that [the second wife] failed to discover that the will in probate was actually the [earlier will]  does not make the existence of [the later will” new evidence…[t]his case clearly does not fall within the rubric of newly discovered evidence.”

I live in a Condo in Newton and my unit has been damaged by water due to fire in our neighbor’s unit. I received an estimate from the Association’s Insurance company and am not satisfied with the estimate since it does not provide adequate compensation to cover expenses for necessary repairs.  What should I do to get better settlements?

ATTORNEY ANSWER:

The following options would be available to you:  (a) you can obtain your own estimate (though it should come from a highly reputable contractor, preferably one who has done work for insurance companies) ;  (b) you could hire a “public adjuster” (a claims rep who would represent your interests but who would probably charge 10 percent of the payment as his/her fee, so perhaps only worth it if there’s a great deal of damage);  or (c) you could hire an attorney on an hourly basis (this would be in conjunction with option (a). 

Attorney Alan Fanger is a Massachusetts real estate litigation lawyer and professional malpractice attorney. He serves the entire Greater Boston and Boston metrowest region including Norfolk County, Suffolk County, Middlesex County and the communities of Arlington, Boston, Braintree, Brookline, Cambridge, Canton, Concord, Dedham, Dover, Framingham, Lexington, Milton, Natick, Needham, Newton, Norwood, Quincy, Sherborn, Sudbury, Waltham, Wayland, Wellesley, and Weston, Massachusetts.

Alan’s appearances will be linked to this site,  so you’ll be able click on the WBZ logo and listen to each show

I had been seeing a therapist in Newton for over 10 years to try to resolve some issues that developed from my childhood. He violated boundaries and took advantage of me.  I want to file charges and sue him for professional malpractice, but I’m hesitant because I’m just not sure I can bear everything to go through with it.  Can you tell me what would be required of me in a case like this?

Attorney Answer:

I am really and truly sorry to hear about this.    The process of suing your therapist is not easy,  but can be managed if you hire an attorney who has sufficient empathy and understanding of all you have gone through.     It is of utmost importance that the therapist has malpractice insurance.    That information is best obtained by an attorney and once you know the answer to that critical question,  you and the attorney can decide best how to proceed.    But based on all that you have suffered,  I think a lawsuit would be appropriate, though you would need emotional support to get through the process. 

Attorney Alan Fanger is a Massachusetts real estate litigation lawyer and professional malpractice attorney. He serves the entire Greater Boston and Boston metrowest region including Norfolk County, Suffolk County, Middlesex County and the communities of Arlington, Boston, Braintree, Brookline, Cambridge, Canton, Concord, Dedham, Dover, Framingham, Lexington, Milton, Natick, Needham, Newton, Norwood, Quincy, Sherborn, Sudbury, Waltham, Wayland, Wellesley, and Weston, Massachusetts.

My husband passed away while we were separated, but not yet divorced.  Our Framingham house was in his name only so I hired a probate attorney. He told me it would be 6 months to a year before the estate was settled and I could get the house in my name. A few months after that a couple showed up and said they had just bought the house on sheriff sale. I had received no notification at all. Then I found out that my lawyer is close friends with the people that bought the house.   What happened and what are my legal rights?

Attorney Answer:

The circumstances here are suspicious but there may be some explanation for the events.    A sheriff’s sale usually results from a judgment.   If your husband was sued and had a judgment enter against him,  it is possible that the house could have been sold through a sheriff’s sale,  though if your husband died with assets in his name (such as life insurance),  one would think that those assets would have been sufficient to pay off the creditor(s) who held the judgment.      It may be possible to sue the attorney for malpractice.  However,  only the estate could do that unless the attorney was clearly representing both you personally and the estate.   If the will named you as executrix of your husband’s estate,   you as executrix could sue the attorney for malpractice. 

Attorney Alan Fanger is a Massachusetts real estate litigation lawyer and professional malpractice attorney. He serves the entire Greater Boston and Boston metrowest region including Norfolk County, Suffolk County, Middlesex County and the communities of Arlington, Boston, Braintree, Brookline, Cambridge, Canton, Concord, Dedham, Dover, Framingham, Lexington, Milton, Natick, Needham, Newton, Norwood, Quincy, Sherborn, Sudbury, Waltham, Wayland, Wellesley, and Weston, Massachusetts.