Sherin and Lodgen is a Boston based law firm specializing in real estate, litigation and business law.
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Joshua M. Alper
Bethany A. Bartlett
Edward M. Bloom
Joshua M. Bowman
Gary D. Buchman
Robert M. Carney
Paula G. Curry
Douglas M. Henry
Deborah Howitt Easton
Richard J. Kaitz
Gary M. Markoff
Ronald W. Ruth
John J. Slater
Geoffrey H. Smith
Written by: Margaret C. Kelty and Sander A. Rikleen
With contributions by: Bethany A. Bartlett
The Massachusetts Appellate Tax Board recently addressed the situation in which a land owner used a solar power system to reduce the electricity bill for other land owned by the taxpayer’s affiliates. In Forrestall Enterprises, Inc. v. Board of Assessors of the Town of Westborough, the Appellate Tax Board determined that a solar installation that did not supply power to the parcel on which it was installed, or to an adjoining parcel, was nonetheless exempt from personal property taxes.
The land owner had installed a solar photovoltaic system (the “Solar System”) on property it owned in Westborough, Massachusetts. Several additional properties in Westborough were owned by related entities, none of which abutted the parcel on which the Solar System was located. The land owner entered into an agreement with National Grid in which the Solar System was connected to the electrical grid and the land owner received a credit for each kilowatt hour of power generated. The land owner then used those credits to offset the cost of electricity usage at properties owned by related entities so that only the net electricity consumed was paid for.
Written by: Thomas P. Gorman
Revisions to local zoning ordinances look prospectively. Thus, when a zoning ordinance is enacted prohibiting a specific use in any particular district, a property engaged in such use before the enactment will be protected as a preexisting, nonconforming use. This protection is subject to the requirements of G.L. c. 40A, § 6, which provides in part that preexisting nonconforming structures or uses may be extended or altered, provided that no such extension or alteration shall be permitted unless there is a finding by the permit granting authority that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming use to the neighborhood.
Written by: Joshua M. Alper
Owners and operators of supermarkets and other commercial property in Massachusetts should be aware that on October 10th, the Supreme Judicial Court announced its decision in Glovsky vs. Roche Bros. Supermarkets, Inc., SJC-11434, which allows a candidate for public office to solicit nominating signatures at a supermarket entrance, even a solo site supermarket which does not operate as part of a shopping center or mall.
Written by: Peter Friedenberg
As part of the end-of-session rush at the General Court this summer, significant changes were made to Massachusetts law governing private construction contracts at the urging of general contractor and subcontractor industry groups. Members of the development and lending community were largely taken unaware as the bill moved forward, and unsuccessfully attempted in the later stages of the process to modify or defeat the legislation. Consequently, developers, lenders, contractors, sub-contractors, design professionals and attorneys need to be aware of substantial changes (and many unanswered questions) created by the new statute in the areas of withholding and release of retainage, defining substantial completion, and preparation of punchlists.
Written by: Anthony L. DeProspo
In a case of first impression, the Massachusetts Appeals Court recently held that a real property grantee could not be charged with constructive knowledge of a prior recorded deed which lacked proper notarization. The Appeals Court decision in Allen v. Allen, 13-P-605 (Sept. 16, 2014), serves as a stark reminder that statutory formalities are strictly interpreted in the context of real estate conveyances.
Although the “economic loss doctrine” has historically barred recovery of certain classes of tort damages, the Massachusetts Supreme Judicial Court recently affirmed an Appeals Court decision holding that the doctrine did not bar a condominium association’s negligent construction claim against a developer for alleged faulty construction. The Court’s ruling in Wyman v. Ayer Properties. LLC, SJC-11474 (July 19, 2014), based almost entirely on equitable principles, represents a potentially significant shift away from generally recognized principles of tort recovery.
Written by: Andrew Royce
Many out-of-state attorneys and real estate professionals are unfamiliar with the existence of registered land in Massachusetts. Approximately 15 to 20% of Massachusetts land is registered, meaning that title is certified by the Commonwealth, the description of the land and a list of all encumbrances is found on a certificate of title issued by the Land Court, and documents affecting such land must be filed with the Registry District of the Land Court having jurisdiction over the county (or portion of the county) in which the land is located. Although registered land systems have existed in several states, they are currently used extensively only in Massachusetts and Minnesota.
Written by: Bethany A. Bartlett
SREC II: It seems we hardly knew you.
In April of 2014, the Massachusetts Department of Energy Resources (DOER) published amendments to 225 CMR 14.00 creating the next generation of the Solar Carve-Out Renewable policy known as SREC II. The major differences between the SREC II program and its predecessor was (a) the creation of SREC factors based on four different market sectors, and (b) a declining auction bid price for SRECs over the life of the program. The Managed Growth sector contains all those projects which do not meet the criteria for the other three sectors (which cover residential, solar canopy, emergency power, community solar, units located on landfills or Brownfields (the definition of which is the subject of a draft DOER guideline) and roof top along with ground mounted units with capacity greater than 25 kW with 67% or more of the output used on-site). Unless large commercial ground mounted projects (the type of projects that underwent a growth explosion under SREC I) are built on landfills or Brownfields, they would need to qualify under the Managed Growth sector. SREC II limited the number of these large projects by capping the Managed Growth sector at 26 MW for Compliance Year 2014 and at 80 MW for Compliance Year 2015.
Written by: Tracey M. Stockton
During a recent discussion, the topic of purchase money security interests arose and it seemed like a good topic for a quick review. In Massachusetts, the concept of the purchase money security interest is codified at Article 9 to the UCC, under the heading, “Secured Transactions.” Let’s briefly look at who is entitled to this type of security interest and, if you have one, what benefit does it provide?
Written by: Thomas P. Gorman
The doctrine of standing to sue -- the status that allows a plaintiff to bring a lawsuit in the first instance -- is as elusive as it is fundamental. Courts will dismiss an action unless the plaintiff can show that it has standing. As the United States Supreme Court has explained, the doctrine of standing ensures that the courts hear only those cases or controversies where the plaintiffs have “alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination….” Baker v. Carr, 369 U.S. 186, 204 (1962).
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