Tag Archive for: Real Estate

When a Short-Term Rental is Not a Good Neighbor

Many Berkshire County towns have now passed zoning and general bylaws permitting short-term rentals. Most recently, short-term rentals have been approved in Alford, Becket, Sandisfield, North Adams, and Washington. There are certainly benefits to short-term rentals, both for homeowners and for towns; however, short-term rental use of homes is more in the nature of a hotel use than a residential use. When is a short-term rental not a good neighbor?

Responsible owners make sure that their renters are quiet, do not permit parking on the public way, do not permit pets to be loose outside, manage the trash generated by the rental, and otherwise consider the effect of the rental on neighbors and the town. Towns permitting short-term rentals have attempted to address the possible negative impacts in their bylaws.

Rise in Popularity of Short-Term Rentals in the Berkshires

With the rise in the popularity and, now, the legality of short-term rentals in many towns, the question arises as to the rights of neighbors and others who are impacted by a short-term rental in their neighborhood. The good news is that there are many ways to help balance the rights and responsibilities of short-term rental owners and neighbors.

The best initial step is for neighbors to try to have a constructive conversation with the short-term rental owner. Avoid conflict when possible: it reduces stress and minimizes expense, and is always worth the effort. Unfortunately, this approach is not always effective, and it becomes necessary to take the next step.

Check the By-Laws of Your Town

The first question is whether short-term rentals are even legal in the town. Short-term rentals are not considered under the law to be the same as a residential use of property; rather, it is a commercial use of property. There was and still is a misperception that it is permissible to offer any home as a short-term rental. In most cases, if a town has not adopted a short-term rental bylaw, the use is not permitted in the town. 

The second question is whether the particular short-term rental operated in compliance with the local bylaw and state law. Each town that has adopted a short-term rental bylaw has different and very detailed rules governing that use. The practice has been treated casually in the past, but given the proliferation of such rentals, it is important to be informed about the applicable rules in the particular town.

A neighbor does have the right and ability to force compliance with the local rules through a zoning enforcement complaint with the town if the rules are being disregarded or abused. Zoning enforcement can be a complicated procedure, but it exists to permit persons who are harmed by zoning violations to protect the use and enjoyment of their homes.

Some problems, such as excessive but unregulated noise at all hours, may violate a homeowner’s private property rights. Again, a homeowner can enforce those rights if necessary.

The Best Result? Avoid Conflict

The best result is for conflict to be avoided by open communication. When that is impossible, there are avenues available to homeowners to address the problems.

Alexandra Glover is a founding partner of Lazan Glover & Puciloski, LLP, and is a civil litigator who handles zoning, permitting, and other land use matters at the town level and in the Land Court. www.lazanlaw.com.

This article was first ran in the Berkshire Edge, June 2023.

Disclaimer:  The information contained herein is for informational purposes only. It does not constitute the rendering of legal or other professional advice or services. Your review of this post and/or use of the Lazan Glover & Puciloski, LLP website does not create an attorney-client or confidential relationship between you and Lazan Glover & Puciloski, LLP or any of its attorneys. Information provided herein or on the website should not be relied upon or used as a substitute for consultation with legal, accounting, tax, and/or other professional advisors.  Since any electronic communication between you and Lazan Glover & Puciloski, LLP through this website will not be privileged or confidential, it may be disclosed to other persons and may not be secure. Accordingly, please do not send any e-mail to the Firm that contains confidential or sensitive information without first speaking with an attorney at Lazan Glover & Puciloski, LLP and receiving permission to do so.

Photo of Goodnow Preserve rock wall and green foliage in New Marlborough, Massachusetts

Buying Land in the Berkshires? Avoid Pitfalls!

Photo of Goodnow Preserve rock wall and green foliage in New Marlborough, Massachusetts

If you’re buying land in the Berkshires, you almost certainly want to be able to build on that land. It’s important to have the opportunity to sufficiently evaluate the land for your needs before you buy.

You don’t want to ask after the purchase, “How close to the property line can I build?” or “How do I know if my property is big enough to build on?” and find out you can’t build that guest house or put an extension on your current home.

We’ve seen this happen before. Here’s an example:

An individual purchased a property in Great Barrington. The tax map showed that the property was 100 ft wide x 100 ft deep (minimum for a building lot). Unfortunately, the assessor’s office had rounded up; the property was under the minimum size requirements and so was not a building lot at all.  It’s only practical use was as a back yard for a neighboring property. The new owner could not build on the property and came to us for help. We wish they had consulted with a zoning attorney before the purchase!

Here’s what you need to know about buying land in the Berkshires and standard land rider.

At the time you sign the contract to buy the property, your realtor will likely attach a Land Rider to the contract.

Among other things, the Land Rider may contain a condition that the lot be deemed a “building lot” by the local building inspector. Unfortunately, there are many other potential issues that could prevent you from building on the property or that could limit where and how you build on the property. At Lazan, Glover & Puciloski (LGP), we strongly recommend that buyers include a contingency in the contract for review and their subjective approval of the uses of the lot.

Property is deemed a “building lot” if it is the required size and has the required length of frontage along a road.

These rules are set by towns under their zoning bylaws. For instance, a town may require that a building lot be 2 acres in size and has 150 feet of frontage along an approved road.

Even if a property meets those minimal qualifications, it may not in fact be buildable at all.

All or part of the lot may be unbuildable if it is within protected areas, such as areas in the jurisdiction of the Wetlands Protection Act or the local wetlands bylaw of the town. Similarly, clearing of land and construction can be significantly limited if the town has adopted the Scenic Mountains Act. 

Local zoning bylaws regulate how many and what size of accessory structures may be located on the property.

Examples: sheds; detached garages; swimming pools. Zoning can regulate the location, length, and grade of a driveway; the location, height, and materials for fences; and even the number of dogs that can be considered pets as opposed to a commercial kennel. A buyer needs an opportunity to understand what limitations there are on the property.

In addition, the buyer will want to consider what use can be made of the surrounding properties.

There are numerous possible uses of neighboring areas that can impact a property.  For instance, in a Right to Farm community, a commercial farming operation could be located next to the property. The possibility of large solar installations and outdoor cannabis growing facilities may also be considered.  Even local rules concerning the use of short-term rentals (such as VRBO or Air BnB) can effect an abutting property.

We strongly recommend that a contract for the purchase of land include a period in which the prospective buyer can obtain all desired information concerning the property.  Any buyer of land should consider retaining an attorney to perform a zoning review of the property, and should consult with a wetlands expert and possibly an engineer or architect, to confirm that the buyer’s vision for the property is achievable.

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Contact Lazan Law if you’re about to embark on a home buying journey in the Berkshires.

Disclaimer:  The information contained herein is for informational purposes only. It does not constitute the rendering of legal or other professional advice or services. Your review of this post and/or use of the Lazan Glover & Puciloski, LLP website does not create an attorney-client or confidential relationship between you and Lazan Glover & Puciloski, LLP or any of its attorneys. Information provided herein or on the website should not be relied upon or used as a substitute for consultation with legal, accounting, tax, and/or other professional advisors.   Since any electronic communication between you and Lazan Glover & Puciloski, LLP through this website will not be privileged or confidential, it may be disclosed to other persons and may not be secure. Accordingly, please do not send any e-mail to the Firm that contains confidential or sensitive information without first speaking with an attorney at Lazan Glover & Puciloski, LLP and receiving permission to do so.

Image of out house surrounded by fall foliage in the Berkshires for article about what to know before you buy septic systems in the berkshires

What to Know About Septic Systems in the Berkshires

If you’ve had a sewer line connected to your home, the whole concept of a septic system might be new to you. You might think that it’s just another kind of sewer. However, the problem is that rules about septic systems in the Berkshires are very detailed and, if there are problems, you own them—not the government. Septic problems can be very expensive to fix.

No one wants to think about septic systems but…

Septic systems are very common in the Berkshires. In some communities, it’s the only choice for handling waste. What’s The Problem?

Septic systems in the Berkshires must pass a Title 5 inspection within two years before a sale. Title 5, Massachusetts’ regulation 310 CMR 15.000, governs septic systems and contains rules that specify how to install, use and maintain these systems.

So, what happens?

We’ve seen it happen all too often: a seller waits until they have a buyer under contract before scheduling the inspection, the septic system fails, and the closing can be extended indefinitely until repairs are made or a new system is installed. A once-friendly buyer and seller become mortal enemies because they can’t agree on the appropriate kind of repairs or time frame for completion.

It gets worse. Eager buyers who are getting a mortgage are often dismayed to learn that the bank won’t fund the loan until they have a passing Title 5 report. Interest rates can change. Sellers may discover that their home is no longer going to sell.

Why would somebody wait for Title 5 inspection?

Sellers are often hesitant to do the Title 5 inspection before they believe that they cannot offer a house for sale that has failed an inspection. Or, the seller is afraid that the Board of Health will make them fix the system immediately if it fails. In reality, if a system fails the inspection, you can offer the house for sale and inform the buyer what you are doing to remedy a problem. An owner has two years to make the required upgrades and can work with the local Board of Health or MassDEP to come to an alternative schedule.

Of course, let’s not assume the worst. It may be easier to sell a home if you have passed the Title 5 inspection. It is one less thing to worry about and to wait for.

What does the Title 5 inspection involve?

The purpose of the Title 5 inspection is to protect groundwater supplies and determine if septic systems in their current conditions can protect public health and the environment. The inspection includes determining the location and condition of cesspools, septic tanks and distribution boxes. It does not guarantee that a septic system will function adequately or that it won’t fail later. The system must be inspected by a MassDEP-approved individual using the MassDEP-approved inspection form. The inspection report must be submitted to the Board of Health within 30 days of the inspection. The buyer of the property with a septic system must also receive a copy of the inspection report.

Inspections generally are good for 2 years. If a property is sold more than once in the 2-year period, the single inspection is valid for all property transfers. If a system is pumped annually and the pumping records are available, an inspection is valid for 3 years. If weather conditions prevent inspection at the time of a sale, the inspection must take place within 6 months afterward, but the seller must provide written notice to the buyer of the need to complete the inspection.  

Conditional pass or failed Title 5 inspection

A septic system in the Berkshires may receive a “conditional pass” if there are certain components that need repair, such as a cracked septic tank, broken pipes, uneven distribution box, or malfunctioning pump chamber. In these cases, the seller must make the appropriate repairs, at which time the Board of Health will issue a Certificate of Compliance.

If a septic system completely fails the inspection, it is the owner’s responsibility to replace or repair the system within two years. If a system fails shortly after a sale, the buyer may have legal recourse, but it may be very hard to prove that the system was in failure at the time of the inspection.

What about mounded septic systems?

A common point of concern among both buyers and sellers is that if a septic system fails Title 5, the owner will be forced to install a “mounded” system, resulting in an unsightly mound or bulge on the property. The Title 5 regulations changed in 1995 to require that the bottom of a septic system must rest four feet above the high-water table which, in Berkshire County, ranges between 12 and 30 inches below ground. As a result, almost all standard septic systems installed after 1995 in Berkshire County are mounded. That is, the bottom of the septic system rests near the top of the ground so sand or soil can absorb the waste before reaching the water table, and the top of the septic system protrudes slightly above ground level.

There are ways to get around an unsightly mound, including grading the area around the septic system so the mound doesn’t appear elevated. Most towns will grant an automatic variance allowing the system to be installed 3 feet, instead of 4 feet, above the water table.

If an owner is willing to spend a bit more money on a tertiary treatment or filtration system, they could be eligible for a 2-foot variance. Massachusetts recently approved a new alternative system called an Elgin System, which is more affordable than any of the other approved alternative systems. Unlike the other systems, it does not require an annual maintenance agreement and only requires 2 feet of separation to groundwater.

Hope this wasn’t a waste of your time…

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More Resources

Read more about buying or selling property with a septic system: https://www.mass.gov/guides/buying-or-selling-property-with-a-septic-system

Read the full 310 CMR 15.00: Septic Systems (“Title 5”) here: https://www.mass.gov/regulations/310-CMR-15000-septic-systems-title-5

Disclaimer:  The information contained herein is for informational purposes only. It does not constitute the rendering of legal or other professional advice or services. Your review of this post and/or use of the Lazan Glover & Puciloski, LLP website does not create an attorney-client or confidential relationship between you and Lazan Glover & Puciloski, LLP or any of its attorneys. Information provided herein or on the website should not be relied upon or used as a substitute for consultation with legal, accounting, tax, and/or other professional advisors.   Since any electronic communication between you and Lazan Glover & Puciloski, LLP through this website will not be privileged or confidential, it may be disclosed to other persons and may not be secure. Accordingly, please do not send any e-mail to the Firm that contains confidential or sensitive information without first speaking with an attorney at Lazan Glover & Puciloski, LLP and receiving permission to do so.

What Are Common Closing Costs in Massachusetts?

“What are common closing costs in Massachusetts?” This is perhaps the most common question we get from prospective buyers and sellers. Every transaction is different, so the question is not always easy to answer. However, there are some standard fees that one should expect. Read our list!

Image of a couple arm in arm looking at the Stockbridge Bowl and the Berkshire mountains. Text says What are common closing costs in Massachusetts?

Massachusetts Buyer Closing Costs

  • Recording Fees —Various documents are recorded at the Registry of Deeds at closing. The Commonwealth currently charges (as of September 2022) the following amounts for the following documents:
    • Deed – $155Mortgage – $205Municipal Lien Certificate – $80Declaration of Homestead – $35
    • Certificates and Affidavits – $105
  • Plot Plan — If you are buying a house, as opposed to unimproved land, your lawyer will almost always order a plot plan from a local surveyor to ensure that there are no encroachments on the property. This typically costs between $350 and $500.
  • Title Exam / Abstracting — Your lawyer will order the complete record of recorded documents pertaining to the property from the past 50 years from an abstractor. This typically costs between $300 and $400.
  • Municipal Lien Certificate — This is the tax certificate that shows the exact amount of the property taxes and whether any taxes are owed. Towns and cities typically charge between $25 and $50 per certificate.
  • Adjustments for Property Taxes — Property taxes are pro-rated, so you will pay the seller for any property taxes that have already been paid for the current tax period.
  • Adjustments for Propane/Fuel/Heating Oil — Buyers must pay sellers for any propane or oil that is left in the tank(s). This is calculated based on the current price per gallon and a reading of the gauge a few days before closing.
  • Title Insurance Policy — Title insurance protects owners and their lenders from financial loss resulting from a hidden defect in the title to a property. It is a one-time payment that covers homeowners for as long as they own the property. The payment is a factor of the purchase price of the property. Commonly, it’s calculated as $4.00 per every $1,000, but this can change for properties over $1 million and depends whether a lender’s policy is being issued simultaneously. You should ask your attorney to calculate this for you.
  • Legal Fee — This can vary depending on the purchase price of the property, whether the buyer is getting a mortgage, and whether any special considerations are involved.
  • Bank Fees — If you are getting a mortgage, the lender will charge various additional closing costs. These can vary greatly between lenders. Typical bank fees include underwriting fees, appraisal fees, credit checks, and rate lock fees. Your lender will provide you with a loan estimate when you apply for your mortgage.
  • Homeowner’s Insurance — The premium for the first year is usually paid at closing and can be included in your closing costs. If you are getting a mortgage, your bank will require this to ensure that the home will be insured as of the closing date.
  • Buyers do NOT pay realtors’ commission.

Massachusetts Seller Closing Costs

  • Commission to Realtors — If you are using a realtor, you will have an agreement with the realtor stating the rate of their commission. This is almost always a percentage of the sale price. A listing agent typically splits the commission with the buyer’s agent.
  • Recording Fees — Sellers do not pay to record the deed, but occasionally a seller must record a document at closing, such as a trustee certificate, easement, agreement or affidavit.
  • Transfer Tax (“tax stamp”) — Sellers in Massachusetts are required to pay a “tax stamp” when they sell property. The tax is currently set as $4.56 per every $1,000 of the sale price.
  • Unpaid property taxes, HOA dues, water/sewer bills.  

Want more information on buying and selling homes in Massachusetts? We think you’ll find our our downloadable guides of interest. Click on the images below for The Purchase and Sale Agreement and Realtors, Attorneys, and the Contract.

Buying and Selling a Home in the Berkshires The Purchase And Sales Agreement

About Lazan Glover Puciloski, LLP

Lazan Law has overseen thousands of closings over our 35 year history. And we’ve never been busier! We most frequently work with home buyers and sellers in the Berkshires: Alford, Great Barrington, Hancock, Lee, Lenox, Monterey, North Adams, Pittsfield, Richmond, Sandisfield, Sheffield, Southfield, Stockbridge, South Egremont, Tyringham, West Stockbridge, and Williamstown, as well as communities beyond the Berkshires.

Contact us if you’re about to embark on a home buying journey!

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Disclaimer: The information contained herein is for informational purposes only. It does not constitute the rendering of legal or other professional advice or services. Your review of this post and/or use of the Lazan Glover & Puciloski, LLP website does not create an attorney-client or confidential relationship between you and Lazan Glover & Puciloski, LLP or any of its attorneys. Information provided herein or on the website should not be relied upon or used as a substitute for consultation with legal, accounting, tax, and/or other professional advisors.   Since any electronic communication between you and Lazan Glover & Puciloski, LLP through this website will not be privileged or confidential, it may be disclosed to other persons and may not be secure. Accordingly, please do not send any e-mail to the Firm that contains confidential or sensitive information without first speaking with an attorney at Lazan Glover & Puciloski, LLP and receiving permission to do so.

Adult using a smart phone to text about a real estate contract

Can Text Messages Form a Binding Real Estate Contract?

Adult using a smart phone to text about a real estate contract

In Massachusetts, real estate contracts or agreements must be in writing. Traditionally, this means that a real estate sale agreement must be set out in a purchase and sale agreement, signed by all parties. However, the world has gone digital; this drastically changes this rule. Can text messages form a binding real estate contract? Read on.

The changes began with email

Courts were called upon to consider whether an exchange of emails between a buyer and a seller could create a binding contract. Over time, courts have concluded that email messages exchanged between a prospective buyer and seller can, in fact, constitute a binding contract as long as the emails, taken together, show agreement on specific key points, such as the closing date, the purchase price, the deposit amount, and treatment of contingencies. Parties who may have thought they were simply exploring the possibility of a purchase or sale by email found themselves in a binding contract.

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Smart phones continued the issue

The logical next question was whether parties could be bound to a real estate deal as a result of an exchange of text messages. The Land Court has answered that question in the affirmative. Of course, the context of the text messages is important and, as with emails, the essential terms of the deal must be agreed upon. However, a court will consider a string of texts together in considering whether there is a binding agreement between the parties. Thus, all of the essential terms of the deal need not be contained within a single text.

So, can text messages form a binding real estate contract?

The danger here is clear. Through a simple, informal exchange of text messages, a  property owner could inadvertently agree to bind themselves to sell their property or a prospective buyer could inadvertently agree to buy property. The moral of the story is that it is far better to seek legal assistance before you engage in any negotiation concerning real property, even an informal exchange of text messages. So can text messages form a binding real estate contract? Yes. Yes they can.

If you’d like to learn more about Berkshire realtors, attorneys, and the real estate contract, click here.

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Disclaimer:  The information contained herein is for informational purposes only. It does not constitute the rendering of legal or other professional advice or services. Your review of this post and/or use of the Lazan Glover & Puciloski, LLP website does not create an attorney-client or confidential relationship between you and Lazan Glover & Puciloski, LLP or any of its attorneys. Information provided herein or on the website should not be relied upon or used as a substitute for consultation with legal, accounting, tax, and/or other professional advisors.   Since any electronic communication between you and Lazan Glover & Puciloski, LLP through this website will not be privileged or confidential, it may be disclosed to other persons and may not be secure. Accordingly, please do not send any e-mail to the Firm that contains confidential or sensitive information without first speaking with an attorney at Lazan Glover & Puciloski, LLP and receiving permission to do so.