REAL ESTATE

In Massachusetts, you are not required to hire an attorney when purchasing a home. However, your lender will require one to close their loan.  It is strongly advised to consult with an attorney regarding your purchase to ensure your interests are protected. An attorney will be able to navigate any potential issues related to title, liens, or other encumbrances on the property as well as its condition.  An attorney will also work with the seller's attorney to negotiate and review the purchase and sale agreement.  

 It is never too early to hire an attorney if you plan to purchase or sell real estate.  An attorney should be engaged before officially making or accepting an offer to ensure all contingencies are inputted correctly and to assess risks. 

A tenancy in common is the default form of joint ownership of real estate. If a deed does not specify how the property is held, Massachusetts law automatically holds that it is held by tenants in common. Owning property as tenants in common means that each individual owns a fully devisable proportionate share in the property. Each owner can sell, partition, or mortgage his or her own individual portion of the property. This can be true even without the permission of the other owner(s). Owning the property as tenants in common gives each owner a complete right to use and occupy the entire property free from unreasonable interference. When one of the co-owners dies, his or her share does not automatically go to the other owner.  Rather, it must be probated (if not held in trust) and distributed in accordance with the deceased owner's will or pursuant to state law if no will was executed.

Co-ownership in the form of a joint tenancy enjoys the right of survivorship. A significant benefit of this relationship is that upon the death of a co-owner their interest in the property passes without having to go through the costs and hassle of the probate process.  A joint tenancy must be specified in the deed. Otherwise, a Court may presume the default ownership as a tenancy in common. In order to correctly form a joint tenancy the co-owners must take title to the property at the same time, have the same title to the property, own equal shares of the property, and must have equal rights to use the whole property.

A tenancy by the entirety is a form of co-ownership available only to married couples. It is similar to a joint tenancy, but with the added benefit of protection from creditors. A non-debtor spouse is protected when holding property in a tenancy by the entirety. A creditor can place a lien on the debtor's interest, but the non-debtor spouse is protected from execution against the property during their lifetime so long as the property is the non-debtor’s principal residence.

A petition for partition is a legal process that can be initiated in the Land Court or the Probate Court in which a co-owner can seek to end their shared ownership. When co-owners do not wish to continue shared ownership and cannot agree on how to terminate the ownership, they may be able to file a petition for partition case and obtain the Court's intervention. 

An easement is a nonpossessory legal interest in a property not owned by the person for whom the easement is created. The easement holder’s rights are specific and restricted, meaning the easement can only be used for the purposes delineated within the easement instrument.  There are different types of easements such as utility easements, easements by prescription, easements by necessity, easement by implication, etc.  A properly drafted easement will detail the rights of the parties in the easement area and specify obligations for such things as maintenance and repair.  

A license gives the permission of the owner of real property to an individual or an entity to use the owner's real property for a specific purpose.  A license does not transfer an ownership interest in the real property and can be revoked.