A Turn of Events for Worcester’s Former County Courthouse

The former Worcester County Courthouse at 2 Main Street was supposed to be converted into residential housing units and retail space after the City reached an agreement in March 2015 to sell it to Brady Sullivan Properties, LLC, a New Hampshire real estate development company.  Some signs of progress have occurred since then, including $2 million in environmental remediation work.  But as of last week, the City was informed that the developer was not moving forward with the project and Brady Sullivan Properties, LLC terminated the sales agreement.

For the time being, the City remains the owner of 2 Main Street.  It will be responsible for the maintenance and upkeep on the building until a new buyer/developer can be found.  The property will be put back out for bid and City Manager Edward M. Augustus Jr. said in a statement that he is confident a qualified developer can be found.

What does this mean for contractors who worked on the former Courthouse while it was under agreement with Brady Sullivan Properties, LLC?  This turn of events makes no difference for contractors who performed work and were paid in full.  For contractors that have not been paid for work they performed, they should review their contracts to determine who agreed to pay for their services and what recourse they have against that party.  Unfortunately, the property falls outside of the scope of the mechanic’s lien law and unpaid contractors, subcontractors and suppliers are not entitled to initiate a lien against the property for work they performed under contracts with Brady Sullivan Properties, LLC.  Section 6 of Massachusetts General Laws chapter 254 provides that land, building or any structure on them owned by the Commonwealth or a municipality are exempt from mechanic’s liens.  Even though the former Courthouse was under agreement to be sold to a private developer, the sale had not closed and the property remains owned by the City.

If you are contemplating working for or providing materials for the next developer interested in the former Courthouse project, plan ahead.  Find out who will be paying for your work and who owns the project at that time.  Since you will be excluded from asserting a mechanic’s lien on the property while it is owed by the City, if you will be working on the project prior to the developer taking ownership of the property ask about other options to secure payment for your work, such as a payment bond, personal guaranty or escrowing funds to pay for your services or materials.  Once the property is sold to a developer, the project becomes like any other private project, subject to mechanic’s liens by unpaid contractors, subcontractors and suppliers as permitted under Massachusetts General Laws chapter 254.  (Not familiar with mechanic’s liens? Review my earlier post on the basics of Massachusetts’ mechanic’s lien law).

The mechanic’s lien process is complex and prevailing on claims for payment of construction services and materials can be difficult without a solid understanding of the law.  For questions or assistance with Massachusetts mechanic’s liens or recovery of payment for construction services or materials, contact Jessica Murphy at (508) 791-8500 or another member of Mirick O’Connell’s experienced Construction Group.

Posted in Construction, Contracts, Labor | Tagged , , ,

Trump’s Pruitt Pick for EPA Signals Greater Predictability in Environmental Rulemaking, Enforcement

President-elect Donald Trump’s team announced yesterday his selection of Oklahoma Attorney General Scott Pruitt to head the U.S. Environmental Protection Agency. The Pruitt pick is nearly as polarizing as the election itself. Pruitt describes himself as a “leading advocate against the EPA’s activist agenda.” The Wall Street Journal applauded Pruitt calling him “A Lawyer for a Lawless EPA.” Democrats are attacking Trump’s pick calling him a “climate denier” and otherwise unfit to head the agency tasked with enforcing the nation’s environmental laws. Incoming Senate Minority Leader Chuck Schumer (D-NY) blasted Pruitt on Twitter saying he “stands with big oil & climate deniers, not American families.”

Regardless of one’s political leanings, one good thing that should come out of the Pruitt pick, assuming he is confirmed by the Senate, is a more predictable application of federal environmental laws and regulations. Recent environmental rulemaking under President Obama’s Administration has been met with mixed success before the courts. The EPA’s 2015 Clean Power Plan was promptly challenged by 27 states, including Pruitt’s Oklahoma. On February 9, 2016, the U.S. Supreme Court took the unprecedented step of staying enforcement of the regulation pending an appeal before the D.C. Circuit. The appeal is still pending. The EPA and Army Corps of Engineers’ new and more expansive “Waters of the U.S.” rule is subject to a similar appeal and has been stayed by the Sixth Circuit. Both rules face an uncertain fate, although their life expectancy is undoubtedly reduced in the wake of the election.

What is sometimes missed is the cost, economic and otherwise, of on-again, off-again regulation. Ultimately, taxpayers and consumers shoulder the expense of the rush to comply with new rules. The uncertainty of whether the rules will survive increases the cost. Put simply, predictability and durability are underappreciated qualities in environmental regulation. Pruitt, it would seem, is less likely to send the EPA on new rulemaking efforts that are later undone by the courts. Call that a silver lining for those not otherwise supporting the Pruitt nomination.

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What Massachusetts Employers Should Know About Recreational Marijuana

Here’s what the construction industry needs to know about recreational marijuana in the workplace and on the jobsite from my colleague, Amanda Baer:


On November 8, 2016, Massachusetts voters approved a ballot question legalizing marijuana for recreational and commercial use. The Regulation and Taxation of Marijuana Act (the “Act”) provides that – as of December 15, 2016 – persons at least 21 years of age may possess, use, purchase, process, and/or manufacture 1 ounce or less of marijuana outside their residence and up to 10 ounces of marijuana within their residence.

As relevant to employers, the Act provides that property owners may prohibit or otherwise regulate the consumption, display, production, processing, manufacturing or sale of marijuana and marijuana accessories on or in their property.  Importantly, the Act further provides that it does not require employers to permit or otherwise accommodate conduct allowed by the Act in the workplace and does not affect the authority of employers to enact and enforce workplace policies restricting the consumption of marijuana by employees.

Employers should act fast…

View original post 278 more words

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SEC Hoping to Increase Policing of Climate Change Disclosures

Penguin IslandThese pages rarely comment on Securities and Exchange Commission matters, but a recent article in Corporate Counsel Weekly captured our attention – “SEC Policing of Climate Disclosure May Pick Back Up.”

The 2010 SEC climate change guidance required companies to disclose the business risks of climate change to investors. Corporate Counsel Weekly notes that most companies made only boilerplate disclosures or none at all. The article quotes Mary Shapiro, the former chair of the SEC, “I sense today a strong interest in this issue again at the SEC,” suggesting that the Commission may begin requiring better and more detailed disclosures.

Count this author among those not surprised that companies remained at a loss as to how to characterize the risks of climate change. Under longstanding SEC regulations, companies are already required to disclose material business risks, trends and uncertainties to their investors. For many companies, forcing enhanced disclosures on climate change is at best an invitation to speculate. As Ms. Shapiro reportedly admitted, climate change is “highly politicized.” A recent opinion piece in Monday’s Wall Street Journal titled “The Phony War Against CO2” illustrates the complex politics and differing views on the topic.

Forcing climate change disclosures from companies with no apparent connection to climate change issues invites non-experts to speculate about the range of potential climate outcomes and their associated, potential business risks. Isn’t there already enough non-expert speculation on climate change? Investors, and the SEC, are better served by resisting the temptation to force public company speculation and commentary on climate change, unless the company has a specific, good-faith basis for including climate change among those material business risks it is already required to disclose.

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The Perils of Mobile Communication and Real Estate Negotiation

phone-158086_1280The rapid expansion in mobile communication has stretched the limits of many longstanding legal frameworks, including the Statute of Frauds (“SOF”) (G.L. c. 259 § 1).  This is certainly the case with respect to real estate transactions.  In fact, 97% of respondents to a recent Pew Research Center survey indicated they use a smartphone for text messaging.  This same survey indicated that 44% of respondents utilize their phone to look up real estate listings and property information.  As a recent land court case reminds us, however, the use of text messaging and email when negotiating real estate transactions can bring unintended legal consequences.

In St. John’s Holdings, LLC v. Two Electronics, LLC (2016 WL 1460477 (2016)), the Land Court addressed a novel concept: whether a text message can satisfy the requirements of the SOF.  The SOF is a legal doctrine requiring contracts for the sale of land to include all essential terms and be in writing signed by the party against whom enforcement is sought.

The controversy in St. John’s centered on communications between two real estate brokers negotiating the sale of a commercial office building.  After negotiating the terms for the sale and receiving a final letter of intent (“LOI”), the seller’s broker sent the buyer’s broker the following text message:

“Steve. It [Two Electronics] wants you [SJH] to sign first, with a check, and then he will sign.  Normally, the seller signs last or second. Not trying to be stupid or contrary, but that is the way it normally works.  Can Rick [McDonald] sign today and get it to me today? Tim.”

The buyer’s broker responded with the following:

“Tim, I have the signed LOI and check it is 424 [PM] where can I meet you?”

Subsequently, the seller refused to execute the LOI and sell the building to the buyer.  In response, the buyer filed suit for specific performance claiming the exchange of emails and text messages, in conjunction with the final LOI, resulted in an agreement of all essential terms. The seller countered that the exchange did not satisfy the SOF.

Analyzing the buyer’s claims, the Court revisited the decision in Feldberg v. Coxall (2012 WL 3854947) that emails between a buyer’s attorney and seller’s attorney (one of which included an unsigned offer to purchase) created a binding agreement.  Additionally, the Court reviewed the Massachusetts Uniform Electronic Transactions Act (“Act”) (G.L. c. 110G).  The Act applies when parties have agreed to conduct transactions by electronic means.   Under the Act, if a law requires a signature, an electronic one will suffice. Parties may also switch between electronic means and hard copy when conducting transactions.

The Court ultimately concluded that the text message, in concert with the buyer broker’s email of the final LOI and the conduct of the parties, satisfied the SOF.  The Court further held that the final text messages made no changes to the essential terms of the agreement and “implicitly incorporated” the final LOI.  This final LOI, the Court explained, contained all of the specific terms of a purchase and sale agreement.  Interestingly, the Court also noted that the use of the seller broker’s signature at the end of the last text message was evidence of his intent to have the writing be legally binding.  The Court differentiated it from previous texts of a “more informal nature.”

The decision in St. John’s Holdings, LLC is thus a good reminder to exercise caution when using electronic communications to negotiate real estate transactions.  One of the primary takeaways from this case is that the informality of email and text messaging is no elixir to a bad deal.  Additionally, this case illustrates the importance during negotiations of careful consideration and review of structure and content before sending email and text messages.  As that well-known idiom states, “measure twice, cut once.”

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Is Faulty Workmanship an Occurrence?

shutterstock_95374945Add New Jersey to the growing list of jurisdictions adopting a more expansive view of insurance coverage for construction defect claims.

The standard form commercial general liability (CGL) insurance policy provides coverage for those sums that the insured becomes legally obligated to pay as damages of “bodily injury” or “property damage” caused by an “occurrence.”  An “occurrence” is defined as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.”  The standard form CGL policy also contains an exclusion for damages to “your work” (the Your Work Exclusion), and, as of the 1986 standard form, an exception to the Your Work Exclusion if the damaged work was performed on the insured’s behalf by a subcontractor (the Subcontractor Exception).

Whether faulty construction workmanship resulting in property damage qualifies as an “occurrence” in a CGL policy is an issue that is litigated regularly.  Courts have varied tremendously in their approach and findings.  Some courts construe the language strictly, holding that defective construction can never be an occurrence because it is not an accident but rather a business risk of the insured contractor.  Other courts take a modified approach, holding that defective construction standing alone is not an occurrence, but faulty workmanship that causes damage to property other than the defective work itself can be deemed as such.  Still other courts make a more liberal application holding that any unintentional defective construction is an occurrence.

The trend has been in favor of coverage, and a decision last month by the New Jersey Supreme Court is the most recent example.  In Cypress Point Condo. Ass’n, Inc. v. Adria Towers, LLC, a condominium association alleged that water infiltration occurring after the project was completed caused mold growth and other damage to the common areas and units.  Distinguishing earlier precedent, the New Jersey Supreme Court held that the alleged damage qualified as an “occurrence” because it was a consequential harm caused by negligent work.  Even if the alleged damages included damage to sections of the work being performed by the insured, the Your Work Exclusion was subsumed by the Subcontractor Exception because the defective work was performed by subcontractors.

The Cypress Point Court noted a “strong recent trend in the case law of most federal circuit and state courts interpreting the term ‘occurrence’ to encompass unanticipated damage to nondefective property resulting from poor workmanship.”  The courts here in Massachusetts have historically taken a narrow interpretation that defective construction is not an accident and hence is not an insurable fortuitous event that qualifies as an occurrence.  It will be interesting to see if Massachusetts follows New Jersey and other states that have trended towards a more expansive interpretation of the CGL policy language, which would greatly benefit contractors defending defect claims.

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What Recent CFPB Rules Mean for the Private Lender

shutterstock_440924311There are many potential advantages to private mortgages, for lenders and borrowers alike.  Borrowers can benefit from lower interest rates, more flexibility in repaying the loan, less paperwork, and fewer closing costs, while lenders can enjoy a steady income stream (if all goes well) and the satisfaction of helping a friend or family member buy a property.  But putting aside the risk of non-payment and prospect of attendant relationship issues, one possibility that just about everybody would put in the “Con” column is exposure to onerous mortgage lending regulations.

So when the Consumer Financial Protection Bureau issued two new rules in the past several years concerning requirements for loan originators and disclosure practices for creditors, many were left wondering (or maybe should have been wondering) if these rules applied to their private lending plans.


In effect since October 3, 2015, the TILA-RESPA Rule establishes new disclosure requirements for most mortgages.  The aim of the rule is to help consumers understand important aspects of, and therefore make informed decisions about, their mortgage loans.  While the rule has caused considerable compliance challenges for many lenders in its inaugural year, the text of the rule provides clear assurance that its requirements do not apply to the family member or friend making a one-time mortgage loan.  Rather, the requirements apply only to “creditors,” meaning those who “regularly extend consumer credit,” and the rule explains, “A person regularly extends consumer credit only if it extended credit… more than 5 times for transactions secured by a dwelling” in the preceding or current calendar year.

Loan Originator Rule

The Loan Originator Rule, on the other hand, does not afford the same level of clarity.  Effective since January 1, 2014, this rule regulates the compensation, qualification, and identification of loan originators.  The rule states that various actions make an organization or individual a loan originator, including arranging a credit transaction, assisting a consumer in applying for credit, offering or negotiating credit terms, making an extension of credit, and more.  The definition is purposely broader than the definitions of loan originator used in earlier regulations, which were limited to those who regularly accepted mortgage loan applications.  While the rule does make certain very specific exceptions, including an exception for certain seller financing transactions and a categorical exemption from the compensation requirements (i.e. how a loan originator can be paid) for creditors that make loans from their own funds, the outer bounds of the rule’s scope remains unclear.

One camp of commentators has adopted a cautious interpretation of the rule, one that understands broadly the language about triggering loan originator actions and takes a dim view of the possibility that other state and federal regulations provide a safe harbor for individuals and entities that do not regularly make mortgage loans.  Although the one-time or infrequent private lender may be a low enforcement priority for the CFPB, this camp concludes, the risk of violating federal loan originator regulations remains.

Others in the legal and financial services communities have taken a different position.  Some contend that the rule only requires compliance with other state and federal laws regarding the license and registration of loan originators.  Under the SAFE Act, for example, the Department of Housing and Urban Development has issued a rule clarifying that only those loan originators that habitually or repetitively engage in the business of loan origination require licensure.  The analog Massachusetts statute is even more specific, exempting from the requirement of licensure those selling their own primary residence and those who make a mortgage loan with an immediate family member (defined as “a spouse, child, step child, adopted child, sibling, step sibling, adopted sibling, parent, step parent, adopted parent, grandparent, or grandchild”).

As the legal landscape continues to shift for institutional lenders and traditional loan originators in the wake of the mortgage crisis, so too does it shift for the aunt looking to offer her niece a low-interest loan for the purchase of the niece’s first house.  No matter how benevolent the intentions, private lenders should take care to understand the evolving rules regarding mortgage loans and the potential compliance risks these loans create.  We recommend seeking counsel on the particular circumstances of your mortgage loan to determine whether any regulatory landmines exist.

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Upset About Your Easement? Why You Might Reconsider Turning to the Zoning Act for Relief

In its recent June 2016 decision in Picard v. Zoning Board of Appeals of Westminster, et al., the SJC held that “a claimed injury to a private easement right [was not] sufficient to confer standing to challenge a zoning determination made by a zoning board of appeals.”  The Court’s analysis centered on the meaning of a “person aggrieved” under the Massachusetts Zoning Act, G.L. c. 40A.  The decision sent a cautionary message to those who would consider challenging a ZBA decision for perceived infringements to their private easement rights: You just might not be the right kind of aggrieved.

A summary of the dispute: The plaintiff had an easement to cross abutting property to access a beach area on a pond.  The owner of the abutting property applied for a building permit to build a home.  Although the abutting property did not meet the town’s minimum buildable area and frontage requirements, the building commissioner determined that the property was a non-conforming lot with grandfathered status under the Zoning Act.  When the ZBA upheld the building commissioner’s finding, the plaintiff filed suit in Superior Court.

The SJC’s decision chronicled the standing requirements under the Zoning Act.  Below are three crucial excerpts:

“[O]nly a ‘person aggrieved’ has standing to challenge a decision of a [ZBA].”

“[T]he right or interest asserted… must be one that the Zoning Act is intended to protect….”

“[T]he analysis is whether the plaintiffs have put forth credible evidence to show that they will be injured or harmed by proposed changes to an abutting property, not whether they simply will be ‘impacted’ by such changes.”

Perhaps the most significant aspect of the Court’s decision, which affirmed the Superior Court’s dismissal of the plaintiff’s complaint for lack of standing, is its narrow interpretation of “interests protected by the applicable zoning scheme.”  The Court reasoned that “[t]he primary purpose of zoning… is the preservation in the public interest of certain neighborhoods against uses which are believed to be deleterious to such neighborhoods,” such as “density, traffic, parking availability, or noise.”  Is it possible that interference with a private easement could also raise these kinds of larger-scale, neighborhood-wide concerns?  The Court did not completely foreclose the possibility, but concluded that, at least in the case at hand, such interference was outside the “scope of concern of the Zoning Act.”  It’s worth noting that the Court also held that, even if the plaintiff’s claims were inside the Zoning Act’s “scope of concern,” the plaintiff still failed to substantiate his claimed injuries, since he offered nothing more than “his own opinion that a building would block access to the pond.”

A rare silver lining to be found in the SJC’s decision for those concerned about infringements to their private easements is that, as the Court pointed out in the final footnote of its decision, “nothing we say here deprives [the plaintiff] of his right to pursue a remedy at common law for any actual harm to his easement rights.”  In other words, if you’re in plaintiff’s shoes, you may be resigned to suing your neighbor, not the ZBA.

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Appeals Court Revisits Adverse Possession of Undeveloped Land

The Massachusetts Appeals Court recently reviewed adverse possession of wild and wooded areas. In Paine v. Sexton, 88 Mass. App. Ct. 389 (2015), the Plaintiff campground operators asserted rights to property based on record title and adverse possession.  While it did not validate record title, the Court recognized the Plaintiffs’ adverse possession claims.  In doing so, the Court departed from the traditional requirements for adverse possession of land in its natural state.  For owners of large tracts of undeveloped land, this case serves as a reminder of the risks posed by adverse possession.

The Paine family has operated a campground on a portion of a 36 acre site in Wellfleet, Massachusetts for over 50 years. This occupied portion of the site includes typical campground improvements: roadways, picnic tables, fire pits, toilet facilities, an office building, fencing and parking areas. But as the Court noted, the areas between campsites and the remainder of the site are undisturbed.

In the traditional sense, adverse possession requires occupancy which is “actual, open, notorious, exclusive and adverse for twenty years.” Ryan v. Stavros, 348 Mass. 251, 262 (1964).  Courts have also required “a more pronounced occupation” for adverse possession of wild and wooded areas.  Sea Pines Condominium II Association v. Steffens, 61 Mass. App. Ct. 838, 848 (2004).  The test for pronounced occupation has often been whether land has been enclosed or cultivated; harvesting timber and pasturing animals alone has not satisfied this burden.  See Senn v. Western Massachusetts Electric Company, 18 Mass. App. Ct. 992, 993 (1984).

In Paine, the Court took a different approach and focused on the Plaintiffs’ specific use: the clearing of sites; construction of buildings and roadways; and restriction of access to paying customers. The Court concluded these steps put record owners on notice of the Plaintiffs’ occupancy and thereby established adverse possession, despite the lack of complete enclosure or cultivation.  Subsequently, the Court recognized the Plaintiffs’ color of title claim to the entire 36 acres after reviewing (but not validating) their purported record title.

The Court’s ruling in Paine departed from the requirement of pronounced occupation for adverse possession of land in its natural state.   At the same time, it confirms the fact-specific nature of these cases and the need for more in claims associated with wild and wooded areas.  For owners of large tracts of undeveloped land, it also serves as a reminder of the importance of vigilance in monitoring unauthorized use and activity.

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MassDEP Offers Manufacturers Amnesty Under Toxics Use Reduction Act, a Likely Prelude to Increased Enforcement

Massachusetts Department of Environmental Protection

If you are a Massachusetts manufacturer suspected of using toxic chemicals in your production process, you may have been among the hundreds of recipients in recent weeks of a notice letter from MassDEP about mandatory chemical use reporting under TURA, G.L. c. 21I.  Passed in 1989, TURA seeks to encourage manufacturers, processors and users of toxic substances to reduce their use.  The regulations require annual reporting of listed chemicals each June and the filing of a toxics use reduction plan every other year if the facility meets certain thresholds.

The regulations are by nature highly technical.  In addition to consulting with legal counsel, you will want the assistance of a certified Toxics Use Reduction Planner.  They can assist you with completing the necessary paperwork and identifying the toxic substances that require reporting each year under TURA.

It will come as no surprise that TURA also requires the payment of an annual fee to MassDEP along with the report.  The fee is based on the number of employees and the amount of listed chemicals manufactured, processed or otherwise used.

If you are not filing an annual report as required under TURA, now is the time to remedy that oversight during the amnesty program, which expires on June 30, 2016.  Under the program, you will be required to identify and report any use of TURA-listed chemicals over the reporting threshold and pay one year of past-owed fees, along with the mandatory $1,000 late fee.   MassDEP will be conducting formal inspections and audits to determine compliance.  Expect significant sanctions, fines and enforcement actions if MassDEP discovers TURA violations after the amnesty program, especially if you are among the lucky recipients of a recent TURA notice from MassDEP.

If you have questions, please contact David McCay, an experienced Massachusetts environmental litigator at Mirick O’Connell at (508) 791-8500, or a certified Toxics Use Reduction Planner, a list of which is maintained by MassDEP and available here:  http://www.mass.gov/eea/docs/dep/toxics/turpdir.pdf.

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Lt. Gov. Polito to Give Keynote at Boroughs+ Economic Development Summit on Jan. 26

WestboroughMirick O’Connell is proud to sponsor the Boroughs+ Economic Development Summit on January 26 at the Doubletree Hotel in Westborough.  The summit will feature a keynote address from Lt. Gov. Karyn Polito, followed by a panel discussion and Q&A.  To register for the summit, click here.

The summit will focus on promoting regional collaboration on the “Last Mile” Connection, which is the connection from major public transit, including commuter rail stations, busing routes, and park and rides, to the business locations where people work. The summit was organized by the economic development organizations and professionals in the towns of Southborough, Northborough, Westborough, Marlborough, Hudson, Hopkinton and the 495/MetroWest Partnership.

David McCay, a partner at Mirick O’Connell specializing in  Land Use and Environmental Litigation, and the Chair of the Southborough Economic Development Committee, will open the summit, followed by Lt. Gov. Polito’s keynote address. A panel discussion will be moderated by Dr. Barry Bluestone, founding director of the Dukakis Center for Urban and Regional Policy and Founding Dean of the School of Public Policy & Urban Affairs at Northeastern University. Panelists include: Ed Carr, Administrator of the MetroWest Regional Transit Authority; Jim Robbins, Westborough Town Planner; Paul Matthews, Executive Director of the 495/MetroWest Partnership;  Bill Spencer of Pall Life Sciences in Westborough; and Marybeth Stewart, Human Resources Manager of Wegmans Food Markets.

“The goal of the Boroughs+ Economic Development Summit is to bring together local leaders to collaborate on important economic development and transit issues that impact the future of the Boroughs+ region,” said McCay. “By working as a team on the local and regional level, we can begin to address the transportation issues that many employers face.”

The Boroughs+ Economic Development Summit will be held on January 26 from 7 a.m. to 9:30 a.m. at the Doubletree Hotel in Westborough.  Click here to register.

Posted in 495/MetroWest Partnership, Economic Development, Marlborough, MetroWest, Northborough, Southborough, Uncategorized, Westborough, Zoning | Tagged , , , , | Leave a comment

Courts Refine Immunity Under the Massachusetts Recreational Use Statute

Private landowners allowing public access to land should take note of recent court decisions which have refined the scope of the Recreational Use Statute, G.L. c. 21, § 17C (“Statute”).  The Massachusetts Legislature enacted the Statute in 1972 in response to liability concerns of property owners and to encourage public access to private property.  Over time, the Statue has proven to be a valuable defense against many premises liability claims.  As a result, property owners should evaluate their land use practices to ensure compliance with the Statute’s procedural requirements.

The Statute affords liability protection to a “person” who allows the public the right to use land for the following purposes: recreational, conservation, scientific, educational, environmental, ecological, research, religious and charitable.  Under the Statute, a “person” includes landowners, agents, managers, licensees, non-profits, trusts, business organizations, officers, directors and trustees.  Of importance to owners of large tracts of land, the Statute’s recreational component covers activities such as hiking, biking, swimming, hunting, fishing and snowmobiling.  It does not, however, protect landowners against gross negligence claims.

Recent decisions underscore the importance of three factors courts analyze when applying the Statute: 1) payment of fees; 2) limitations on public access; and 3) the nature of the public use of land.  Accordingly, property owners should examine the interplay between their land use practices and these factors.

Regarding fees, courts have reaffirmed the principal that charging a fee for public recreational use bars protection under the Statute.  Specifically, they have distinguished this type of fee from donations and reimbursements for marginal costs.  In Marcus v. City of Newton, 462 Mass. 148 (2012), the Supreme Judicial Court denied the City of Newton immunity under the Statute because it charged for use of a municipal field.  However, the Appeals Court in Patterson v. Christ Church in the City of Boston, 85 Mass. App. Ct. 157 (2014), granted immunity from a personal injury claim to Boston’s Old North Church.  The Court held that charges for specialized tours and the operation of an on-site gift shop were not “fees” for recreational use.

With respect to access, the Court in Wilkins v. City of Haverhill, 468 Mass. 86 (2014) emphasized that the Statute requires “free and equal” access for recreational use to all members of the general public.  The Court denied the City of Haverhill immunity from a slip and fall after determining that a school event was only open to a small portion of the general public (parents and students).  Additionally, in Cohen v. Elephant Rock Beach, 2014 WL 6792106 (D. Mass. 2014), the Court denied a private beach club protection under the Statute from a plaintiff’s injuries suffered from use of an offshore rock.   The court determined that the club did not own the rock; it also held that the club restricted access to members and guests.

Courts have also whittled away review of subjective intent in applying immunity, and they have sharpened the inquiry to whether landowners grant access to the public for recreational activity.  The Supreme Judicial Court in Ali v. City of Boston, 441 Mass. 223 (2004), evaluated a plaintiff’s collision with a park gate and held that riding a bike was a recreational activity regardless of the reasons for doing so.  Similarly, the Court in Dunn v. City of Boston, 75 Mass. App. Ct. 556 (2009), granted the City of Boston immunity under the Statute from a plaintiff’s injuries on the stairs at City Hall Plaza.  The Court held that walking around the plaza was inherently a recreational activity, and that the reasons for doing so were not determinative in the immunity analysis.

Landowners allowing public recreational use of land can thus avoid preclusion of immunity under the Statute by incorporating these parameters into their land use practices.  In particular, they should carefully weigh the benefits of generating revenue from access fees against the potential loss of immunity under the Statute.  Additionally, they should evaluate whether access to their land for recreational use is open to all members of the general public.

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