Monthly Archives: December 2016

The Real Estate Lawyer Do in a Purchase or Sale of a Home

Some people who are buying or selling their home may try to minimize the cost associated with the transaction by foregoing using a lawyer’s services.

However, real estate transactions often represent the most expensive transaction that a person makes. Spending the extra funds to ensure that the job is done right is often a prudent choice. Real estate lawyers help in the following ways when you are purchasing or selling a home:

Contract Drafting and Review

Real estate lawyers memorialize the terms of the agreement into a formal contract. They can ensure that certain provisions are contained in the contract that protect their client’s interests as well as to make sure that state laws are complied with. They can also address certain issues that may arise, such as purchasing a lease-back by the seller, handling existing tenants, using the property for certain uses in the future and include contingencies to protect the client.

Many documents will manifest during the course of a purchase and sale of a home. Lawyers will carefully review all of these documents and not simply take the lender’s word for what the document is stating. If there is any troubling wording or legal issue that arises, he or she can address these concerns.

Many home sales are based on a number of important contingencies. A seller may want to secure a new home and make the sale contingent on this ability, or the buyer may want to make the sale of his or her own home contingent on the transaction. There may be other contingencies as well that can be included in the purchase agreement.

Drafting Amendments

There may be changes made in the original agreement based on new information. It may have taken longer than expected for certain stages of the process to be completed. There may be changes based on the home inspection and agreements reached regarding any defects. A natural disaster may strike, causing damage to the property. Real estate lawyers can draft such amendments to keep the purchase agreement intact but to account for this new information.

Reviewing Liens

A real estate lawyer often conducts a title search on a property to determine if there are any encumbrances against it or anything that is clouding the title. This search helps clarify whether the seller has the legal right to sell the property and whether there is anything that may block the sale. For example, the seller may be required to pay off a lien or judgment before selling the home. A real estate lawyer can also secure proof that the judgment or lien has been satisfied.

Transferring Property

A real estate lawyer helps to draft deeds to effectuate the transfer of real estate. Additionally, he or she can review any contracts related to the real estate transaction that have to do with a corporation, partnership or trust so that no terms of the charter agreement are breached. Without the proper legal protocol, the opposing party may be sued if the agreement is violated.

Fulfilling Additional Legal Requirements

The purchase of certain properties may require additional steps. For example, there may be special requirements if a home is considered historical property. If a property is on wetlands and building permits are not secured, the entire structure may need to be rebuilt. If the property is ultimately going to be used for a commercial use, certain zoning restrictions may apply.

Disclosures

State laws dictate what types of information must be disclosed about a property. Real estate lawyers can help request these disclosures as well as prepare the disclosures if they are representing the seller. Without a real estate lawyer, the likelihood of being sued regarding a disclosure increases. A real estate lawyer can also be sure to put a home inspection clause in the buyer’s documents so that any unknown defects are realized before the transaction concludes.

Recording

Property law is full of cases involving properties that were purchased but no deed was ever recorded, creating legal nightmares for buyers. A real estate lawyer can ensure that the deed is properly filed and recorded. If a deed is not properly recorded, the buyer may not be considered the legal owner. His or her income and estate taxes may be levied.

Legal Assistance

To best protect their interests, many home buyers and sellers choose to retain the services of a competent real estate lawyer. He or she focuses on protecting the client’s interests and ensuring that all applicable rules are adhered to in order to avoid potential problems that could arise in the future.

Immediate of Eviction Is Virtually Impossible under Massachusetts Law

Tenants may picture themselves as suddenly homeless when subjected to the eviction process. In Massachusetts, the law includes many complex requirements that extend the process longer than most people might expect.

With some relatively rare exceptions, Massachusetts tenants can take comfort in knowing that they cannot suddenly find themselves on the streets due to a sudden eviction. The law actually extends the full process for a period that can range from more than a month to as many as six months under specific circumstances.

Unless tenants can quickly clear up the issues directly with the landlord, an experienced eviction defense lawyer can help protect tenant rights during the process — or avoid eviction altogether.

Understanding the Important Dates Within the Eviction Process

Through the years, Massachusetts legislators illustrated their dedication to tenant protection by initiating many laws that virtually eliminate any surprises that might leave them living in unsafe conditions or finding themselves homeless. This is why eviction requires a series of steps that help ensure fairness and typically delay the process.

Tenants with leases who suspect that they might face eviction for any reason need to know some important dates, as follows:

• Receipt of a Notice to Quit is the first step in the process, and tenants who receive the notice due to nonpayment of rent can generally stop the eviction by paying the amount due, plus interest or meeting other requirements specified within the lease. With some exceptions, landlords cannot take additional action until 14 days expire from the date of receipt, but that date does not mark the time when tenants must move out.

• Receipt of the Summons of Complaint marks the beginning of the court eviction process which begins by explaining the reason for eviction, notifying tenants of trial location and date and providing a deadline date for filing an answer to the complaint. The answer is an opportunity for filing any disagreements with the court and specifying possible counterclaims against the landlord.

• The court date can add more time before the required move-out date simply because court dockets can be overloaded, particularly during holiday seasons.

• The execution date is the date when tenants must actually move out. Even when landlords prevail in court, however, tenants are not required to move out immediately. Once the judgment is filed, the landlord must wait 10 days before submitting the paperwork for execution of the eviction. Additionally, if tenants are subject to a “no-fault” eviction, where the landlord wants to use the dwelling for other purposes, the date can be extended up to six months. In the event that landlords fail to use the execution within three months, their right to regain possession of the dwelling expires.

The Eviction Calendar Can Become Complex

While these events mark the primary checkpoints of the eviction process, any number of exceptions exist that can add more valuable time for tenants who need to move out. This is why it can be important to seek advice from an attorney who has extensive experience with the eviction calendar as it applies to any number of unique circumstances.

The Aggravated Felony in the Immigration Context

Section 101(a)(43) of the Immigration and Nationality Act (INA) defines “aggravated felonies” in immigration law. Each of the aggravated felony provisions describes a crime or crimes in broad terms.

The following is a list of the immigration aggravated felonies found in section 101(a)(43) (list courtesy of 12 USCIS-PM F.4(B):

– A. Murder, Rape, or Sexual Abuse of a Minor
– B. Illicit Trafficking in Controlled Substance
– C. Illicit Trafficking in Firearms or Destructive Devices
– D. Money Laundering Offenses (over $10,000)
– E. Explosive Materials and Firearms Offenses
-F. Crime of Violence (imprisonment term of at least one year)

– G. Theft Offense (imprisonment term of at least one year)
– H. Demand for or Receipt of Ransom
– I. Child Pornography Offense
– J. Racketeering, Gambling (imprisonment term of at least one year)
– K. Prostitution Offense (managing, transporting, trafficking)
– L. Gathering or Transmitting Classified Information
– M. Fraud or Deceit Offenses or Tax Evasion (over $10,000)
– N. Alien Smuggling
– O. Illegal Entry or Reentry by Removed Aggravated Felon
– P. Passport Document Fraud (imprisonment term of at least one year)
– Q. Failure to Appear Sentence (offense punishable by at least five years)
– R. Bribery, Counterfeiting, Forgery, or Trafficking in Vehicles
– S. Obstruction of Justice, Perjury, Bribery of Witness
– T. Failure to Appear to Court (offense punishable by at least two years)
– U. Attempt or Conspiracy to Commit an Aggravated Felony

This is a list of the titles of all immigration aggravated felony provisions. The statute contains more details regarding what constitutes an aggravated felony offense in each of the above provisions.

When is a Conviction for an Immigration Aggravated Felony?

Each of the immigration aggravated felony provisions in section 101(a)(43) of the INA has specific set of criteria for what is required for an offense to constitute an aggravated felony. Furthermore, many of the aggravated felony provisions have been litigated extensively in both administrative and judicial settings. The language of the statutes, administrative guidance, and administrative and judicial precedent combine to set forth general rules for when a conviction or offense constitutes an immigration aggravated felony.

Many immigration aggravated felonies stem from state criminal convictions. This adds a complicated element to determining whether a conviction is for an aggravated felony. In many cases, whether a conviction is for an aggravated felony will depend exclusively on the language of the statute of conviction. Courts and adjudicators may in some cases also be permitted to look at the specific conduct that led to the conviction. The correct approach in a specific case will always depend on the language of the statute of conviction, the relevant aggravated felony provision, and pertinent case-law on the issue.

Consequences of an Aggravated Felony Conviction

The consequences for an alien who is found to have committed an aggravated felony are severe.

An alien who has at any time been convicted of an aggravated felony will be ineligible for a waiver of inadmissibility under section 212(h) of the INA.

An alien who is convicted of an aggravated felony at any time after admission will be deportable under section 237(a)(2)(A)(iii) of the INA. If a non-LPR is found to be removable for an aggravated felony, he or she will be subject to administrative removal under section 238(b) without a hearing before an immigration judge. An aggravated felony conviction will render an alien ineligible for cancellation of removal. Aliens convicted of aggravated felonies are also ineligible for voluntary departure.

With very limited exceptions, an alien who is removed after having committed an aggravated felony will be permanently inadmissible to the United States under section 212(a)(9) of the INA. Under section 276(b)(2), an alien who was removed after having committed an aggravated felony and who enters, attempts to enter, or is found in the United States without legal authorization may face up to 20 years in prison, a fine, or both.

Under section 208(b)(2)(A)(ii) of the INA, an alien convicted of an aggravated felony will generally be ineligible for asylum.

Finally, an aggravated felony conviction after November 29, 1990, constitutes a permanent bar to good moral character. The establishment of good moral character is a requirement for naturalization, as well as for cancellation of removal.

Guidance Relating to Aggravated Felonies

Being found to have committed an aggravated felony will subject an alien to removal, and it will often be fatal to his or her future immigration prospects.

If an alien is charged with having committed an aggravated felony, it is essential for him or her to retain an experienced immigration attorney. In certain cases, there may be grounds to contend that the conviction was not for an aggravated felony in proceedings.

Determining whether a conviction is for an aggravated felony is often a complicated process. If an alien is charged with any criminal offense, he or she should consult with an experienced immigration attorney to understand the potential immigration consequences of different case outcomes. Having this understanding may help guide the alien’s criminal defense strategy.

An alien who was removed for an aggravated felony may consult with an experienced immigration attorney for guidance on the very limited exceptions available for that situation.

Freight Forwarding now as Brokering Activity

In August 2013, the Directorate of Defense Trade Controls (“DDTC”) published an interim final rule that clarified some aspects of the requirement for broker registration under the International Traffic in Arms Regulations (“ITAR”).

The rule provides that a broker is any person that engages in the business of “brokering activities” and is 1) a U.S. person, 2) a foreign person in the U.S., or 3) a foreign person outside of the U.S. under the control of a U.S. person, e.g., a foreign subsidiary controlled by a U.S. parent corporation. “Brokering activities” means “any action on behalf of another to facilitate the manufacture, export, permanent import, transfer, reexport, or retransfer of a U.S. or foreign defense article or defense service, regardless of its origin.” Examples of brokering activity include financing, insuring, transporting, or freight forwarding defense articles and defense services. Based on these examples of brokering activities, it would seem that a freight forwarder would be engaged in brokering activities and would therefore be required to register with DDTC. However, there is an exemption in the rule at § 129.3(b)(2) that states the registration requirement does not apply to “Persons exclusively in the business of financing, insuring, transporting, customs brokering, or freight forwarding, whose activities do not extend beyond financing, insuring, transporting, customs brokering, or freight forwarding.” The exemption states, as an example, that an air carrier or freight forwarder that merely transports or arranges transportation for defense articles is a person that would not have to register as a broker.

But what if a freight forwarder’s business extends beyond mere freight forwarding to include multiple activities such as insurance or customs brokering in addition to freight forwarding? The rule is less clear on this point.

A freight forwarder is able to engage in multiple activities, like insuring and transporting defense articles, as long as it does not go beyond the scope of those activities to the point of facilitating the manufacture, export, permanent import, reexport or retransfer of U.S. or foreign defense articles or services. Occasionally, freight forwarders engage in the types of activities that would trigger the registration requirement for forwarders. An example of such activity is a freight forwarder acting as an intermediary that brings two parties together in a sale transaction of ITAR-controlled defense articles. Another example would be if a freight forwarder or its employees are directly involved in arranging transactions involving defense articles or hold title to defense articles for financing purposes.

The determination of whether a freight forwarder has “gone beyond” exclusively engaging in the exempted activities of §129.3(b)(2) is highly fact-specific. The main focus is whether the activity constitutes the “facilitation” of a deal. It is rarely the case that a freight forwarder acts as the broker for an arms deal, so only a very small subset of freight forwarders need to register with DDTC as brokers of defense items. Finally, section 129.9 provides a method by which freight forwarders (and others) can obtain guidance as to whether certain activities undertaken in the performance of a contract will be considered brokering activities such that registration with the DDTC is required. To obtain this guidance from DDTC, a person must request it in writing, provide the name of the applicant and registration code and fully describe the contemplated activities. The applicant should also include a copy of any agreement or documentation between the requester and other persons who will be involved in the activity. DDTC is anticipating further revisions to the ITAR brokering regulations, possibly at some point in 2017, so continue to keep abreast of any changes in the ITAR over the next year.