Bace Law Group, LLC

All Mailings:

PO Box 9316

Boston, MA 02114

P: 508.922.8328

By Appt. Only:

197 Portland St., 5th Fl

Boston, MA 02114

F: 866.700.0181

Newsletter

Office Newsletter, Bace Law Report

The Bace Law Report is this office's legal newsletter. These newsletters are intended to give readers a general understanding of interesting, current, or noteworthy legal issues.

The newsletter is not intended to be legal advice, should NOT be relied upon as legal advice, and does not create an attorney-client relationship with this office. If you have a need for legal service, please contact this office to set up an appointment.

Demystifying the Security Deposit Law

April 2010

Collecting a 'security deposit' at the onset of any residential tenancy imposes significant and complex statutory requirements. A security deposit is essentially the tenant's money, collected by the landlord in advance to protect against any damage to the premises caused by the tenant. The funds remain the tenant's money upon collection, and can only be debited under certain strict circumstances. If a landlord chooses to require a security deposit, she must abide by M.G.L. Chapter 186 Section 15B. The statute is complex, and violations of the procedures dictated therein abound. This office frequently receives complaints from tenants that their landlord has unlawfully refused to return a deposit. The following is only a brief summary of some of the points of law; landlords and tenants alike must contact an attorney without delay in order to determine whether or not compliance with the law is achieved...
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Default Judgment and Defining Excusable Neglect

March 2010

After the filling and proper service of a lawsuit, the Defendant has a period of 20- days to serve her answer upon the plaintiff. With the mounting numbers of consumers facing litigation based on consumer credit cards or other personal loans, the quantity of default judgments continues to increase as well. Individuals often disregard the lawsuit, ignore calls from the plaintiff's attorney, move from their residence without leaving a forwarding address, or misinterpret the summons that demands they serve the answer. The result is a default judgment; the plaintiff 'wins' the lawsuit as a result of the defendant's failure to respond. There is an avenue for relief, albeit unpredictable - a motion for relief, which asks the court to remove the Judgment and reopen the otherwise completed case. The Massachusetts Rules of Civil Procedure allow relief from judgment under one of six of the following substantive grounds...
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Please Step Out of the Vehicle: Exit Orders in Massachusetts

February 2010

Eventually, one will be stopped for a routine driving infraction; whether it is the classic New England method of rolling through a stop sign, drifting over a solid line, speeding, or passing through a 'yellow' light, traffic stops can be a challenging experience for a motorist. While you may expect to be issued a ticket and then permitted to continue on your way, what you may not expect is to be ordered out of your car. Critical constitutional rights dictate the circumstances under which one can be lawfully ordered to exit their vehicle. What is the standard that allows an officer to order you to exit? When is an exit order justified? This paper attempts to review the relevant legal issues associated with an 'exit order,' and the implications of an unlawful order. The authority of a police officer to issue an exit order is especially limited in Massachusetts...
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So You Want to Sue...Your Lawyer?

January 2010

Individuals that practice law or medicine are human; they are not immune from mistakes - whether inadvertent, negligent, or intentional. Attorneys are charged with a duty, legally and ethically, to protect and pursue the rights of their clients with reasonable effectiveness. Depending on the nature and magnitude of the case, attorneys are regularly trusted with sensitive information, charged with deciphering complex language, and responsible for navigating complex rules. The consequences of a mistake can be devastating to the client. A missed deadline can result in a complete forfeiture of a legal claim. A lack of preparation or negligent preparation can result in the loss of an otherwise viable civil claim, or a committed prison sentence for an otherwise defensible criminally accused. Legal malpractice claims, like medical malpractice claims, are some of the most complex and difficult cases from a plaintiff�s perspective....
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Pre-trial Probation Explained

December 2009

Pre-trial probation, as opposed to the more familiar continuance without a finding ('CWOF'), is a flexible mechanism by which to potentially dispose of your criminal matter. A pre-trial probation outcome is essentially a written agreement formed between the accused and the prosecutor prior to trial. With judicial approval, a set of conditions or restrictions can be placed on the accused for a period of time, and the case is then removed from the court's docket. After the probationary period has passed and all the conditions have been met, the case is dismissed without further punishment to the accused, and more importantly, without a guilty finding. Pre-trial probation agreements place the accused under the care of a probation officer for a period of either supervised probation, or unsupervised (administrative) probation.....
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Unlicensed Operation of a Motor Vehicle: Check Your License Expiration!

November 2009

Technically, driving is a privilege, not a right, offered and authorized by the Massachusetts Registry of Motor Vehicles ('RMV'). Most drivers, upon receipt of a notice that their license requires renewal, with faithfully provide the RMV with the requisite fee and paperwork. However, the RMV recently stopped issuing and mailing renewal notices, leaving countless individuals without knowledge as to the status of their licensure. Without the renewal notice, it is possible that one was driving on a suspended license, exposing oneself to criminal liability, completely unbeknownst to the driver. The violation is a misdemeanor, and includes both fines and imprisonment potential.....
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Dangers of 'DIY' Lawyering: United States v. Marks

October 2009

Whether you are starting a business, obtaining a business partner, entering into an agreement with your home improvement contractor, pursuing civil litigation, and or facing criminal charges - the advice and analysis offered by a competent and licensed attorney is invaluable. Individuals generally fail to seek the advice of counsel when they are an accused in a 'minor crime,' loan money to a friend, or are responding to a lawsuit filed against them by a credit card company. Unfortunately, a comparatively small legal fee paid at the onset of the project or issue, can save one substantial time and resources. This office frequently receives inquiries that begin, 'I just have a quick question,' via email, phone, or even at social events. The individual asking is seeking legal information and legal advice. They are seeking a statement of the relevant law or rule, and a determination about how that law is applicable to their unique set of facts. They are seeking that information immediately, and at zero costs. Fortunately, this office does not issue that information without a comprehensive review of the individual's facts and circumstances; anything less would not only reduce the value of the advice, but would border on incompetency. An analysis and summary of the law relevant to an issue, and the application of that law to a unique set of facts is impossible to ascertain in a matter of minutes....
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'Texting,' Driving, and the Negligent Operation of a Motor Vehicle

August 2009

Sending text messages via cell phone has become a mainstream form of communication. Along with email, texting allows the instant transfer of short messages, and a convenient method to stay in touch while in a meeting or otherwise unable to answer a live call. However, incidents of 'texting,' while driving resulting in car accidents is on the rise, and lawmakers in the Commonwealth are pushing for new laws to address the issue. The Commonwealth's Negligent Operation of a Motor Vehicle statute, arguable already provides for a mechanism by which texters could be held criminally liable for sending messages while driving. The crime is a misdemeanor, and if convicted, can impose a sentence of up to two years in jail...
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Serve Guests Alcohol, and Control Their Supply at Your Own Risk: Social Host Liability

July 2009

According to the Nielsen Company, the Fourth of July is the leading day of the year for beer sales across the country; Independence day ranks above the Super Bowl, Memorial Day, and New Year's Eve. Most of the 23 million cases of beer purchased during the weekend will be imbibed at private residences, and served by homeowners to their guests. As a result, the day is touted as one of the most dangerous days of the year to get behind the wheel of a car. Unfortunately, along with the joy associated with parades, family togetherness, and the celebration of freedom and independence, are some grim realities. There are few scenarios in which a homeowner voluntarily exposes herself to more liability than by hosting the Fourth of July barbecue. It appears counterintuitive, but personally serving the alcohol, and controlling the supply to guests, will actually increase a host's exposure to liability....
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Case Review: The Mortgage Crisis and Chapter 93A

June 2009

In response to the Commonwealth's worsening mortgage foreclosure situation and economic crisis, the SJC recently issued an unprecedented decision directly addressing the fairness and enforceability of once popular 'no money down' subprime mortgages. The case, Commonwealth v. Fremont Investment & Loan, 452 Mass. 733 (2008), enjoins banks from foreclosing on certain loans that the Court decided are unfair on their face, regardless of any deceptive activity on the part of the bank. Mortgages are essentially written contracts, negotiated between a bank ('the mortgagee') and the borrower ('the mortgagor'), which gives the bank a secured interest in the property in return for providing the funds necessary for the purchase....
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Premises Liability and Your Summer Swimming Pool

May 2009

Along with warm weather, the summer season brings barbeques, pool parties, and vacation stays that may include lounging around hotel pools. Undoubtedly, one will read a collection of the following phrases at some juncture this summer: "No lifeguard on duty"; "Swim at your own risk"; and, "No diving." It is not a coincidence, or for posterity that business owners ensure these words are located conspicuously around their pools; their aim is to lessen or avoid liability in the event of an injury. Some potential home buyers view a built-in pool as a negative aspect of the sale, due to the inherent danger and liability associated with them. Data suggests these home buyers are not overreacting. According to the Centers for Disease Control and Prevention (CDCP), in 2005, of all children 1 to 4 years old who died, almost 30% died from drowning. Among that same group, most drowning accidents occur in residential swimming pools. The majority of those accidents were children who had been out of sight for less than five minutes, and in the care of one or both parents at the time. This newsletter attempts to briefly summarize, to the extent possible, the liability issues and how one can limit exposure to liability pursuant to the use of a swimming pool. Swimming pools are inherently dangerous, and will increase both a homeowner's or a semi-public pool owner's exposure to civil liability....
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Sources of Massachusetts Law: Historical Case Review of the Opinions of the Supreme Judicial Court (SJC)

April 2009

Individuals often ask legal questions as if there is a static or short and accurate deliverable answer. Most people loathe the standard lawyer response of "it depends." When faced with a legal issue, one wants clarity, but due to the very nature and source of American law, it is generally impossible to state the law on any topic in a sentence or two. The answers to the following everyday legal questions require an analysis of legislative acts (statutes), judicial case opinions, and/or administrative regulations: "What is the law relevant to when I can enter my roommates bedroom?" "If my spouse incurs debt, and we divorce, am I liable for the obligations?" "What is the difference between a pyramid scheme, and a legitimate multi-level marketing business?" The laws of the Commonwealth are a fluid combination of statutes, which are enacted by the legislature, judicial case opinions, and administrative regulations....
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Is Your 'Independent Contractor' Actually An Employee?

March 2009

Traditional employees are entitled to minimum wage, overtime pay, unemployment benefits, and taxes must be withheld by their employer every week. For a small business, the hiring of an employee can be an impossible administrative burden. Enter the fallacy of the legally neat 'independent contractor.' Everyone has heard the term 'independent contractor,' and many are employed under the title by small businesses. Many small business owners are of the mistaken belief that simply calling an individual an independent contractor legally results in a non-employee. However, the act of deeming an individual an 'independent contractor,' or having the title printed in a written contract is completely irrelevant in determining the actual or legal classifications of the individual's work. Whether or not an individual is entitled to the benefits of an employer-employee relationship has nothing to do with titles, and everything to do with the character of their work. The fact is, most subcontracting situations are legally employees under the law of the Commonwealth...
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Home Improvement Contractor Disputes in Massachusetts

February 2009

Nearly every homeowner will hire some sort of contractor to perform work on their property. Whether it is an electrician, a plumber, or a general home improvement contractor that you invite onto your property, the laws and regulations that govern these professionals and your contractual relationships are vast. The nature of the contractor-homeowner relationship is unique, and one that can invariably lead to heated disputes. As stated in previous newsletters, individual's homes carry a special emotional attachment, as well as the gigantic financial commitment associated with most people's largest investment. If you add to the equation a professional who has been hired to tear apart a portion of the home, for example, and piece it back together according to the homeowner's strict instructions, it is not difficult to imagine how these relationships can quickly breakdown and result in formal disputes. The Commonwealth has enacted the 'Home Improvement Contractor Act,' which provides for some strict regulations and largely favors consumers. The below article attempts to summarize and navigate the many facets of the law...
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Marijuana Possession in Massachusetts: The First Ticket

January 2009

The Voters in the Commonwealth overwhelmingly approved a ballot initiative that decriminalized the possession of less than one ounce of Marijuana in early November. The vote was a clear victory for the Committee for Sensible Marijuana Policy, and other proponents of the initiative, which passed resoundingly with sixty-five percent (65%) of the vote. However, the implications of the new law, which officially went into effect January 2nd, and the practical enforcement procedures of the law are not nearly as clear as the voter�s desire to decriminalize the substance. Is Marijuana Still Illegal? Yes, the substance is still illegal, but possession of small amounts (under one ounce) are now decriminalized, and result in a civil penalty rather than an arrest and criminal implications. A civil penalty, as opposed to criminal prosecution, is analogous to a traffic ticket. Speeding tickets and parking violations, for example, are generally civil penalties, that do not result in criminal prosecution or reporting to a Criminal Offender Record Information (CORI) report.
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Operating Under the Influence (OUI) in Massachusetts

December 2008

From a non-legal perspective, there are a multitude of logical reasons to avoid driving while under the influence of alcohol or any other intoxicating substance. Such action endangers not only oneself and one's passengers, but also puts at risk the lives of other responsible, prudent, and most importantly - innocent children and families. Alcohol and automobiles are a destructive mixture, and words cannot accurately describe the pain and suffering that those personally affected by the mix have been forced to endure. But, as the holidays approach, and New Year's celebrations are planned, the legal ramifications of driving under the influence may also provide one more reason not to drive drunk. Below is a basic review of the penalties for OUI, some general defense issues, and an outline of the impact of the recent changes in OUI laws in the Commonwealth....
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The Homestead Act: Protecting Your Most Important Asset

November 2008

For the vast majority of Massachusetts residents, one's home is also one's most valuable and important asset. But a home is clearly more than simply an asset; it is where you reside, raise your family, and take pride in the hard work that has afforded one the ability to purchase a home. Taking advantage of the Commonwealth's Homestead Act is proving essential, especially in today's economic climate, when so many find themselves in the grip of the housing crisis. As variable interest mortgage payments rise and home equity moves in the opposite direction, it is critical to protect your home from creditor's claims. Thirty-five dollars ($35.00), a relatively simple form, and some advice from your attorney is a small fee for the protection that a Homestead filing can potentially afford. What is the Homestead Act? The Homestead Act (M.G.L. ch. 188), is a state law, enacted by the Legislature to protect an individual's primary residence against attacks from unsecured creditors. Especially in today's economic climate, the number of individuals having difficulty paying credit cards and other loans is increasing in the Commonwealth...
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Zoning, Variances, & Abutter's Rights

October 2008, by Michael J. Bace, esq. & Scott Lueker, esq.

Zoning bylaws are the mechanism by which cities and towns regulate the use of land, including new construction, modifications to existing structures, building permits, and other land use issues. Zoning regulations vary from one municipality to another, and their primary purpose as defined by the Massachusetts Zoning Act is to 'protect the health, safety, and general welfare' of the people living in any particular community. Without zoning bylaws and building codes, there is no telling the potentially dangerous structures that could result. For homeowners, the bylaws rarely interfere with the goals of their home projects that are small in scope. Many projects that technically require building inspector oversight are completed without the requisite permits that can create insurance issues beyond the scope of this newsletter. However, for larger projects, a building permit is often required...
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Dog Bite Liability in Massachusetts is No Laughing Matter

September 2008

Personal injury lawsuits involving a dog bite invariably give rise to typical lawyer jokes. The common image is of an 'ambulance chasing' attorney, aggressively pursuing the rights of her client who has been scratched by a neighbor's small cat. However, what most of these punch lines do not take into consideration is the seriousness of dog bite incidents. Some general statistics paint a more realistic and grim picture. According to the Centers for Disease Control and Prevention, there are approximately 4.7 million reported dog bites in the United States each and every year. Over 800,000 of these individuals require medical treatment, half of which are young children. The American Medical Association reports that dog bites are the second leading cause of childhood injury, surpassing playground accidents. The majority of bites in children result in injury to the head or neck. If one's friend, son, or daughter sustained a bite to the head or neck, it is unlikely the lawyer jokes would continue to be so freely distributed...
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The Limited Liability Company (LLC) vs. The Sole Proprietorship

August 2008

Most small businesses in the Commonwealth operate as sole proprietorships. The individual contractor, painter, baker, hair stylist etc...is the business. Each year, that individual declares her earnings and expenses on their federal and state tax returns. This is the most simplistic form of business ownership. In the eyes of the law, there is no distinction between the individual and her business - they are one and the same. It is fast and easy to become a sole proprietor, but this method includes a number of major drawbacks when compared to other entity options. According to recent Census Bureau data, of the 23 million business enterprises in the United States, over 17 million, or nearly 80% had no employees whatsoever. Even more staggering, 99.9% of the businesses in the United States have fewer than 500 employees.....
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Written Contracts vs. Verbal Agreements

July 2008, by Michael J. Bace, esq.

People are generally averse to signing written contracts. There is a stigma associated with signing contracts, and a general feeling that the party presenting the writing has an advantage and is attempting to lock the signor into horribly unfavorable terms. Even in our modern age of instant information, many small businesses and homeowners alike perform business and enter into contracts with a hand-shake or limited verbal exchanges. Contracts are viewed as long-standing 'traps,' where hand-shakes elicit feelings of trust, good-will, and an endorsement of traditional business practices. Written contracts are almost always seen as having 'fine print,' that will undoubtedly ravage one party in the event of a disagreement....
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Deleting Company Emails and Spoliation Concerns

June 2008, by Scott Lueker, esq.

Emails are quickly replacing phone conversations and printed correspondence as the primary communications medium in business. Therefore, emails are also becoming relevant and admissible evidence in a wide array of civil disputes. But, when is there a duty to protect or preserve these documents? The doctrine of spoliation permits the imposition of sanctions for the destruction of evidence in litigation and 'is based on the premise that a party who has negligently or intentionally lost or destroyed evidence known to be relevant for an upcoming legal proceeding should be held accountable for any unfair prejudice that results.' Keene v. Brigham and Women's Hosp., Inc., 439 Mass. 223, 234 (2003). Explicitly not a tort cause of action, but available by motion, Massachusetts law allows a trial judge broad discretion in fashioning the appropriate remedy for spoliation....
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Spousal Immunity and Private Marital Communications

May 2008, by Michael J. Bace, esq.

It is obvious to those who are married, that the arrangement has benefits too numerous to mention. Not only do married individuals enjoy the love and support of their partner, but the law also affords married couples a number of distinct benefits. Married individuals live longer; according to a Harvard University study, and other similar research, married women are twenty percent (20%) less likely to die of heart disease, suicide, and cirrhosis of the liver. In a recent study by researchers at UCLA, single men aged 19 to 44 are over fifty percent (50%) more likely to die prematurely than their married counterparts. The reasons are not so clear, but many pin the longer life on a reduction in overall stress. This may sound counter-intuitive to those living the single life, but married couples pool their income and thus accumulate greater wealth on average than single individuals, which can lead to less stress...
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Ice, Snow, and Slip and Fall Accidents

April 2008, by Scott Lueker, esq.

The National Center for Injury Prevention and Control estimates that 8 million people were injured in falls in the United States in 2004. Injuries can range from serious bruising, to broken bones, and even as sever as head trauma and death. It should come as no surprise to most people, that if someone is invited onto your property, and they hurt themselves as a result of a dangerous condition, you may be subject to civil liability. The generic term is 'slip and fall,' and it applies to any injuries that occur as a result of a property owner's negligence, or a dangerous or hidden condition on the owner's property...
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Legal Documents at the Click of a Mouse

March 2008

We live in an increasingly 'do it yourself' society. Huge home improvement warehouses allow homeowners to avoid hiring professionals and the expenses associated with renovation projects. The advent of the internet makes it possible to research any complex issue; instant answers are available even for health questions. Users can click through a list of symptoms, self-diagnose their health concern, and then institute their own course of treatment without ever consulting a physician. Similarly, a number of online sources allow users to purchase common estate planning documents or even incorporate a business - without ever consulting a licensed attorney.
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Collecting Debts and Past-due Invoices

February 2008

Many small to mid-sized business are invariably no stranger to unpaid invoices, and mounting late payments from both their clients and their vendors. Eventually, these business relationships can deteriorate to the point where correspondence is sent demanding payment in full. When this initial demand is ignored, what can you do in order to exercise your rights? The most significant difference between hiring an attorney and a collection agent, is an attorney can file a lawsuit. Generally speaking, collection agents send numerous letters, and make regular phone calls demanding payment. However, if those efforts are unsuccessful, recovery is unlikely.
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Recreational Injury & Release Agreements

January 2008

So, you have decided to jump out of a plane, bungee, compete in a triathlon, shoot some paint balls, ice skate at a private rink, rent a moped, or simply join a health club. All the preceding activities have two issues in common; each are inherently dangerous in varying degrees, and each generally require you to sign a 'Release' of liability as a prerequisite to your participation. Most participants do not pay much attention to, understand, or even read and understand these agreements prior to attaching their signature. However, the old adage, 'you just signed your life away' may have even more legal significance today than caveat emptor.
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Estate Planning: Do You Really Need A Will?

December 2007

People often wonder, 'Why should I have a Will? I'm single, or recently married, I have no children, and little real assets.' Or, 'Why should I care what happens when I'm gone?' It is a frighteningly common misconception that only the rich or those with a number of children require an estate plan prior to their death. Death, and what would happen to young children in the event of a tragedy are thoughts that make us cringe. But, the idea that your estate and these concerns are left unplanned, should make you cringe even more. The fact is, everyone is going to expire. Most of us work extremely hard every day to acquire wealth, and we toil over financial decisions. Yet, it has been estimated less than half of the population has an estate plan at the time of their death.
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