Important Message Re: An Act Establishing Just Schedules for Employees

Dear BVCC Member, 

I would like to bring to your attention, if you are not already aware, of a new proposed bill before the legislature…

 

An Act Establishing Just Schedules for Employees

 – Representative Garballey

This bill addresses on-call and last-minute scheduling by mandating the provision of extra pay for employees whose schedule is changed within 24 hours of the shift. Specific mandates include 3 hours of pay at minimum wage when workers work less and are sent home early, 4 hours of pay at the regular rate of pay for work cancelled with less than 24 hours’ notice, when workers are sent home early and work less than four hours, or for unworked on-call shifts, and 1 hour of extra pay for any shifts added within 24 hours. It also strengthens investigative and punitive authority for the government to incentivize compliance.
Here is a link to the actual bill

 

If passed, this law could cause problems for many  small business owners, and add greatly to the cost of doing business in the Commonwealth.  The Blackstone Valley Chamber is working with MACCE (Mass Association of Chamber of Commerce Executives) and AIM to reach out to our legislators with your views on how this could affect you.  Please contact your legislators and let me know your thoughts jhebert@blackstonevalley.org  so we can act as a liaison for you in reaching out as your voice of business.

 

Many thanks for your input and support!

 

Jeannie

Jeannie Hebert

President and CEO

Homestead Exemption: Court Adopts Predominance Test for Home Offices

Joshua Lee Smith – The Massachusetts homestead statute (M.G.L. c. 188) permits an owner to declare a homestead on his or her principal residence to protect it against claims of certain unsecured creditors of up to $500,000, or if an owner is disabled or 62 years of age or older, up to $1,000,000. Without declaring a homestead, homeowners are entitled to an “automatic homestead exemption” of $125,000. The U.S. Bankruptcy Court for the District of Massachusetts recently held in In re: Walter D. Catton, Jr. that a property that is predominantly used for commercial rather than residential purposes will disqualify such property for exemption under the homestead statute.

The debtor in the case owned a two-story structure in which he lived on the second floor and used the first floor as an office for his insurance agency. The opposing party, a bankruptcy trustee, argued that, due to its commercial use, the debtor’s property should not qualify as a single family dwelling entitled to homestead protection. The trustee pointed to the city’s assessor website which described the property as an “office” having a style of “Stores/Apt Com” and noted that the city taxed part of the property at the residential rate and part at the commercial rate. The trustee also pointed out that the debtor’s appraisal described the property as a “two unit mixed use property.” The Court was unpersuaded by these arguments, stating that the test for homestead eligibility is not whether the single family dwelling includes any commercial use but whether the commercial use predominates.

In holding that the debtor’s use of the property for his insurance agency was not the predominant use, the Court indicated that the zoning district in which the property was located permitted a home occupation with commercial use only if the commercial use was “clearly incidental and secondary to the use of the premises for residential purposes.” The Court also found persuasive the fact that over 60% of the floor area represented residential living area.

The good news for homeowners (and bad news for creditors) is that this case further demonstrates how the courts in Massachusetts continue to follow what the Court here described as the “golden rule” that exemptions are to be liberally construed in favor of debtors. Homeowners should consider taking the simple step of filing a declaration of homestead as a means to maximize the protection of one’s principal residence. Creditors should be mindful of the homestead protections afforded to debtors in the collection of judgments and the few but important exceptions where debtor-friendly homestead laws do not apply.

Adverse Possession – What Has Your Neighbor Been Up To?

Joshua Lee Smith – In Massachusetts, a party claiming title to land through adverse possession must establish actual, open, exclusive and non-permissive use of such land for a continuous period of at least 20 years. The Massachusetts Appeals Court recently held in 1148 Davol Street LLC v. Mechanic’s Mill One, that a cause of action for adverse possession against a private party can begin during prior ownership of the land by The Commonwealth of Massachusetts or a city or town.

The city of Fall River was the record owner of a certain parcel of land (the “Mechanic’s Mill Property”) from 1975 until 1989, when the city sold the Mechanic’s Mill Property to a private party. The Mechanic’s Mill Property was subsequently sold to the named defendant. In 1975, the owners of property adjacent to the Mechanic’s Mill Property (the “Adjacent Property”) began to use an approximately 25,000 square foot strip of land on the Mechanic’s Mill Property along the boundary of the two properties. The Adjacent Property was sold to the named plaintiff in 2007, and in 2008, the plaintiff brought suit against the defendant over the ownership of the strip.

The parties agreed that the plaintiff satisfied the elements of an adverse possession claim for a continuous 32-year period from 1975 to 2007. Therefore, the sole issue before the Court was whether the plaintiff could count the time during which title to the Mechanic’s Mill Property was held by the city toward the requisite 20-year period of adverse use.

The Court recognized that under the common law, a party claiming adverse possession could not count the time title to the land was held by the Commonwealth or a city or town towards the applicable limitations period as adverse possession cannot be claimed against a governmental entity as to public land. However, Massachusetts has explicitly departed from the common law rule by adopting M.G.L. c 260, § 31 (“Section 31”). Section 31 provides a 20-year statute of limitations period for actions for the recovery of land commenced by or on behalf of the Commonwealth. The defendant argued that the exceptions to the statute of limitations for land held for conservation, open space, parks, recreation, water protection, wildlife protection or other public purpose that were added to Section 31 by amendments indicate an intent by the Legislature that land put to a public purpose could never be subject to adverse possession, and on this basis the limitations period cannot run while the property is held by a public party, which, in this case, would mean that the adverse possession “clock” would not have started until the city transferred the Mechanic’s Mill Property to a private party in 1989.

The Court disagreed, holding that a private record owner of once-public land opposing an adverse possession claim may not invoke Section 31 as a defense. The Court reasoned that while the amendment to Section 31 “undeniably added broad protections allowing the Commonwealth and its subdivisions to recover land held for public purposes, nothing in the statute evinces an intent that such protections also benefit a subsequent private owner.” Moreover, the public policy reasons for adding the broad public purpose language to Section 31 are indicative of an intent to protect land that benefits the general public, and allowing a private party to “take advantage of a law clearly designed to benefit the [Commonwealth] would be inapposite to the purpose of that law.”

Owners and purchasers of real property should always carefully review claims and potential claims of adverse possession. This decision makes clear that any such claims cannot be defended on the basis that the property was once owned by a public entity. In general, property owners interested in avoiding claims of adverse possession should consider registering the property with the Land Court, erecting no trespassing signs or a fence or posting a Notice to Prevent Acquisition of Easement pursuant to M.G.L. c. 187, §§ 3 and 4 (with respect to prescriptive easements). Doing nothing and relying on the love of thy neighbor won’t help to protect your land.