For instance, an Oregon woman worked for J.C. Penney as a custom decorator. Though J.C. Penney provided her with an office that she shared with others, she usually worked from her van, traveling to and from appointments at customers’ homes.

She suffered a broken wrist in her own garage when she stumbled over her dog while trying to move fabric samples into her van.

J.C. Penney argued that she wasn’t entitled to worker’s compensation because the injury didn’t arise out of her employment.

But the Oregon Court of Appeals disagreed, ruling that because the employer didn’t provide space for her to perform all her necessary work tasks, she was required to work in her home and her garage.

Therefore, the court said, those areas were part of her “work environment,” and any injuries she suffered as a result of risks in those areas – such as tripping over her dog – arose from her employment.

A 66-year-old accounts payable clerk lost her job in a consolidation of plants. She was told in June 2007 that she would be laid off effective July 30 of that year.

In early August, though, she was called back to work on a temporary basis to help with the consolidation. She stayed for five months.

Two months after her temporary position ended, she sued for age discrimination, claiming she was improperly terminated based on her age.

But a federal appeals court said it was too late to sue.

Generally, under the federal age discrimination law, an employee has to sue within six months of the illegal act, the court said.

In this case, the clock started running in June when the employee received notice of her termination – not on her final day of work. The court also ruled that her temporary position didn’t stop the clock.

The court acknowledged that this puts employees like the clerk in a tough spot – if she filed her lawsuit in time, she would have given up any hope of regaining her position through temporary work. However, the court said it had to follow the law.

Even though the employee wasn’t fired or demoted, and didn’t suffer any other sort of specific adverse job action, he can still sue if his employer allowed a “hostile environment” at work such that keeping his job was intolerable, the court said.

The man claimed he was repeatedly called “pops” and “old man,” was the subject of profanities, and was treated with extreme disrespect because of his age.

While the dealership didn’t actually fire the man because he was old, if it allowed him to be abused and mistreated in this way, it effectively fired him, according to the court.

The idea of a “hostile environment” lawsuit originated with sex harassment cases. Even after sex discrimination was outlawed in the 1960s, many people still believed that it was okay to engage in sexually inappropriate touching and comments at work, as long as the victim wasn’t actually fired or demoted. It wasn’t until the 1980s that the U.S. Supreme Court made clear that allowing a sexually hostile environment at work was a form of sex discrimination.

As to whether a “hostile environment” for older workers is a form of age discrimination, not every court thinks so, but a growing number of them are allowing this type of lawsuit.

The woman then sued the new company as well.

The Fair Labor Standards Act is the federal law that governs minimum wages and overtime. The law protects workers from retaliation when they accuse their employers of wage-and-hour violations. So the woman claimed that the new company was illegally retaliating against her for pursuing her rights under the law against her old company.

But there was just one problem, according to a federal appeals court in Virginia that heard the case.

The law says that a company cannot retaliate against an “employee” for filing a complaint about wages and hours. But the woman was not yet an “employee” of the new company, because the company had made her employment contingent on the results of the background check.

Because the woman wasn’t yet an “employee,” the new company could retaliate against her, the court said.

The court described this result as “problematic,” because the law was meant to protect employees who complain, yet the decision meant that these employees would not be protected if they sought another job. Nevertheless, the court said the law was written the way it was written, and it had to be enforced.

That’s the word from the California Court of Appeals.

In this case, a Latino-American woman claimed that her employer called her profanities on a regular basis, touched her inappropriately, referred to his employees as “my Mexicans,” and fired her after calling her a “stupid bitch.”

She sued for race and sex discrimination. She wanted to have other women who had worked for the employer testify that they had also experienced insults and sexually inappropriate touching and comments.

A judge initially said the other women couldn’t testify because they worked for the employer at different times from the woman who brought the suit, and she wasn’t aware of the other incidents at the time.

But the Court of Appeals said this was a mistake. It said that the other evidence was very useful, since it suggested that the owner had a propensity toward sexual harassment and a bias against women, and a jury should be allowed to take it into account.

Employers’ reactions to moonlighting run the gamut: Some couldn’t care less, while others consider it a firing offense. Many employers have no problem with a second job as long as the employee’s work performance remains solid, and as long as nothing the employee does for an outside company compromises the employer’s business interests.

If you’re thinking of moonlighting, it’s certainly wise to review whether what you’re planning to do violates any written policies of your employer, or your own employment agreements. Even if it doesn’t violate a written policy, moonlighting can still be illegal (and can get you sued) if it violates a “duty of loyalty” to an employer – for instance, if you use an employer’s ideas or customers to start your own business.

If you’re an employer, it’s a good idea to have a written moonlighting policy. Such a policy can provide guidance to employees, and it can also make it easier to take disciplinary (or legal) action if an employee steps over the line.

Here are some things to consider:

An employer can absolutely ban moonlighting in many cases. But it’s seldom a good idea. Prohibiting someone from pursuing their dreams or taking a second job to support a family, even where it doesn’t actually harm the employer, can hurt morale and recruitment. In addition, if an employer fires someone for outside work that didn’t harm the company, a jury might later suspect that the employer was actually motivated by some form of illegal discrimination.

On the other hand, employers have every right to object to moonlighting if the employee’s performance at his or her primary job suffers.

Employers also have a good reason to object to moonlighting if it affects the employer’s business interests. For instance, employers might certainly want to prohibit workers from moonlighting for a competitor, or even in a related business. And they might want to prohibit workers from using company time or resources to pursue side activities.

Employers might also want to require workers who moonlight to inform the employer of the fact that they’re moonlighting, along with what sort of work they’re doing and for whom they’re doing it. This gives the employer a chance to figure out whether what the employee is doing is actually detrimental to the company.

And certainly, employees can be prohibited from stealing trade secrets or customers.

One of the more contentious issues involves what happens if a moonlighting employee invents something or develops a new process that is of value to the employer. Some employers specifically say that if an employee develops “intellectual property” on the side – a new invention, technique, process, software, etc. – the employer has the legal rights to it.

This is a very important issue for employees who are thinking of starting their own business while working for someone else. In fact, there are many instances where a start-up company was unable to obtain financing because there was a legal cloud over whether the company’s ideas actually belonged to a founder’s previous employer.

Whether you’re an employee or an employer, it’s a good idea to speak to an employment lawyer about any moonlighting concerns. Clarity about what your rights are now can prevent lawsuits and other problems down the road.

“We used Attorney David Beliveau as our Estate Attorney to set up family Trusts. He patiently took the time to listen, explain, make suggestions and prepare the appropriate Trust documents. He and his staff were pleasant, thorough and accommodating. He was just as greatly knowledgeable and helpful with legal corporate questions we had. We wouldn’t hesitate to recommend Attorney Beliveau to family and friends.” – Judy, Estate Planning

“David did trust work for our family, and I was happy with his knowledge, judgement and interest in crafting appropriate docs for our circumstances. He is licensed in MA, NH and FL which was also a benefit to us because we own real estate in all three states. His law firm also has an active real estate practice. ” – G.G. Trusts

The deadline for nonprofit filings is the 15th day of the fifth month after their year-end. For calendar-year organizations, the filing deadline for 2011 reports is May 15, 2012.

Bogus e-mails designed to steal your identity, also known as phishing, are becoming a bigger problem these days. While they can take many different forms, most scams are designed to trick you into revealing personal information such as your social security number or online account password. Through clever use of logos and familiar-looking web addresses, these e-mails often appear to be an urgent message from your bank, mortgage lender, or e-mail provider.

You may not realize it, but thieves are especially eager to gain access to your web e-mail account. Why? Once a scammer has access to your e-mails, he or she can often figure out where you bank and detect clues to passwords you might use.

So what can you do to protect yourself? Take a moment and think before you click. Never respond to an e-mail asking for your social security number or birth date. You can almost bet that it is a scam. If an e-mail contains a website link that you are not familiar with, do not click on it. Instead, either go directly to the company’s trusted website, or contact them by phone.

Also remember that e-mail scams become more prevalent following a significant public event, such as a natural disaster or sudden stock market drop. Thieves will prey on your sympathies or fears during these times, so be extra careful when responding to appeals for charity or notices to update your financial records. Be further leery of e-mails with demanding language or incorrect grammar – both are potential signs of a counterfeit e-mail. Don’t respond to e-mail appeals for charity.

For preventive measures, try to use a different password for every online account, and change your passwords regularly. Make your passwords stronger by using combinations of letters, symbols, and numbers. Also, keep your computer anti-virus software up to date.

Finally, do your part to thwart these crimes by reporting any suspected scam e-mails to reportphishing@antiphishing.org. If you receive a bogus tax-related e-mail, forward it to the IRS at phishing@irs.gov. And of course, feel free to contact our firm if you need a second set of eyes on any suspicious-looking e-mail.

1. A decrease in tax-free contributions to your flexible spending account. Starting in January 2013, the maximum you can contribute to your FSA will be $2,500. In addition, the “use it or lose it” feature of FSAs means you won’t be able to carry any 2012 excess remaining in your account into 2013 (unless your plan provides a 2½ month grace period for using prior-year funds).

Planning move: Schedule elective medical procedures during the last half of 2012.

2. An increase in the threshold for claiming the itemized medical expenses deduction. Do you itemize? For 2012, you can claim a deduction on your federal income tax return for qualified medical expenses that exceed 7.5% of your adjusted gross income (AGI).

Beginning in 2013, if you’re under age 65, your medical expenses will have to exceed 10% of your AGI to be deductible. This is the same percentage applied to qualified medical expenses when calculating the alternative minimum tax.

Planning move: Review your itemized deductions for 2012 to determine whether accelerating or delaying deductions makes the most sense for you. What to keep in mind: phase-outs and other limitations to itemized deductions that were in effect in prior years, as these may return in 2013.

3. An increase in Medicare tax on certain wages. The amount of Medicare tax you pay on wages and self-employment income is scheduled to go up next year. When you’re single and your wages are greater than $200,000, your employer will withhold an additional 0.9% of Medicare tax from your paycheck. Are you self-employed? The tax applies when net self-employment income exceeds the threshold. The income threshold is $250,000 for married couples.

Planning move: If you’re self-employed, review the way your business is organized. While you always want to pay yourself a reasonable amount of compensation, some entity types can allow for flexibility in the timing of wages or salary.

4. A new Medicare tax on unearned income. You probably associate Medicare tax with earned income – that is, the 1.45% tax your employer deducts from your pay. But a provision in the 2010 health care laws extends the Medicare tax to certain unearned income, beginning in 2013.

The new surtax is a flat rate of 3.8%, and will apply to interest, dividends, capital gains, annuities, royalties, and rents. It kicks in when your AGI exceeds $250,000 (for married filing jointly). When you file as single, the AGI threshold is $200,000.

Planning move: Consider adding tax-exempt bonds to your portfolio. The interest is not subject to the new tax. Roth conversions and selling assets with capital gains may also be a wise move in 2012.

Many other tax law changes are expected in 2013. Timely planning is essential for preserving tax- saving opportunities. Please give us a call to discuss strategies to put in place now to maximize your benefits.

While preparing to close on my non-mortgaged home in Newton, the buyer’s title search found a lien on the property.  Apparently the closing attorney had not paid back the monies owed by previous owner. What do we do now in order to close?

ATTORNEY ANSWER:

Since your question does not specify what type of lien was found on the property, I will answer in general terms.  Before one can have a closing or refinance on one’s house, there needs to be a title examination performed to confirm that the title to the house is clean and free of all liens, with the exception of the mortgage(s) which will be paid off as part of the refinance.  If the title shows an outstanding lien of record of the prior owner, one would need to contact the attorney who handled the closing for the sale to determine whether the lien was paid off or not.  If the lien was paid, then the lien holder needs to be contacted so that it can prepare a release/discharge which needs to be recorded at the Registry of Deeds in order to remove the lien off the title.  If the lien has not been paid off, then the closing attorney has to explain why it was not paid off during the closing.  If the matter cannot be resolved with the attorney, then hopefully you have purchased an Owner’s Policy of Title Insurance so that the title insurance company may potentially fight the title issue for you.  

The Newton Closing Attorneys at Beliveau Law Group provide legal services for all real estate matters and transactions in Massachusetts.  The law firm provides legal representation to individuals, businesses and families in the Boston Metrowest communities including: Lincoln, Sherborn, Lexington, Watertown, Belmont, Newton, Wellesley and Weston.

“I’ve been working with David for 5 years now. He has been there whenever I need legal advice, and has gone above and beyond in helping me.” – Jeff, Landlord Tenant Client

Auctions often attract buyers who are looking for a deal – although auctioned properties are usually sold “as is” with no guarantees, so unless you’ve done careful homework and had everything inspected thoroughly, the property might not be as good a deal as you first thought.

Because auctions are unusual and require special contracts and agreements, a seller will definitely want to work with an attorney as well as an auctioneer.

The first contract is between the seller and the auctioneer. This should include the auctioneer’s compensation and any specific requirements such as a minimum price, deed restrictions, or a seller’s veto power over the auctioneer’s advertising materials.

The seller will then prepare an information package for bidders. This should include any documents the buyer will be required to sign at closing, such as a purchase agreement. Typically, the purchase agreement won’t include any contingencies. The buyer will be expected to have lined up financing in advance, and to have made any inspections of the property prior to the auction date.

The buyer may also be warned that he or she will be expected to put up a non-refundable deposit when the agreement is signed.

Buyers may want the information package to include a title commitment, an environmental report, or other documents.

Sometimes buyers will be asked to sign a confidentiality agreement saying that they won’t disclose the information in the package to anyone else. Buyers might also be asked to sign an indemnity agreement, saying the seller is off the hook if the buyer damages the property or suffers an injury during an inspection.

Finally, the package should provide information on price. If it’s an absolute auction, then the highest bidder will get the property, even if the bid is one dollar. The seller may also require a minimum bid; if no one makes the minimum bid, then the property won’t sell. Sometimes sellers set a “reserve,” which is a minimum bid that’s kept secret. Bidders don’t know what the reserve amount is, but if no one bids that much, then all bids are turned down and the property is not sold.

The changes include new rules for the following: van-accessible parking, maximum height and “reach ranges” for certain objects, service animals, communication devices for the hearing-impaired, seating requirements in theaters and other assembly areas (including access to stages), pool access, hotel reservations, wheelchair accessibility for employees, the use of mobility devices other than wheelchairs (such as Segways), and more.

In addition, the U.S. Justice Department has updated its list of modifications that all building owners are expected to consider, including ramps, curb cuts, access to vending machines, widening doors, accessible door hardware, rearranging toilet partitions, grab bars and raised toilet seats, and insulating pipes under sinks to prevent burns.

Higher standards are required for new construction and for older properties that are undergoing substantial renovations.

Exactly what is required varies and depends on the nature of the property and the expense involved in making it more accessible, but all commercial property owners need to be aware that new requirements are taking effect soon.

According to George, Madonna had people over to her apartment for an hour and a half to three hours every day to conduct dance training and exercise routines. During this time, Madonna played loud music. According to George, the music was “deafening” and caused her walls and floors to shake. She says she often had to leave the apartment because of the noise, and was unable to entertain guests.

George repeatedly complained to Madonna and to the landlord, but she says the loud music continued for two years, until Madonna finally built a dance studio in one of her other New York City properties to use instead.

George sued the landlord, and a judge allowed the case to go to trial.

Under New York law, whenever an apartment is rented, there is a “warranty of habitability” in which the landlord agrees that the property will be kept fit for its use as a residence. According to the judge, “One of the most basic functions of a residence is to provide shelter from the outside world for its occupants to think, interact and relax in peace.” Madonna’s music may have violated this agreement.

The landlord argued that it made a good faith effort to stop the music, and even persuaded Madonna to try installing noise-blocking equipment. But the judge said that wasn’t good enough if the music continued to be too loud.

The landlord also argued that Madonna’s decibel level was never so high as to violate the city’s Noise Code. But the judge said that didn’t matter as long as the noise was actually disruptive.

According to the judge, “certain noises possess characteristics which make them more intrusive than others,” and Madonna’s music could qualify in that category.

The moral of the story is that landlords have a responsibility to make sure that certain tenants’ behavior doesn’t unreasonably interfere with other tenants’ enjoyment of their apartments. Landlords might be reluctant to confront tenants about a problem – especially if the tenant is a world-famous pop star – but the law still requires them to fix the situation.

Each month, between 10 and 20 percent of real estate agents are seeing accepted offers to buy a home founder or collapse as a result of appraisals that came back too low, according to recent surveys by the National Association of Realtors.

Low appraisals hurt both buyers and sellers. When an appraisal comes back lower than expected, buyers usually can’t qualify for as large a mortgage. That means they have to put up a larger down payment to buy the house – something they often can’t do. As a result, the sale might fall through, or the seller will have to lower the price in order to salvage the deal.

There are ways to improve your chances of a good appraisal. But first, it’s important to know why this problem has arisen lately.

During the height of the real estate boom, real estate agents and mortgage brokers often played a big role in selecting appraisers. These agents and brokers had a strong interest in high appraisals, because a high appraisal meant that it would be easier to get a deal to go through. So many appraisers felt pressured to turn in optimistic numbers, fearing that if they didn’t, they wouldn’t be hired again in the future.

Arguably, this resulted in a rash of unreasonable valuations, which contributed to the housing bubble.

As a result, two years ago the federal agencies that control the bulk of residential mortgages, such as Fannie Mae, barred real estate agents and mortgage brokers from choosing appraisers.

This spawned a new industry, called “appraisal management companies,” or AMCs, which hire appraisers to provide independent valuations to lenders. Today, about 70 percent of appraisals are done through AMCs; most of the rest are done by in-house appraisers who work directly for banks.

Some appraisers think this is a good thing, because they can be objective and are no longer under pressure to skew the numbers upward.

On the other hand, some appraisers say they now have the opposite problem – they feel pressure to skew the numbers downward and to be as conservative as possible, out of fear that they’ll get in trouble if a high appraisal leads to a bad loan and a default.

Other critics say that AMCs have resulted in lower-quality appraisals. Because AMCs keep a lot of the money that used to go directly to the appraiser, appraisers receive less compensation for each job, and thus they have to look at more properties in less time in order to make the same income. As a result, critics say, appraisers don’t make as careful an inspection as they might, and don’t give as much thought to whether the “comparable sales” they use for valuation truly involve comparable properties.

Some appraisers complain that in order to increase their volume, they have to accept jobs outside their local area, where they are unfamiliar with the neighborhoods and less able to make informed judgments about comparable sales.

What you can do

With home appraisals now presenting a much higher hurdle than in the past, here are some suggestions for getting a good result:

• Treat the appraisal as a “second sale.” Just as you fixed your home up to look nice for an open house, you’ll want it to look nice for an appraiser, too. It’s not necessary to make your house spotless or to have fresh flowers on the table, but it’s a good idea to mow the lawn, trim the hedges, remove marks from walls and clean soiled carpets. All these things will factor into the appraiser’s “condition” rating for the home.
• Make a list of all the improvements you have made to the property, and give it to the appraiser. Include the date and the cost, or an estimate if you don’t have the exact figure. Include even small upgrades and maintenance. It’s particularly important to include items that might not be obvious on a brief inspection, such as new insulation or a new roof.
• Also tell the appraiser about any recent major improvements to the neighborhood, such as a new school building or park.
• Fix any peeling paint. This is especially important if the house was built before 1978 (when lead paint was banned) and the buyer is using an FHA mortgage, because the agency will require the paint to be removed before approving the loan.
• If you can, give the appraiser your own list of recent comparable sales. The appraiser will do his or her own homework, but providing a list can’t hurt, especially if you highlight truly comparable properties with good sale prices. Two things are especially important: (1) If you know of any homes in the area that were “for sale by owner” (with no real estate agent involved), and that fetched a good price, tell the appraiser because these sales probably won’t show up as quickly in the appraiser’s database. (2) If any comparable properties in the area were recently sold as short sales or foreclosure sales, let the appraiser know. These types of sales generally result in lower prices, and if the appraiser knows the circumstances behind the sale, he or she might be able to adjust the valuation upward.
• Finally, be considerate of the appraiser. Most appraisers like to go through a house uninterrupted, so don’t follow around too closely and save your questions for the end. You might also want to keep small children and dogs out of the way.

“Attorney Beliveau was a tremendous help when my mother took ill down in Florida and could not manage her own affairs. He walked me through the steps and provided documents for me to legally handle her affairs in two states, including protecting her assets. He and his staff were polite and efficient in their work.” – Bob Bedford, MA, Estate Planning

What are allowable damages for real estate misrepresentation under Massachusetts law? We signed a P & S for our first home in Belmont.  The P & S had multiple items that were supposed to be completed by the seller prior to closing. They did not complete the work and now refuse to return our deposit money.  What are our legal rights?

ATTORNEY ANSWER:

When the P&S specifically states that the Seller is to make certain repairs prior to closing, and if the work is not completed according to the agreement, then the Seller is breaking the contract and you have the right to terminate the contract and to have your deposit returned.  Your deposit money is held in an escrow account with the listing agent’s company who cannot release the funds until a release form is signed by both you and the Seller.  You can file a complaint in court against the Seller to have the money returned back to you.

The Belmont Real Estate Attorneys at Beliveau Law Group provide legal services for all real estate matters and transactions in Massachusetts.  The law firm provides legal representation to individuals, businesses and families in the Boston Metrowest communities including: Lincoln, Sherborn, Lexington, Watertown, Belmont, Newton, Wellesley and Weston.

We are Waltham MA probate attorneys. Call us to schedule an appointment to discuss your probate matter.