A qualified Boston business attorney should always be consulted before making an investment in real estate or signing a lease.
Today’s real estate market offers a great chance to make an investment in residential or commercial real estate. But the prevalence of foreclosed and distressed properties can also increase the chances that a purchase will be complicated by liens or will be otherwise incumbered.
In McCarthy v. Slade Assocs., Inc., the Massachusetts Supreme Court ruled defendants in a land dispute were not entitled to correspondence between the purchaser and her attorney.
However, other information, including information from land surveyors and the title examiner, were ruled discoverable. The plaintiff, Regan McCarthy, in this case purchased land at foreclosure sale she believed to be one parcel, only to discover after purchase that it was another parcel. Defendants requested copies of all correspondence in the plaintiff’s possession regarding the transaction, including information the plaintiff and her attorney felt should be protected under both the attorney-client privilege and the work product doctrine.
The court ruled defendant was not entitled to an “at-issue” waiver for communications between client and attorney, but found the plaintiff must turn over all “fact” work product. The Commonwealth’s high court ruled defendants failed to meet the threshold for granting a waiver of such privilege because they did not prove to the court that information sought could not be gathered by other means.
McCarthy purchased land in Truro in 1990, which she thought was adjacent to a vacation property. She later filed three Superior Court actions against various parties, alleging negligence, breach of contract and professional malpractice.
Attempts by defendants to have the lawsuits dismissed based on statue of limitations were dismissed after a judge ruled McCarthy took action upon learning of the error in January 2005. Defendants appealed, saying they needed much of the documentation to argue McCarty had sufficient evidence at time of sale in order to advance their statute-of-limitations argument and to defend against damage claims. The court looked to its 2001 decision in Darius v. Boston, 433 Mass. 274 (2001).
Writing for the majority, Justice Margot Botsford said that the court’s:
“decision in Darius was clear that where a defendant raises a statute of limitations defense that is met by the plaintiff’s reliance on the discovery rule, the statute of limitations invocation, by itself, does not permit the defendant to intrude into the attorney-client relationship between the plaintiff and her lawyer only to locate a statement by the client that might contradict a statement or position that she has taken in the particular case.”
The court further ruled that an “at-issue” waiver only applies in cases where the privileged information sought is not discoverable by other means. In this case, defendant’s failed to meet that burden.
Today’s Massachusetts real estate market is one of risks and rewards. Investing in legal guidance from an experienced business counsel will help ensure your commercial real estate transaction protects your interests. And, as we see in this case, it can also protect significant amounts of transaction work-product from being discoverable in the event of subsequent litigation.
The New England Real Estate Journal reports that the commercial market in Massachusetts is again booming thanks to a confluence of circumstances, including lender liquidity, low interest rates and economic optimism. A number of postponed or new projects are also once again moving forward in the Boston area.
Projects in Boston Seaport Innovation District range from a $5.5 million innovation center to the $800 million campus being built by Vertex Pharmaceuticals. Other projects include the $450 million mixed-use complex at Fenway Center and the $1.5 billion project for Assembly Row.