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Appeals Court Allows Broker’s Claim Against Former Clients

Winchester Couple Switched Agents, Prompting Lawsuit
By Christopher R. Vaccaro
Special to Banker & Tradesman

A Winchester couple learned last June in Huang v. RE/MAX Leading Edge, that a real estate broker can enforce an unwritten exclusive brokerage contract against them, even if the broker did not produce a closing.

Biping Huang claimed that, in 2016, Xinhang Sun and Jing Ma entered a verbal contract to hire her as their exclusive buyer’s agent for one year. In return, Huang promised to use reasonable efforts to find them a new home. She also claimed that Sun and Ma verbally agreed to list their existing Winchester home with her, after they bought a new home.

The state Appeals Court ruled in favor of a real estate broker who sued for breach of contract after a client switched agents.

Huang showed Sun and Ma several homes, advised them on valuation and financing, and offered them a bridge loan to facilitate a purchase. However, in 2017, Sun and Ma contracted to buy a home in Winchester through RE/MAX Leading Edge. They advised Huang that they had hired a RE/MAX broker to buy a house, and offered Huang a gift card to express their gratitude. Sun and Ma bought a new home for $999,000 and sold their former home for $502,000, both within the one-year exclusivity period. RE/MAX received commissions on the two deals.

Who Promised What?

Huang sued Sun and Ma for breach of contract, and RE/MAX for tortious interference and unfair and deceptive business practices. The Superior Court dismissed Huang’s claims against RE/MAX, and allowed Sun and Ma’s motion for summary judgment dismissing Huang’s claims against them. Huang appealed.

The Appeals Court first considered Huang’s breach of contract claim against Sun and Ma regarding the purchase of their new home. The court discussed the Massachusetts statute of frauds, which renders contracts with loan and business brokers unenforceable unless they are in writing. However, the statute specifically exempts real estate broker contracts from that rule. Therefore, Huang’s lack of a written agreement did not prevent her from suing Sun and Ma for breach of contract.

The court next compared “unilateral” contracts, where only one party makes a promise, with “bilateral” contracts, where both parties exchange promises. According to the court, unilateral contracts are generally terminable at will. In contrast, neither party can terminate a bilateral contract without the other party’s assent. The court recognized that Huang allegedly promised to use reasonable efforts to find a home for Sun and Ma, and Sun and Ma allegedly promised to work exclusively with Huang. The parties’ promises to each other established a bilateral contract, which Sun and Ma could not terminate at will.

The court then discussed whether Huang could sue Sun and Ma even though she did not procure a home sale for them. The court cited Tristram’s Landing, Inc. v. Wait, a landmark 1975 case, for the general rule that brokers only earn commissions if they produce “ready, willing and able” parties who enter binding contracts that ultimately close. This principle applies whether brokers contract with sellers or buyers. The court distinguished Huang’s case from Tristram’s Landing, noting that Huang claimed a commission as damages because Sun and Ma breached an exclusive brokerage contract, not because Huang had procured a seller. The court realized that a ruling against Huang, under these circumstances, would mean that brokers could not claim commissions as damages when their clients breach exclusive contracts.

Court Vacates Judgment on Home Purchase

The court vacated the Superior Court’s judgment regarding Sun and Ma’s home purchase, and remanded that part of Huang’s case to the superior court for further proceedings. The court cautioned, however, that Huang still had the burden of proving her unwritten contract at trial.

The Appeals Court had less sympathy for Huang’s claim regarding the unwritten listing agreement to sell Sun and Ma’s home, and her claims against RE/MAX. The court observed that Huang did not promise to make any efforts to sell Sun and Ma’s home under the unwritten listing agreement. Therefore, Sun and Ma could terminate the listing agreement with Huang at any time until Huang produced a buyer, which never happened. As to RE/MAX, the court noted that Huang’s complaint made no allegations that RE/MAX acted improperly. Huang did not even allege that RE/MAX knew of any exclusive contracts involving Huang. The court upheld the dismissals of Huang’s listing agreement claim and her claims against RE/MAX.

Huang’s case offers some lessons. First, real estate brokers should require their clients to sign written brokerage contracts stating the parties’ expectations. Second, buyers and sellers should not seek and obtain services from brokers without written brokerage contracts. Third, brokers should ask clients for written disclosures, with indemnities, as to prior relationships with other brokers.

Download the article as seen in Banker & Tradesman on August 29, 2022. Learn more about Christopher R. Vaccaro.

Summer Interns Class of 2022

 

Thank you to our talented Summer Interns Class of 2022. Interns are an important part of the Dalton & Finegold team, bringing fresh ideas and a desire to excel. They work closely with our Residential Real Estate, Commercial Real Estate, Trusts & Estates, and Litigation departments, developing their skills. We wish them the best as they head back to school!

Pictured from left to right:
Olivia Cafarelli – Sophomore, majoring in Communications at Endicott College
Evelyn Rodriguez-Galvis – Senior, concentration in Finance at University of Massachusetts Amherst, Isenberg School of Management
Ken Doherty – 3L at Suffolk Law School
Nicole Dunn – 1L at Suffolk Law School
John Loreti – 3L at Suffolk Law School
Erin Donahue – 3L at New England Law
Andrew Dunklin – 3L at New England Law
Also pictured here is Barry Finegold, Managing Partner (center)

Summer Interns not pictured:
Julia Auger – Senior, majoring in Accounting at Merrimack College
Katie Bazarian – Freshman
Molly Codeanne – 2L at Suffolk Law School 
Kaitlyn Wrisley – Sophomore, majoring in Corporate Finance and Investments at Merrimack College

Minority-Owned Development Firm Makes a Difference in Worcester

Tax Incentives Play Major Role in Financing Project
By Christopher R. Vaccaro
Special to Banker & Tradesman

“. . . those who a good deed offer shall reap three times over the good deed that they offer”

Ifeanyi Menkiti published this verse in 2007 as part of his poem “They will Rise.” At the time, the Nigerian immigrant, poet, philosopher, and Wellesley College professor probably was not thinking about commercial real estate investment.

However, his verse became prophetic for a real estate project that began with his 2015 purchase of a vacant historic building at 6-8 Chatham St. in Worcester. Dr. Menkiti passed away in 2019 and did not live to see the completion of the project, but his dream of redeveloping that property reaped three significant tax benefits for The Menkiti Group, his son Bo’s real estate development firm.

Members of the Worcester Red Sox leased several units in The Mekiti Group’s 24-unit Chatham Lofts luxury property in Worcester.

The Menkiti Group completed the Chatham Lofts project and opened it for leasing last December. The project contains 24 luxury rental units with a fitness center, community room, and parking. It leased-up quickly, with several units occupied by members of the Worcester Red Sox minor league baseball club.

HDIP, Historic Credits and More

The Menkiti Group utilized three tax incentives in creating Chatham Lofts. The first was obtained through the Massachusetts Housing Development Incentive Program (HDIP), which is available in “Gateway Cities,” such as Worcester, that have 35,000 to 250,000 residents and median household incomes and college graduation rates below the state average.

Chatham Lofts is within an “HD zone” approved under the HDIP by the Massachusetts Department of Housing and Community Development (DHCD) for multi-unit, market-rate housing. As a result, The Menkiti Group secured a 10-year exemption of 60 percent of the increased value from its rehabilitation of the property. In addition to reduced real estate taxes, projects certified by DHCD qualify for state income tax credits of up to 25 percent of construction costs.

Federal and state historic tax credits were the second tax incentive that made Chatham Lofts possible. The Menkiti Group employed sensitive restoration processes so that the National Park Service and Massachusetts Historical Commission listed the property on the National Register of Historic Places. As a result, many project costs were “qualified rehabilitation expenditures,” for which The Menkiti Group earned a federal tax credit of $1.6 million and state tax credits of $1.35 million.

The third tax incentive came from the federal Tax Cuts and Jobs Act of 2017, which established “opportunity zones” with reduced federal capital gains taxes. Chatham Lofts is within one of the 138 designated opportunity zones in Massachusetts.Opportunity zone tax benefits are complicated, but if properly utilized, investors can enjoy deferred capital gains taxes, a 10 percent step-up in basis if the investor holds the investment for at least five years before December 21, 2026, and a 100-percent step up in basis if the investor holds the investment for at least 10 years (but not beyond 2047).

A Potential Triple-Play in Tax Deferrals

Consider a hypothetical taxpayer who sold investment property in 2020, realizing a $1 million capital gain, and then within 180 days reinvested the $1 million into a “Qualified Opportunity Fund” (QOF) developing investment property in an opportunity zone. By reinvesting in the QOF, the taxpayer can defer paying federal taxes on the gain until the sale of the QOF investment, or Dec. 31, 2026, whichever occurs first.

Also, because the QOF investment was made before 2022, if the taxpayer holds the investment for at least five years, the taxpayer enjoys a 10 percent step-up in basis. Finally, if the taxpayer holds the QOF investment for at least 10 years (but not beyond 2047), the taxpayer pays no federal capital gains tax on the appreciation of the investment beyond the deferred capital gain!

The opportunity zone program has sunset provisions. The 10-percent step up in basis is unavailable for QOF investments made after 2021, and no tax benefits are available for reinvested capital gains realized after 2026. However, the Chatham Lofts development was completed in 2021, so it can enjoy all of the tax advantages of opportunity zone investments described above.

Bo Menkiti sums up his firm’s mission best: “We believe every neighborhood has something that makes it great, and that core belief has been clearly illuminated through our experience in Worcester. We approach every neighborhood with the goal of highlighting existing assets and shining a light on the potential within, and financing tools such as historic tax credits, DHCD’s HDIP, and the Opportunity Zone program allow us to do so. These tax incentives are necessary to make these impactful projects possible. My father saw the great potential that exists in Worcester, and we are honored to continue his legacy, one that serves as a guiding light for our purpose and mission in the city today.”

Download the article as seen in Banker & Tradesman on June 27, 2022. Learn more about Christopher R. Vaccaro.

Neighbors Contest Relocation of Vineyard Hotel’s Pool Bar

Lack of Notification Used as Basis for Appeal
By Christopher R. Vaccaro
Special to Banker & Tradesman

An Edgartown hotel’s relocation of its outdoor pool bar is stirring up a hornet’s nest of litigation on Martha’s Vineyard.

The Harbor View Hotel has served vacationers since 1891. Under zoning law, the hotel is a legal nonconforming commercial use in a residential district. The Edgartown Zoning Board of Appeals originally granted the hotel a special permit to serve food and beverages at an outdoor pool bar in 1992.

Years later, the hotel applied for a special permit to relocate the pool bar. The hotel received this special permit in May 2019 and started work in June, after expiration of the 20-day appeal period for special permits and zoning variances.

Neighbors Fight on Two Fronts

Upon becoming aware of the work in progress, the hotel’s neighbors filed two lawsuits against the hotel and the ZBA in Dukes County Superior Court to annul the special permit. The neighbors claimed that they were not notified of the ZBA hearing.

Harbor View Hotel
A recent Appeals Court decision upheld a challenge to relocation of the Harbor View Hotel’s pool bar on Martha’s Vineyard.

The Massachusetts Zoning Act allows “persons aggrieved” – persons likely to suffer harm because of a zoning decision – to appeal the decision on the merits within 20 days after the decision is filed with the municipal clerk. It also gives abutters a 90-day appeal period if the municipality fails to properly notify them of the zoning hearing. The hotel’s neighbors filed their lawsuits within the 90-day period.

The ZBA and the hotel sought dismissal of both lawsuits, relying on the zoning administrator’s sworn statement that she mailed notices of the ZBA hearing to the neighbors. The neighbors produced their own sworn statements that they never received the notices. The Superior Court judge accepted the zoning administrator’s statement, discredited the neighbors’ statements, and dismissed the lawsuits in November 2019.

Meanwhile, the neighbors requested that the Edgartown building inspector shut down the new pool bar, claiming that it was outside the pool area and not authorized to serve food and beverages. The building inspector denied their request and the ZBA upheld that denial, whereupon the neighbors filed a third lawsuit. The Superior Court dismissed that lawsuit in April 2020, concluding that it was an improper effort to appeal the court’s dismissal of the prior lawsuits.

The neighbors appealed the Superior Court’s decisions, and applied more pressure on the hotel. Because of construction delays caused by a fire and the COVID pandemic, the hotel applied to the ZBA for a modification of a different special permit, involving the hotel’s guest rooms, ballroom and spa. The ZBA referred that application to the Martha’s Vineyard Commission (MVC), a regional planning commission. The MVC voted to hold a public hearing on the hotel’s application.

Dispute Moves to Regional Commission

The MVC opened the public hearing in January 2021. The neighbors contested the hotel’s application, citing potential negative impacts from noise, traffic, parking and other matters. Months later, the MVC approved the hotel’s application, but imposed several conditions, including requirements that the hotel seek MVC approval of any increases to hotel sleeping accommodations and outdoor seating, establish a “long-term neighborhood preservation committee,” and make affordable housing mitigation payments totaling $535,080. The hotel appealed the MVC’s conditions to the Superior Court, where the case is still pending.

Last November, in Allegaert v. Harbor View Hotel Owner LLC, the Appeals Court issued its decision on the neighbors’ appeal of the special permit for the pool bar and the building inspector’s denial of their enforcement request. The appeals court noted that the Zoning Act only requires that notices of hearings be mailed to abutters, not that abutters actually receive the notices. However, in this case, 11 neighbors alleged that they had not received notices, providing an adequate basis to infer that notices were not mailed. The Appeals Court ruled that the Superior Court’s dismissal of the challenge to the special permit was unwarranted.

The Appeals Court next considered the building inspector’s denial of the neighbors’ enforcement request. The Appeals Court ruled that the special permit allowed the service of food and beverages from the new pool bar, but it did not allow service in a nearby patio area. Accordingly, it vacated the Superior Court judgment to the extent that it dismissed the neighbors’ challenge to service in the patio area.

The Appeals Court’s decision allows the neighbors to continue their lawsuits in Superior Court over the relocated pool bar. The takeaway from that decision is that parties seeking zoning relief should make sure that notices of hearings are properly given, lest abutters take advantage of extended appeal periods to contest the zoning relief.

Download the article as seen in Banker & Tradesman on May 30, 2022. Learn more about Christopher R. Vaccaro.

A New Member Of The Hospitality Industry

Ken MacKenzie and Camilla Jensen

Hospitality is often thought of as a matter of “heads in beds” – a refuge for the weary business traveler at the end of the day. What if we could create a hotel-like operation for businesses themselves, one that would host, energize, and engage them on multiple fronts throughout the workday? That is exactly what CIC, a Cambridge Mass.-based global flexible workplace company and creator of innovation campuses, has done. Notably, CIC’s new CFO, Camilla Jensen – the co-author of this article – is a former Marriott senior executive. Jensen’s hiring makes explicit what has been implicit from the time of the company’s founding: in many ways, CIC is like a hotel for emerging companies and entrepreneurs, a hotel called an “innovation campus.”

In the post-pandemic world, new and different types of companies are increasingly considering a shift from traditional leased space to more flexible and adaptable space. The shift appears even more significant as companies of all sizes and maturities are catching on to the value proposition inherent in the flexible workplace and public space environments CIC provides. CIC’s model fosters the strong desire for in-person connection and collaboration that creative and intelligent people possess.

Would you like to gather with other bright minds and have a beer at Venture Café while listening to a startup pitch and then bounce ideas off one another? You got it. Need to have a meeting with an investor? No problem. You can book a conference room at CIC, decked out with the latest technology to make your presentation sparkle, not to mention hybrid meeting capabilities. Feeling peckish? Snacks and drinks are readily available in the common kitchens, including a variety of teas and healthy options. All included.

A workplace with the option to scale up or down on demand, and even into new locations in cities around the globe as the need arises, is a new paradigm. CIC clients may find themselves in cities in the US, Europe, or Japan – each campus with a wide variety of spaces available, all-inclusive amenities, high-touch client service, and 30-day terms. CIC can accommodate multiple sizes and types of setups, from hybrid, fully in-person, and coworking space to private and shared lab space for innovative life sciences companies. In addition, CIC provides strong community-building offerings for both big and small organizations. As new needs for flexibility and collaboration morph into the new normal for how we work, the winners of this pivotal shift in the industry will be companies that create a value proposition that goes beyond brick and mortar.

Jensen joined CIC earlier this year after a 16-year career at Marriott. “I was intrigued by the obvious parallels to the classic hospitality industry inherent in CIC,” she said, noting that the flexible workplace industry is still in its infancy and akin to the hotel industry of 20+ years ago. In the post-pandemic work environment, the way we collaborate, and work together appears changed forever. There continues to be a strong desire to collaborate face-to-face, but with greater emphasis on flexibility and hybrid options.

Jensen added, “When I saw the unique approach deployed by CIC compared to the traditional shared office space model, and even other operators in shared space, I did not hesitate to join the company. CIC has created an offering that positions it much like a boutique hotel providing location, quality, and experience…much more than just a building and a desk.”

As other members of NEREJ’s hospitality advisory board would tell you, the feasibility of a hotel depends upon its demand generators. CIC creates demand in part by co-locating its innovation campuses in proximity to, and often in collaboration with, the world’s premier universities and prominent movers and shakers that are churning out the entrepreneurial, innovative thinkers drawn to its model. Hotel brands seek to build guest loyalty, as does CIC by creating innovation communities that provide opportunities for exceptional entrepreneurial clients to collaborate, network, and share resources, which helps them grow faster and better.

While hosting innovative, creative, and collaborative businesses is CIC’s model, the system could not succeed without the people in place to implement it. Turn to any one of CIC’s social media channels (@CICNOW on Instagram or Cambridge Innovation Center on LinkedIn) to find innumerable posts by various CIC-ers celebrating the achievements and adventures of CIC’s clients and staff. Hospitality is, after all, about being hospitable. If you look carefully enough around any CIC campus you’ll readily spot the concierge, front desk, housekeeping, engineer and food and beverage. The most successful hotel companies are those that recruit, retain, and promote the right people for the right jobs. CIC’s employees are engaged in the company and dedicated to its mission to fix the world through innovation. They contribute to its creativity and they feel valued. As the long-time general manager of a landmark Boston hotel once remarked, “We want our people to get up and ‘skip to work’ every day.” Those people are integral to the guest experience not only through the level of service they provide, but also by the attitude they project, and happiness is often contagious.

During the height of COVID, many real estate industry analysts opined that the pandemic would put an end to the shared workplace. At the time, it seemed easy to pay heed to the doomsayers. The numbers, however, have proven them wrong. While the early days of the pandemic were disheartening for any business, there were multiple signs of brand loyalty that signaled that shared workspace would indeed bounce back and grow. During the height of the pandemic, nearly two thirds of CIC’s pre-COVID clients chose to retain their membership. After announcing strong vaccination policies at its U.S. innovation campuses, CIC experienced a near 10% increase in U.S. revenues over the 10 weeks following the announcement. In March of 2022, CIC’s Massachusetts sales team fielded more inquiries for new space than at any other time in the company’s history. Campus tours in January 2022 increased by 43.5% as compared to December 2021. Most remarkably, occupancy in CIC’s Massachusetts campus is on pace to exceed pre-COVID levels. During the pandemic, the company also expanded around the world, launching locations in Japan and Poland.

What does the future hold for innovation, collaboration, and workplace environments? We can only speculate, but we are confident that we’ll see it first at CIC.

Ken MacKenzie is partner of Dalton & Finegold, LLP and a member of the International Hospitality Consultants (ISHC).

Formerly MacKenzie was the co-leader of the hospitality and recreation group at Goulston & Storrs. MacKenzie represents institutional investors, private equity funds, investment managers, pension funds, university endowments, REITs, major lending institutions and developers in the acquisition, financing and disposition of all classes of real estate assets both nationally and internationally.

MacKenzie specializes in transactions involving hospitality assets and has significant experience in large-scale joint-ventured deals, often involving non-profit institutions such as universities or hospitals. He frequently assists clients in structuring their responses to RFPs for complex mixed-use projects.

MacKenzie received his A.B. from Dartmouth College and his J.D. from Boston University School of Law, where he graduated magna cum laude. MacKenzie is admitted to practice law in the state of Massachusetts.

Camilla Jensen is the chief financial officer at CIC. She is an experienced leader focused on driving results at the intersection of vision, strategy and financial acumen. Having spent 16 years at Marriott International, Jensen held multiple roles with responsibilities including finance, asset management, crisis management, negotiating workout agreements and optimizing the merger synergies between Marriott and Starwood. In addition to her expertise in the hospitality industry, Camilla also brings an international perspective, having grown up in the Danish/German border region and working throughout Europe, the Americas and in select countries in Africa and Asia over the course of her career. She has an MBA from American University in Washington DC and a Master of International Business and Languages from Odense University in Denmark.

View the article on the NEREJ website, published May 20, 2022.

*Article posted with permission of New England Real Estate Journal