Congratulations to Dalton & Finegold Partner Ashley Evirs, Esq. for obtaining her LLM in Elder Law and Estate Planning from Western New England Law School in Springfield, MA!
This degree is for attorneys who want to deepen their expertise in elder law, estate planning, social security law, Medicare, Medicaid, and other federal and state laws that affect our most vulnerable population who are aged and disabled.
This program also focuses in estate and fiduciary administration, income and federal wealth transfer taxation, and the use of various entities (particularly trusts and insurance products) in wealth planning and management.
Advancing authority in this discipline will allow Ashley to better serve our range of clients and provide creative and pioneered strategies to accomplish their planning goals and concerns.
Ashley’s ability to juggle work, family and school life is admirable! Dalton & Finegold is very proud of this huge accomplishment!
If you or anyone you know is in need of Elder Law or Estate Planning services, be sure to connect with Ashley.
A Massachusetts statute bars tort lawsuits arising from defective or negligent design, planning, construction or general administration of buildings and improvements, unless filed within six years after construction completion.
This statute is known in the construction industry as the “statute of repose.” Statutes of repose operate much like statutes of limitations. Both protect potential defendants from having to respond to lawsuits filed many years after the alleged wrongdoing, but there are significant differences. Statutes of limitations can be suspended for various reasons, such as when plaintiffs cannot discover their injuries, or cannot determine responsible parties. This gives flexibility to the end point of the limitations periods in statutes of limitations.
Boston University’s Charles River campus spans 113 acres centered along Commonwealth Avenue between Massachusetts Avenue and Packard’s Corner.
In contrast, statutes of repose cannot be suspended for any reason. They impose absolute time limits on when plaintiffs can sue potential defendants. Statutes of repose bar plaintiffs’ claims after the statutory period expires, even when plaintiffs’ injuries or damages occur later or are not discoverable within the limited timeframe.
However, last month in Trustees of Boston University v. Clough, Harbour & Associates LLP, the Massachusetts Supreme Judicial Court ruled, in effect, that the statute of repose limiting suits for design defects can be contractually negated.
Boston University engaged an architectural firm in 2012 to design a synthetic turf athletic field above a parking structure designed by the same firm. The contract provided for about $970,000 in payments to the architects for professional services. It also required the architects, “to the fullest extent permitted by law,” to indemnify the university from all expenses, including attorney’s fees, caused by the architects’ negligence.
A $25K Defect
After the athletic field went into service in 2013, it became apparent that the field had design defects that rendered it unsafe. The defects arose from the architects’ failure to account for seasonal expansion of joists in the underlying parking structure.
The university spent $25,000 to remedy the defect, and demanded indemnification from the architects, who refused to pay for the remediation. In 2020, more than six years after the athletic field was first used, the university sued the architects in Superior Court for breach of the indemnification.
The architects moved for summary judgment, seeking dismissal of the university’s suit under the statute of repose.
The Superior Court judge agreed, and ruled in 2024 that the statute of repose barred the university’s contractual indemnification claim. The Supreme Judicial Court granted an application for direct appellate review.
The SJC noted at the outset of its decision that the statute of repose bars negligence claims for design and construction defects, unless the claim is brought within six years after completion.
The SJC also noted that a negligence claim is an “action in tort,” but the university’s suit included a claim against the architects for breach of the indemnification agreement, which is an “action in contract.”
Lawsuit Created an Unusual Situation
The SJC recognized that the university’s lawsuit created an unusual situation under the statute of repose, because the university was seeking compensation under a contractual indemnification clause for a loss that resulted from the architects’ negligence.
Therefore, according to the SJC, it was necessary to look beyond whether the university’s suit arose in tort on in contract, and to instead examine the “gist of the action.”
The SJC next compared the differences between actions in tort and actions in contract. Actions in tort arise where defendants fail to meet standards imposed by law, while actions in contract arise where defendants fail to meet standards set by the defendants’ promises made in their agreements with plaintiffs.
The SJC determined that the gist of the university’s claim against the architects was essentially “the enforcement of a contract for indemnification,” observing that the architects explicitly promised to indemnify the university from costs incurred as a result of the architects’ negligence.
Time Limits Can Be Negotiated
Therefore, the university’s claim was contractual in nature, and the statute of repose did not bar it.
The SJC reversed the Superior Court’s dismissal of the university’s contract claim, while stating that in order for the university to prevail, it must prove the existence of an enforceable indemnification agreement, the occurrence of an event triggering the architects’ indemnification obligation, the giving of adequate notice to the architects, and the architects’ breach of the indemnification agreement.
The statute of repose remains in effect for tort claims in building design and construction defect cases, but the SJC’s decision shows that project developers can avoid the strict six-year limit, by including properly drafted indemnification clauses in their contracts with design professionals and contractors.
Job Title: Director of People Location: Andover with some travel to various offices Job Type: Full-time
Reports to: COO and Managing Partner Collaborates closely with: Department Chairs and Executive Management Team
Position Summary:
We are seeking a strategic, people-centered leader to join our firm as Director of People. This role is responsible for driving all aspects of the employee lifecycle—from recruitment and onboarding to engagement, retention, and development. Working closely with firm leadership, this individual will ensure we continue to attract, grow, and retain top talent while fostering a positive and inclusive workplace culture aligned with our firm’s values and vision.
Key Responsibilities
Talent Acquisition & Separation
Oversee recruitment, hiring, and, when necessary, separation processes in partnership with the Managing Partner, Department Chairs, and COO.
Manage relationships with external recruiters and coordinate candidate communication and follow-up.
Align talent acquisition strategies with firmwide and department-specific goals.
Onboarding Program Development & Execution
Lead the development and implementation of onboarding processes in collaboration with the COO and Department Managers.
Ensure a smooth integration for new hires, including both firm-level orientation and department-specific training led by the respective Department Chairs or their designees.
Employee Engagement, Retention & Recognition
Design and manage initiatives that foster a strong, inclusive culture—such as internal newsletters, holiday celebrations, and recognition programs.
Drive strategies to increase employee satisfaction and reduce turnover.
Work-Life Balance & Wellness Initiatives
Champion mental and physical wellness programs across the firm.
Organize wellness-focused events and initiatives tailored to office and departmental needs.
Conflict Resolution & Employee Relations
Serve as a resource for resolving employee concerns and interpersonal conflicts in collaboration with Department Chairs or Managers.
Promote early resolution at the appropriate level while maintaining professionalism and confidentiality.
Performance Evaluations & Professional Development
Design and implement firm-wide performance evaluation frameworks in partnership with Department Chairs and the Executive Team.
Ensure consistent, fair, and constructive evaluation processes that support professional growth and align with business objectives.
Provide tools, and support for managers to conduct effective performance reviews.
Identify and recommend opportunities for continuous learning and career development aligned with performance outcomes.
Strategic Department Collaboration
Partner with Department Chairs and the COO to ensure team structures, roles, and people strategies align with department and firm-wide visions.
Provide guidance and support to help departments grow and thrive through intentional talent management.
Qualifications
Proven experience in a senior-level HR or People Operations role, preferably within a professional services environment.
Strong interpersonal and communication skills; capable of working effectively with executive leadership.
Demonstrated ability to lead cultural and organizational change.
High emotional intelligence with a passion for supporting people and building positive workplace environments.
Applicants should submit their resumes to Info@DFLLP.com
Failed Bid for Adjacent Land Led to Lease Breaches
Now and then, a commercial landlord engages in conduct so peculiar, that others can only shake their heads in bewilderment. That was the case in H1 Lincoln, Inc. v. South Washington Street, LLC.
Entities controlled by Alfredo Dos Anjos own several properties in a North Attleborough area known as “Auto Road.” Two of Dos Anjos’s limited liability companies signed a long-term lease with Majestic Honda as tenant in 2016. Majestic planned to redevelop the site as a car dealership.
The lease allowed the Dos Anjos LLCs to review and approve Majestic’s plans, with a limited right to terminate the lease if they did not approve the plans. The LLCs agreed to cooperate with Majestic’s permitting applications.
Lease Negotiations Sour
Majestic provided a site plan to the Dos Anjos LLCs in 2017, showing demolition and replacement of one building, and renovation of another on the leased premises. The plan also disclosed that Majestic intended to use adjacent property, recently acquired by Majestic, for inventory display and parking. Dos Anjos had unsuccessfully tried to purchase the adjacent property.
When Dos Anjos learned of this purchase by Majestic, his relationship with Majestic soured. The LLCs did not respond to Majestic’s initial plan submittal. When Majestic resubmitted its plan two months later, the LLCs advised Majestic that they would approve Majestic’s plan if Majestic agreed to limit its use to a Honda dealership. Majestic agreed to this condition, although it was not required under the lease.
A North Attleborough landlord tried to “extort” benefits from a Honda dealership tenant, according to a Superior Court judge, eventually leading to an over $20 million judgement against the owner.
Surprisingly, the LLCs next sent Majestic a lease termination letter.
When Majestic tried to resuscitate the deal, Dos Anjos expressed interest in reinstating the lease if Majestic agreed to sell the adjacent property to the LLCs for $1 and add the property to the lease with no additional rent.
Majestic was amenable to this arrangement, and Dos Anjos’s lawyer sent Majestic a draft lease reinstatement agreement. Two months later, however, the LLCs sent Majestic a letter confirming the lease termination and returned Majestic’s rent checks. Majestic sued the LLCs in Superior Court.
Court Awards Double Damages Twice
A jury found that the LLCs had breached the lease, and a Superior Court judge concluded that their attempts to terminate the lease were mere pretexts concealing bitterness over Majestic purchasing the adjacent land.
This conduct amounted to a violation of Massachusetts General Laws Chapter 93A, which prohibits unfair and deceptive business practices. The judge found that the LLCs used tactics to “string Majestic along to extort unwarranted benefits,” such as restricting Majestic’s use to a Honda dealership, and requiring Majestic to sell the adjacent property for $1.
The judge awarded Majestic double damages under Chapter 93A, totaling $8,925,000. The judge also ordered the LLCs to cooperate with Majestic’s permitting applications.
During the permitting process, Majestic learned that trusts controlled by Dos Anjos, not the LLCs, were the true record owners of the leased premises, contrary to the LLCs’ representations in the lease and Dos Anjos’s sworn testimony.
The LLCs refused to correct this discrepancy, causing additional delays to Majestic’s project.
Majestic reopened the superior court case, joining the Dos Anjos trusts in the action, and claiming further violations of Chapter 93A. The judge awarded additional double damages to Majestic of $3.18 million.
A $20M Judgement
Ultimately, with attorneys’ fees added, and various post judgment maneuvering, Majestic obtained a total monetary judgment of over $20 million against the Dos Anjos defendants, with post judgment interest accruing at almost $5,000 per day. The Dos Anjos defendants appealed, but the Supreme Judicial Court upheld the judgment.
While their appeal was pending, the Dos Anjos defendants did something unexpected – they paid the entire $20 million judgment to Majestic, to avoid accrual of post judgment interest. The Dos Anjos defendants eventually lost their appeal, but Majestic still claimed post-judgment interest for the time prior to the SJC’s final decision.
Last month the SJC held that the Dos Anjos defendants’ payment to Majestic halted the accrual of interest, despite the appeal, because Majestic had full, unconditional use of the payment during the appeal.
The Dos Anjos defendants’ payment of the $20 million judgment to Majestic pending the appeal was a risky move. If a defendant prevails on appeal, it cannot recover the judgment from a plaintiff that later is unable to repay the defendant.
Dos Anjos’s willingness to pay the $20 million to Majestic showed Dos Anjos’s confidence in Majestic’s reliability and good faith. If the Dos Anjos defendants had shown similar qualities in their dealings with Majestic, they could have avoided the harsh result of their misconduct.
Land Court Lambastes ZBA for “unwarranted” Hurdles
Massachusetts courts seldom label local zoning boards’ denials of permits as arbitrary and capricious, but that’s exactly what happened recently in a recent state Land Court decision, Symes Development & Permitting LLC v. Smith.
Symes Development & Permitting LLC underwent an eight-year ordeal to obtain local permits for an 18-unit residential subdivision. In 2017, Symes entered into a purchase and sale agreement for eight acres near the West Concord commuter rail station.
Symes prepared an 18-lot subdivision plan for the property, with all lots conforming to Concord’s zoning requirements. The subdivision plan did not require any waivers from the Concord planning board.
The Case at Hand
In 2020, the Planning Board approved the subdivision plan, but with conditions requiring that Symes reserve three lots for affordable housing and two lots for a park, for a three-year period without compensation to Symes.
The Planning Board also conditioned its endorsement of the subdivision plan on Symes obtaining an earth removal permit from the Concord Zoning Board of Appeals. Symes appealed these conditions to the Land Court, which ruled in Symes’ favor the following year, annulling the board’s conditions to the plan approval.
Meanwhile, Symes applied for the earth removal permit from the ZBA. Symes’ site presented topographical challenges, requiring the removal of 60,000 cubic yards of earth to build the subdivision. This vastly exceeded Concord’s 1,000 cubic yard limit for as-of-right earth removal. The ZBA conducted hearings on Symes’ application during the spring and summer of 2021, and denied Symes by a 3-0 vote. Symes returned to the Land Court to appeal the denial.
The state Land Court said a Concord board’s ruling illustrates unreasonable barriers to housing development in Massachusetts.
Symes’ appeal of the ZBA decision made its way through the Land Court over the next three years, with a trial in April 2024, followed by post-trial briefs and closing arguments last fall. The Land Court issued its decision in favor of Symes in January.
The court’s decision comes in an environment where towns are implementing the MBTA Communities Act, which requires municipalities with MBTA service to create zoning districts with higher density housing, and the state Legislature recently passed the Affordable Homes Act, which allows single-family zoned properties to add accessory dwelling units and offers numerous other housing production incentives.
Political Emphasis on Housing Production
These statutes are a legislative response to a recognized housing shortage in Massachusetts. Gov. Maura Healey is also clearly committed to finding ways to promote housing development. The Land Court’s decision in the Symes case can be regarded as a judicial response to the housing shortage.
The Land Court did not hide its disappointment with the ZBA’s denial.
“Those who lament the barriers to the construction of […] housing, and the sometimes unwarranted regulatory hurdles that contribute to making housing in Massachusetts even more expensive than it might otherwise be, might point as an example to the saga of [Symes] in its efforts to develop an 18-lot residential subdivision […],” the first sentence of its decision reads.
Court Dismantles ZBA’s Arguments
After this opening, the court systematically dismantled every argument that the ZBA offered in its defense.
The court reserved special criticism for the ZBA’s noise expert, who had testified that Symes’ earth removal would unleash excessive noise in the neighborhood of passing commuter trains. The court noted that the ZBA’s noise expert failed to consider ambient neighborhood traffic noise and the buffering effect of new homes on sound transmission.
But the court did not stop there. It also took judicial notice that the ZBA’s noise expert had offered a contradictory expert opinion in an unrelated case before the same Land Court judge, involving a warehouse development in Lakeville.
In that case, the expert’s firm represented the developer trying to build the warehouse, instead of the town. The court noted that the ZBA’s noise expert’s opinion in the Lakeville case actually supported testimony of Symes’ noise expert in the Concord case, which undermined the ZBA’s noise expert’s credibility.
After rejecting the ZBA’s legal arguments and humbling its noise expert, the court concluded that the ZBA’s denial was “legally untenable, arbitrary, capricious, unreasonable, and otherwise beyond the proper exercise of [its] authority.” The court annulled the ZBA’s decision and ordered the ZBA to issue the earth removal permit.
This decision shows judicial concern about roadblocks that housing developers often face from municipal boards. It suggests that such roadblocks could face increased skepticism from the courts. If this is the case, maybe fewer housing developers will be forced down regulatory rabbit holes with expensive litigation, to get their projects approved.
There are good reasons for hotel owners to affiliate with national brands such as Marriott, Hyatt and Hilton. Hotel brand owners offer proven operating programs, staff training, marketing support and reservations systems, and restrictions on similarly branded hotels from operating nearby.
They also enable hotel owners to flag their properties with brands associated with desirable levels of comfort and guest services.
But these benefits come with costs, which are documented in hotel franchise agreements between brand owners, known as franchisors, and hotel owners and operators, known as franchisees.
Franchise agreements are designed to generate income for hotels by associating them with a well-known brand, but franchisors demand extensive control over hotel management decisions.
Calculating Royalties and Franchise Fees
Franchise agreements are designed to protect the franchisor’s brand and generate fee income for the franchisor. Typical franchise agreements require franchisees to operate under the brand for several years, while observing franchisor standards, paying licensing fees to franchisors, committing to property improvement programs and giving franchisors veto power over changes in ownership or management.
Franchisees bear hefty termination fees if they terminate their franchise agreements early, or when franchisors terminate agreements because of franchisee defaults. Prospective franchisees have limited power to negotiate franchise agreements, yet some provisions are open to discussion.
Premium franchisors can charge franchise fees in the range of 4 percent to 6 percent of gross room revenue (net of room taxes). This percentage often rises when franchisees enroll in brand marketing and online reservation plans.
However, franchise fees are negotiable. For newly constructed or renovated hotels, and hotels that are new to the brand, franchisors will sometimes agree to lower these fees initially, then gradually increase them when the hotel’s income stream is expected to stabilize. Also, hotel owners should make sure that franchise fees are tied to gross room revenue, and not to other sources of revenue unrelated to the brand, such as food, drink, and spa services.
Change of Ownership Comes with Risks
While franchisees may own their hotel properties, they do not own franchisors’ brands.
Franchisees do not have an unrestricted right to sell their properties with brands in place. Those who sell their hotels without franchisor assent, risk termination of their franchise agreements and assessment of termination fees.
Sales of stock or other equity interests in franchisees are also likely to trigger termination of franchise agreements and resulting fees, especially if the sales result in a change of control of the franchisee.
Nevertheless, franchisees can seek flexibility here. Franchisors might agree not to unreasonably withhold consent to brand transfers to another existing franchisee or experienced operator. Franchisees should also ask franchisors to allow transfers of equity interests that do not result in a change of control, or that arise from gifts or inheritance.
Banks and other institutional lenders make loans to hotels based on hotel revenues, which often depend on hotel brand recognition and other amenities derived from franchise agreements.
Comfort Letters Give Lenders Assurances
Franchisees should request that franchisors address lender concerns with “comfort letters” assuring that lenders can continue operations under franchise agreements if they take control of the hotel after a franchisee’s default on its loan obligations.
Comfort letters typically require franchisors to notify lenders when franchisees breach franchise agreements, and allow lenders to cure franchisees’ defaults and install replacement franchisees for the hotel property.
From a lender’s perspective, the loan documents should make it clear that a franchisee’s default under the franchise agreement is also a default under the lender’s loan documents.
Oversight of Management, Improvements
Because franchisors require that hotels using their brands adhere to brand standards, franchisors insist on controlling which hotel management firms operate franchisees’ properties.
Franchisees must respect these concerns, while insisting that franchise agreements provide workable mechanisms to terminate and replace unsuccessful hotel managers.
Franchise agreements also often require franchisees to periodically install expensive replacements, upgrades, and improvements to hotel properties.
Franchisees should negotiate how often franchisors can impose these property improvements programs, the scope and cost of such programs and the possible availability of key money from the franchisor to offset program costs.
Franchise agreements list numerous events of default that enable franchisors to suspend franchisees’ access to services or terminate the agreement. Events of default include nonpayment of franchise fees, failure to observe brand standards and sale of the property or change of management without franchisor consent.
Franchisees should require that franchisors give them notice and cure periods for defaults where appropriate, before franchisors exercise rights and remedies.
Hotels owners must think carefully before affiliating with a recognized national brand. Once they decide to do so, they should not accept an offered franchise agreement without ensuring that the agreement gives them appropriate legal protections.
