Real Estate and Title Insurance Litigation

Consistent with Robinson+Cole's ability to offer a full range of legal services, the Real Estate Litigation and Title Insurance Group offers experience and depth in the area of real estate litigation, spanning many disciplines, including title insurance, land use, zoning, condominiums/common interest, landlord/tenant, and general real property litigation. The members of the group are seasoned litigators who are well versed in the substantive areas of real property law, "speak the language" of real estate, and understand the fundamental aspects of real property law and transactions. The group also works closely with and leverages the resources of other disciplines within the firm to create multidisciplinary teams to advocate for our real estate clients and to resolve their disputes.

Title Insurance

We have extensive and significant experience advising title insurance companies on all aspects of title insurance coverage, from exclusions to loss to insured closing letters, and representing title insurers in coverage litigation, including extracontractual claims. The group's experience includes investigation and prosecution of fraud and defalcation claims, including recoupment. We are also frequently retained by title insurance companies to defend insured owners and lenders in establishing the validity and priority of their interests.

General Real Estate Litigation

We provide litigation services and counseling to developers, lenders, owners, lessors, and lessees on a wide range of real estate disputes, from leasings to takings to mortgages, liens, and foreclosures to title to adverse possession to waterfront rights. Our experience includes practice before state and federal courts, both trial and appellate, as well as administrative hearings, arbitration, and mediation.

Land Use and Zoning

We regularly represent both institutional and individual clients in federal and state actions, including litigation matters and administrative appeals, involving permits, variances, subdivision, covenants, restrictions, affordable housing, and wetlands.

Mortgage Litigation

We provide litigation services and counseling to lenders on a wide range of disputes from the validity, priority, and foreclosure of mortgages to defense of lenders in consumer protection, predatory lending, and class action claims.

Real Property Tax Appeals

We regularly represent commercial owners in all stages of the appeal process, including negotiation with municipal authorities, appearances before the board of assessment appeals, and appeals to the state court. Our lawyers have substantial experience with special use, Housing and Urban Development (HUD), and other income-producing properties, as well as contingency fee tax audits and the impact of environmental conditions on the valuation of real property.

Condominium/Common Interest

We represent condominium organizations in almost every matter likely to affect a common interest community. Our experience includes the assessment and collection of common area fees, contract, and construction disputes, the due diligence requirements of the first independent board after turnover, problems of governance (including challenges by dissident unit owners and internal boards of trustees disputes), claims against developers and contractors, disputes with insurers, negotiations with management companies, and controversies with municipalities and neighboring condominiums. Our representation ranges from negotiation to mediation to arbitration and, where necessary, to the litigation that ensues when some aspect of the condominium process goes wrong and judicial intervention is necessary. In whatever forum we find ourselves, we speak the language of condominium boards, unit owners, lenders, and management.

    • Experience
      • Represented a lender in a $4.5 million foreclosure claim in which the defendant counterclaimed for $18 million in damages sounding in lender liability. The matter was contested over the last three years and settled on the eve of trial. Multiple motions were drafted and argued before the court, including summary judgment.
      • Successfully defended a developer against a challenge to title to a 20-acre subdivision in Oak Bluffs, Massachusetts, and the subdivision boundaries. The firm marshaled over 100 years of complex title records and boundary evidence and the analysis and testimony of title and surveying experts. The case was developed and presented with minimal litigation and discovery. Following a three-day trial before a master, judgment was issued in favor of the developer client, affirming its title and location of the subdivision, which had a value exceeding $12 million.
      • Represented a law firm in a class action regarding the firm's handling of a large share of foreclosures in Massachusetts. The plaintiffs sued three major mortgage lenders and their law firms for allegedly wrongful foreclosure practices arising out of assignments of mortgages. The potential class would have involved over 9,000 foreclosures from 2004 to 2008 and tens of millions of dollars in exposure. The U.S. District Court of Massachusetts denied class certification; the U.S. Court of Appeals for the First Circuit affirmed the decision.

      • Represented and counseled title insurers on coverage of mechanic's liens, insured closing letters, zoning disputes, tender of policy limits, attorney malpractice, and bad faith.
      • Obtained judgments for title insurers in jury and bench trials on coverage, bad faith, and recoupment claims.
      • Our group regularly represents both landlords and tenants in commercial lease disputes and related litigation matters. The firm currently represents a landlord in a dispute of lease rights concerning over 300,000 square feet of space.
      • Represented Boulder County, Colorado, in defense of a claim under the federal Religious Land Use and Institutionalized Persons Act (RLUIPA) in federal district court. This jury trial involved complex federal and local issues of religious rights under the U.S. Constitution and RLUIPA, as well as the interests in Boulder County, in furthering the objectives of its comprehensive plan and consistent land use regulations. The principal issue, of national importance, was whether a megachurch can double in size to more than 200,000 square feet in contravention of local planning and regulations. Robinson & Cole won jury verdicts on multiple federal and state constitutional claims and one claim brought under RLUIPA. While the jury found for the church on three RLUIPA claims, the jury awarded no damages. The 10th Circuit upheld the jury verdict.
      • In the area of real and personal property tax appeals, the firm has for some time been prime counsel for one of the largest wireless service providers in the country, and currently represents the provider in appeals involving the valuation of high tech wireless equipment as well as real property.
      • Successfully defended a $10 million mixed-use (including 134 residential units and 5,000 square feet of retail space) urban revitalization project against a lawsuit by abutters seeking to halt the development.
      • Represented cellular telephone tower company in real property partition action. The client had a leasehold interest and right of first refusal on property that was the subject of litigation between family members to force the sale of multiple tracts of land owned by many family members. Preserved client's interests and avoided unnecessary entanglement in the litigation.
      • Defended private owner against claims of a prescriptive "avigation" easement in air space by county government seeking to expand airport runway on abutting property. Adverse summary judgment decision by USDC was reversed in client's favor after U.S. Court of Appeals certified case for argument to and advice from state Supreme Court on issue of first impression under real property law.
      • Litigated numerous zoning appeals in state and federal courts, including representation of leading telecommunication companies in prosecuting and defending zoning appeals in federal and state courts.
      • Represent condominium association in claims brought against developer, design, and construction professionals and developer-appointed managers for design and construction defects and breach of fiduciary duties.
      • Represented lenders and insurers in cases concerning litigation, resolution, and recoupment of mortgage frauds, overfinancing scams, defalcations, and forgeries.
      • Successfully represented waterfront owners, developers, and marinas before state agencies, including contested cases, related to permits and approvals for docks and other structures. 

      • Obtained judgment after trial for a beachfront owner against claims of adverse possession and prescriptive easement.
      • Represented developer of subdivision that included wind turbine as a prominent feature in action against subdivision purchasers who reneged on promises to reconfigure subdivision open space to allow for development of the wind turbine. Successfully negotiated resolution to dispute.
      • We represent high-end Boston condominiums – often mixed-use, two-tier condominiums with complicated governing documents where balancing the budgetary, operational and governance requirements of primary vs. secondary condominiums and residential vs. commercial interests requires knowledgeable and experienced counsel. Our services cover all the issues that typically affect condominiums, and we regularly counsel our condominium clients about their internal governance and operations, about the balancing of association rights versus unit owner responsibilities, about the condominium's often-contentious relationship with the declarants, developers, contractors and subcontractors who have brought it into legal and physical being, about the state and municipal laws and ordinances of its community, and about balancing the competing demands of trustees, unit owners, developers, investors, tenants, lenders, abutters and employees. Though our guidance is intended to keep our condominium clients out of the litigation process, we are not afraid to go to court and to alternative dispute resolution forums to protect our clients' rights and interests where that is necessary. Representative condominium clients that have called upon the full range of Robinson & Cole's legal services include Millennium Place Ritz-Carlton Boston, Parkside Condominium, Boston, Union Wharf, Boston, and Sierra+Tango, Cambridge.

      • Represented national public utility company in defense of environmental claims based on historic property usage.

         

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    • News
      • November 1, 2016

        Robinson+Cole Receives 34 First-Tier Metropolitan Rankings and 3 National Rankings in Latest U.S. News – Best Law Firms Survey

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        • View article
      • October 25, 2016

        Kendra Berardi Chairs Judicial Forum 2016

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      • October 13, 2016

        Kendra Berardi Elected Vice Chair of ABA Real Estate Litigation Committee

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      • July 14, 2016

        Larry Heffernan Featured in Massachusetts Lawyers Weekly

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      • December 22, 2015

        Danielle Long Elected to Membership in the Abstract Club

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      • May 21, 2015

        Boston Lawyers Speak at REBA Spring Conference

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      • March 30, 2015

        John Peloso Hosts CCIM Emergency Submarkets Strategy Event

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      • August 25, 2014

        Clive Martin quoted in Massachusetts Lawyers Weekly

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      • August 15, 2014

        Boston Lawyers Present at MCLE Real Estate Disputes Program

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      • July 15, 2014

        Boston Lawyer Participates in MCLE Webcast, Speaks to Abstract Club

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      • May 28, 2014

        Kendra Berardi Selected to Provide Commentary for Massachusetts Land Court Reporter

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      • January 24, 2014

        Kendra Berardi Elected to Board of REBA

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      • January 13, 2014

        Boston Lawyers Prepare Students to Deliver Oral Arguments

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      • October 21, 2013

        Super Lawyers® Names 61 Robinson & Cole Attorneys to 2013 List

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        • View article
      • October 9, 2013

        Boston Lawyers Appointed to ABA Leadership Positions

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      • August 16, 2013

        Robinson & Cole Receives Top Listing in Connecticut Attorney Count in Best Lawyers National Peer Review Survey

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        • View article
      • June 13, 2013

        Boston Lawyer Presents at BBA Seminar

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      • June 7, 2013

        Boston Lawyers Author Article for ABA Newsletter

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      • May 24, 2013

        Boston Lawyer Authors Article for The Title Insurance Law Newsletter

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      • March 21, 2013

        Robinson & Cole Attorneys Selected for Top Women Attorneys in Massachusetts

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        • View article
      • March 18, 2013

        Boston Lawyers Participate in MCLE Panel on Real Estate Disputes

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      • March 8, 2013

        Kendra Berardi Receives Pro Bono Initiative Award

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      • October 22, 2012

        ABA Title Insurance Litigation Committee Publishes Article by Robinson & Cole Attorney

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      • August 14, 2012

        Litigation Associate’s Article on Foreclosure Requirements in American Bar Association Newsletter

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      • May 30, 2012

        Real Estate and Title Litigation Attorneys Prevent Class Action Against Client

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      • May 18, 2012

        Litigation Associate’s Article on Court Rulings Published on American Bar Association Website

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      • March 7, 2012

        Real Estate and Title Insurance Chair Addresses What Happens When “MERS Attacks”

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      • February 23, 2012

        Attorneys Discuss Bevilaqua and Ibanez Cases at Seminar

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      • December 15, 2011

        Boston Attorneys Coach Students to “Stand Up for Your Rights”

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      • January 31, 2011

        Danielle Long Examines Massachusetts’ Ruling on Validity of Many Foreclosures

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      • August 4, 2010

        Lawrence P. Heffernan Presents on Lien Priorities at Massachusetts Continuing Legal Education Program

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      • April 14, 2010

        Robinson & Cole Attorney Chairs Massachusetts Continuing Legal Education Program

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    • Publications + Presentations
    • "Meet the Land Court Judicial Forum 2016," presented by Kendra L. Berardi, chaired the program, sponsored by MCLE New England in Boston (10/20/2016)
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      "Real Estate Litigation: Real Estate & Environmental Professional Development Plan Unit 13," presented by Danielle Andrews Long, presented at Massachusetts Continuing Legal Education program, panel chair and presenter (2/25/2015)

      "More challenges to the foreclosure process: the Massachusetts appellate courts giveth and taketh away," presented by Lawrence P. Heffernan, presented to The Abstract Club in Boston, Massachusetts (5/19/2014)

      "Resolving Common and Complex Title Issues," presented by Danielle Andrews Long, presented at Massachusetts Continuing Legal Education program (4/3/2014)

      "The 25 Critical Cases Every Real Estate, Title, Land Use, and Environmental Lawyer Must Know," at Massachusetts Continuing Legal Education seminar on real estate, title mortgage, leasing, and condominium law, presented by Lawrence P. Heffernan (3/17/2014; 1/21/2015; 2/24/2016)

      "Time When Statutes Take Effect," authored by Danielle Andrews Long, published in the MCLE book Crocker's Notes on Common Forms, ch. 24, 10th ed., 2013

      "Landlord Remedies - A Refresher in Landlord Rights after 275 Washington Street Corp., Trustee v. Hudson River Int'l LLC," presented by Lawrence P. Heffernan, seminar sponsored by the Boston Bar Association's Leasing Committee (5/29/2013)

      "Massachusetts High Court Considers Modernizing State Lease Law," co-authored by Danielle Andrews Long, Lawrence P. Heffernan, John T. Ronayne and Kendra L. Berardi, published in the ABA's Real Estate Litigation newsletter (5/20/2013)

      "Massachusetts Rejects 'In for One, In for All' in Title Insurance Claims," published in Title Insurance Litigation Committee Newsletter, authored by Lawrence P. Heffernan (Spring 2013)

      "The Effect of Eaton on Foreclosures, Third-Party Purchasers, REO Purchasers and Re-Foreclosures," at Massachusetts Continuing Legal Education's What Eaton Means for Massachusetts Foreclosure & Title Practice, presented by Lawrence P. Heffernan (7/25/2012)

      "Massachusetts Top Court Redefining Foreclosure Requirements," authored by Kendra L. Berardi, published in the Real Estate Litigation newsletter, an online publication for the American Bar Association's Real Estate Litigation Section (Summer 2012)

      "Foreclosure Issues and Curative Actions," at Massachusetts Continuing Legal Education's Resolving Common & Complex Title Issues, presented by Lawrence P. Heffernan (5/17/2012; 5/8/2015)

      "Class Certification Denied in Massachusetts Foreclosures Action," authored by Danielle Andrews Long, published on the American Bar Association's Real Estate Litigation website (5/15/2012)

      "Tender of Loss and Termination of Title Insurance Policy Obligations," at ABA TIPS Title Insurance Litigation Committee Seminar in Boston, presented by Lawrence P. Heffernan (4/27/2012)

      "Litigating Real Estate Disputes," at Massachusetts Continuing Legal Education, presented by Kendra L. Berardi, presenter on the topic of Litigating in the Land Court (2/9/2012)

      "Litigating Real Estate Disputes," at Massachusetts Continuing Legal Education, presented by Danielle Andrews Long, chair and presenter on topic of Defective Title Documents (2/9/2012)

      "Massachusetts Supreme Judicial Court Issues First Post Ibanez Decision Regarding Title," authored by Kendra L. Berardi, published in Case Notes, a publication of the American Bar Association’s Real Estate Litigation Section (2012)

      "Title Void When Lender Foreclosed before Recording Assignment of Mortgage," published in The Title Insurance Law Newsletter, authored by Lawrence P. Heffernan (12/2011)

      "A Litigator's View of Liens, Challenges to Liens, and Lien Priorities," at Massachusetts Continuing Legal Education's Understanding Lien Priorities, presented by Lawrence P. Heffernan (7/2010)

      "My Client Has a Title Claim! Is It Actually Covered by a Title Insurance Policy?" at New England Land Title Association Boston Seminar, presented by Lawrence P. Heffernan (4/8/2009)

      "Tales from the Frontlines, a Discussion of Current Claims Issues," at American Bar Association's Title Insurance Litigation Committee Spring Seminar in Seattle, Washington, presented by Lawrence P. Heffernan (3/6/2009)

      "Recent Developments in Title Insurance Law and Claims," at Massachusetts Continuing Legal Education's Real Estate Law Conference, presented by Lawrence P. Heffernan (3/19/2008)

      "Mortgage Fraud: Trends, Prevention, and Recovery," at New England Land Title Association Convention, presented by Lawrence P. Heffernan (6/21 to 6/24/2007)

      "Closing Protection Letters: The Hidden Exposure," at American Bar Association's TIPS Title Insurance Litigation Committee Seminar in Minneapolis, presented by Lawrence P. Heffernan (9/14 to 9/16/2006)

      "Court Tackles Multiple Real Property Issues: Smorgasbord of Decisions Includes Eminent Domain, Sovereign Immunity," published in Connecticut Law Tribune, authored by Edward V. O'Hanlan (9/2006)

      "The Shifting Sands of Massachusetts Beach Rights," at Real Estate Bar Association Spring Seminar, co-presented by Lawrence P. Heffernan and Thomas O. Moriarty and Edward S. Englander (5/8/2006)

      "Easements by Prescription, Public and Private," presented by Lawrence P. Heffernan, Massachusetts Continuing Legal Education's Litigating Real Estate Disputes (8/2005)

      "Surveying for Attorneys," at Real Estate Bar Association 2004 Spring Seminar, co-presented by Lawrence P. Heffernan and A. Richard Vannozzi, P.L.S., and Ward P. Graham, Esq. (5/10/2004)

      "Notice of Claims and Tender of Defense of Title Insurance Claims," at Spring 2000 Title Insurance Claims and Litigation Seminar, presented by Lawrence P. Heffernan (Spring 2000)

      "Equitable Subrogation Unsettled," published in Title News, authored by Lawrence P. Heffernan (January/February 1999)

      "Title Insurance and the Duty to Search," published in Massachusetts Lawyers Weekly, authored by Lawrence P. Heffernan (9/1997)

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