Dirt Law: Real Estate and Land Use Litigation

Kyle McEntee:

We're joined today by Don Pinto, a real estate litigator who represents owners, buyers, and sellers of properties in dispute. About half your practice is working with real estate developers. In other words, a person or company trying to build something that is running into obstacles. What are some examples of these obstacles?

Donald Pinto:

Massachusetts, I think it may be a unique ecosystem for real estate development in that we have a very strong tradition of what's called home rule, meaning the local cities and towns have great sway over what happens within their boundaries. And over the years, the cities and towns have gotten very sophisticated about using their home rule power. So, for example, any given piece of real estate, if somebody wants to build a small housing development on it, you have to go through the local zoning board of appeals and comply with the zoning bylaw, which over the years has become a thick manual of many hundreds of pages and many thousands of provisions.

If you're subdividing the land, there's subdivision control law. It’s got its own set of regulations to comply with, and you deal with the planning board. If there are any wetlands on the property, you have to deal with the local conservation commission. If you have any historic or old, simply old buildings on the property, you probably have to go through the local historic commission. So kind of a gauntlet, almost amazing that anything gets built in Massachusetts.

Kyle McEntee:

So, when you are trying to help people build things, are you focused at all on the individuals on these commissions and kind of what motivates them to create those gauntlets? Or is it much more of whatever it is in front of you, you're just going to tackle it and not pay much attention to any of the motivations?

Donald Pinto:

I would say the clients are the front line in terms of dealing with the local board members and their motivations. And often I work with a local attorney who knows the city or town, knows the personalities, knows many, if not all of the board members. So, we rely on their local intelligence and also being kind of the front line for dealing with the boards.

Where I step in is typically when something has gone awry at the local level, a permit is granted and an abutter to the property appeals the permit or the permit is denied, in which case we appeal to court and challenge the denial of the permit.

Kyle McEntee:

So before that stage of getting to appeal to the court, are you involved at all in these local presentations to these municipalities?

Donald Pinto:

When we can sense that there's going to be an appeal down the road, I'll participate either as an observer or just sitting by with the client so I can make my own assessment of the board members, what is motivating them, what's concerning them, what's not concerning them, which helps me when we do get to court and evaluating the quality of the decision that the local board made and where it can be attacked.

Kyle McEntee:

Does any part of you consider yourself a lobbyist? Because a lot of the lobbyist interviews we've done have said something very similar.

Donald Pinto:

That's one way of looking at it, but it's really the client and a good client who wants to build something will do tons of outreach in advance, will go meet with each neighbor to the property individually, find out what's on their mind, what's concerning them, try to nip in the bud any potential opposition. That's not always possible. In fact, it's often impossible, but they certainly try and it's good practice and makes my life easier.

Kyle McEntee:

Sounds like you're just deliberately not standing in front of the crowd trying to persuade, which is kind of what you think of when you think of a litigator.

Donald Pinto:

Right. The crowd I persuade is in court and it's usually a judge.

Kyle McEntee:

How do you know when it's time to go to court?

Donald Pinto:

Well, at the conclusion of the local process, which again can involve multiple boards, multiple hearings, and then multiple permits in order to build something. It's when a permit is either issued or denied that triggers an appeal period. They're fairly short fuses. For a zoning permit, whoever wants to appeal has 20 days to file in court that appeal.

Kyle McEntee:

So you actually practice in Boston primarily, right? So you're like a Boston guy and maybe these local municipalities don't want the Boston guy swooping in. Does that come into play here?

Donald Pinto:

It does come into play. I mean, my cases involve property all over the state of Massachusetts. The court I practice in most frequently is called the land court in Boston. So even if I have a case involving, as I often do, land on Nantucket Island, cases are often brought in the land court in Boston and most of the case takes place in Boston.

If a case goes to trial, the courts are very good about holding at least a day or two of the trial in the location where the property is located so that local witnesses aren't burdened by having to schlep into Boston to testify. But there's certainly a sense that in a local community that has their own books of rules and regulations and are very concerned about their community and the impact of a given project on the community, they'd rather not see me coming in from Boston and taking the lead trying to persuade them that this project is great for the community.

So that's where we often rely on a local well-known face in terms of local counsel who takes the lead at the board level.

Kyle McEntee:

It really goes to show it's all about the outcome. You don't need the credit. You don't need the face. You just need to get it done. So, this land court in Boston, I'd imagine that it runs differently than a traditional court that has cases of all varieties coming before it. Have you experienced that difference?

Donald Pinto:

There's a huge difference in that the land court does essentially one thing, which is real estate cases. So the judges are schooled in all manner of real estate issues. It's a real specialty court with great expertise. The judges are excellent. A lot of them come from the background of having been real estate lawyers themselves. So it's the place I want to be unless I have a terrible case, in which case I might be better off in the superior court, which is our trial court of general jurisdiction.

Many of the cases that involve property can be brought in superior court as well as the land court. But the land court is usually my choice just because you know you're going to get a good fair hearing by somebody who knows what they're talking about. The other good thing about the land court is that your case gets assigned to one judge who keeps the case through its duration. In superior court, we have in Massachusetts a rotation system. So your case is in a session and there might be a judge in that session for six months. And then that judge leaves, a new judge comes in. So in the middle of the case, sometimes you're introducing the case to a new judge, having to educate that judge really from square one about what the case is about. Whereas in the land court, it's much more efficient and that one judge keeps the case for its entire lifespan.

Kyle McEntee:

I can definitely see how it would be more efficient to have the expert ruling over the court. But I could also imagine that they might be interested in getting bogged down in the details because they're so familiar. Do you see that at all happening with the judges?

Donald Pinto:

There are a few judges who are somewhat notorious for getting way down in the weeds and sometimes kind of missing the forest for the trees.

Kyle McEntee:

What do you do to pull them out of it? Especially if it's not going to be helpful to your client for them to be in the weeds?

Donald Pinto:

There's not much you can do when you're in that situation except try to ride it out and get down in the weeds with the judge and then try to lead them out of the weeds and focus them back on the bigger picture that favors your position. So it's a challenge, but you have to make the best of it. That's something you can only learn through experience and over the years you accumulate that wisdom and judgment of how to behave, how to do things in a particular court, the way they want to do it and the way they've always done it.

Massachusetts is the only state in the United States that has this type of specialty real estate court. So people who weren't used to being in the land court who come in from outside, who are used to practicing in Superior Court, don't know the kind of unwritten rules and protocols and culture of the land court, that's important too.

Kyle McEntee:

The other half of your practice is representing high net worth individuals with high value properties in places like Nantucket, Martha's Vineyard and Cape Cod. You know, the places with sweeping views and pristine shorelines that you see in the movies. What are some of the issues you deal with when a property in a location like Nantucket is involved?

Donald Pinto:

Nantucket in particular has some interesting and unique property issues because the island is eroding on the south side. So that creates a whole package of issues. There are beaches that people have ownership of, at least up to the low tide mark. Sometimes the beach erodes away, and you no longer have a beach. There was a case on Martha's Vineyard where the beach could be shown to have moved from in front of one property to in front of the other property and someone had title to the beach. And there was a big fight about whether they still own the beach, which was now adjacent to their neighbor's property.

On Nantucket, there's a ton of cases involving access to the beach. There are old paths that meander over multiple properties that people have used for a hundred years, but somebody new comes to town, buys the property and puts up a fence. Suddenly the neighbors, the community who are used to using this path to the beach are shut out and they're unhappy about that. So they may go to court.

Somebody may build a house within the view of their neighbor who likes to look at the ocean and suddenly there's a structure in their way or partly in their way. Sometimes it's just as simple as a boundary dispute. Somebody buys a property, there's a stone wall that they believe marks the boundary between them and their neighbor. But in fact, the actual property boundary is 10 feet on one side or the other of the stone wall. So then you get surveyors involved and try to sort out where the actual boundary to the property is.

Kyle McEntee:

At what point are you actually brought in?

Donald Pinto:

In those cases, I'm usually brought in fairly early. People have conversations with their neighbors. Somebody puts up a fence, blocks a path, starts building a house and time is of the essence. So I would probably get the call sooner than later to get involved and always try to work those out without going to court because these are in many cases neighbors. These are vacation homes for the most part. The last thing you want to do when you go to relax at your vacation home is be growling at your neighbor when you go out to the end of the driveway to get the newspaper or whatever. So it kind of amazes me how willing some people are to go to war with their next-door neighbor in their vacation community. But they do and that, in part, keeps me in business.

Kyle McEntee:

What does the conversation look like when you're counseling your clients to either let you file an injunction or have that initial conversation? Because as you said, time is of the essence and maybe the crane is already there.

Donald Pinto:

There are times when I have to rush into court and ask for an injunction. Judges overwhelmingly want to preserve any kind of longstanding status quo. So whoever is disrupting the status quo usually is going to lose in the injunction motion. The judge is going to try to preserve things as they've been, at least temporarily, until they can sort out what's going on in the case and what the facts are and what the applicable law is.

Kyle McEntee:

What's the prep and paperwork look like on an injunction like that?

Donald Pinto:

Well, if it's a true emergency, the paperwork is pretty sparse, and judges understand that. If you're going in for a temporary restraining order because the crane is there, a wrecking ball is swinging or somebody's got a chainsaw and is about to cut down a tree that they think is on their side of the boundary, but the client thinks it's on their side of the boundary, you can run into court on very short order, short notice and get a temporary restraining order, which lasts for up to ten days.

Basically need a short affidavit from usually the client, just attesting to a few of the key facts and why it's important for the court to step in urgently to preserve the status quo. And then the next step is a preliminary injunction, which is a more developed record with a little more time to prepare. And then the judge decides how it's going to be for the duration of the case one way or the other.

Kyle McEntee:

So you work out of Boston and you charge Boston fees. What happens when someone meets with you and can't afford the sticker price? Do their issues just not get litigated?

Donald Pinto:

I'd say it's a sliding scale for people who hire me in downtown Boston, having to charge downtown Boston rates to pay our downtown Boston overhead and office space and such. I get one level of case, but the same thing that motivates the wealthy people to fight with each other also motivates less wealthy people to fight with each other. And so there are lawyers who do essentially what I do, but at a lower hourly billing rate for those other people who couldn't afford me but could afford a local attorney.

It's not a huge bar in Massachusetts, kind of a nice collegial bar. So I feel like I know most of the people who do what I do. And if I get a case and I talk to the client and say, well, gee, my billing rate is X hundred dollars an hour. And they say, oh, geez, I wasn't expecting that. I have people who I know I can refer the case to who will do a great job for that client at a lower hourly rate.

There certainly are people who can't afford any lawyer at any level to go into a court case that could take a year or two and cost tens of thousands of dollars. But there's a lawyer for just about every client.

Kyle McEntee:

You're referring them clients from time to time. Are they ever referring you clients because you've got a different set of experiences?

Donald Pinto:

Absolutely. A lot of my clients come from referrals, often from solo practitioners or small firms that just aren't geared up to do a major years-long litigation. So those are some of my best referral sources are excellent local lawyers who have real estate closings to do and wills to draft, and they can't get bogged down in a long, intensive court case. So they would give me a call.

Kyle McEntee:

So I think one of the interesting things about your work is that you encounter some really fun research opportunities occasionally. So Massachusetts has been a colony since 1620, and the British legal system has influenced that colony and subsequent territories. What's an issue that might require you to go back and reference these old documents?

Donald Pinto:

Just about any case where there's a dispute over title to property, sometimes there's a misunderstanding about who owns the property. And to figure out whether your client owns the property or somebody else owns the property, you have to go back in time. And sometimes you have to keep going back through the 1900s into the 1800s, sometimes into the 1700s, and occasionally all the way to the 1600s to fully examine the title from the beginning.

Sometimes it literally goes back to the Massachusetts Bay Colony and grants from the King of England, especially with waterfront property. That generates a lot of controversy. And some of the rules go back to the 1640s when it was decided that in Massachusetts, private owners could own shoreline property down to the low watermark. And where the low watermark is, which changes on a daily basis, is a source of great controversy of how you measure that. As a result, any coastal property can give rise to some fascinating legal issues that require digging back through old dusty books.

Now a lot of the research is online, so it's kind of a new world for real estate lawyers to be able to sit at their desk and go onto the Registry of Deeds website and find those documents that you used to have to trip to the Registry of Deeds and find the right book and pull it off the shelf and sit at a table and flip through kind of crumbling pages. But the issues are still the same.

Kyle McEntee:

So when you're reading these old documents, you're developing some kind of theory that you're trying to bring to the modern day, bring to a judge and convince that judge that your theory is correct. Are you looking at theories that were applicable back then, or is it just taking some record and trying to squeeze it into the way judges are ruling today?

Donald Pinto:

Pretty often you're citing law that goes a long way back. Some issues, you know, were heavily litigated in the 1800s and don't come up anew in the modern day very often. So sometimes my briefs will include case citations from the 1800s because that's the last time the state Supreme Court really dug into that particular issue.

Ideally, you have something fresher than that, some court from at least the 20th century that has looked at the old law and then refreshed it and confirmed it and applied it to a different set of facts that were in front of that court at the time.

Kyle McEntee:

So I'm pretty sure I know the answer to this question, but this research seems to excite you a lot?

Donald Pinto:

Oh, it does. Yeah. You know, legal research in general, just, you know, reading cases in different fact patterns and figuring out how you can extract from that case some nugget and then turn it to good use in the case that you're arguing to the court. To me, it's kind of artistry.

And then there's the historical aspect. It's just fascinating to read some of the old deeds and other old historical papers. A lot of them are handwritten, so that's a bit of a challenge. You can't just breeze through them. It takes some time to even decipher them, but it's a fascinating window into the past.

Kyle McEntee:

A lot of what you just described would be probably properly described as pre-trial work. Does the trial component or motion practice, does that excite you in the same way?

Donald Pinto:

It does, because in motion practice, in a lot of my cases, there aren't a lot of facts in dispute. So a lot of my cases are resolved on summary judgment. In the land court, it's a pretty rigorous requirement in terms of what you need to file to even be in the ballpark to get summary judgment from the court.

You've got to file a very detailed brief, a statement of undisputed facts. Every fact that you cite has to have a document in an appendix that supports that fact. So it's quite an undertaking to move for summary judgment.

And then in the land court, particularly, you get a real detailed hearing. The judges read the papers in advance. They understand the issues, and it's a lively give and take at the summary judgment argument. Some of those arguments go for an hour plus, depending on the complexity of the legal issues.

I enjoy preparing for trial as well. A lot of my cases will involve expert witnesses. If it's a real estate title case, you have an expert title examiner. If it's a development case, you'll often have a traffic expert, a civil engineer, a noise expert, whatever the municipality or the neighbors are concerned about. Sometimes there are wetlands issues. So you have a hydrogeologist or an environmental consultant to talk about those kinds of issues.

So the trials are fairly technical. The testimony is technical. I enjoy that too. I learn a lot because to properly conduct that kind of trial, you have to become an expert yourself to be able to effectively examine your own witness and certainly to cross-examine the opposing expert. You have to know the discipline and know what questions to ask and how to ask them.

Kyle McEntee:

We just described a whole lot of things you need to know. How do you come up to speed so that you can actively engage with those experts?

Donald Pinto:

You just have to grind away. It takes many hours over the course of many weeks in advance of trial, and you need good cooperation from the witnesses. Some of them would prefer to just kind of stroll in and be Mr. Expert and think they can handle themselves and they know everything about their discipline. Sometimes it's a challenge to kind of get through that ego and get them to really put in the work to truly be prepared both for the direct examination and the cross-examination.

Kyle McEntee:

Is all that billable?

Donald Pinto:

All my trial preparation is billable, and the client also gets a bill from the expert, you know, whatever, $100 an hour or so. It's an expensive proposition.

Kyle McEntee:

You've been working in property law from the beginning of your career when you started clerkship. Was this practice area on your radar when you started law school?

Donald Pinto:

Not when I started but soon after because I had a first-year property professor who was excellent and kind of lit the fire in me for property law. My other potential career was in trademark law. I was very interested, always have been, in advertising and marketing and so I kind of gravitated toward some of the intellectual property courses in law school. I guess it was going to be property one way or the other. Turned out to be real property because after I graduated, I got the clerkship at the land court and then really got steeped in real estate and land use law.

Kyle McEntee:

Is that the kind of real estate work you envisioned doing?

Donald Pinto:

It is, yeah. There's a whole other world of real estate law that involves real estate finance and real estate investment trusts, the whole finance end of it, which I have never been involved in and don't really have much interest in. I'm what we in Massachusetts call a dirt lawyer. You know, the law that applies to land, use of land, ownership of land. That's what interested me starting in law school and that's where I've spent my career.

Kyle McEntee:

So after you finished your clerkship you started at a smaller New England firm focused on real estate that was at the time the go-to referral for big firms in Boston. What does that mean?

Donald Pinto:

When the firm started, that firm, it was 100 years ago, real estate didn't have nearly the value it does now. So some of the big white shoe firms, and this is probably the same way in other cities, but in Boston, the Ropes and Gray, the Hale and Dorr, Goodwin Procter, it was not profitable for them to have real estate lawyers on staff to deal with land, which had comparatively little value at the time. So they tended to farm those cases out to my former firm, which was the go-to recipient of referrals for real estate cases for decades.

And then sometime around the 1960s or 70s, when real estate values started to increase rapidly, those other firms started to develop their own capacity for real estate law and the referrals slowed down. And my former firm at the same time diversified beyond real estate and trust in estates, which are really the two main focuses of the firm and developed a corporate department and litigation department and had to diversify to make a go of it.

Kyle McEntee:

So you were there for 27 years, which is a long time. What made you realize it was time to look for a new opportunity?

Donald Pinto:

It was a long process of trying to get the firm to move in a different direction, somewhat of old school management and the people who were running the firm were doing very well personally, to the detriment of the firm as a whole. In other words, they were not investing in the firm, in marketing, growing the business of the firm. They were kind of focused on their own individual practices, which were very lucrative for them.

So there was some tension between that group and the younger group, which at the time I was actually in the younger group, and we all loved the firm and I loved our colleagues. And so we spent a long time trying to make it work and trying to push some changes and eventually realized it was just not going to happen in our lifetimes. So myself and a couple of my colleagues came to my current firm, Pierce Atwood. Many of the other lawyers over the years kind of frittered away to other firms and the firm shrank and then was recently absorbed by another Boston firm and so no longer exists under its former name.

Kyle McEntee:

The legal world's shifting and if you don't keep up, you get swallowed up, I guess.

Donald Pinto:

Yeah. When I was first starting out, the old school, old line, white shoe Boston firms had all been around for a hundred years. And it was in my first 10 years of practice that some of those firms started to go under.

And when the first few happened, it was really like a bomb going off. People couldn't believe that X firm or Y firm was no longer in existence after being just such a mainstay of the Boston legal community for the prior hundred years. But that trend just accelerated and now it's not as shocking when firms go under.

Kyle McEntee:

So this process was pretty long. How did your experience at this first firm help you decide that the next firm, your current firm was actually the right place?

Donald Pinto:

Part of it was the compensation system at the former firm. It was a fully open system. So at the end of the year, you'd get a spreadsheet showing everybody's name, everybody's billable hours, everybody's revenue. And then at the final column on the far right, everybody's compensation for the year. And that led to an enormous amount of recriminations and jealousy and people questioning how a distinction could be made between them and the next person closest to them in terms of revenue generation for the firm. So basically the last two months of the fiscal year, everybody was in a tizzy. Hard to focus on your practice because everybody was kind of just diving into the spreadsheets that were being circulated and kind of fighting for themselves and their comp, making arguments, why they're entitled to more, why they're being treated unfairly.

And my current firm has the exact opposite system in that it's a black box compensation system where our managing partner makes all the decisions in consultation with the management committee. So it eliminates all of that consternation and concern and professional jealousy among the partners. Nobody really knows what anybody else makes and everybody's very happy that way. Everybody feels treated fairly and it's a kind of a non-event. It's just generally a happy occasion when he comes to visit at the end of the fiscal year and lets you know how you did and what your compensation was.

Kyle McEntee:

It's a little ironic, right? You would think transparency would foster trust instead of breeding mistrust and as a black box approach would have the opposite effect.

Donald Pinto:

You would think that, but my lived experience is that it's exactly the opposite, at least in a small to mid-sized firm where you know everybody, and you have a good idea of what they do and how they do it. And then it's very hard to their credit, the people who are making those decisions, I think we're trying to do the right thing, but it's very hard to draw all those lines between individuals. You know, your colleagues, professionals telling somebody that so-and-so's contribution was worth, you know, this much more to the firm than your contribution was worth.

And again, the people who were making those decisions tended to do very well, coincidentally. The people who were not making the decisions didn't do nearly as well. That led to a lot of tension and again, people frittering away from the firm over the years just out of frustration and feeling like they could do better in a different environment.

Kyle McEntee:

So let's talk a little bit about your compensation, not the amount necessarily, but one thing you said I think might stick out to people, which is the end of the year comes and you figure out how much you made. Are you taking a draw throughout the year? How are you getting paid on a monthly or whatever frequency basis?

Donald Pinto:

I don't know if this is universal, but I think it's almost universal, at least in the Boston market, that you get a draw, a monthly draw, and then everything gets reconciled at the end of the year. Hopefully, you know, you've earned more than your draw. It'd be a very unfortunate situation if you didn't, and either they call it even or, you know, I guess in the worst-case scenario, you might actually owe some money back to the firm if you've overdrawn based on your performance. Thankfully, I haven't been in that situation, but that's generally how it works.

Kyle McEntee:

You also spend quite a lot of time doing real estate related pro bono work. What are some of the types of clients that you work with?

Donald Pinto:

I've worked with one particular client on two very long projects that went on for years. It's a nonprofit based in Springfield, Massachusetts that's been around since the 1970s, and they develop affordable housing. We have a law in Massachusetts called Chapter 40B that's intended to promote affordable housing, and you can get special dispensation and you can override some local regulations if you build a project under the statute, and the requirement of the statute is that 25% of the units have to be affordable.

So a lot of developers use that and build a project of 100 units, you get 25 units of affordable housing, 75 units of market rate housing. But they felt that that was necessary to get any affordable housing built, was to give the developers an opportunity to make a profit on the market rate units. The client I've represented pro bono is unusual in that it's a nonprofit itself, and it builds 100% affordable housing projects. So I found that very attractive, their model, in terms of my pro bono involvement.

Anytime anybody proposes an affordable housing development, there's going to be opposition, sometimes fierce opposition from the community, particularly the immediate abutters and the neighbors, sometimes all the organs of the town, all the agencies, everybody is kind of uniformly opposed. So this particular client couldn't build its projects if it had to pay a lawyer at market rates to engage in rough and tumble litigation for years, which is what turned out in both of these projects I'm talking about.

The first one was in Amherst, Mass. The town itself, being Amherst and being a liberal-minded town that actually wanted more affordable housing, so this was an unusual one where the town government was largely supportive of the project, but the neighbors to the property certainly weren't. Some of the neighbors were lawyers, and so kind of led the neighborhood group. They got a very persistent local lawyer who knows real estate and land use law himself to represent them, and it was a pitched battle for, I think it went on for five plus years, generated four different court cases, two in the land court, one in superior court, one in the housing court.

We went up to the appeals court, which is the Massachusetts intermediate level appellate court, twice, and then one of the cases went to the state Supreme Court and resulted in a fairly important decision that has been cited many times since on how the Chapter 40B, our state affordable housing law, works in a situation like we had in Amherst.

I took a break for a few years and then got involved in another project of theirs in Ludlow, Mass., similar except that the town was mortally opposed to the project as well as the neighbors. That resulted in a couple of cases and went on for four plus years. We prevailed in that one as well, so it's a good feeling to be able to go to the project and see families living in these affordable housing units that you know you were instrumental in making happen, and that probably wouldn't have happened if the client had to pay a lawyer at market rates for representation in that kind of litigation.