Areas of Practice

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Areas of Practice

Real Estate

 

In our real estate practice, the Firm represents commercial borrowers in acquiring, constructing and financing real estate projects. We also represent buyers and sellers in connection with residential real estate transactions and represent banks and other lenders in commercial lending transactions.

Specifically related to the purchase of residential properties we perform a title search, and prepare the title insurance policy required by the lender. We also acquire all real estate tax information from the tax collector, request a plot plan from the surveyor, calculate all closing adjustments, and prepare all loan closing documents. Our legal fee for these services will be disclosed ahead of time and you can expect the additional costs of the title abstract, title insurance, Municipal Lien Certificate, plot plan, recording costs and other disbursements. Occasionally, events such as unexpected title problems or the rescheduling of the closing may cause an increase in our fee. If this occurs, we will let you know. We request your homeowner’s insurance binder or policy and a paid receipt for the premium for the first year of ownership prior to closing. The policy must be effective on or before the closing date and must name you as the insured and your bank and “its successors and/or assigns, as their interest may appear”, as the mortgage holder. Financing commitment will indicate exactly how this language should read. The insurance coverage must be for an amount equal to or greater than the amount of the mortgage loan or indicate 100 percent replacement cost on the policy.

We will schedule the date and time of the closing with you and will advise you of the amount of funds you will need, if any, to complete this transaction. Your funds must be in the form of a certified or cashier’s check made payable to you and endorsed at the closing. After the closing, we will provide you with copies of all documentation and a complete summary of the final adjustments and costs of this transaction.

You should contact all utility companies prior to the closing so that they will transfer service to you as of the date of the closing. Also, it is a usual requirement that a seller vacate the residence and that it be left broom-clean at or prior to the closing. You have the right to re-inspect the premises prior to the closing and we strongly recommend that you do so. This inspection should be done in the presence of your real estate agent. You should call your agent to schedule the inspection.

If your new house has oil heat, you will reimburse the seller at the closing for all oil in the oil tank. The standard size oil tank is 275 gallons, but some houses have two or more tanks. Please confirm this with your real estate agent if you are not sure what size tank or tanks are present at your new house. The practice is to fill the tank within a few days of the closing and credit the seller for 260 gallons of fuel at the most recent delivery price.

ZONING AND LAND USE

Our attorneys have the experience and expertise to guide real estate developers, commercial developers, homebuilders and property owners through all types of administrative and regulatory proceedings associated with zoning and land use in Berkshire County and the surrounding communities. Understanding how land use and zoning laws apply to property or land is extremely important in any real estate decision that you make. We are familiar with the regulations that govern zoning and land use requirements and we provide counsel to our clients in preparing applications, seeking approval, and pursuing necessary appeals. A brief list of our zoning and land use litigation services includes:

    • Zoning permitting and litigation:
    • Nonconforming uses, lots and structures
    • Special permits
    • Site plan review
    • Variances
    • Challenges to standing
    • Enforcement actions

 

  • Land use litigation:
  • Adverse possession and prescriptive easements
  • Easements
  • Title disputes
  • Boundary disputes
  • Rights of first refusal
  • Actions to quiet title
  • Right-of-way disputes

Estate Planning

Your estate includes all of your assets or property which is distributed to your living relatives or heirs upon your death. Probate is the legal process in which a court oversees the distribution of these assets. The estates of people with or without wills go through probate. There are many ways to structure your finances so that significant assets pass outside the probate process.

A will can help reduce the probate period is very important for parents with children who are minors since guardian arrangements are usually made in a will. There are also several types of taxes that must be paid on an estate including: federal estate, federal gift, state estate and state inheritance taxes.

We serve clients whose needs require the full range of available estate planning techniques, including complex dispositive plans which incorporate sophisticated tax planning. We also provide fiduciary probate administration services to clients.

PROBATE ADMINISTRATION

Representation in connection with Probate proceedings including procuring appointment of the Executor or Administrator; coordination of the settlement process and assistance with (i) the marshaling of assets; (ii) payment of debts; (iii) liquidation of investments; and distribution to heirs.

Estate Taxes

Preparation and filing of all necessary State and Federal Estate Tax Returns; application of the optimal marital deduction including disclaimer planning to insure estate tax liability is reduced to the lowest extent possible; and representation in connection with IRS or Massachusetts estate tax reviewer audit.

We offer an array of services including the implementation of estate planning strategies which incorporate the use of Trusts to avoid Probate and reduce estate taxes. We also provide assistance with medicaid eligibility and asset preservation planning designed to address catastrophic long term care expenses.

Guardianships

On rare occasions where there are no family members available, attorneys at our Firm have served as Guardians for disabled and/or affirmed survivors providing assistance with financial matters, custodial care as well as oversight and review of medical treatment.

Guardianship/Conservatorship
of an Adult

If an adult becomes unable to make essential decisions about his or her finances, personal care, and medical/health due to a clinically diagnosed circumstance, the Massachusetts Probate Court is empowered to appoint a Guardian and/or Conservator for the adult. The Guardian or Conservator’s statutory duty is to make decisions that are in the best interest of the adult while applying the least restrictive structure and supporting the adult’s self-reliance and independence.

Developmental Disability and
Guardianship/Conservatorship

When a child with an developmental disability turns eighteen years old, they are now considered, in the eyes of the law, a competent adult with full legal rights to make important decisions regarding their finances, housing, health, education, and medical treatment. You as their parents are no longer able to make legal decisions on your child’s behalf or have access to their personal records. Let us educate you on available resources on developmental disability, Conservatorship and Guardianship as a protective arrangement.

Alternative to Guardianship:
A Health Care Proxy and an Advanced Care Directive

As a legally competent adult, you have the right to make your own decisions regarding your finances, medical treatment, and health care and appoint someone of your choosing to make health care decisions for you if you become incapacitated. Conversely, if you have not appointed a Health Care Agent and you become incapacitated, the Massachusetts Probate Court is empowered to appoint a Guardian to protect your independence and make personal and medical decisions that are in your best interest. The execution of a Health Care Proxy while still competent can be an empowering alternative to the Guardianship process.

Personal Injury

Everyday we are placed in situations where we can get hurt. Sometimes it is a matter of being in the wrong place at the wrong time. In some instances someone may be legally responsible for your injuries. Someone can be held liable only if it can be proved that there was negligence. Personal Injury Law has become a much criticized area of the law. The courts are burdened with suits against individuals, companies, cites and large corporations.

When a person is injured, the amount of damages he or she is entitled to depends on the extent of the injuries, economic losses due to the injury, proof of negligence and what else contributed to the injury. Damages may be awarded by a judge or jury, but most are settled out of court through negotiations.

Martin & Oliveira, LLP received two of Berkshire Counties largest jury verdicts, involving automobile negligence. William E. Martin has extensive experience with personal injury cases. Martin & Oliveira, LLP stand ready to help when you or a loved one is hurt.

Employment Law

Employers are now held liable for the sexual misconduct of their employees. Sexual harassment in the workplace is unlawful and it also unlawful for from someone to retaliate against an employee who has filed a complaint. Each business must develop and maintain a policy pertaining to sexual harassment and it must be distributed to every employee.

Either a male or female can be the harasser and the victim does not have to be of the opposite sex. The harasser can be a supervisor, co-worker or even a non-employee who is working in the same area as the victim. The definition of sexual harassment is defined as any un-welcomed sexual advances in return for advancement or employment.

Department of Unemployment Assistance Claims –

The Department of Unemployment Assistance (DUA) administers the Unemployment Insurance program, providing temporary assistance to unemployed Massachusetts workers.

Eligibility – Generally, benefits are available for eligible workers who have become unemployed through no fault of their own, and who are able to work and are actively looking for a job. Specific earning eligibility standards must be met and are available through the DUA.

If you are fired -Massachusetts General Laws, Chapter 151A, governs the unemployment insurance program. According to the law, you may be eligible if you were fired for poor performance. However, if your employer is able to show that you were fired for deliberate misconduct or violation of a company rule, you may be disqualified.

If you quit your job -According to the law, if you left your job voluntarily with good cause (attributable to your employer) or for an urgent or compelling personal reason, you may be eligible. However, you must meet all the requirements of the law, including being able to work if a job were offered to you. If you are disqualified for any reason, you have the right to file an appeal, and to be represented by a lawyer.

Claim Appeal Process –

If you have been disqualified from collecting unemployment insurance (UI) benefits, or if there is a determination that affects your claim, you have the right to request and be granted a hearing.

In most cases a hearing will be the only opportunity you have to personally present evidence in support of your claim for UI benefits. The review examiner, the person who conducts DUA hearings, will base the decision solely on testimony and evidence presented at the hearing. Therefore, it is important for you to prepare thoroughly for your hearing so that you can present the best possible case to support your claim.

At your hearing, you have the right to be represented by a lawyer.

Business Litigation

No business person wants anything to do with litigation. Paying lawyers and going to court is almost always a distraction from what your business is all about.The unfortunate truth is that businesses sometimes have to protect their interests by either suing or defending against a lawsuit. As with most things in life, the best time to deal with possible lawsuits is before they happen.

First, pay attention to your own instincts. If a deal looks too good to be true, a thorough examination of the legal issues that may be attached to that deal may give you the information you need to make a good decision.

Second, act fast. Having a relationship with a lawyer or law firm that enables you to get the answers you need when you need them saves time, worry and, in the long run, money. If you are worrying that you might need a lawyer, you probably do, even if all the lawyer ends up telling you is that you are ok.

Third, get a lawyer that has done it before. While the combined experience of the lawyers here at Martin & Oliveira, LLP is broad and substantial, we do not hesitate to bring in specialists if that is what our client’s need to deal with a particular legal issue. After all, a law firm is a service business.

We at Martin & Oliveira, LLP have assisted hundreds of business and business people over our more than 50 years. We can help your business avoid the legal bumps in the road, run more smoothly and make you more money. Call one of our business litigation attorneys today. There is no charge for the initial consultation.

Civil Litigation

People and businesses sue each other for a tremendous variety of reasons. Some examples come immediately to mind: someone hurt in a car crash suing the other driver; a plumber suing a customer for not paying the bill; a dispute between neighbors over the property line. Lawsuits are never fun. However, sometimes they are necessary. Please note that what is being discussed here does not include criminal cases, divorce or paternity cases, and modifications thereof, and certain specialized areas of the law, such as worker’s compensation or intellectual property cases. Those types of cases are discussed elsewhere on this web site.

Divorce Law

Divorce, and issues that can arise after a divorce, are always emotionally difficult and can be legally complex. Often, divorcing couples can work out the important issues, gather the information required by the courts, present an agreement to the court and be divorced in just a few months with a minimum of emotional trauma. Sometimes coming to terms on the issues that are part of any divorce can take a substantial amount of time and negotiation. In a few cases, the parties cannot come to terms and court must settle things at the end of a trial.

Other situations involving family relationships also have a legal dimension that cannot be ignored. The law has evolved to the point where the parents of children born outside of marriage have the same rights, and the same responsibilities as married parents. The courts continue to broaden the recognition of some property and support rights in longer term non-marriage relationships. Many states, Massachusetts included, seem poised on the brink of recognizing some form of same sex marriage like relationship. New reproductive technology is redefining the traditional legal concepts of parent child relationships, adoption and parental responsibility.

We are prepared to help our clients navigate the sometimes confusing and always emotional landscape of divorce and family law with the experience, legal skills and compassion that will enable our clients to chart the best course to a fair and equitable conclusion.

Landlord/Tenant

Our firm is one of Berkshire County’s most experienced law firms in Landlord-Tenant litigation. We represent an array of clients who manage both hundreds of apartment units in Massachusetts and just one apartment unit in Massachusetts. We have experience successfully litigating in both District Court and Housing Court. Over the past fifty three years, our firm has represented countless landlords and tenant evictions (also known as summary process actions) involving:

– tenants’ Sanitary Code claims
– tenants’ retaliation claims
– tenants’ Consumer Protection claims
– tenants’ defective premises claims
– tenants’ housing discrimination claims; and
– tenants’ lead paint and lead paint discrimination claims

We have brought evictions for numerous reasons, such as:
– evictions of former owners of foreclosed property
– evictions of former tenants of foreclosed property
– evictions for nonpayment of rent or for cause
– evictions of market-rate tenants for failure to pay rent
increases; and
– evictions of subsidized tenants

Bankruptcy

Bankruptcy is a process governed by federal law and a bankruptcy court. It is intended to help people when they are not able to or willing to pay their debts. Bankruptcy is an option to help a debtor gain control of his or her financial situation.

 

Bankruptcy can also help a creditor recover some or all of what is owed to them. Creditors are notified when you have filed a bankruptcy petition. As part of the Firm’s creditors’ rights and bankruptcy practice, we represent banks, secured and unsecured creditors, borrowers and debtors in a wide variety of financial transactions including individual and corporate bankruptcies. We have renegotiated troubled loans on behalf of lenders and borrowers, and represented clients in the sale or acquisition of distressed businesses. William Martin has extensive experience in foreclosures, secured party sales and other collection actions.

Criminal Law

Being accused of a crime is a frightening thing. Being found guilty of a crime can result in jail time and/or a range of lesser punishments. It is important that everyone know their rights and what they should or should not do if arrested or charged with a crime.

A person can be accused of a crime in a number of ways. A person can be arrested, summonsed to court for a show cause hearing, summonsed to court for arraignment on a complaint or summonsed to court for arraignment on an indictment.

What should you do if you are arrested? First and foremost, do not resist! Under proper circumstances the law gives the police the power to arrest on the spot. You have the right to remain silent. You also have the right to a talk to a lawyer before answering any questions. If the police start to ask you questions, politely ask to see a lawyer. If you cannot afford to hire a lawyer, the state must provide one for you.

If you receive a summons to go to court for an arraignment, be five minutes early. If you are going to be late, call the court and tell them before the time you were supposed to arrive. Dress in clean, conservative clothes. A suit and tie is not required. However, the more formal your clothing is, the better. No jewelry beyond a basic watch, wedding and engagement rings.

Collections

Whether you are trying to collect from someone or someone is trying to collect from you, there are rules that must be followed. Collection agencies are not allowed to harass, abuse or oppress anybody in connection with collection of debt. In fact the federal Fair Debt Collection Practices Act and state laws impose stringent rules under which collections of debt can be attempted. Obscene or threatening language can not be used and the collector can not pretend to be the government and falsely imply that a crime has been committed. Any debt collector who does not comply with the law is subject to civil liability.

The Fair Debt Collection Practices Act protects debtors who are being pursued by a third party collection agency or law firm. The federal restrictions do not apply if the creditor is pursuing you directly. However, you may be protected by state laws. William E. Martin can help you either collect or ensure you are being treated fairly.

Social Security

Applying for and, if necessary, appealing a denial of social security benefits can be confusing and frustrating.

Our attorneys can assist you from initial application to and through hearings and appeals. We can help you get the benefits you deserve.

Business Transactions

Our business practice includes representation of corporations, partnerships, limited liability companies and sole proprietorships. We represent clients in connection with the selection and creation of appropriate business entities as well as with respect to asset sales and purchases, mergers, stock buy-outs and in the sale or liquidation of their businesses. The Firm’s clients include retailers, wholesalers manufacturers and representatives from the service industry, including medical professionals, as well as non-profit agencies in an array of business transactions. The Firm represents clients in structuring tax-sensitive transactions and in proceedings before the IRS and the Massachusetts Department of Revenue.