Safety

Under a new Massachusetts oil heating law which went into effect on September 30, 2011, every homeowner with an oil heating system is required to install an oil safety valve or an oil supply line with protective sleeve in their system. The cost is approximately $150 to $350 depending on the system. The required upgrade is to prevent leaks from tanks and pipes that connect to your furnace. The upgrade will reduce the risk of an oil leak so by making a relatively small expenditure now, you can prevent a much greater expense in the future.

Who Must Upgrade?

Owners of 1- to 4-unit residences that are heated with oil must already have or install an oil safety valve or an oil supply line with a protective sleeve. Installation of these devices must be performed by a licensed oil burner technician. Technicians are employed by companies that deliver home heating oil or are self-employed. It is important to note that heating oil systems installed on or after January 1, 1990 most likely are already in compliance because state fire codes implemented these requirements on new installations at that time.

Who Is Exempt?

Homeowners are exempt from taking these leak prevention steps if:

  • the oil burner is located above the oil storage tank and the entire oil supply line is connected to and above the top of the tank OR
  • an oil safety valve or oil supply line with protective sleeve was installed on or after January 1, 1990, AND
  • those changes are in compliance with the oil burning equipment regulations; a copy of the oil burner permit from the local fire department may be used to demonstrate compliance.

Why Comply?

Not only is complying with the new law required, it makes good financial and environmental sense. Homeowners who take these preventive measures can avoid the disruption and expense that can be caused by heating oil leaks. A leak may result in exposure to petroleum vapors in your home. If the leak reaches the soil or groundwater beneath your house, then a cleanup must be performed to restore your property to state environmental standards. Such a leak can cost many thousands to clean up. Leaks that affect another property or impact drinking water supply wells can complicate the cleanup and increase the expense. Each year, several hundred Massachusetts families experience some kind of leak.

What will an upgrade cost?

The typical cost of installing either an oil safety valve or oil supply line with a protective sleeve ranges from $150 – $350 (including labor, parts, and local permit fees).

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Richard D. Vetstein, Esq. is an experienced Massachusetts real estate attorney. Please contact him if you need assistance with a home purchase or sale.





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Post image for From Asbestos to Radon: The Massachusetts Home Inspection Process, A Legal Perspective

The home inspection is one of the most critical aspects of every Massachusetts real estate transaction. Virtually every buyer in a standard purchase transaction (meaning not a short sale, foreclosure, or bank-owned property) will opt to perform a home inspection, and for good reason. You need to know whether there are any serious structural, mechanical or other defective conditions in the home before you close.

As always, I’m going to focus on the legal aspects of the home inspection as it impacts the overall transaction.

Buyer Beware

Let’s start out with the legal framework for what, if anything, a seller and his real estate agent are required to disclose to a prospective buyer. Surprisingly to most buyers, a private seller has no legal duty in Massachusetts to disclose any type of information, good or bad, about the property (except for the presence of lead paint). This is called caveat emptor, or buyer beware. Real estate agents stand on a heightened legal footing. Under Massachusetts consumer protection regulations governing real estate brokers, a broker must disclose to a buyer “any fact, the disclosure of which may have influenced the buyer or prospective buyer not to enter into the transaction.”

Nevertheless, I always advise buyers not to rely or trust anything the seller or his/her agent says about the property. This is exactly the reason why most buyers will choose to get an independent home inspection.

Inspection Contingencies

The standard form Offer to Purchase (click for form) will include several inspection related contingencies: the general home inspection contingency, radon, lead paint, and pest contingencies. The buyer typically has between 5 and 10 days to complete these inspections. If the inspections reveals any problems requiring repair or remediation, the parties will negotiate repairs during this inspection period, and the agreement will be reflected in the standard purchase and sale agreement or sometimes a separate repair agreement which is signed around 14 days after the accepted offer. Typically, the Realtors do the heavy lifting on home inspection negotiations, and by the time it gets to the attorneys, there is an agreement in place.

The attorneys can craft the language for repairs. I always insist that repairs are performed by licensed contractors with evidence of completion provided prior to or at closing. Also, buyers should know that repairs provided in the purchase and sale agreement may trigger a second property inspection by the lender’s underwriters which could add another layer of oversight into the deal.

If the problems are so serious that the buyer wants to walk away from the deal, there is a mechanism for where the buyer provides notice to the seller and a copy of the inspection report. It’s very important to provide proper notice in order to get the buyer’s deposit returned. An attorney should be consulted for this situation.

Home Inspector License Requirements

Since 1999, Massachusetts has required that home inspectors be licensed by the state Board of Registration of Home Inspectors. You can search for home inspector licenses here: Massachusetts Home Inspector License Search.

Buyers should recognize the limits of the home inspection. The state regulations requires inspection of “readily accessible” components of a dwelling. Most modestly priced inspections are visual inspections of the property. The inspector is trained to identify defects in the systems of a house but cannot be expected to have x-ray vision. Moreover, property inspectors are not generally trained civil engineers. Structural defects and weaknesses may not be readily apparent, and may require follow up by a licensed structural engineer. In many cases, however, evidence of inappropriate settling or structural failure can be observed during a visual inspection. An experienced inspector will summarize the “big picture,” but inspectors are not required to identify the exact nature and extent of structural deficiencies. Regulations specifying the elements of a dwelling to be observed and reported on by the home inspector may be found here at 266 C.M.R. § 6.00.

Condominiums

When you buy a condo, you not only buy the unit, but the common areas such as the common roof, mechanical and HVAC systems, grounds, etc. Good home inspectors will ensure that the inspection of a condominium includes the common areas as well as the unit itself. The common area inspection may reveal deferred maintenance needs and inadequately performed repairs that may result in increased condominium fees and special assessments.

Radon

The Environmental Protection Agency (EPA) has established an “action level” of 4.0 pico-curies per liter (4.0 pCi/l) of radon present in indoor air. Although not established as an unsafe level, this figure has been established as the point at which protective measures are recommended. Prospective purchasers and home inspectors frequently use commercially available canisters to collect radon data. This method is cost-effective but may not give accurate results. The canisters are ordinarily placed for twenty-four to forty-eight hours in the basement and on the first floor of the dwelling. The canisters must be placed away from drafts and should not be disturbed. After the test period, the canisters are sealed and forwarded to a testing laboratory. Sometimes, the radon results are not ready by the time the purchase and sale agreement has to be signed. In this situation, the parties can either agree to extend the deadline or agree to a radon contingency.

If the radon results come back over 4.0 pCi/l, depending on the language of the radon contingency, the buyer can typically opt out of the deal altogether or require the seller to install a radon remediation system. Often the sellers will attempt to cap the cost of the system.

Pests

Most home inspectors are also qualified to perform inspections for wood-boring insects, such as termites, powder post beetles, and carpenter ants. All properties should be inspected for such pests. Properties financed by certain government-sponsored loan programs, such as the Federal Housing Authority, require a pest inspection as a condition of obtaining a loan. It’s a good idea to ask the sellers if they have an existing pest control contract that can be transferred to the new buyers.

Lead Paint

The Massachusetts Lead Law requires the buyer to be given the opportunity to inspect for lead paint. The seller or broker is required to provide potential purchasers of homes built before 1978 with the notification package prepared by the Massachusetts Department of Public Health.

Sellers and real estate agents are required by law to disclose any information about known lead paint hazards in their properties, and to provide copies of any documentation relating to the lead paint status of the properties (i.e., a lead inspection report or risk assessment report). The seller must grant a ten-day contingency period from the date the buyer receives the property transfer notification to conduct a lead paint inspection. If the buyer discovers lead paint in the dwelling during the inspection period, the contingency required by the statute permits the buyer to withdraw from the agreement without further obligation.

Although a seller is under no obligation to actually abate the lead paint, a lead-free house may be more valuable and marketable. This is particularly true for multi-family properties where tenants with children under six years of age may trigger the abatement requirements of the law. Sellers are required to provide any documentation they have of the estimated costs to abate the lead paint. Should a seller refuse to make a price concession based on the presence of a lead paint hazard, a buyer could argue that any subsequent buyer also should be made aware of the hazards and related costs. As a result, the availability of a lead paint inspection and cost estimate can become a powerful negotiating tool for the buyer.

Lead paint testing is typically not done as part of a standard home inspection, and must be separately arranged by a certified lead paint assessor.

Mold and Mildew

Mold and mildew are tricky subjects for home inspectors. The presence of excessive amounts of mold spores has been linked to asthma and other respiratory ailments and is claimed to cause permanent injuries. Mold grows in warm, moist environments and can be present behind walls and ceilings, in heating and cooling ducts, and in other difficult-to-inspect parts of a house or condominium building. As noted, although a building inspector cannot peer behind walls, a thorough inspection can detect water penetration, which is the precursor and necessary condition for a mold problem. Where mold is suspected, a buyer can always request that his home inspector be allowed to drill small exploratory holes to test for the presence of mold/mildew.

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Richard D. Vetstein, Esq. is an experienced Massachusetts real estate attorney. Please contact him if you need assistance with a home purchase or sale.





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Judge Rules That Occupy Movement Protesters Are Common Trespassers

Today, Massachusetts Superior Court Justice Frances A. McIntyre issued a ruling clearing the way for the eviction of the Occupy Boston protest which has taken over Dewey Square in downtown Boston. Judge McIntyre had originally granted the protesters a temporary restraining order sustaining the protests, but after reviewing evidence and hearing legal argument, she has changed her mind.

For interest to our real estate readers, the Judge balanced the City’s property rights vs. the protesters First Amendment speech rights. The judge ultimately concluded that the “occupation” as practiced by the Occupy Boston protesters — physically taking over the public park from the City and to the exclusion of others — was a classic trespass and not a First Amendment right.

“To the extent that the act of occupation, as defined, communicates, it speaks of boldness, outrage, and a willingness to take personal risk. But the plaintiffs’ occupation of Dewey Square to the effective exclusion of others is the very antithesis of their message that a more just and egalitarian society is possible. It does not send the message the plaintiffs profess to intend.” — Judge Francis McIntyre

Analysis: Sound Decision But Quite Expansive

This is a solid, well-reasoned judicial opinion that may be difficult to overcome on appeal. However, the judge’s reasoning on “occupation” is new and perhaps ground-breaking, so it could be susceptible to a different opinion on appeal. This case will surely make its way up to the Supreme Judicial Court, and we’ll blog about it here of course.

As the judge found, the First Amendment is not absolute. Yes, the protesters have a right to assembly, but that right must be peaceful and not permanent as to constitute a seizure of public land or present a grave public safety risk. The First Amendment, by its own language, protects speech, not physical occupation of public land. That’s called eminent domain.

Furthermore, the possibility of real public safety tragedy is virtually guaranteed at some point the longer this encampment is allowed to fester with its flammable tarps, fire sources, auto batteries, extension cords and no sanitary facilities on site. Most of the protesters were not born for the terrible Cocoanut Grove Fire in 1942. A fire would quickly swallow up the tent camp and kill dozens. Health, sanitary and fire codes were not intended to abridge the protester’s speech rights.

The judge went much further than she had to though, and this is where her reasoning could be challenged on appeal:

 ”Little in the way of expression is outlawed under the United States Constitution, but an act which incites a lawful forceful response is unlikely to pass as expressive speech.”

One need only turn to the Civil Rights Marches in Alabama in 1963 to see the flaw with this argument. The protesters in Alabama, simply by marching, incited a forceful response by the Alabama police and their water guns. Using Judge McIntyre’s reasoning, therefore, the Civil Rights Marches are not protected by the First Amendment simply because they elicited a police response. This is illogical as many expressive marches in turbulent times have resulted in police reaction. It doesn’t make the marches or speech any less entitled to constitutional protection.

I’ve posted the ruling below. What are your thoughts on the legal issues?

Occupy Boston Decision





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Tree Damage At My House, Sudbury MA

It was only 3 months ago I was blogging about fallen trees and downed power lines in the wake of Hurricane Irene. Well, here we go again with the Halloween N’or Easter Storm 2011 with the same questions and answers. As you can see to my right, I woke up to a huge limb across my front lawn, which luckily didn’t snap my lines or hit my house! For those less unfortunate, I will outline the law again.

Who Is Responsible If My Neighbor’s Tree Falls On My Property?

The short answer is that, legally speaking, your neighbor is not liable for a healthy tree falling down during a major storm event. That is considered an “Act of God” for which no one is legally liable (except God of course, but I think he enjoys some type of legal immunity–I’m not sure, I’ll have to research that one). So, you will have to make a claim under your homeowner’s insurance policy for the damage caused by the neighbor’s tree.

As the court stated in the 1983 case of Ponte v. DaSilva:

The failure of a landowner to prevent the blowing or dropping of leaves, branches, and sap from a healthy tree onto a neighbor’s property is not unreasonable and cannot be the basis of a finding of negligence or private nuisance. Of course, a neighbor has the right to remove so much of the tree as overhangs his property. To impose liability for injuries sustained as a result of debris from a healthy tree on property adjoining the site of the accident would be to ignore reality, and would be unworkable. No case has been brought to our attention in which liability has been imposed in such circumstances

On the other hand, if the neighbor’s tree was diseased or decayed, was known to be at risk of falling and the neighbor ignored it, there could be negligence and liability. Either way, if you have homeowner’s insurance, the insurance companies will sort out fault and blame.





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Tree down in Andover, Mass. Courtesy Boston.com

Massachusetts Fallen Tree Law

Given all the trees and branches which fell across New England, the pressing question of the day is, clearly, who is responsible if my neighbor’s tree or tree branch fell on my house, car, shed, patio, grill, etc. during the storm?

The short answer is that, legally speaking, your neighbor is not liable for a healthy tree falling down during a major storm event. That is considered an “Act of God” for which no one is legally liable (except God of course, but I think he enjoys some type of legal immunity–I’m not sure, I’ll have to research that one). So, you will have to make a claim under your homeowner’s insurance policy for the damage caused by the neighbor’s tree.

As the court stated in the 1983 case of Ponte v. DaSilva:

The failure of a landowner to prevent the blowing or dropping of leaves, branches, and sap from a healthy tree onto a neighbor’s property is not unreasonable and cannot be the basis of a finding of negligence or private nuisance. Of course, a neighbor has the right to remove so much of the tree as overhangs his property. To impose liability for injuries sustained as a result of debris from a healthy tree on property adjoining the site of the accident would be to ignore reality, and would be unworkable. No case has been brought to our attention in which liability has been imposed in such circumstances

On the other hand, if the neighbor’s tree was diseased or decayed, was known to be at risk of falling and the neighbor ignored it, there could be negligence and liability. Either way, if you have homeowner’s insurance, the insurance companies will sort out fault and blame.





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Hurricane Irene Damage, Maryland (courtesy David Yarkin)

If It’s Wet, It’s Probably Not Covered. If It’s Wind, It Is Probably Covered.

What Type of Hurricane Damage Is Covered Under A Massachusetts Homeowners Insurance Policy?

I’m writing this post as I watch Hurricane Irene bore down on Massachusetts, scattering my lawn with tree branches and flickering my lights. My Facebook stream is filling with reports of power outages and basement flooding, but luckily I’ve been spared (for now). *Check that–we’ve had no power since 11am on Sunday, a live wire down on our street, and not an NStar crew to be found anywhere!

Being the dorky real estate attorney that I am, I naturally thought to myself, what type of hurricane damage, if any, is covered under a standard Massachusetts homeowner’s insurance coverage? Well, after some research the short answer is that if it’s wet, it’s probably not covered, but if it’s wind, it is probably covered.

Flooding and Water Damage

Flooding — defined by insurers as any water that rises from the ground or from the sky, including tidal waves, as well as destruction from rapid snow melts — aren’t covered by Massachusetts homeowner’s insurance policies. So the flooded basements from all this rain is likely not covered.

To get reimbursed for water damage, homeowners would need additional flood insurance, which is provided by the federal government but can be purchased through an agent or insurance company. The average flood premium is about $600 annually, but rates go up to nearly $6,000 for the highest-risk coastal properties, according to the National Flood Insurance Program.

Homeowners who live in flood zones probably have flood insurance already: Many lenders won’t provide these home buyers with a mortgage unless they’ve signed up for flood coverage. These homeowners can rest (relatively) easy; if their home floods, flood insurance will pay for that damage. Those unlucky homeowner’s in the interior parts of the state aren’t so lucky.

Wind Damage/Downed Trees

Basic homeowners insurance policies do, however, typically pay for damage caused by winds — including broken windows, torn roofs and any interior damage from water falling into the home. Likewise, if strong winds blow tree limbs or entire trees onto a home, garage or shed, it’s likely covered. (If a tree falls onto a car, many comprehensive auto policies will cover the damage.)

But in many states on the East Coast, homeowners may have to pay a hefty deductible before homeowners’ insurance policies kick in for wind damage — often 1% to 5% of the total amount the home is insured for.

Serious Damage

If a home becomes so damaged that it’s uninhabitable, most standard homeowner policies will pay for a family’s living expenses — including lodging and food — while the house is being repaired.

Making A Claim

As with any insurance damage claim, my advice has always been document, document, document. Take photos and video of the damage. Keep all receipts for fans, blowers, wet vacs, sump pumps, repairs, new windows, etc. Be prepared to wait for the insurance companies to process the thousands of claims arising from Hurricane Irene. And of course, stay safe!





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(Updated) Hurricane Irene Predicted To Hit New England Sunday: Safety & Claims Info

by Rich Vetstein 08.24.2011 Insurance

Important Insurance Claims Information: Cleaning Up After Hurricane Irene (click here). Hurricane Preparedness Bulletin Reports are now saying that Hurricane Irene is potentially tracking for a direct hit on New England in the wee early morning hours of Monday. Should you be closing on a purchase or refinance after the storm passes and the Feds declare [...]

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Appeals Court Resurrects Toxic Mold Claim Against Admiral’s Hill Condominium

by Rich Vetstein 08.16.2011 Condominium Law
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Application of “Discovery Rule” Enables Toxic Mold Claim To Survive Dismissal Toxic mold is a dangerous condition that can arise in buildings with untreated water leaks and penetration. The most common form of “toxic mold” is Stachybotrys chartarum (also known by its synonym Stachybotrys atra), a greenish-black mold. It can grow on material with a [...]

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Is “Buyer Beware” Alive and Well? An Overview of Massachusetts Real Estate Disclosure Law

by Rich Vetstein 06.21.2011 Condominium Law
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Caveat Emptor: “Let The Buyer Beware” Caveat Emptor is an old common law rule which means “Let the Buyer Beware.” In plain English, it means that home buyers are on their own when it comes to the condition of the property. If there is a defect of any kind, it becomes the buyer’s problem, not [...]

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Massachusetts Tornado Disaster: Hope For The Best, Plan For The Worst In Your Purchase and Sale Agreement

by Rich Vetstein 06.02.2011 Closings
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What happens if the property you have under agreement is wiped out by a tornado, burns down or is otherwise subject to a casualty? Yesterday’s horrific tornadoes — which leveled parts of Springfield and Central Massachusetts — demonstrate the power and fury of Mother Nature and how little control we have over natural disasters. Our [...]

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Spring Cleaning: Repairing Waters Stains & Mold From Ice Dam Damage

by Rich Vetstein 04.18.2011 Construction Law
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A Guest Post by George Lonergan, Owner of Lonergan Construction, Inc. a licensed Massachusetts general contracting company servicing the Metrowest Massachusetts area including Framingham, Natick, Wayland, Sudbury and Hopkinton. This winter caused a substantial amount of ice dam damage in the Massachusetts area. The water on your roof that pools above ice dams and then [...]

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Spring Forward, Change Your Smoke/CO2 Detector Batteries & Upgrade To Photoelectric Technology

by Rich Vetstein 03.13.2011 Safety
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Daylight Savings Time has started which is always a great reminder to change the batteries on your smoke and carbon monoxide detectors. You should also consider replacing old detectors with the new photoelectric smoke detectors for the kitchen and bathroom areas which are now required by law in new homes under the Massachusetts smoke detector [...]

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What’s That Smell? From Cesspools to Septic Systems: An Overview of Massachusetts Title 5 (V) Rules

by Rich Vetstein 03.04.2011 Massachusetts Real Estate Law
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Nearly 30% of homes in Massachusetts are dependent upon Septic Systems, rather than municipal sewer systems. Sudbury, Wayland, Dover, Hopkinton, and many towns down the Cape are serviced by private septic systems. Septic systems are governed by what’s commonly known as “Title V” or “Title 5″ which is Title V of the state Environmental Code [...]

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Ice Be Damned! Massachusetts Homeowner’s Insurance Coverage For Ice Dam Damage, Freezing Pipes & Other Winter Disasters

by Rich Vetstein 02.07.2011 Insurance
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Having spent the entire weekend in a feeble attempt to shovel the snow and bludgeon the one foot thick ice dams off my roof, I’ve bit the bullet and hired a professional. No use risking life and limb, and doing a third rate job. I also have a nice one inch crack along my family [...]

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First Snow Brings Questions On Change In Snow Removal Law

by Rich Vetstein 12.21.2010 Condominium Law
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Property Owners Need To Clear Snow & Ice After Storms As I was slipping and sliding in the first real snow yesterday, this blog got a spike in traffic about Massachusetts snow removal law. Back when we were sunning in 80 degree weather, the Massachusetts Supreme Judicial Court overruled 125 years of snow removal law [...]

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New Saftey Measures Required Under Massachusetts Home Oil Heating Systems Upgrade & Insurance Law

by Rich Vetstein 12.19.2010 Construction Law
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Our insurance contributor, Nadine Heaps of Purple Ink Insurance, is back to talk about recent changes to the Mass. home oil heating law. Massachusetts Homeowner Oil Heating System Upgrade and Insurance Law (click for Fact Sheet) By September 30, 2011, you must upgrade your home heating system equipment to prevent leaks from tanks and pipes [...]

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The Great Condominium Smoke-Out: Associations Enacting Anti-Smoking Bans

by Rich Vetstein 11.23.2010 Condominium Law
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A Man’s Condo Unit May Not Be His Castle For Smoking… As anti-smoking restrictions become increasingly widespread, smokers find the last place they can indulge freely is within the confines of their home. However, the saying that a man’s home is his castle may not extend to condominiums where condo associations are enacting bans against [...]

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Daylight Savings Time Ends: Upgrade to Photoelectric Smoke & Carbon Monoxide Detectors

by Rich Vetstein 11.06.2010 Safety
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Daylight Savings Time ends tonight, so don’t forget to set your clocks back 1 hour. Changing the clocks is always a good reminder to change the batteries on all smoke and carbon monoxide detectors. This year, please consider purchasing a new photoelectric smoke detectors for the kitchen and bathroom areas which are required in new [...]

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Hurrican Earl To Hit Eastern Massachusetts Hard: Safety and Insurance Claims Information

by Rich Vetstein 09.02.2010 Insurance
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Reports are now saying that Hurricane Earl’s track has changed and will hit Massachusetts and especially Cape Cod & the Islands harder than expected. David Gaffin, of Greenpark Mortgage and the Massachusetts Mortgage Blog, is kind enough to let us re-post this article about safety information and insurance claims in preparation for the storm surge. [...]

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Massachusetts Property Owners Now Have Legal Responsibility To Shovel and Treat Snow and Ice

by Rich Vetstein 07.28.2010 Landlord Tenant Law
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High Court Overrules 100 Years of Massachusetts Snow Removal Law Hard to think about snow and ice in July, but I had to blog about an important ruling on Massachusetts snow removal law. In a much anticipated ruling issued this week, the Massachusetts Supreme Judicial Court overruled 125 years of legal precedent and announced a [...]

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