FREQUENTLY ASKED QUESTIONS
Table of Contents
1. I have a small business and cannot afford to hire in-house counsel. What should I do when my business needs legal work from time to time?
Answer: An attorney can be hired to represent a business on a case-by-case basis, such as to review a particular contract or an employment issue or to answer certain questions the business may have from time to time. An attorney can also assist small businesses with annual state filings and ensuring that the business is abiding by its own bylaws or rules.
2. What is the difference between a corporation and a limited liability company (LLC)?
Answer: In short, a corporation has shares, which are owned by shareholders. The shareholders elect a board of directors, and the directors elect officers to run the business. A corporation can create bylaws that govern how the corporation runs. A limited liability company (LLC) has members who own certain percentages of the company. The members elect a manager or managers to run the business. An LLC can create an operating agreement that governs how the LLC runs, which can be more like a corporation or more like partnership.
3. I want to start a business, but I do not know which type of business entity (corporation, LLC, partnership or something else) to use. How should I choose?
Answer: An attorney would need to find out what you want the business to do, what you want to achieve with the business, whether you intend to bring in investors, whether you wish to issue employee stock options and other information to determine which form of business entity is right for you. There is no “one size fits all.”
4. I want to sell my business. What are my options?
Answer: There are several ways to go about selling a business. You could sell all of the stock of a corporation or membership interest of an LLC, you could sell just the assets of the business and retain all of the stock or membership interest, you could sell only part of the stock or membership interest, or you could do something different. This will need to be negotiated with the buyer. An attorney should be hired early in the process to ensure that the proper method of sale is used and to draft the proper documentation for the sale.
5. Can my corporation issue stock to someone, but restrict the recipient’s ability to sell that stock?
Answer: A corporation may be able to issue stock to someone with certain restrictions as to sale of that stock, such as requiring that the recipient first offer to sell the stock back to the corporation or to the other stockholders. An attorney should be hired to ensure that this is done correctly.
1. What does a lawyer do for me when I am buying real estate?
Answer: In general, a lawyer represents a buyer in purchasing real estate by negotiating the purchase and sale agreement, assuring that the terms of that agreement are met, and attending the closing. A lawyer could also assist a buyer with answering questions and making recommendations throughout the closing process.
2. What does a lawyer do for me when I am selling real estate?
Answer: In general, a lawyer represents a seller by writing the first draft of the purchase and sale agreement and then negotiating its terms, assuring that the terms of that agreement are met, drafting the seller’s closing documents such as the deed, and attending the closing. A lawyer could also assist a seller with answering questions and making recommendations throughout the closing process.
3. My lender says that my attorney can also represent the lender when I am buying real estate. What does that mean?
Answer: A buyer in a real estate transaction will have an attorney, but the buyer’s lender will also have an attorney to check the title to the property, see if any taxes are due, draft the closing documents, issue title insurance, handle the closing funds, ensure that the proper documents are recorded at the Registry of Deeds and oversee other matters. Many lenders will allow the buyer’s attorney to also handle this work for the lender. There can be greater efficiencies with one attorney handling all aspects of the buyer’s side of the deal. Some lenders will not allow a buyer’s attorney to perform the lender’s work and will require that a certain attorney chosen by the lender do it. However, the buyer will still have his or her own attorney to represent the buyer in the process.
4. How does a commercial real estate transaction differ from a residential one?
Answer: Commercial real estate transactions are more complex than residential ones, as there is more due diligence involved, such as investigating the environmental condition of the property, the applicable zoning, the need for permits or other relief, and many other issues. It is highly advisable to have an attorney involved very early in the process of a commercial transaction.
1. I want buy or sell a restaurant. What do I need to do?
Answer: Restaurants can be a challenge because several permits are involved, as well as a lease, food license and possibly a liquor license. An attorney should be hired early in the process to ensure that your rights are represented and that all of the necessary approvals are obtained.
2. What must I do if I want to add onto my house?
Answer: It depends on a lot of factors, such as the zoning district your house is in and whether it is compliant with current zoning laws. An attorney would need to review your plans and research your property to determine whether you need zoning relief and, if you do, which kind you need.
3. What is the difference between a special permit and a variance in zoning matters?
Answer: Simply put, a variance is a request to not abide by the zoning requirements for a project, while a special permit is permission required by law for a certain use or aspect of a project. In general, the standard to obtain a variance is higher than the standard to obtain a special permit.
1. I am a condominium trustee, and a unit owner is not paying the condominium fee. What can the condominium do?
Answer: Under certain circumstances, the Massachusetts condominium laws give condominiums the right to place a priority lien on the unit of a nonpaying owner. Since the law maintains certain requirements to do this, it is best to consult with an attorney to ensure that it is done correctly.
2. I own a unit in a small condominium where we cannot agree on certain matters. What can we do?
Answer: Your condominium documents, including the master deed, declaration of trust, bylaws, rules and regulations, and unit deeds, may say what happens if the condominium is in a stalemate. Often, such matters have to be taken to binding arbitration or court for resolution.
3. I am a condominium unit owner who disagrees with what the condominium trust has voted to do. What are my rights?
Answer: Your condominium documents, including the master deed, declaration of trust, bylaws, rules and regulations, and unit deeds, may describe your rights. Often, such matters have to be taken to binding arbitration or court for resolution.
4. I want to turn my multifamily building into condominiums. What should I do?
Answer: You will need an attorney to draft condominium documents, including the master deed, declaration of trust, bylaws, rules and regulations, and unit deeds; an architect to draft floor plans; and possibly a surveyor to draft a site plan. Some municipalities, such as Somerville, Massachusetts, require prior approval of a board to convert a building into a condominium. In certain circumstances, notice has to be given to tenants long before a building can be converted into a condominium. As this can be a complex process, it is best to consult an attorney before you begin.
1. What do I do if child support payments are not being made?
Answer: If the court has issued an order for someone to pay you child support and that person has not done so in accordance with that order, then you can take that person back to court on a contempt action. In a contempt action, the court can order the person to pay what is owed, plus attorney’s fees. The court can also order the person who did not pay to be held in jail.
2. What do I do if I can no longer afford to pay the child support I have to pay?
Answer: If you have experienced a material change in circumstances that has left you unable to make your child support payments, then you can go back to court on a modification action. In a modification action, you would ask the court to reduce the child support you have to pay due to your changed circumstances. Until the court orders a new child support amount, however, you will have to continue paying the amount you were previously ordered to pay.
3. What do we do if both spouses have agreed on everything for our divorce?
Answer: If you have both agreed on all aspects of your divorce, then you will need to have that agreement written in a form the court will accept. Once that agreement is drafted, signed and notarized, then a joint petition for divorce can be filed, and the court will schedule a hearing on the agreement. If the court finds the agreement to be fair and reasonable under the circumstances, then it can approve the agreement and enter a divorce judgment.
4. If we have an agreement, can one attorney represent both spouses in getting that agreement approved by the court?
Answer: No. An attorney can only represent one party in a divorce. That being said, neither party is required to have an attorney at all in a divorce action, although each party having an attorney is recommended.
5. We are a Massachusetts same-sex married couple getting a divorce. What do we need to look out for?
Answer: While most aspects of a divorce are the same for all couples, same-sex couples have to be careful of potential pitfalls, such as a same-sex spouse’s rights regarding children from a prior relationship. Since these cases have a certain complexity, they are best handled on a case-by-case basis with the help of an attorney.
6. I am splitting up with someone and we have a child together, but we are not married. Should I file anything in the court?
Answer: You could file a paternity action in the court to determine child custody, visitation, child support and other related issues. This can be done either by agreement or by contested litigation.
7. How much will I owe in child support?
Answer: There are child support guidelines that will determine about how much you will have to pay. The financial information of both parties and a court hearing will be required to determine the exact number. If you are a high earner, then the guidelines may not apply to you. An attorney can assist you in determining what you owe.
1. I have just been made the personal administrator under a relative’s will. What should I do?
Answer: You should hire an attorney to assist you in probating the will, which will involve, in part, having the probate court appoint you as personal administrator, creating an inventory of the deceased person’s property, disbursing that property (or the proceeds from the sale of that property) in accordance with the will, and then accounting to the court for what you did. Notice has to be given during this process to interested parties.
2. I want to change my will. How do I do that?
Answer: You should hire an attorney to review your will and go over the changes you want to make. Either an amendment to the existing will (called a codicil) can be executed or the existing will can be completely replaced by a new one.
3. I want to appoint someone to make health care decisions for me should I become unable to do so. Is there a way to do that?
Answer: Yes. Massachusetts law allows for a document called a health care proxy, in which you can appoint someone to make health care decisions for you should you be unable to make those decisions due to an accident or emergency. An attorney can help you draft one and go over options.