Real Estate Law: Duty to non-clients

The courts in Massachusetts have held that a lawyer owes no duty to non-clients in real estate closings. However, in a recent case (October 30, 2009), a Superior Court judge found that a closing attorney may have liability to non-clients. The judge found that the closing attorney may have given the buyer legal advice, although the closing attorney was only representing the lender at the closing. The case is Mercuri v. Newhouse, et al. It involved a title defect, a private way on which a driveway was located. Casual advice to a buyer at a closing may create an implied attorney-client relationship. This may be contrary to Page v. Frazier, 388 Mass. 55 (1983), which has been considered the "final word" in real estate matters involving legal malpractice. Page v. Frazier states that an attorney has no duty to non-clients, absent foreseeable reliance. Although the Mercuri case is only a Superior Court case, it may be the beginning of a new standard for lawyers.This could be important for everyone involved in real estate. Saul Feldman is a real estate attorney with Feldman & Feldman, P.C., Boston, Mass.