Massachusetts Real Estate Lawyer Blog

Massachusetts Residents Succeed in Lawsuit to Prevent Construction on Park Land Used as a Playground

Published on: October 2, 2017 | by Pulgini & Norton, LLP

Land used by many members of the community, such as parks and other recreational public property, is subject to zoning regulations and other laws that may apply. In an October 2, 2017 Massachusetts real estate case, the Supreme Judicial Court considered an action brought against a city by its residents, who sought a restraining order to prevent construction of a new school on land that was used as a playground.

The land at issue had served as a public park for more than 60 years since it was created and formally approved by the city in 1957. In 1979, the city received a grant from the federal government to rehabilitate the playground in the park. The law authorizing the grant imposed a requirement that any property developed with grant assistance could not be converted to any use other than public outdoor recreation without the approval of the U.S. Secretary of the Interior. In 2011, the city council voted to transfer the playground from the parks and recreation department to its school department to construct a new elementary school on the land. A group of city residents commenced an action to halt the construction project, arguing that the land and the playground could not be used for any other purpose.

Article 97 of the Amendments to the Massachusetts Constitution provides that land and easements taken by eminent domain for conservation purposes cannot be used for any other purpose or disposed of without approval from the Legislature. Massachusetts courts have held that land dedicated as a public park is protected by Article 97, even if it was not taken by eminent domain or subject to a recorded restriction limiting its use. A city dedicates land as a public park under Article 97 when there is a clear and unequivocal intent to dedicate the land permanently as a public park, and when the public accepts such use by actually using the land as a public park. Since the municipal land at issue was dedicated as a public park, the court concluded that the land was protected by Article 97.

Passageway Rights of Neighboring Property Owners Defined by Appeals Court of Massachusetts

Published on: September 25, 2017 | by Pulgini & Norton, LLP

Sharing an alleyway with other property owners can be frustrating, especially when their right to use the alley is in question. In a September 19, 2017 Massachusetts real estate case, the appeals court considered the nature and extent of the defendants’ right to use a 10-foot-wide passageway running between their property and the property of the plaintiffs. The defendants in the case operated a small grocery and wine store in Boston, while the plaintiffs owned the property across the passageway. The plaintiffs brought an action seeking injunctive relief from the defendants’ use of the passageway.

Prior to 1947, the previous owners of the property owned to the center of the passageway abutting their respective properties, and they enjoyed a right of passage, in common with others, over the rest of the passageway. In 1947, the previous owners of the properties had entered into an agreement that restricted current and future owners of the defendants’ property to travel on foot and with hand carts through the passageway and expressly excluded the right to place garbage in the passageway or use the passageway for any purposes other than those provided. Owners of the plaintiffs’ property were allowed to use the passageway in any manner for which a street is commonly used.

The primary issue for the court was whether the provisions of the 1947 agreement constituted a restriction or an easement. The legal construct of a restriction and an easement is similar, but the distinction is outcome-determinative. A restriction on the use of land is a right to compel the person entitled to possession of the land not to use it in specified ways. An easement, on the other hand, creates a non-possessory right to enter and use land in the possession of another party and obligates the possessor not to interfere with the uses authorized by the easement. While restrictions become unenforceable with the passage of time, easements do not.

Massachusetts Homeowner Wins Land Action Against Town, Acquires Use of Private Roadway

Published on: September 18, 2017 | by Pulgini & Norton, LLP

When the ownership or right to use a road is in dispute, the issue may need to be settled by a court of law. An August 30, 2017 Massachusetts real estate case illustrates a controversy between a homeowner and the town concerning the status of a roadway. The plaintiff sought a judgment that a portion of the roadway was a private way for the use of himself and a neighboring homeowner, but not the public at large. The town denied that the section of the roadway was private, and asserted that it was a public way pursuant to a plan designating it as such, which was filed in connection with a registration petition for the plaintiff’s property by the previous owner.

The issue before the Land Court, therefore, was whether the section of roadway was a private or public way. As the party asserting the public way, the burden was on the town to prove its claim that the section of roadway at issue was public. In Massachusetts, a private way is not public unless it has become so by one of the following ways: (1) a laying out by public authority in the manner prescribed by statute; (2) prescription; or (3) prior to 1846, a dedication by the owner to the public use, permanent and unequivocal, coupled with an express or implied acceptance by the public.

In the case, the town conceded that the public way was not laid out according to the relevant law. The town did not produce any evidence that the roadway was a public way by prescription, nor that it was created by a dedication prior to 1846. The town solely relied on the depiction of the roadway as “public” in the registration plan as conclusive evidence on the issue, arguing that the plaintiff was precluded from asserting that it was a private way.

Massachusetts Plaintiff Seeks to Enforce Greater Easement Rights Against Town in Property Action

Published on: September 11, 2017 | by Pulgini & Norton, LLP

If you believe that your property rights are being violated, you may be able to bring an action to stop or enjoin the actions of another individual or entity in court. In an August 24, 2017 Massachusetts real estate case, the plaintiff filed an action claiming an easement over registered property owned by the town of Plymouth, and he sought to enjoin the town from interfering with his easement. Although the plaintiff had a public right of access over the town’s property, he sought to enforce greater easement rights, which he argued the town violated by relocating the easement without his consent.

The Land Court ruled that the plaintiff had an implied easement to cross the town’s land to the sea, but it was limited in scope. Specifically, the court held that the easement entitled the plaintiff to enter and cross the town’s land only on the path designated by the town. The plaintiff appealed the judgment to the Appeals Court of Massachusetts.

The plaintiff purchased his property in 2010. His lot was originally part of a larger parcel divided into three lots in 1911. None of the deeds to the three lots contained or reserved an express easement for the benefit of the plaintiff’s lot. A paved way over one of the lots led to a public park on another lot and to the harbor. The plaintiff purchased his lot for access to the harbor. Due to a physical disability, the plaintiff’s only means to access the harbor is by using an amphibious vehicle from his lot to the boat landing on the other lot. The plaintiff contended that the reconstruction of the public park and the construction of a boat ramp at the northern end of the park essentially relocated his easement, making it less convenient and more difficult to use.

Massachusetts Homeowners Defeat Foreclosure Action Based on Tax Title Liens

Published on: September 4, 2017 | by Pulgini & Norton, LLP

Failing to pay local property taxes can result in serious consequences, including property liens and even foreclosure. An August 30, 2017 case before the Land Court involved a Massachusetts foreclosure action brought by the town of Charlemont against the defendants after they stopped paying real estate taxes in 1992. The defendants in the case argued that their property was actually located in the neighboring town of Hawley, although Hawley chose not to assess taxes against their property, believing it to be in Charlemont.

The defendants’ property was only conclusively located in the town of Charlemont after a 2010 act by the Legislature fixed the town’s boundaries. Prior to that time, the parties disagreed as to whether the defendant’s property was located within the limits of Charlemont, or within the limits of the bordering town of Hawley. This question of where the property was located prior to the legislation was relevant to determine whether Charlemont could foreclose on its tax title for the previous years that it had assessed taxes against the defendants’ property. If the defendants were correct that their property was located in Hawley prior to the passage of the act, the tax assessed by Charlemont would be rendered void, and Charlemont, in turn, would have no legal basis to proceed in its foreclosure action against the defendants’ property.

The Land Court began by examining maps of the area that made up Charlemont and Hawley in order to determine the boundary line. A 1794 map depicted the southern boundary of Charlemont bordering the northern boundary of Hawley. In 1838, Charlemont annexed an unincorporated village that also bordered the northern boundary of Hawley. Subsequent maps conflicted in their descriptions of the boundary line between Charlemont and Hawley, prompting the Massachusetts Legislature to pass an act that definitively established the boundary line in question as of March 16, 2011.

Massachusetts Court Rules Property Remains Subject to Unpaid Mortgage Despite Passage of Time

Published on: August 28, 2017 | by Pulgini & Norton, LLP

In most cases, a mortgage on property must be paid back to the lender according to an agreed upon schedule. In an August 2, 2017 Massachusetts real estate case before the Land Court, the parties involved did not have a traditional bank mortgage arrangement. The plaintiff had filed a petition to amend the title to his property by expunging the recorded mortgage. The plaintiff argued that a mortgage he granted to his brother, the defendant, had become obsolete and unenforceable by the passage of time. The defendant argued that the limitations period had not yet passed, and therefore, he retained the right to foreclose on the mortgage.

In 1994, the plaintiff signed a promissory note and granted a mortgage to the defendant in the amount of $275,000. The mortgage was recorded and noted on the certificate of title. Although the original promissory note was lost, the mortgage incorporated the terms of the note by reference. In 1996, the parties modified the loan by extending the remaining principle sum of $150,000, but they did not record the document.

A mortgage is an interest in real property that secures a lender’s right to repayment, such that should the debtor fail to timely repay the debt or otherwise default on his obligations, the creditor can foreclose on the mortgage and recover. A promissory note and mortgage co-exist, providing the lender with a double remedy, one upon his deed, to recover the land, another upon the note, to recover a judgment and execution for the debt. The mortgage remains in full force until the debt shall be paid.

Massachusetts Homeowner Brings Action Against Neighbor to Enforce Zoning Law

Published on: August 21, 2017 | by Pulgini & Norton, LLP

Massachusetts zoning laws regulate the manner and extent to which property can be used. An August 18, 2017 Massachusetts real estate case brought before the Land Court illustrates a land use dispute involving neighboring homeowners. One of the homeowners had requested that the town’s building commissioner take a zoning enforcement action against his neighbor, who operated a contracting business. When the building commissioner denied his request, the homeowner appealed to the local zoning board of appeals, which found that the neighbor’s activities did violate use regulations. The neighbor appealed the board’s decision to the Land Court.

The parties in the case lived in a Single Residence zoning district, where bylaws prohibited most commercial activities. Despite the bylaws, the neighbor and his crew regularly parked numerous commercial vehicles at his property, gathered for meetings outside, and effectively used his yard as a contractors’ storage yard. The homeowner who lived next door found these activities to be particularly disruptive, as did the rest of the neighborhood.

The Land Court found that many of the activities on the neighbor’s property were commercial in nature and prohibited under the bylaw. The neighbor, however, argued that his property had, as an accessory use, a home occupation. The local bylaw defined accessory use as that which is clearly subordinate and incidental to the principal building or use and, significantly, does not alter the character of the premises. A customary home occupation, using one or more rooms for an office or studio, is a permissible accessory use under the bylaw, as long as no more than two people are regularly employed, the residential appearance and character of the premises are preserved, advertising on the premises is limited, and no sales are regularly conducted unless incidental to the accessory use.

Neighbors Dispute Tree-Trimming Obligation in Massachusetts Land Court Case

Published on: August 14, 2017 | by Pulgini & Norton, LLP

Property can be restricted in any number of ways through various legal means, such as a covenant or easement, often surviving a transfer of ownership. In an August 11, 2017 Massachusetts real estate case, a plaintiff sought a declaratory judgment from the Land Court stating that she had an affirmative view easement over the property of the defendant. The defendant sought a contrary declaration, arguing that the recorded documents did not support the plaintiff’s position.

The parties in the case lived in the same subdivision on neighboring lots. The plaintiff claimed she had an easement pursuant to the subdivision’s Protective Covenant Agreement, which allowed her to compel other lot owners to trim their trees in order to protect her view of the sound. She filed an action seeking to compel the defendant to top trees on the defendant’s property, asserting that the trees were blocking her view of the sound.

The Protective Covenant Agreement at issue provided that trees may be topped to preserve the view at the expense of the requesting lot owner and with the consent of the developer. The Agreement also stated that subsequent plantings shall not be permitted to grow in such a manner as materially to obstruct the view of others. Despite the fact that the Protective Covenant itself expired in 2002, the plaintiff argued that it created an easement that survived the expiration and remained valid.

Neighbors Appeal Modification of Subdivision Plan in Massachusetts Land Use Case

Published on: August 7, 2017 | by Pulgini & Norton, LLP

Massachusetts real estate disputes often arise when property owners feel that changes proposed by other landowners would adversely affect their property rights. In a July 26, 2017 case, the Appeals Court of Massachusetts considered whether a local planning board properly approved a modification of a 1947 subdivision plan that abandoned a portion of one road and replaced it with an easement.

The defendants in the case had sought the modification from the planning board in order to advance the commercial development of properties owned by the defendants along the subdivision road at issue. Upon the board’s approval to change the subdivision road to an easement, the defendants could then combine their lots and eliminate some of the zoning restrictions they faced.

The plaintiffs in the case were residential owners of lots that abutted the subdivision road from the north. They appealed the planning board’s decision to allow the defendants’ proposed modification, objecting to the changes. The Land Court ultimately affirmed the board’s approval, concluding that the plaintiffs had failed to demonstrate any harm affecting their lots from the discontinuation of a portion of the road and change to an easement. The plaintiffs subsequently brought their appeal to the Appeals Court of Massachusetts.

Massachusetts Landowner Seeks Injunction Prohibiting Neighbor’s Use of Beach Path

Published on: July 24, 2017 | by Pulgini & Norton, LLP

In some cases, legal action is required to protect a landowner’s rights to a part of their property used by others. In a July 11, 2017 Massachusetts real estate case, the issue for the land court was whether the defendants and their guests had an appurtenant prescriptive easement for the unrestricted pedestrian use of a beach path located on the plaintiff’s property.

For decades, with the permission of the plaintiff and its predecessors in title, local residents have occasionally used the path to access the beach. There is no public access to the path, and the local residents are alert to outsiders’ cars and chase them away. Because of the parcel’s remote location, the hilly terrain, and the overgrowth surrounding it, it is impossible to notice anyone using the path unless the observer is on the path as well.

Opened seasonally since 1993, the defendants have operated a seven-guestroom inn and restaurant near the plaintiff’s parcel of land. Despite having two other legitimate means of beach access, and without giving notice or seeking permission from the plaintiff, the defendants encouraged their guests to use the path on the plaintiff’s parcel to get to the beach. On average, the guests used the path twice a day, and they were on the plaintiff’s parcel for only a minute or two as they walked to the beach. None of the guests lingered on the property itself or left any sign of having been there. Even if the guests were seen, moreover, they could not be distinguished from the local residents to whom the plaintiff had given permission to use the path.