Massachusetts Real Estate Lawyer Blog

Massachusetts Property Owners File Title Action in Railroad Easement Dispute

Published on: July 17, 2017 | by Pulgini & Norton, LLP

The Massachusetts Land Court recently considered a July 11, 2017 real estate case, which involved a 19th-century railroad easement in the plaintiffs’ property. The easement at issue ran along the border of the plaintiffs’ property, and it was last used by the railroad in 1972. The railroad’s interests in the easement had since passed to the Massachusetts Department of Conservation and Recreation (DCR). When the DCR announced that it wanted to build a walking and biking path on the railroad easement, the plaintiffs filed a quiet title action in land court. The plaintiffs in the case sought a court order stating that their property was unencumbered by any easement or other right of use or entry derived from a former railroad easement.

Historically, the 19th-century statutes giving railroads the power to take private lands for railroad lines didn’t give them a full ownership interest in what they took. Instead, a railroad received only a permanent and exclusive easement in the taken land for as long as the easement served the railroad’s chartered purposes. Consequently, once the railroad no longer has a use for the property, the land reverts back to the current owners, free of the easement. The plaintiffs sought a declaration that the entire interest in the easement reverted back to them.

DCR initially tried to invoke sovereign immunity, a doctrine that prevents a private party from suing the state and its agencies (i.e., DCR) in most circumstances. However, in Massachusetts, the courts have ruled that the try title statute impliedly waives immunity with respect to actions for quiet title. DCR then argued that the plaintiffs had to prove the federal government authorized abandonment of the easement.

Condo Unit Owners Dispute Right to Fence, Access Property in Massachusetts Real Estate Case

Published on: July 10, 2017 | by Pulgini & Norton, LLP

In a July 7, 2017 decision, the Massachusetts Land Court addressed a real estate dispute between condominium owners over their respective rights to access certain areas of the property. The parties were unit owners in a two-unit, residential condo. The plaintiffs in the case sought to prevent the defendants from installing a fence they claimed would prevent them from accessing and using land in which they have exclusive rights. The plaintiffs also requested recognition of an implied easement by necessity over a portion of the condominium common area, which had been designated for the exclusive use of the defendants’ unit.

The land court first looked at the site plan of the master deed to determine the rights of the parties. The plan provided that the exclusive rights area for the plaintiffs’ unit included a portion of the front yard, including the parking area for that unit, and continued along the side of the condo building, narrowing where it runs parallel to the defendants’ exclusive rights area directly behind the building, and opening to the rearmost portion of the plaintiffs’ exclusive rights area at the far southern end of the property. The plan depicted the defendants’ exclusive rights area as covering the remainder of the property, including the yard area directly behind the building.

When the defendants informed the plaintiffs of their intention to remove the existing stairs and install a fence around the backyard portion of their exclusive rights area, the plaintiffs objected, asserting that the changes would prevent them from accessing their own rear yard. After reviewing the master deed, the land court concluded that the defendants were within their rights under the deed to install the fence and remove the stairs located on their exclusive area. The land court also ruled that the defendants’ actions did not violate the plaintiffs’ rights under the deed because they did not infringe on the plaintiffs’ exclusive area nor the common areas of the property.

Massachusetts Plaintiff Prevails on Appeal in Adverse Possession Claim Over Walled-In Patio Area

Published on: July 3, 2017 | by Pulgini & Norton, LLP

Generally, any party to a lawsuit can appeal an unfavorable decision by a lower court or another local authority. In a Massachusetts adverse possession decision released on July 24, 2017, the Appeals Court of Massachusetts reviewed a ruling of the land court in an appeal filed by the plaintiff. The plaintiff in the case had claimed title by adverse possession to a narrow strip of land within a walled-in courtyard area behind a building on the property. The disputed area was the two feet along the rear end of the plaintiff’s enclosed courtyard and was used as an outdoor space and for gardening, containing mostly dirt and plantings, including two small trees.

The land court had ruled that the plaintiff used and occupied the disputed area for gardening purposes continuously, openly, and notoriously since 1985, entitling the plaintiff to a prescriptive easement over the disputed area. The land court also ruled that the plaintiff did not have title to the disputed area, however, since its use of the disputed area was not exclusive. In particular, the land court found that the defendant repaired the retaining wall and exterminated vermin in the disputed area. As a result, the issue on appeal was whether or not the plaintiff’s use of the disputed area was exclusive.

After reviewing the evidence, the appeals court concluded that there was no evidence to support the lower court’s finding that the defendant regularly maintained and inspected the retaining walls and chain link fence bordering the rear of the courtyard, and therefore accessed the disputed area, at any point during the previous 20 years. The appeals court pointed to testimony from the previous owner of the plaintiff’s property, who stated that no repairs had been made to the walls or fence during his ownership. Without any evidence to rebut the testimony, the appeals court held that the land court’s inference that the defendant entered the disputed area for this purpose was unreasonable.

Massachusetts Property Owner Opposes Second Story Addition to Neighbor’s Beach House

Published on: June 26, 2017 | by Pulgini & Norton, LLP

Land use and zoning laws regulate how people and businesses can use and build upon their property. Property owners are not completely restricted, however, and may seek approval from the local government of plans that do not conform with the laws. In a June 22, 2017 case, the Massachusetts Land Court determined whether a special permit was properly granted to the defendants by a zoning board. The defendants in the case sought to demolish a pre-existing, non-conforming dwelling and build a new house on their property. After the zoning board approved the plan, the plaintiff challenged the decision by filing an appeal.

In 2014, the plaintiff had sold the lot to the defendants, which was located next door and downhill from the plaintiff’s property. The defendants sought to raze the small one-story house on the lot and construct a much larger and taller two-story house. The plaintiff contended that the view from her property would be diminished and result in a loss of privacy, due to the second-story windows planned for the defendants’ new house. The plaintiff also presented witness testimony that the value of her property would decrease.

After finding that the plaintiff had standing to challenge the zoning board decision, the land court addressed the merits of the appeal. The bylaw at issue provided that non-conforming single-family residential structures, as here, may be altered if: (1) the alteration will not increase the non-conforming nature of the structure; or (2) the alteration will increase the non-conforming nature of the structure, but the zoning board determines that the alteration is not substantially more detrimental to the neighborhood than the existing structure and issues a special permit.

Massachusetts Court Rules Plaintiff Has No Standing to Challenge Developer’s Permit for Multi-Unit Dwelling

Published on: June 19, 2017 | by Pulgini & Norton, LLP

Before someone can challenge the validity of a permit issued to another landowner, that person must have legal standing. In a June 12, 2017 case, the issue for the Massachusetts Land Court was whether a plaintiff who lived across from the defendant’s property had standing to appeal a special permit granted to the defendant by the local zoning board. The special permit allowed the defendant to construct a four-unit residential building in a zone where three-unit buildings are allowed as of right and where larger buildings require a special permit.

The defendant in the case was a real estate developer that purchased property located across the street from the plaintiff’s house. The defendant sought a special permit to tear down the existing single-family home on the property and replace it with a single structure containing four residential units. After the zoning board granted the permit, the plaintiff appealed, alleging that she would be negatively affected by traffic and fire vehicle access that will result from the proposed development.

In order to have standing to challenge the defendant’s zoning permit, the plaintiff must be “aggrieved” as defined by law. People entitled to notice of the permit are entitled to a rebuttable presumption that they are aggrieved. In the case, the plaintiff was an abutter to an abutter within 300 feet of the defendant’s property, and as a result, she was entitled to the presumption that she is aggrieved.

Massachusetts Court Reverses Zoning Board Decision Lacking the Required Findings for Special Permit Approval

Published on: June 12, 2017 | by Pulgini & Norton, LLP

If a zoning board decision affects other adjoining or nearby landowners, they may be able to appeal the ruling. The Massachusetts Land Court reviewed a case on June 7, 2017 in which the defendants had obtained approval from the local zoning board to tear down a lawfully nonconforming garage on their property and replace it with a larger, single-family home. The plaintiffs, who lived on a parcel of land abutting the defendants’ property, appealed the zoning board’s grant of a special permit and variances authorizing the plan.

After determining that the plaintiffs had standing to bring the appeal, the land court turned to the question of whether the special permit had been properly issued. The defendants in the case requested relief from the off-street parking requirements of a local ordinance, which required a 20-foot driveway to accompany parking facilities within the ground floor of a structure. Pursuant to local laws, the zoning board is authorized to waive this requirement by issuing a special permit, if the board finds that the reduction is not inconsistent with public health and safety or that the reduction promotes a public benefit.

After reviewing the zoning board’s written determination, the land court found that, despite the lack of an explicit finding that the defendants’ proposal was not inconsistent with public health and safety or that the reduction promotes a public benefit, the standard was implicitly applied when the zoning board considered traffic flow and safety and stated that it did not foresee the location and the size of the site as having a significant negative impact. The land court concluded that the board employed an evaluation that was functionally identical to that mandated by the ordinance regarding parking waivers.

Massachusetts Land Court Holds Property Owners Barred from Building on Their Merged Lots

Published on: June 5, 2017 | by Pulgini & Norton, LLP

Before making changes to an existing building or constructing a new one, property owners may have to obtain approval from the local government. In a May 30, 2017 case, the Massachusetts Land Court reviewed a zoning board decision granting a variance to the defendants for the construction of a new house on their vacant lot. The plaintiffs appealed the variance, which would allow the defendants’ house to be 15 feet closer to the plaintiffs’ property than permitted by the setback.

The defendants in the case owned two lots that were conveyed to them by a single deed in 1986. The defendants had built a house on one of the lots, while the other lot remained undeveloped. The plaintiffs in the case resided in a house located next to the defendants’ vacant lot. The vacant lot was oddly configured, making improvement of the property difficult due to its unique shape and the presence of wetlands. The zoning board ultimately granted the variance, finding that these factors created a hardship to the defendants that justified relief in order for them to develop the property. On appeal, the plaintiffs claimed that the proper requirements for issuing a variance were not met, and as a result of the variance, they would suffer from increased density, reduction in privacy, loss of view, decrease in property value, safety infringements, and instability to their property.

The primary issue for the land court was whether the two lots owned by the defendants had merged for the purposes of zoning, which would result in the loss of grandfathered status and subject the property to the contiguous upland requirement in order to be buildable. The merger doctrine provides that adjoining land in common ownership must be added to nonconforming land in order to bring it into conformity or reduce the nonconformity. The grandfather provision at issue in the case exempted certain lots from increases in lot area, frontage, width, yard, or depth requirements, protecting owners whose lots previously conformed with zoning requirements. However, the exception was not available to lots held in common ownership with an adjoining lot, which may be combined, or merged, to reduce or eliminate the nonconformity. The bylaw provided that lots held in common ownership are entitled to grandfathering for five years after the effective date of a zoning change, if certain requirements are met, after which the lots are combined or merged to reduce nonconformity.

Massachusetts Court Determines Non-Owner’s Right to Use Abandoned Telephone Easement

Published on: May 22, 2017 | by Pulgini & Norton, LLP

Typically, a person who claims a right to use a certain portion of property owned by the title holder will typically file an action to acquire legal recognition of that right. The Massachusetts Land Court decided a case on May 1, 2017 involving the plaintiff’s claim of a prescriptive easement appurtenant to land owned by the defendants. The portion claimed was over a cleared strip of land, visible on the ground, running from the public road through the defendants’ parcel to the plaintiff’s property. The parties agreed that the plaintiff had acquired at least a partial fractional interest in the path that ran over the defendants’ land, but the nature and scope of that path was in dispute.

To establish a prescriptive easement in Massachusetts, a claimant must show the (1) continuous and uninterrupted, (2) open and notorious, and (3) adverse use of another party’s land (4) for a period of not less than 20 years. The easement claimed is limited to the uses actually made of the section of property that meet those elements. The burden is on the claimant to provide clear proof of each element.

The path at issue in the case was a six-foot wide dirt pathway that traveled in a straight line, without regard to topography. Roots, stumps, and rocks had been left in the path. At trial, the plaintiff testified that he did not create the path, nor had he ever maintained or cleared it. Instead, the path had originated as a telephone line easement, which had been cut through the woods by the phone company. By 1929, however, the telephone company had abandoned the easement, and the poles and wires were removed.

Massachusetts Property Owner Appeals After Zoning Board Denies Building Permit

Published on: May 15, 2017 | by Pulgini & Norton, LLP

In some cases, home owners may need to seek approval from local officials before making significant changes to their properties. In a May 5, 2017 opinion, the Massachusetts Land Court reviewed a zoning board decision rejecting a building permit application filed by the plaintiff. The key question for the court was whether a vacant, dimensionally non-conforming parcel of land merged for zoning purposes with an adjacent property, therefore rendering the vacant parcel separately unbuildable.

The vacant parcel at issue was held in trust, with the plaintiff and her mother as trustees. The plaintiff also owned, in her individual name, an adjacent property with an existing house. The plaintiff filed a building permit application to construct a single-family home on the vacant parcel, which was denied on the ground that it was under common control with the adjacent parcel.

In Massachusetts, the doctrine of merger provides that adjacent lots in common ownership will normally be treated as a single lot for zoning purposes in order to minimize non-conformities. Once merger occurs, it cannot be undone. In other words, a person owning adjoining lots may not artificially divide them in order to restore old record boundaries and obtain a grandfather non-conforming exemption. Instead, to preserve the grandfather non-conforming exemption, the lots must retain their separate identity.

Massachusetts Court Reverses Deficiency Judgment Against Defendants Who Lost Their Home in Foreclosure

Published on: May 8, 2017 | by Pulgini & Norton, LLP

When faced with an impending mortgage foreclosure, many homeowners may have defenses or other legal options that could result in a more favorable outcome. The Appeals Court of Massachusetts recently reviewed a case on March 31, 2017 that involved defendants who had lost their home to foreclosure.

At the foreclosure sale in 2013, the high bid did not cover all of the defendants’ remaining debt on the mortgage, leaving a deficiency. The defendants had been paying the premium for a mortgage insurance policy, as required by their original lender. The insurer, the plaintiff in the case, sued the defendants to recover the deficiency. The plaintiff moved for summary judgment on a contractual subrogation theory. The lower court granted the motion and entered a judgment for approximately $41,000 against the defendants. The defendants appealed the judgment to the higher court.

On appeal, the defendants contended that the lower court erred in entering its judgment because there was a factual dispute as to whether the plaintiff actually paid its insured and acquired any contractual subrogation rights against the defendants. In support of their argument, the defendants alleged there was no evidence that the plaintiff complied with two provisions of the insurance contract relevant to subrogation.