Massachusetts Real Estate Lawyer Blog

Massachusetts Land Court Denies Non-Owner’s Claim of Prescriptive Rights in Beach Property

Published on: May 1, 2017 | by Pulgini & Norton, LLP

The Massachusetts Land Court issued a decision on April 19, 2017 settling a long-running real estate dispute involving the plaintiffs’ claim to a 1.7-mile stretch of beach on the south shore of Martha’s Vineyard. The court had previously determined that the plaintiffs did not have a title interest in the beach as it currently exists because, due to a combination of sea level rise, waves, tides, storms, and winds, their title interest was to a beach now submerged under the Atlantic Ocean. The issue before the court now was whether the plaintiffs had acquired prescriptive rights to use the entire beach throughout the year, in common with all others legally entitled to use it.

In Massachusetts, an easement by prescription is acquired by the continuous and uninterrupted, open and notorious, and adverse use of another party’s land for a period of not less than 20 years. The plaintiffs in this case claimed to have used the entire 1.7-mile length of beach adversely, notoriously, and continuously since at least 1938. In support of their claim, the plaintiffs relied on an accumulation of various uses and activities conducted by numerous members of their family, their tenants, and guests in the years between 1938 and 1999, in several locations on the beach. These uses included swimming, sunbathing, clamming, and picnicking during the summer season, in addition to riding in vehicles and on horseback, fishing, duck hunting, and surfcasting throughout different seasons of the year.

The court concluded that the evidence was sufficient to show that the plaintiffs’ use of the beach was open and notorious, since they made no attempt to conceal their use of the beach during the relevant time period, and the defendants actually knew about it and saw the plaintiffs use it. The court found that the plaintiffs’ use was adverse in that they used the beach believing that it was their right to do so, and they did not seek or obtain permission from the defendants to use the beach.

Massachusetts Land Court Resolves Boundary Dispute Between Neighbors with Conflicting Survey Plans

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

In many situations, property owners must pursue judicial action to determine their rights in real estate matters. In a March 23, 2017 case, the Massachusetts Land Court resolved a boundary dispute between the owners of adjacent properties. The area in dispute was a portion of the plaintiffs’ driveway, which ran parallel along the shared boundary line. Both parties relied on surveys they obtained to prove ownership of the disputed area. Unable to resolve their dispute out of court, the parties sought a determination from the land court regarding the true common boundary line of the properties.

In June 2003, the plaintiff paved over his gravel driveway against an existing piece of rebar, located on what he believed was the common boundary line. Once the asphalt was laid, the plaintiff did not take any measurements or verify whether the new driveway was in a different location from the gravel driveway, closer to the defendants’ property. Believing that the paved driveway encroached upon their property, the defendants hired a surveyor to research and prepare a plan determining the location and dimensions of their property.

In 2005, the defendants approached the plaintiffs and asked if they could execute a document acknowledging the defendants’ determination of the property line. The letter also gave permission to the plaintiffs to use the encroaching sections, such as the driveway and the mailbox areas, as long as they confirmed the location of the shared boundary based on their survey. The plaintiffs declined to sign the letter and, believing that the survey was incorrect, retained the services of another company to investigate and make a determination of the boundary line.

Massachusetts Land Court Reverses Permit Approval for Construction of Two Buildings on Property Owner’s Lot

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

Property owners may apply for special permits allowing them to construct non-conforming buildings or renovations on their land. In some cases, the grant of such a permit may be challenged by abutting neighbors. The Massachusetts Land Court recently reviewed a zoning board decision in an April 6, 2017 appeal. The defendant in the case was granted a special permit to replace an existing single-family house on his property with a much larger two-story house and another freestanding accessory building with a three-car garage. The plaintiffs, who owned abutting property near the defendant, appealed the decision to the land court.

The case was complicated by the fact that there was another single-family house on the defendant’s property. In 1945, a zoning by-law was enacted that made it unlawful to have two dwellings on one residential lot. However, the 1945 by-law also provided that legally pre-existing nonconforming structures and uses could be continued and may be expanded if a special permit is granted. The issue for the land court was whether the two houses, both of which were once part of the same greenhouse, were, in fact, each used as a separate single-family residence prior to 1945. If they were not, the special permit would be invalid.

The land court found that the two existing houses on the defendant’s property were dwellings because they are detached buildings separated from other structures and designed to accommodate a residence for the use of one or more individuals. Accordingly, its use was nonconforming under the 1945 by-law and could be continued only if both of the houses existed lawfully before the zoning by-law was enacted. After reviewing the evidence of record, the land court determined that the second dwelling did not exist until after the enactment of the 1945 zoning by-law. As a result, the land court held that it was not a lawful pre-existing, nonconforming use and may not be continued.

Massachusetts Land Court Explains Requirements for Acquiring Wooded Land by Adverse Possession

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

Gaining title to property through adverse possession generally requires that certain legal elements be proven in court. The Massachusetts Land Court issued a decision on April 6, 2017, discussing the criteria for acquiring ownership in such a manner. In the case, the plaintiff claimed adverse possession of an 8,600-square foot, partially wooded rectangular parcel of land owned by the defendant, a real estate developer. The plaintiff alleged that his predecessor in title and he mowed and maintained the area in question from 1978 to the time of the present dispute, and, accordingly, he acquired title to that section of the defendant’s land by adverse possession.

In Massachusetts, title by adverse possession can be acquired only by proof of non-permissive use that is actual, open, notorious, exclusive, and adverse for 20 years. The burden of proving each element falls upon the party claiming title by adverse possession, i.e., the plaintiff in the case. To prove actual use, the plaintiff must establish changes upon the land that constitute sufficient control and dominion over the area, or, in other words, acts similar to those that are usually and ordinarily associated with ownership. Open and notorious use puts the lawful owner on notice that another person is in occupancy of the land, under an apparent claim of right. In addition, the plaintiff must be able to show a lack of consent from the true owner, rather than mere permission.

In considering the plaintiff’s claim, the Land Court explained that the particular acts that would be consistent with ownership and provide notice vary depending on the features of the land in dispute. In the case, part of the area claimed by the plaintiff contained numerous trees, with its surface covered with brush, weeds, and forest growth. The court found that the plaintiff’s intermittent actions of dumping leaves and grass clippings onto the wooded portion of the land was not evidence of actual use but instead the actions of a landowner attempting to place unwanted debris beyond the bounds of his own property.

Boundary Line Dispute Between Massachusetts Neighbors Prompts Legal Action

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

Latent disagreements regarding property lines often come to a head when one party constructs a fence along his or her purported boundary. In a March 27, 2017 decision, the Massachusetts Land Court settled a real estate dispute between two neighbors. The plaintiff brought a claim of trespass against the owner of the adjoining property, alleging that his fence encroached on her property and seeking injunctive relief requiring the removal of the fence. The defendant asserted that the fence was within the boundary of his property.

To determine the correct boundary line, the Land Court reviewed the deeds that originally conveyed the parties’ respective properties. The court found that the 1953 deed conveying land to the plaintiff’s predecessor contained a description of the property that included the disputed area. However, the court noted that although the grantor included such language in the deed description, if an ambiguity is found within the deed, parol evidence may be introduced to determine the rights granted or the area conveyed. The court went on to explain that when, as here, the deed’s description relies on physical monuments and their location on the ground, they must be considered when discerning the true meaning of the instrument. Due to the failure to find the monuments on the ground as they are described in the deed, the court concluded the 1953 deed was ambiguous.

In Massachusetts, any competent evidence may be considered in determining the true boundary line between adjoining owners. Generally, monuments control, rather than the distances set out in the deeds. Over the plaintiff’s objection, the Land Court accepted the findings of the defendant’s surveyor, who found the three monuments referenced in the 1953 deed. These monuments consisted of a stone bound and two iron pipes located in separate corners of the plaintiff’s property. The court held that the monuments marked three corners of the plaintiff’s parcel, and the distances between these monuments on the ground controlled over the distances recited in the deeds.

Massachusetts Land Court Discusses Jurisdiction Over Non-Judicial Power of Sale Foreclosures

Published on: March 27, 2017 | by Pulgini & Norton, LLP

Some homeowners can choose to take a bank loan secured by a reverse mortgage on their property, but they should be aware of the potential consequences in the event of a default. In a January 18, 2017 case before the Massachusetts Land Court, a bank sought a determination of its rights to foreclose on a reverse mortgage and enter a default judgment against the deceased homeowner’s estate and heirs. The homeowners purchased the subject property in 1984 and executed a reverse mortgage to the plaintiff in 2008. After they passed away, the plaintiff accelerated the debt and declared the loan secured by the reverse mortgage to be in default.

The Land Court had previously determined in other cases that the plaintiff’s standard mortgage form was sufficient to incorporate the statutory power of sale by reference. However, the plaintiff also moved the court for additional relief in the form of a declaration that the estate was in default of the mortgage and that the default permitted the plaintiff to foreclose on the mortgage, pursuant to the power of sale to satisfy the estate’s obligations. The larger issue in the case was whether the Land Court had subject matter jurisdiction to provide the relief requested by the plaintiff.

The Massachusetts Land Court has jurisdiction over matters in which any right, title, or interest in land is involved. Since Massachusetts is a title theory state, and a mortgage is an interest in the property that secures the mortgage debt, the mortgagee has a right, title, or interest in that property. However, with a statutory power of sale, a mortgagee may foreclose without prior judicial intervention. Although it is regulated by statute, non-judicial foreclosure occurring pursuant to a private power of sale in the mortgage is a private procedure involving private parties. Therefore, absent some controversy over title or interest in the mortgaged real property, the land court lacks jurisdiction to consider other aspects of an action involving the ability to foreclose.

Massachusetts Homeowner Appeals Zoning Variance Issued to Historical Society

Published on: March 20, 2017 | by Pulgini & Norton, LLP

Whether or not a property owner can challenge a zoning decision regarding another property depends on his or her standing. The Massachusetts Land Court decided a March 13, 2017 case in which the defendants argued that the plaintiff lacked standing to object to a local zoning board decision. The court provided a thorough explanation of the issues and requirements relating to injury and standing.

The case arose out of the proposed construction of a two-story addition that would be used to store the archives of a historical society. The historical society sought a variance from the zoning board to construct its addition outside of the side-yard setback allowed by local regulations. The plaintiff owned and resided at a property across the street from the historical society building, approximately 240 feet from the site of the proposed addition. When the zoning board granted the variance, the plaintiff filed a complaint appealing the decision.

Under the Massachusetts Zoning Act, only a person aggrieved has standing to challenge a decision of a zoning board of appeals. Abutters, landowners directly opposite on any public or private street or way, and abutters to abutters who are within three hundred feet of the property line of the petitioner are entitled to notice of zoning board hearings and have a rebuttable presumption that they are aggrieved by a decision concerning another property. The defendant may rebut the presumption by showing that the plaintiff’s claims are not interests that the Zoning Act is intended to protect.

Massachusetts Court Affirms Plaintiffs’ Legal Right to Use Beach Access Path On Defendants’ Property

Published on: March 13, 2017 | by Pulgini & Norton, LLP

In some situations, a well-traveled path through another’s personal property may give rise to an easement over time. In a case decided on March 7, 2017, the Appeals Court of Massachusetts reviewed whether the plaintiffs were entitled to use a path located on the defendants’ property in order to access a nearby beach. The case was on appeal following the Land Court’s decision finding that past use of the path by the plaintiffs and their predecessors had established a prescriptive easement over that portion of the defendants’ land.

The dispute originated during the previous ownership of the parties’ lots, which are located in two bordering subdivisions. When the defendants’ subdivision was initially developed, a road was installed for construction use to reach the public road. Thereafter, the same developer was hired to develop the plaintiff’s subdivision. The developer breached a wall that ran between the construction road, so equipment and materials used for the defendants’ subdivision could easily be brought into the plaintiffs’ subdivision.

Early purchasers of lots in the plaintiffs’ subdivision testified that residents would regularly walk and bike down the construction road to access the beach, although they were not granted explicit permission by the developer to use the road. In 1995, after the defendants acquired their lot, they installed a large boulder approximately four feet wide and four feet high at the northern entrance of the construction road, with an inscription that stated the road was a private way. Despite the sign, the defendants regularly observed people using the road to access the beach.

Massachusetts Landowner Files Suit After Neighbors Construct Fence

Published on: March 6, 2017 | by Pulgini & Norton, LLP

It is not unusual for legal disagreements to arise out of an easement or the permissible use of one’s property by non-owners. Recently, the Appeals Court of Massachusetts issued a January 30, 2017 decision in which it determined the rights of neighboring landowners over three disputed right of ways. The plaintiff initially brought the action against his neighbors in Land Court, seeking to restrain them from maintaining a fence on any portion of his property. The Land Court found that the neighbors did have rights to parts of the right of ways, but other parts had been partially extinguished by adverse possession. Both parties appealed that decision to the higher court for review.

The three right of ways at issue abutted or were in the vicinity of the parties’ properties, leading to a public road. After the defendants erected a fence, the plaintiff filed his action, claiming that the defendants’ fence blocked his right of ways, that he had ownership of the first and third right of way by adverse possession, and that he had acquired a prescriptive easement to turn around and park on certain sections of the defendants’ property.

The parties’ properties were originally part of a larger tract of land, which was divided into six lots in 1911. The 1911 plan revealed that the parties’ current lots would be landlocked without the first and third right of ways. In 1941, one of the lots was divided into northern and southern sections, owned by the defendants and the plaintiff, respectively. The 1941 deed granted an express access easement for the defendants’ lot to use the second right of way located on the plaintiff’s lot.

Massachusetts Plaintiffs Successfully Appeal Cease-and-Desist Order Regarding Their Private Airfield

Published on: February 20, 2017 | by Pulgini & Norton, LLP

Many local zoning bylaws regulate the use of residential property in a town or municipality. In a November 7, 2016 decision, the Massachusetts Land Court considered whether a local bylaw prohibiting airfields was invalid. The plaintiffs in the case were ordered by the town’s building inspector to cease and desist operations at the private airfield on their property, on the ground that such use was not permitted under the town’s zoning bylaw. That order was upheld by the Stow Zoning Board of Appeals and subsequently appealed to the Land Court.

The plaintiffs’ property was used to operate an aviation museum and housed a number of vintage aircraft in working condition. The property also contained an airfield registered with the Aeronautics Division as a non-commercial private restricted landing area. Many of the neighboring landowners objected to the noise and disruption caused by landing aircraft and aviation events held on the plaintiffs’ property, which prompted Stow’s building inspector to issue the cease-and-desist order prohibiting the use of the airfield.

Under Massachusetts law, a municipality must obtain the approval of the Aeronautics Division of the Massachusetts Department of Transportation before regulating the use or operation of aircraft on airfields. In the current case, the bylaw at issue prohibited airfields entirely, everywhere in the town. Although airport and landing field use had previously been allowed in many of the town’s districts, Stow’s zoning bylaw was amended in 1982 to delete it as a permitted use. The town applied for approval of the prohibition in its bylaw some time thereafter. The Aeronautics Division, however, denied approval to the extent that the bylaw sought to regulate aviation activity within its boundaries.