Massachusetts Real Estate Lawyer Blog

Plaintiffs Object to Neighbors’ Proposed Garage Construction in Massachusetts Zoning Appeal

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

Individuals may have the right to appeal a decision from their local zoning board if the matter directly affects them or their property. The Massachusetts Land Court reviewed such an appeal in a January 3, 2017 case, in which the plaintiffs objected to a decision of the Zoning Board of Appeals. The Board had granted a special permit allowing the defendants to rebuild a deteriorated garage on their property. By issuing the permit, the Board approved a proposed structure that was higher than the original and in a different location of the defendants’ property.

On appeal, the Land Court first addressed the issue of standing by determining whether the plaintiffs had suffered some infringement of their legal rights. The plaintiffs asserted standing based on noise, density, harm to the salt marsh and related flooding, diminished views and vistas, and diminution in value of their property. After reviewing the evidence, the court concluded that the plaintiffs had standing based only on an increase in density but not on the other grounds asserted. In particular, the court found that the new garage’s increase in height and the movement of residential activity closer to the plaintiffs’ property were sufficient to provide standing based on an increase in density. The court went on to rule against the plaintiffs’ procedural arguments, holding that the Board’s actions in approving and issuing the special permit were not in error.

Finally, the court reviewed whether the special permit was granted based on an unreasonable, capricious, or arbitrary exercise of judgment in applying the land use regulation to the facts. Pursuant to the local bylaws, special permits are only granted if the applicant demonstrates that no undue nuisance, hazard, or congestion will be created, and there will be no substantial harm to the established or future character of the neighborhood or town. In addition, the proposal must not be substantially more detrimental to the neighborhood, zoning district, or town.

Massachusetts Court Considers Lender’s Right to Foreclose Under Standard Form Mortgage

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

Property rights are often defined in a contract executed by the parties involved in the transaction. In an August 1, 2016 decision, the Massachusetts Land Court examined a contract for a reverse mortgage in order to determine the right of the mortgage lender to foreclose. The lender had used a standard contract to issue the mortgages, which did not explicitly incorporate the statutory power of sale under G.L. c. 183, § 21. The lender filed an action with the Land Court, seeking a declaration that their reverse mortgage forms nevertheless include these rights.

A reverse mortgage is a loan or line of credit available to a person over the age of 62 who has equity in real estate, typically the person’s home. The loan provides the borrower with cash, usually in the form of a single lump-sum payment, and is secured by the borrower’s equity in the real estate. The borrower does not make monthly repayments towards the loan, but instead, the loan is due and payable in full when the borrower dies, sells the home, or no longer uses the home as her principal residence.

Pursuant to Massachusetts law, if a mortgage provides for a power of sale, the lender, in exercising the power, may foreclose without obtaining prior judicial authorization. In order for a lender to foreclose by exercise of the power of sale, the mortgage itself must grant the lender the statutory power of sale. The statutory power may be incorporated into a mortgage in three ways: (1) by including the exact language of the statute defining it in the text of the mortgage; (2) by referring to the definition, generally by use of the term “Statutory Power of Sale”; or (3) with language in the mortgage defining a power substantially similar to that of the statutory power.

Deed Provision Compels Massachusetts Landowners to Re-Convey Subdivision Lot to Developer

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

Some residential real estate deeds include provisions that limit or dictate what can be done with the property, often known as restrictive covenants. In a recent case (Mass. Land Ct. Jan. 25, 2017), the Massachusetts Land Court considered whether an option to repurchase land, styled as a restrictive covenant, could be exercised after a substantial period of time.

The plaintiff in the case was a subdivision developer that had sold several lots to residential purchasers, including the defendants, for the purpose of building homes on the lots. The plaintiff recorded a Declaration of Restrictive Covenants that applied to all of the subdivision lots, which contained a provision that allowed the plaintiff to repurchase any lot at the original sale price if home construction had not commenced within a year of the purchase.

In 2005, the defendants’ parents purchased a subdivision lot from the plaintiff, and a year passed without any construction. They subsequently conveyed the lot to the defendants, who also failed to build on the lot. In 2015, the plaintiff demanded that the defendants re-convey the property to the plaintiff, pursuant to the covenant contained in the Declaration. The plaintiff filed an action with the Land Court, claiming its right to exercise an option to re-purchase the lot as a result of the defendants’ failure to commence construction within a year after their purchase of the property.

Problematic Property Conveyance Results in Litigation Among Massachusetts Landowners

Published on: January 23, 2017 | by Pulgini & Norton, LLP

Property conveyances are typically complex, and errors or ambiguities in the deed can lead to litigation years into the future. This point is demonstrated in a recent case, Powell v. Ashley (Mass. Land Ct. Nov. 21, 2016), which concerns a 1973 deed that became the source of a years-long dispute between neighbors.

In Powell, the defendants recorded a deed conveying the garage located on their property to the previous owners of the plaintiffs’ property in 1979. The conveyance was problematic. The deed was dated 1973, but the notary public’s commission indicated that the earliest it could have been witnessed was 1977. The deed also lacked a metes and bounds description and was subject to an existing mortgage. In addition, the previous owners lost their property through a foreclosure in 1978, and the property was sold a week before the deed was recorded. Thereafter, the defendants resumed occupation and use of the garage.

In 2003, the plaintiffs brought an action in Land Court, seeking a declaration that they were the record owners of the garage, free of the defendants’ claims of record ownership and ownership by adverse possession. While that litigation was ongoing, the plaintiffs also commenced an action in the Housing Court against the defendants. After a hearing, the Housing Court entered judgment in the plaintiffs’ favor regarding record ownership of the garage. The Land Court concluded that the Housing Court’s ruling was binding in the Land Court action on the basis of res judicata, a legal principle that prohibits parties from re-litigating the same issue. The Land Court also held that since the defendants did not raise the defense of adverse possession in the Housing Court action, they were barred from arguing it in the present case.

Massachusetts Homeowners Prevail in Easement Action Filed by Real Estate Developer

Published on: January 16, 2017 | by Pulgini & Norton, LLP

In a recent case before the Massachusetts Land Court, a real estate developer filed an action against the adjacent property owners and neighborhood association, claiming an easement for vehicular passage over their lots. In Bucks Hill Realty, LLC v. Gill (Mass. Land Ct. Jan. 11, 2017), the developer-plaintiff sought a declaration that it had an express or implied appurtenant easement to use the road at issue to get between its parcel and the public street. The plaintiff also asked the court to enjoin the defendants from interfering with its use of the road.

In Massachusetts, the party asserting the benefit of an easement has the burden of proving its existence, its nature, and its extent. A plan cited in a deed showing an easement becomes part of the contract as far as it may be necessary to aid in the identification of the lots and to determine the rights intended to be conveyed. When an ambiguity exists in a deed, contract, or other instrument, it is proper to look beyond it for meaning.

In Bucks Hill Realty, LLC, the parties’ lots were subject to a declaration of covenants, conditions, and restrictions. The declaration referenced two plans, each of which showed two differing points of termination for the easement. While the first plan depicted an easement that continued through the defendants’ land into the plaintiff’s lot, the later plan terminated the easement before it reached the plaintiff’s property. Due to this discrepancy, the parties agreed that additional facts were required to determine the extent of the easement set out in the declaration.

Massachusetts Homeowners Operating Commercial Dog Breeding Business Found Incompatible with Deed Restrictions

Published on: January 9, 2017 | by Pulgini & Norton, LLP

In Massachusetts, a residential real estate property may be subject to restrictions contained in the deed, as well as other zoning and land use regulations. In Clish v. Paradise (Mass. Land Ct. Jan. 9, 2017), the Massachusetts Land Court decided a dispute involving neighboring residents of a subdivision development. The plaintiffs brought suit, alleging that the defendants were operating a commercial dog breeding and sales operation out of their home, in violation of the deed limiting the property to residential use.

In Clish, the deed of the property at issue contained a restriction that “the property so conveyed shall be used only for residential home construction.” The defendants argued that the language of the restriction only limits what can be constructed or built on the property, and it does not relate to the use of the property. The land court, however, found that this interpretation would render the restriction meaningless, since all of the lots containing the restriction were purchased with residential single-family homes already built on them. In addition, the court found that the purpose of the deed restrictions was to assure residents of the subdivision, including the plaintiffs, that they would be purchasing and living in a home in a residential neighborhood with the characteristic appearance and activities of the same. Accordingly, the land court held that the deed restriction limited the use of the property to residential use.

Massachusetts Land Court Dismisses Bank’s Action Against Defendant to Reform Mortgage

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

In a recent case, the Massachusetts Land Court ruled on whether a bank could reform an existing mortgage it held with the defendant. In JP Morgan Chase Bank, N.A. v. Niakaros (Mass. Land Ct. Dec. 13, 2016), the defendant had sought a personal loan in 2007 to pay off an existing mortgage on property owned by his trust, without having to grant a new mortgage on the property. The bank agreed to the personal loan, and at the closing, the defendant confirmed to the closing attorney that he did not intend to grant a mortgage. The mortgage was never recorded.

The bank failed and was placed in receivership in 2008, and the loan was eventually sold to the plaintiff. Realizing that both the note and the mortgage on the property were given to the defendant individually, rather than by the trust that owns the property, and that the mortgage was never registered, the plaintiff brought an action to reform the mortgage to name the trust as mortgagor and have it registered. The primary issues for the land court were whether there was a mutual mistake in the naming of the defendant personally as mortgagor, and whether the defendant would be so unjustly enriched that the mortgage should be reformed.

In Massachusetts, a court has broad power to reform, rescind, or cancel written instruments, including mortgages, on grounds such as fraud, mistake, accident, or illegality. A reformation based on a mistake will only be allowed if there is full, clear, and decisive proof that the mortgage failed to express the intent that both parties had in making it. In JP Morgan Chase Bank, the land court ruled that the plaintiff failed to establish that the bank and the defendant made a mutual mistake in executing the mortgage from the defendant individually. The court credited the testimony of the defendant, in that he communicated his intent to acquire a personal loan and not encumber his trust’s rental property to representatives of the bank as well as the closing attorney. The court also noted that the note and the mortgage were consistent with the defendant’s description of an individual loan.

Massachusetts Land Court Explains Impact of Judgment Execution on Joint Tenancy Ownership

Published on: December 26, 2016 | by Pulgini & Norton, LLP

The Massachusetts Land Court recently decided an interesting legal issue regarding the impact of a judgment execution on joint tenancy ownership in McHugh v. Zanfardino (Mass. Land Ct. Dec. 14, 2016). The question to be answered in the quiet title action was whether the recording of an execution by a judgment creditor severs the joint tenancy of the owners of the subject property, thus converting their ownership into a tenancy in common and defeating one co-owner’s right of survivorship upon the death of the other.

In McHugh, the plaintiff commenced an action seeking to quiet title to two condominium units, which she claimed to have held in joint tenancy with the decedent. She argued that upon his death, she became sole owner of the properties by right of survivorship. The decedent’s heirs, however, claimed that the plaintiff and decedent were tenants in common, and the decedent’s share of the units passed to his heirs upon his death.

In reaching its decision, the land court analyzed G.L. c. 236, § 12, the statute governing the effect of a levy of execution on property owned by either joint tenants or tenants in common. The statute provides that if land is held by a debtor in joint tenancy, the share belonging to the debtor may be taken on execution, and it is thereafter held in common with the co-tenant. Although the parties agreed that a joint tenancy terminates at the point that the land is taken on execution, they disputed the meaning of “taken on execution.” The plaintiff argued that the levy process must be completed (i.e., after the property has been appraised and sold) before converting to a tenancy in common, while the defendants argued that the beginning of the levy and the recording of the execution severs the joint tenancy.

Massachusetts Neighbors File Try-Title Action to Determine Ownership of Land Parcel

Published on: December 19, 2016 | by Pulgini & Norton, LLP

If a record title of property is clouded by an adverse claim, or even the possibility of one, the property owner may “try title” by filing a petition with the court and requesting that it summon any adverse claimants. In the case of Blakeman v. Cellini (Mass. Land Ct. Nov. 23, 2016), both parties claimed ownership of a small rectangular parcel of land, depicted as a 40-foot water easement on a recorded plan. The plaintiffs initiated a try title action, seeking to establish ownership of a disputed area. The defendants filed a counterclaim to try title as well, and they also claimed title by adverse possession if the plaintiffs were found to be the record owners of the area.

A try-title action allows a party in possession claiming title to property to compel an adverse claimant to prove the merits of the adverse claimant’s interest in the property. Once the plaintiff satisfies the jurisdiction elements of the statute, the adverse claimant must either bring an action asserting claim of title or disclaim an interest in the property. When both parties assert title, as in Blakeman, the court may convert their respective claims to an action for declaratory judgment, in which the court will rule on who has record title to the area in dispute.

In Blakeman, the deed conveying the defendants’ property contained a metes and bounds description of their lot, as well as a reference to a recorded plan on which the lot was shown. The metes and bounds description did not include the disputed area as within their property. The recorded plan, however, did show the disputed area as part of their lot rather than as a separate, distinct parcel. The question before the Land Court was which description prevails.

Massachusetts Appeals Court Considers Whether Safety Hazard Merits Allowance of a Variance in Zoning Case

Published on: December 12, 2016 | by Pulgini & Norton, LLP

In some situations, there may be an exception to a zoning ordinance that would otherwise prohibit a particular activity or change to a property. In a recently published opinion, the Appeals Court of Massachusetts reviewed a case in which the defendant sought and received a dimensional variance from the zoning board, allowing it to build a new boat repair facility outside the setback requirements of the local zoning ordinance. In Furlong v. Zoning Bd. of Appeals of Salem (Mass. App. Ct. Dec. 12, 2016), the owner of the abutting property appealed that decision to the Land Court. The Land Court affirmed the zoning board’s ruling, concluding that strict enforcement of the zoning ordinance would create an unnecessary safety hazard and that the defendant had demonstrated a hardship sufficient to merit the allowance of a variance. The plaintiff then brought his appeal to the higher court.

Variances are individual waivers of local legislation that permit nonconformity. A variance may be allowed only when, due to circumstances relating to the soil conditions, shape, or topography of such land, a literal enforcement of the ordinance or by-law would involve a substantial hardship, financial or otherwise, for the landowner, and if relief may be granted without substantial detriment to the public good and without substantially deviating from the purpose of the ordinance or by-law.

In Furlong, the defendant owned property upon which it operated an active marina with a parking lot and several structures. In 2011, the defendant submitted a petition for a variance of the setback requirements, seeking to construct a boat repair facility at the edge of the property in order to provide adequate room for the safe operation of the travel lift and reduce the noise and fumes. The building plan included widening the entrance to the marina from the street. The defendant argued that, because of the peculiar shape of the property, a hardship in the form of safety hazards would result if the building were constructed within the setback requirements. These safety hazards would be caused by the building interfering with the operation of the travel lift, which requires a large, open turning radius free of blind spots.