Massachusetts Real Estate Lawyer Blog

Massachusetts Landowners Successfully Challenge Permit Issued for Housing Development Next to Their Property

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

In a current real estate case, Massachusetts property owners brought an action seeking to annul a special permit granted by the town’s planning board for the construction of a 16-unit housing development. In Parker v. Freedman (Mass. Land Ct. Aug. 26, 2016), the plaintiffs contended the development would negatively affect their property and the surrounding neighborhood with increased traffic, noise, and congestion, and the plan would impermissibly allow the public onto their property, overburdening the right of way easement.

In Parker, the plaintiffs’ lot was between another single-family residence and the defendant’s lot. A right of way easement over a driveway partially located on the plaintiffs’ property allowed vehicles access across the lots in order to reach a public road. The special permit at issue provided for public access to the future condominium building over the right of way easement for the purposes of parking and using trails to be established on an open space parcel. The proposed development and the public trails, the plaintiffs argued, would drastically increase the intensity of the use of the driveway and overburden the right of way to their detriment.

Massachusetts Bank’s Mistake Has Significant Consequences in Reverse Mortgage Case

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

The Appeals Court of Massachusetts recently decided a case stemming from a home equity conversion mortgage, also known as a reverse mortgage, between a homeowner and her lender. In Fin. Freedom Acquisition, LLC v. Laroche, 90 Mass. App. Ct. 1104 (2016), the bank sought a declaration from the court that the homeowner’s property was subject to the mortgage, despite the fact that it had been previously conveyed to her son. After a judge dismissed the bank’s claims, the bank appealed.

In Fin. Freedom Acquisition, LLC v. Laroche, two years prior to executing the reverse mortgage, the homeowner had deeded the home’s fee simple interest to her son, retaining a life estate for herself, for estate planning purposes. Later, the homeowner began researching the possibility of supplementing her income through a reverse mortgage. Deciding to move forward, the homeowner acquired a reverse mortgage from the plaintiff, secured by her home. Prior to closing on the reverse mortgage, the plaintiff discovered that the property had been deeded to the homeowner’s son and noted in the closing documents that a re-conveyance back to the homeowner would be required to complete the transaction. Nevertheless, the closing proceeded without the re-conveyance, and the bank granted the homeowner a mortgage on the property while she received proceeds from the loan. Five years later, the bank again noticed that the property had not been re-conveyed and requested that the homeowner’s son transfer the fee simple back to the homeowner. When he refused to do so, the bank brought an action seeking a declaration that the son’s remainder fee simple interest was subject to the bank’s mortgage.

Massachusetts Homeowners Win Breach of Contract Claim Against Corporation in Property Dispute

Published on: September 5, 2016 | by Pulgini & Norton, LLP

In a recent case, the Superior Court of Massachusetts took issue with the bad-faith dealings of a corporation involved in easement negotiations with its neighboring residents. In Nicoli v. Gooby Indus. Corp. (Mass. Super. Sept. 2, 2016), the plaintiffs’ residential parcel of land shared a boundary with a manufacturing company. When the defendant failed to honor its agreement to sell the plaintiffs a portion of its land, the plaintiffs brought suit. The court ultimately ruled in favor of the plaintiffs, finding that the defendant engaged in a pattern of bad faith that compelled an equitable outcome.

In Nicoli, the plaintiffs owned an L-shaped parcel of land neighboring the defendant’s property. After moving into their home, the plaintiffs contacted the defendant to inquire about purchasing a 30 by 28 foot parcel of its land to make the plaintiffs’ lot a complete rectangle. The defendant ignored the plaintiffs’ repeated requests for several years. In 2012, seeking to expand its plant, the defendant held a series of meetings with the neighborhood and city officials. Despite some neighborhood opposition, the city eventually approved the expansion plans in 2013.

The original expansion plans included the construction of a retaining wall that would have placed the 30 by 28 foot parcel of land on the plaintiffs’ side of the wall. In order to complete the restraining wall, however, the defendant needed to obtain easements from the owners of the abutting properties, including the plaintiffs. These easements were necessary because of the considerable disruption and mess caused to the neighboring yards. The plaintiffs agreed to grant the defendant an easement only after the defendant agreed to convey to them the parcel of land at issue. The defendant’s attorney hurriedly drafted an agreement in order to quickly obtain the plaintiffs’ signature on the easement, which the plaintiffs signed without seeking their own legal counsel.

Massachusetts Appeals Court Sides with Property Owner in Case Against Town Over Easement Rights

Published on: August 22, 2016 | by Pulgini & Norton, LLP

In a recent case, the Court of Appeals of Massachusetts reviewed an easement dispute in which the plaintiff complained of the growing public use of a private way adjacent to his property. In Goff v. Town of Randolph (Mass. App. Ct. Aug. 12, 2016), the plaintiff’s property was located at the end of a private way and included easement rights, in common with others, to use the way. In 2009, the town acquired title to an 11-acre parcel of land abutting the plaintiff’s property, and it opened it to the public as a community park. The town made the park accessible by a path next to the plaintiff’s property that connected to the end of the private way at issue. The plaintiff filed a complaint against the town, alleging that the creation of the path had facilitated and encouraged public use of the private way located partially on his property. After the lower court granted the town’s motion for summary judgment, the plaintiff appealed.

In Goff, the plaintiff proceed with his suit pro se, and the appeals court acknowledged that his allegations would be liberally construed. The court, therefore, construed the plaintiff’s allegations to include a taking of private property with respect to the portion of a cul-de-sac on his land after requesting the termination of public use. The court interpreted his claim as one brought under the Fifth and Fourteenth Amendments to the U.S. Constitution, in that the portion of his property on which the new path and stone post were built were taken for public use without just compensation.

Massachusetts Appeals Court Holds Property Owner Acquired Neighboring Land Enclosed by Fence

Published on: August 15, 2016 | by Pulgini & Norton, LLP

Boundary disputes between neighbors are not uncommon, and issues regarding adverse possession of bordering property may arise after many years have passed. The Appeals Court of Massachusetts reviewed such a dispute in the case of Paris v. Morris (Mass. App. Ct. Aug. 3, 2016). In Paris, the plaintiff brought a complaint against his neighbor, alleging trespass and seeking declaratory relief with regard to a fence that encroached on his land. The land court judge, however, found that the defendant had acquired the strip of land at issue through adverse possession. The plaintiff subsequently appealed that ruling to the higher court.

In Paris, a hedge approximately three feet in width and four feet high straddled the boundary at issue from at least 1960 to 1999. The hedge was maintained exclusively by the defendant and his late father until 1999, when it was removed, and a six-foot-high wooden fence was installed. Between 1999 and 2007, neither the plaintiff nor the prior occupants of the plaintiff’s property sought the removal of the fence, which was built on the plaintiff’s property.

In Massachusetts, title by adverse possession can be acquired if the claimant establishes his or her non-permissive use of the property, which is actual, open, notorious, exclusive, and adverse for a period of 20 years. The lower court found that, as a result of the exclusive maintenance of the hedge by the defendant and his father, and in addition to the years in which the fence was present, the 20-year statutory period had been met. On appeal, the plaintiff argued that the mere maintenance of the branches of a hedge on a boundary line that overhangs neighboring property cannot amount to an act of exclusion that is sufficient to meet the requirements of adverse possession, at least with regard to the property underneath the branches.

Massachusetts Supreme Judicial Court Decides Jurisdictional Issue in Railroad Easement Case

Published on: August 8, 2016 | by Pulgini & Norton, LLP

In a newly issued opinion, the Supreme Judicial Court of Massachusetts discussed whether the federal government or the Massachusetts Land Court had proper jurisdiction in an easement dispute involving a railroad. In Murray v. Dep’t of Conservation & Recreation (Mass. Aug. 4, 2016), the plaintiffs brought an action to quiet title, claiming that a railroad easement across portions of their lands was abandoned after the United States Railway Association (USRA) transferred rail lines from eight bankrupt rail carriers pursuant to the Regional Rail Reorganization Act of 1973 (the Act). Since the rail line over the easement on the plaintiffs’ lands was not part of the reorganization, the plaintiffs contended that it was abandoned by virtue of its non-designation in the USRA’s final system plan. The Land Court concluded that the Federal Surface Transportation Board (STB) had exclusive and primary jurisdiction over the matter and that a certificate of abandonment from the STB was necessary before a state court could exercise jurisdiction over the parties’ dispute. The plaintiffs subsequently appealed the issue.

Generally, before any rail line may be abandoned, a certificate of abandonment must be obtained from the appropriate federal agency. Federal law expressly confers exclusive authority to regulate the abandonment of rail lines, with certain exceptions, on the STB. One of the exceptions to this exclusive authority developed when, in the early 1970s, eight major railroads entered into bankruptcy reorganization proceedings. Congress enacted the 1973 Act establishing the USRA and charged it with preparing a final system plan for restructuring the railroads into a financially self-sustaining system. The 1973 Act also authorized the abandonment of rail properties and easements, notwithstanding any provision of state law, the Constitution, or any administrative or judiciary decision.

Massachusetts Land Court Vacates Foreclosure Judgment on Basis of Health Issues and Due Process Rights

Published on: August 1, 2016 | by Pulgini & Norton, LLP

In a recent case, a Massachusetts Land Court was presented with a motion to vacate judgment to prevent the foreclosure action and sale of property owned by the defendants. In Town of Russell v. Barlow (Mass. Land Ct. July 13, 2016), the town filed a complaint in 2003 to foreclose on the property at issue as the result of a tax lien. In 2008, a judgment was entered foreclosing the defendants’ right of redemption. The defendants filed their petition to vacate in 2014, contending that the tax taking and foreclosure were invalid because the town violated their due process rights. The court ultimately granted the defendants’ motion and vacated the judgment.

Massachusetts law generally requires a petition to vacate a decree of foreclosure to be filed within one year of the entry of the decree. The judgment may be vacated within one year if the court determines it is required to accomplish justice. However, the strict application of the one-year limitation may be excused when there has been a denial of due process, which is typically based on a violation of due process rights and the property owner’s ability to participate in the original litigation. Due process, in turn, requires notice of a petition to foreclose by certified mail, but it does not require actual notice.

Massachusetts Appeals Court Holds Plaintiff’s Adjacent Lots Merged with Common Ownership in Zoning Case

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

In a recent opinion, the Appeals Court of Massachusetts reviewed a zoning appeal involving the merger of two adjacent lots. In Gallagher v. Zoning Bd. of Appeals of Falmouth (Mass. App. Ct. July 25, 2016), the plaintiff appealed a summary judgment order by the land court, which affirmed a decision of the zoning board of appeals merging the separately maintained lots for zoning purposes. Ultimately, the appeals court affirmed that determination as well.

In Gallagher, the two adjacent lots at issue were included in a subdivision plan and conveyed separately to the plaintiff and the plaintiff’s husband. The plaintiff’s house was located on one of the lots, while the other lot, owned by her husband, contained the carport. In 2000, the plaintiff applied to the city planning board to combine the lots and was granted an endorsement. However, the plan was never recorded. Until that time, the house lot and the carport lot remained in separate ownership by the plaintiff and her husband, respectively. The plaintiff’s husband conveyed the carport lot to the plaintiff before his death later that year. In 2013, the plaintiff requested a zoning determination from the building commissioner that the carport lot was a separate buildable lot, exempt from the increased area requirements of a 1993 zoning amendment. The commissioner found that the lots had merged, a decision that was affirmed by the zoning board of appeals and the land court. Specifically, the land court ruled that when the two lots came into the plaintiff’s common ownership, they lost grandfather protection and merged for zoning purposes.

Massachusetts Land Court Affirms Building Permit in Zoning Case

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

The Massachusetts Land Court issued an opinion regarding a zoning appeal in Reeve v. Godfrey (Mass. Land Ct. July 12, 2016). The building commissioner issued a building permit for the construction of a single-family home in the same location as a former dwelling. The plaintiffs and other neighboring homeowners appealed the permit to the zoning board, arguing that the lot did not have a sufficient area to qualify it as a buildable lot. The zoning board affirmed the permit, and the matter was appealed to the land court.

In Reeve, the property at issue is accessible by a private right of way that branches off a larger avenue and continues onto the property. The primary question for the land court was whether an area consisting of a private way should be included in the lot size. Significantly, the property was subject to zoning regulations that required at least 90,000 square feet for a lot to be buildable. As a result, if that portion of the right of way is excluded from the lot area calculation, the lot would be considered undersized. However, if the private way is included, the lot would have sufficient area to be buildable.

Massachusetts Land Court Holds Petition to Vacate Foreclosure Untimely

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

If certain due process protections were not provided during foreclosure proceedings, this may be grounds to vacate a judgment of foreclosure. In Town of Brewster v. Owners Unknown (Mass. Land Ct. July 8, 2016), the Massachusetts Land Court reviewed a petition to vacate a final judgment of foreclosure of a tax lien, based on lack of notice. The judgment had been entered over 25 years earlier, when the town obtained a 1991 judgment to foreclose its tax lien against “unknown owners.” The petitioners in Town of Brewster claimed a title interest in the property as heirs of the owner, citing an 1851 deed. The petitioners also asserted that the lack of notice to the heirs violated due process, thus entitling them to vacate the judgment and redeem the property by paying any taxes properly due.

The case was originally commenced in 1986, after the town sought unpaid taxes on the property. The land court examiner filed a title report identifying three persons as parties entitled to notice and requested current addresses from the town. Two of the parties were given notice via certified mail. However, there was no return receipt from one of the parties, despite two attempts to provide notice. The town also published notice of the case in the local newspaper. In 1991, the court issued a final judgment, ordering that all rights of redemption were forever foreclosed and barred. In 2015, the petitioner requested that the judgment be vacated. The town argued that even if a due process violation occurred, the petitioners waited too long after learning of the foreclosure judgment to bring the action, since he had first learned of it in 2012.