Massachusetts Real Estate Lawyer Blog

Massachusetts Appeals Court Rules in Favor of Plaintiffs in Easement Case Against Gas Pipeline Facility

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

In a recent decision, the Appeals Court of Massachusetts reversed the judgment of a lower court in a case involving an easement dispute. In Melrose Fish & Game Club, Inc. v. Tennessee Gas Pipeline Co., LLC, 89 Mass. App. Ct. 594 (2016), the defendant, a gas pipeline company, constructed a natural gas pipeline facility in 1998 across an area over which the plaintiffs claimed an easement. The area was a “paper” street, one that is shown on a plan but not built on the ground. The plaintiffs brought a trespass action against the defendant, alleging interference with an easement. The superior court granted the defendant’s summary judgment motion against the plaintiffs, and the plaintiffs subsequently appealed.

On appeal, the court found that the plaintiffs possessed an easement by estoppel over the length of the avenue on which the facility was built. The court explained that when a grantor conveys land bounded on a street or way, the right to an easement of way extends the entire length of the street. The grantor cannot then deny the existence of a way, based upon the principle of estoppel. In Melrose Fish & Game Club, Inc., the plaintiffs’ lot abutted the avenue, and thus the court held that the plaintiffs also possessed a valid easement.

Massachusetts Court Allows Residents to Proceed with Zoning Appeal of Building Permit

Published on: June 27, 2016 | by Pulgini & Norton, LLP

In a recent zoning appeal, the Massachusetts Court of Appeals decided the question of whether neighboring residents could continue their attempt to block a permit allowing the construction of a building on an empty lot after missing a filing deadline. In McIntyre v. Zoning Bd. of Appeals of Braintree, 89 Mass. App. Ct. 1119 (2016), the plaintiffs contended that the property, which was located in the town’s residential district, was not a buildable lot under the town’s zoning by-laws, and they sought to appeal a building permit issued to the landowners.

In 1986, the previous owners of the property obtained a variance to divide it into two lots, one of which is the lot at issue. The previous owners recorded a plan endorsed pursuant to M.G.L.A. 41 § 81P in 1987, but the property was not transferred, and no building permit was applied for or granted. In 2013, the plaintiffs learned that the property was listed for sale, and they met with various town officials regarding their position that the property was not a buildable lot under appropriate zoning by-laws. Nevertheless, without any notice to the plaintiffs, a zoning permit was issued to the landowners, and construction commenced the next day.

Massachusetts Land Court Determines Issues of Record Ownership and Adverse Possession in Property Case

Published on: June 20, 2016 | by Pulgini & Norton, LLP

Property disputes are not uncommon between landowners, particularly those with neighboring lots. The Massachusetts Land Court recently reviewed a real estate lawsuit between neighbors involving claims of record ownership and adverse possession in the case of Evans v. Jackson (Mass. Land Ct. June 15, 2016).

In Evans, the defendants owned a parcel of land that was once a tidal pool but was filled in the 1920s. The plaintiff claimed that she had title to the filled flats of the pond abutting her property, which were currently being used and occupied by the defendants, since title was conveyed along with her property pursuant to an ordinance. The plaintiff sought a declaratory judgment to prevent the defendants from constructing an addition to their single-family home on the disputed area. The land court, however, ultimately held that the defendants have title to the flats, and in addition, they obtained title to the disputed area by adverse possession.

In Evans, the court first traced the extensive history of the property at issue, going back to 1872. The land court narrowed the issue to whether the disputed area was intended to be included in the conveyance of the residential lot to the defendants, or whether the grantors did not intend to convey this additional area along with the lot. Accordingly, the court engaged in an analysis of the deeds to determine record ownership.

Massachusetts Homeowners Challenge Foreclosure in Multiple Actions

Published on: June 13, 2016 | by Pulgini & Norton, LLP

Some foreclosure cases can become complicated, especially when multiple actions are filed in different courts with jurisdiction over a particular aspect of the dispute. In Merrill Lynch Credit Corp. v. Bishay (Mass. Dist. Ct. May 6, 2016), the foreclosure sale purchaser brought a residential summary process action against the former owners after they refused to vacate their home. The action was stayed while the former owners challenged the purchaser’s title in a separation action. The former owners then moved to amend their answer and counterclaim in the current case. The trial court denied the motion to amend and entered judgment awarding possession of the property to the purchaser.

In Bishay, the defendants were owners of the residential property at issue. In 2004, the defendants borrowed $650,000 from the bank, secured by a mortgage on the property. After the defendants eventually defaulted on the loan, the bank initiated foreclosure proceedings. The plaintiff acquired title to the property pursuant to a foreclosure deed, following an auction conducted by the bank. When the defendants failed to vacate the premises, a summary process action was filed against them. The defendants also challenged the validity of the title to the property in a separate action in the Land Court. The District Court action was stayed pending the outcome of the challenge to the title.

On appeal, the issue before the Massachusetts District Court was whether the judge erred in denying the defendants’ motion to amend their answer filed in the residential summary process action. In Massachusetts, the rules of civil procedure allow any party to amend its pleading once as a matter of course within 20 days after it is served, or after that time expires, by leave of court or by written consent of the adverse party. The court should allow a motion to amend unless it has a good reason, such as prejudice to the non-moving party.

Massachusetts Land Court Defines Neighbors’ Rights to Use Private Way in Property Dispute

Published on: June 6, 2016 | by Pulgini & Norton, LLP

In a recent decision, the Massachusetts Land Court reviewed a case involving an easement dispute between two neighboring landowners. In Teare v. Stockwell (Mass. Land Ct. May 20, 2016), the parties lived across from each other on a private way and disagreed as to their respective rights to use the lane.

The first question for the land court was whether the plaintiff had a deeded, recorded interest to use the entire width of the lane, in the form of an easement. The court looked at the deed to determine the existence of an easement. In Massachusetts, the meaning of the deed, derived from the presumed intent of the grantor, is to be ascertained from the words used in the written instrument and construed when necessary in the light of the attendant circumstances. In Teare, the court found that the lot owners of the subdivision were originally granted the same rights to use and install utilities along the lane at issue from the common grantor. Pursuant to G.L. c. 183 sec. 15, subsequent deeds also conveyed those rights as a matter of law.

The court therefore followed the history of conveyances, finding that the easement originally granted was extinguished through merger in 1997. Under the common-law doctrine of merger, easements are extinguished by unity of title and possession of the two estates by the same person at the same time. However, in 1998, the lot was again conveyed subject to a roadway easement, which expressly reserved and re-granted the easement over the lane. When the plaintiff acquired title to the lot, therefore, he also acquired the easements, restrictions, and reservations over that portion of the lane. Despite the plaintiff’s subsequent reconfiguration of the lot, the court ruled that there remained an easement for the benefit of the plaintiff’s property, to enter and use a portion of the private way now owned by the defendants for passage and access.

Massachusetts Appeals Court Reviews Summary Process Action in Foreclosure Dispute

Published on: May 23, 2016 | by Pulgini & Norton, LLP

In a new opinion, the Appeals Court of Massachusetts reviewed a foreclosure case involving a summary process action brought against the mortgagor-occupant. In Gold Star Homes, LLC v. Darbouze, 89 Mass. App. Ct. 374 (2016), the defendant and mortgagor initially filed a complaint with the Land Court against the plaintiff and purchaser of the property, alleging unlawful foreclosure. The plaintiff then brought a summary process action against the defendant in the Housing Court. The lower court ruled in favor of the plaintiff on its summary process action, despite the defendant’s pending suit against it.

The purpose of summary process is to enable the holder of the legal title of property to gain possession of the premises wrongfully withheld. Legal title is established in summary process by proof that the title was acquired strictly according to the power of sale provided in the mortgage, and that alone is subject to challenge. If there are other grounds to set aside the foreclosure, the defendant must seek affirmative relief in equity.

On appeal, the defendant contended that the judge should not have proceeded on the plaintiff’s summary process action while his related, prior action sought a declaration invalidating the foreclosure sale. The appeals court disagreed, explaining that the relief sought by the plaintiff in the Housing Court, i.e., summary process and eviction, was not available as a counterclaim in the defendant’s Land Court action. The court also noted that the defendant could have asked the Land Court to stay her eviction pending the outcome of its decision, but she did not. As a result, and since the trial in the Housing Court was fair, the appeals court held that the lower court did not err by proceeding with the trial.

Massachusetts Appeals Court Allows Plaintiff to Use Property as Noncommercial Landing Area

Published on: May 16, 2016 | by Pulgini & Norton, LLP

The Massachusetts Court of Appeals recently decided a zoning issue involving a private, noncommercial aircraft landing area on the residential property of the plaintiff. In Hanlon v. Town of Sheffield (Mass. App. Ct. May 13, 2016), the plaintiff owned nearly 40 acres of land, which included his residence as well as some hangars for small planes and a landing strip built by the plaintiff. In 2006, the plaintiff registered the property with the Federal Aviation Administration as a helipad and as a noncommercial private restricted landing area with the Massachusetts Department of Transportation aviation division.

However, the bylaws of the town where the plaintiff lived did not specifically allow him to use his property as a private restricted landing area for noncommercial use. As a result, the plaintiff was ordered in 2011 to stop using the property in that manner. He challenged the town’s bylaw on the grounds that the town had failed to submit it for approval to the Department of Transportation.

The zoning board and the Land Court ruled in favor of the town, holding that the bylaw was valid and prohibited this use of the property. The plaintiff appealed, asking the court to determine whether Massachusetts law allows a municipality to ban noncommercial private restricted landing areas without receiving prior approval from the Department of Transportation.

Massachusetts Appeals Court Holds Abandoned Use Prevents Issuance of Building Permit

Published on: May 9, 2016 | by Pulgini & Norton, LLP

In a recent case, the Appeals Court of Massachusetts reviewed a decision by the Land Court involving a permit to rebuild a nonconforming residential structure that was destroyed by a hurricane years before. In Chiaraluce v. Zoning Bd. of Appeals of Wareham, 48 N.E.3d 475 (Mass. App. 2016), the property owner applied for a building permit in accordance with local zoning by-laws, which was denied, but he was granted a special permit. The adjacent property owners appealed the grant of a special permit, and the Land Court found in their favor. The property owner subsequently appealed to the Appeals Court of Massachusetts.

In Chiaraluce, the facts of the case go back decades. The residential home on the subject property was severely damaged by a hurricane in 1991 and torn down. As a result of the widespread destruction caused by the hurricane, the town had granted a blanket special permit for the reconstruction of residences damaged by the hurricane. The original owners obtained such a permit but did not rebuild on the property. Instead, they sold the land to the plaintiff, a neighboring landowner, in 1993. The plaintiff testified that at the time it was purchased, his plan was to use the lot for overflow parking. In 2001, the plaintiff first sought a permit to rebuild, which was denied by the inspector. In 2010, the plaintiff obtained a building permit for another structure, which was ultimately granted by the zoning board but appealed to the Land Court. The Land Court found that the plaintiff had abandoned the residential structure and ruled that no building permit could be issued. The plaintiff brought the current appeal before the Appeals Court of Massachusetts.

Massachusetts Court Determines Issues of Record Ownership, Adverse Possession in Boundary Dispute

Published on: May 2, 2016 | by Pulgini & Norton, LLP

Many legal disputes arise due to uncertainties concerning the ownership of land, particularly near property lines. In Salera v. Weinstein (Mass. Land Ct. Apr. 22, 2016), the plaintiff brought an action to try title, seeking a determination that a fence bordering the defendant’s property was located entirely within the plaintiff’s property, or alternatively that she had acquired ownership through adverse possession. The Massachusetts Land Court therefore decided the issue of the ownership of the fence that separated the plaintiff’s and defendant’s properties, and whether either of them established title by adverse possession of the fence or the surrounding land.

Deeds of abutting properties may describe a common boundary line differently (e.g., giving it a different length, or referencing different monuments), creating ambiguity. But that ambiguity does not preclude the court’s ability to determine the location of that line, placing it wherever the totality of the evidence indicates. Massachusetts law does not require absolute certainty of proof to determine a boundary line, but merely a preponderance of the evidence. In Salera, the record owner of the land in dispute was ambiguous. However, after examining evidence that included deed descriptions, surveys, plans, and expert testimony, the land court found that the plaintiff was the record owner of the fence, and that the fence lay entirely within the plaintiff’s property.

Massachusetts Land Court Finds No Right of Way to Access Landlocked Parcel

Published on: April 25, 2016 | by Pulgini & Norton, LLP

In a recent decision, the Massachusetts Land Court was presented with the question of whether the defendants had a legal right of access or easement to their undeveloped parcel of land at the dead end of a street. In Diodati v. Kohl (Mass. Land Ct. Apr. 13, 2016), the plaintiffs filed an action seeking a declaration that the defendants had no rights to access the property via the street, arguing that the portion of the street at issue was part of the plaintiffs’ properties and not a public way. The defendants contended that the end of the street was a public way over which they had rights of access, and that their property was landlocked without such access.

In Massachusetts, a road may become a public way by one of three methods: (1) a laying out by public authority in the manner prescribed by statute (G.L. c. 82, §§ 1–32); (2) prescription; or (3) prior to 1846, a dedication by the owner coupled with acceptance by the public. In Diodati, a portion of the street at issue had been statutorily made a public way in 1921 by the town, but not all the way to the dead end of the street where the defendants’ property was located. The defendants argued that the rest of the street had become a public way because the town owned it by prescription. However, the creation of a public way by adverse use depends on a showing of actual public use that is general, uninterrupted, and existing continuously for 20 years. The court was not persuaded by the defendants’ argument, finding that there was no activity in that portion of the street that would establish that it was a public way.