Massachusetts Real Estate Lawyer Blog

Massachusetts Supreme Judicial Court Holds No Easements of Necessity Created by 1878 Partition of Native American Land

Published on: April 18, 2016 | by Pulgini & Norton, LLP

In a newly published decision, the Supreme Judicial Court of Massachusetts determined whether easements by necessity were created as a result of an 1878 partition of Native American common land in the town of Aquinnah (formerly known as Gay Head). In Maria A. Kitras, trustee, & others v. Town of Aquinnah & others (Mass. Dec. 8, 2015), the common land at issue was partitioned in 1878 by the court into hundreds of lots to be held in severalty by members of the Tribe. Significantly, the drafters did not include express easements providing rights of access, leaving the lots landlocked. The plaintiffs are owners of several lots created by this partition and sought easements by necessity over the lots of the defendants. The Land Court found in favor of the defendants, and the plaintiffs appealed.

The facts of the case underscore the evolving property and citizenship rights of Native Americans during the time. In the mid-nineteenth century, Massachusetts began to depart from a paternalistic system of governance and move toward granting Native Americans full citizenship. In 1862, the Legislature established the district of Gay Head, which consisted of 450 acres of land held in severalty and the remainder held by the Tribe in common. As the boundary lines were being determined in Gay Head, Native Americans were granted full citizenship in Massachusetts. Gay Head was subsequently incorporated as a town, and commissioners appointed by the probate judge divided the common land for the residents to hold in severalty, as well as the boundary lines. However, none of the lots included an express easement of access, and as a result, the majority of the lots divided from the common land were landlocked.

Massachusetts Appeals Court Holds Record Land Owners May Be Liable to Adverse Possessors for Trespass

Published on: April 11, 2016 | by Pulgini & Norton, LLP

Neighboring landowners often find themselves in boundary disputes regarding their property lines. In a recent decision, the Appeals Court of Massachusetts determined the issues of whether the plaintiffs had gained title to an area of property through adverse possession, and if so, whether they could hold the record landowners liable for trespass onto the parcel in dispute. In Owens v. Buccheri, 89 Mass. App. Ct. 1115 (2016), the land court determined that the plaintiffs established adverse possession of an area of which the defendants held record title. Although the defendants did enter the area to excavate and cut down trees, the land court judge declined to impose liability for trespass on a property of which they held record title. The plaintiffs appealed, contending that the judge erred in denying their trespass and nuisance claims.

In Massachusetts, title by adverse possession can be acquired only by proof of nonpermissive use that is actual, open, notorious, exclusive, and adverse for 20 years. The plaintiffs argued that since they adversely possessed the disputed area, they could maintain a trespass action against even the record title owner. The appeals court agreed, finding that the plaintiffs successfully established adverse possession of the land many years prior to the defendants’ entry. The court noted that the plaintiff’s testimony describing the nonpermissive and continuous activities of her now-deceased parents during her youth demonstrated that the period of adverse possession began sometime in 1969.

Massachusetts Court Concludes Grandfathering By-Law Only Available to Vacant Lots

Published on: April 4, 2016 | by Pulgini & Norton, LLP

In a recent case, the Appeals Court of Massachusetts decided the issue of whether a plaintiff could raze an existing detached garage on his property and construct a dwelling in its place in accordance with local zoning by-laws. In Cain v. Bd. of Appeals of Wilmington (Mass. App. Ct. Mar. 25, 2016), the plaintiff purchased the property at issue in 2013 from a prior owner that had owned the property for several decades. The prior owner had applied for a permit to build the garage in 1984, which was subsequently approved and constructed. Shortly after purchasing the property, the plaintiff applied for a zoning determination that the property qualified as a non-conforming, pre-existing grandfathered buildable lot under § 5.3.2 of the local by-law, which would entitle him to a building permit. It was denied, and the plaintiff appealed.

In Cain, the property at issue conformed to the requirements for a buildable lot under 1934 zoning regulations. However, a 1955 amendment increased the square footage requirements, rendering the property deficient in lot size and frontage to build on presently. The plaintiff’s primary argument in support of his case was that his property was grandfathered into the 1934 regulations.

Grandfathering is a land use concept that preserves the right to build on property that does not conform to current zoning requirements. While Massachusetts statute G .L. c. 40A, § 6 provides for minimum grandfather protections under local zoning by-laws, a municipality is free to adopt a grandfathering provision that is more liberal than G .L. c. 40A, § 6, provided it does so with clear language. Local by-law § 5.3.2 allows a dwelling to be erected on a plot recorded prior to 1955 that conforms with the lot area and frontage requirements of the 1934 zoning by-law, with no reference to adjoining lots in common ownership.

Massachusetts Superior Court Decides Issue of Jurisdiction in Major Development Permit Appeals

Published on: March 28, 2016 | by Pulgini & Norton, LLP

In Skawski v. Greenfield Inv’rs Prop. Dev. LLC, 45 N.E.3d 561, 562 (Mass. 2016), the Supreme Judicial Court of Massachusetts decided the issue of whether a law granted exclusive subject matter jurisdiction to the permit session of the Land Court and to the Superior Court to hear certain major development permit appeals, thereby eliminating the subject matter jurisdiction of the Housing Court.

In Skawski, the defendant sought to build a retail development of approximately 135,000 square feet of commercial space. The planning board of Greenfield granted a special permit to the developer to construct the project. The plaintiffs owned property abutting the proposed development, and they filed an appeal with the Housing Court. The defendant filed a motion to dismiss for lack of subject matter jurisdiction, which was denied by the judge and ultimately reversed by the appeals court, which concluded that the enactment of G.L. c. 185, § 3A deprived the Housing Court of subject matter jurisdiction. The plaintiffs then appealed to the Supreme Judicial Court of Massachusetts.

The Massachusetts legislature enacted G.L. c. 185, § 3A in 2006, establishing the permit session of the Land Court department and providing that the permit session shall have original jurisdiction, concurrently with the superior court department, over civil actions adjudicating the grant or denial of permits for the use or development of real property when the underlying project or development either involves 25 or more dwelling units, or the construction or alteration of 25,000 square feet or more of gross floor area.

Massachusetts Appeals Court Finds for Landowners Challenging Property Valuation

Published on: March 21, 2016 | by Pulgini & Norton, LLP

In a recent decision, the Appeals Court of Massachusetts reviewed a decision from the Tax Board affirming the plaintiffs’ property valuation as determined by the local board of assessors. In Sliski v. Bd. of Assessors of Lincoln, 45 N.E.3d 612 (Mass. App. Ct. 2016), the plaintiffs owned two parcels of land, a larger parcel of over 4.5 acres used for agricultural purposes, and a small parcel of just less than one acre upon which the plaintiffs’ residence was located. The plaintiffs had previously received an agricultural exemption for the large parcel twenty-five years ago. However, in calculating the assessment, the local board of assessors applied a multiplier of 9.00 to the value of $7.20 per square foot for the small parcel. This resulted in an appraisal of the small parcel at a rate of over $2.8 million per acre. The plaintiffs challenged the assessment, arguing that it did not accurately reflect the value of the small parcel, nor the value of the land as a whole due to the agricultural exemption.

On appeal, the court found that the Board did not appear to have considered the methodology in reviewing the town’s valuation of the small parcel. The court was particularly concerned by the use of the 9.00 multiplier. The court noted that the town’s residential land valuation document stated that a factor of 1.00 should be applied to property within the neighborhood in which the small parcel is located. Further, the document did not include a factor of 9.00 for any property, as the highest factor listed was 1.91. The court therefore could not affirm a decision by the Board that did not appear to consider the Massachusetts statute requiring that all land occupied by a dwelling be valued, assessed, and taxed by the same standards as other taxable property.

Massachusetts Land Court Rules Unformed Development Plans Not Ripe for Challenge

Published on: March 14, 2016 | by Pulgini & Norton, LLP

In a recent case, the Massachusetts Land Court considered a challenge brought by several plaintiffs with respect to planned redevelopment on the property of the defendants, a county fairgrounds organization. In Tymoczko v. Three Cty. Fairgrounds Redevelopment Corp. (Mass. Land Ct. Mar. 9, 2016), the plaintiffs sought a determination that the defendants’ proposed future redevelopment of the fairgrounds property would require a special zoning permit. The parties filed cross-motions for summary judgment on the issue.

In Tymoczko, the defendants’ redevelopment plan had already completed phase one, and was challenged by the plaintiffs on the basis of future phases of redevelopment, laid out in a brochure relied upon by the plaintiffs. The defendants contended that the brochure did not outline any definitive plans, nor was the information it contained the subject of any permit applications. In addition, the brochure did not describe any specific uses proposed to be made of the site, no plans had been funded, and the defendants argued they may never be applied for or built. Nevertheless, the plaintiffs sought a determination that the future phases would require the issuance of a special permit.

Pursuant to G.L. c. 240, § 14A, a landowner may obtain a judgment from the Land Court as to the validity of a municipal zoning ordinance or bylaw, to the extent that it may affect a proposed use or development of such land. A landowner may also obtain such a judgment with respect to the proposed use of the land of another, if the proposed use has a direct effect on his or her land. However, G.L. c. 240, § 14A cannot be used as a preemptive attack on uses that are not the subject of an application or permit where there is an insufficient likelihood that the uses complained of will actually transpire, and where the details of the proposed use have not been specified.

Massachusetts Landowner Establishes Title to Fenced, Neighboring Property by Adverse Possession

Published on: March 7, 2016 | by Pulgini & Norton, LLP

It is not uncommon for neighboring landowners to dispute ownership of areas bordering their respective properties. In a recent decision, the Massachusetts Land Court determined the issue of whether a plaintiff gained title to an area of property through adverse possession.

In MacNevin v. Carroll (Mass. Land Ct. Feb. 25, 2016), a pair of next-door neighbors disagreed as to the ownership of a small parcel of land between their properties. While there was no dispute regarding the record boundary line, a fence between the properties encroached upon the defendant’s property. The plaintiffs claimed ownership by way of adverse possession of a narrow parcel of land that lies between the fence and the record boundary line. The defendant denied the claim, arguing that the plaintiffs did not meet their burden to establish adverse possession because the fence had only been in its present location since 2005.

In Massachusetts, title by adverse possession can be acquired by proof of nonpermissive use that is actual, open, notorious, exclusive and adverse for 20 years. The plaintiffs must occupy the disputed property with an intention to appropriate and hold it as an owner of the property, and to the exclusion, rightfully or wrongfully, of everyone else. Importantly, the required period for adverse possession can be reached by tacking a predecessor’s period of adverse possession, if privity of estate exists between the plaintiff and the previous adverse possessors.

Massachusetts Appeals Court Finds Reasonable Use of Property Defeats Nuisance Claim

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

In a recent decision, the Appeals Court of Massachusetts reviewed a real estate dispute involving a nuisance claim between neighboring property owners. In Maffei v. Johnson (Mass. App. Ct. Feb. 19, 2016), a landowner (who had since died) had filled and leveled a portion of his property over many years. The plaintiff owned the neighboring property and brought suit against the landowner’s estate, alleging that the filling stopped the flow of water from the plaintiff’s land onto the decedent’s land and resulted in the accumulation of water on one part of the plaintiff’s property. The judge held a trial on the plaintiff’s nuisance claim and concluded that the decedent’s actions were reasonable and that his estate was not liable for nuisance. The plaintiff subsequently appealed that decision.

In Maffei, the decedent had built a garage on his property which he backfilled against the foundation. After the garage was constructed, the decedent began filling and leveling the area in the front and to the left of the garage. He also leveled the left side of his property. The plaintiff noticed that after the decedent added the fill, water originating from the plaintiff’s property increasingly accumulated in the corner of his lot over an area of approximately 4,500 square feet. The water accumulation did not interfere with the plaintiff’s house or driveway.

Massachusetts Land Court Denies Zoning Relief to Plaintiff in Real Estate Case

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

The Massachusetts Land Court recently issued a ruling in a real estate dispute involving zoning relief pursuant to G.L. c. 40A, § 6. In Bjorklund v. Trezise (Mass. Land Ct. Feb. 3, 2016), the plaintiff filed a complaint appealing the decision of the Zoning Board of Appeals, which had denied his request for zoning relief to allow for the construction of a nonconforming single family dwelling.

In Bjorklund, the original home was built on the property in 1890 but knocked from its foundation during the blizzard of 1978. The former owner did not repair the home, and it was torn down in 1980. The plaintiff purchased the property in 1991 and applied for a permit to build a single family dwelling. That permit was denied, and the decision was affirmed on appeal. The plaintiff has since filed four more permit applications to construct buildings on the property, which were denied by the Zoning Board of Appeals. The current appeal was based on an application filed in 2013, in which the plaintiff requested a permit to allow for the reconstruction of a pre-existing, nonconforming single family dwelling pursuant to G.L. c. 40A, § 6. The Zoning Board denied the application, citing law that provided that any nonconforming building or structure damaged by accidental causes may be repaired, reconstructed, or restored as long as it is completed within two years of the damage or destruction.

On appeal, the Land Court found that the plaintiff’s complaint was barred by the doctrine of res judicata, since it has been the subject of multiple, prior actions litigating the same claim and issues. Res judicata includes claim preclusion, which prohibits the same parties from re-litigating the same claim that was the subject of an earlier action between the parties, as well as issue preclusion, which prohibits the parties from re-litigating an issue that was already litigated in a prior action based on a different claim.

Massachusetts Court Finds No Purchase and Sale Agreement Existed in Real Estate Dispute

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

The Appeals Court of Massachusetts released a recent opinion in a real estate case, Goddard v. Goucher (Mass. App. Ct. Feb. 2, 2016), addressing whether a purchase and sale agreement was valid and enforceable. The plaintiff filed the action seeking enforcement of a 2007 purchase and sale agreement. However, despite a pretrial stipulation regarding the contractual negotiations and their legal consequences, the Superior Court ruled that the parties had failed to enter into a valid and enforceable purchase and sale agreement. The plaintiff subsequently appealed the court’s decision.In Goddard, the defendant agreed to sell the plaintiff a parcel of property in 2007. The plaintiff signed and sent the defendant an agreement that provided for delivery of the deed in June 2007, and it also stated that the closing date could be extended for a period of not more than 30 days. The defendant sent the agreement to his attorney, who made a number of handwritten amendments to the agreement, including a provision that the plaintiff agreed to assume any and all encumbrances of record or otherwise, and any and all past and future taxes.

In the meantime, real estate taxes on the property went unpaid. The town recorded a tax taking of the property, filed an action in the Land Court, and obtained a judgment foreclosing and barring all rights of redemption as to the property. The plaintiff then filed a petition with the Land Court to vacate the judgment of foreclosure, asserting that he had standing as a buyer under the 2007 agreement. That case was held in abeyance pending the current action in Superior Court, in which the plaintiff alleged breach of contract claims and sought specific performance of the agreement.