Massachusetts Real Estate Lawyer Blog

Massachusetts Appeals Court Affirms Issuance of Business Storage Permit

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

The Appeals Court of Massachusetts recently reviewed a real estate dispute involving a business storage permit issued by the zoning board of appeals. In Fordham v. Butera (Mass. App. Ct. Jan. 27, 2016), the plaintiff sought to set aside business storage permits that allowed the defendants to store a limited number of vehicles as well as snow removal and landscaping equipment in a barn on their property. The parties’ dispute had been the subject of two prior appeals regarding the validity of the business storage permit by-law, which was subsequently upheld by the court. Following a trial on the merits, the Land Court affirmed the zoning board’s amendment to the business storage permit under § V.B.5. The plaintiff appealed that judgment in the present case.

In Fordham, the defendants owned a residential lot that shared a common boundary with the plaintiff’s property. In 1995, the defendants obtained a business storage permit authorizing the storage of one truck and trailer inside their barn. In 2003, they filed a request to amend the 1995 permit to allow for nine vehicles and additional equipment, which was granted by the zoning board. After several appeals, the board eventually allowed the expansion in a 2009 amendment to the permit, which was the subject of the present appeal.

Massachusetts Court Evaluates Evidence of Authorized Agent in Foreclosure Case

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

In a recent opinion, the Appeals Court of Massachusetts considered how a mortgagee may show that it is acting as the authorized agent of the note holder for the purpose of surviving a motion for summary judgment. In Khalsa v. Sovereign Bank, N.A. (Mass. App. Ct. Jan. 11, 2016), the borrowers filed a complaint seeking to enjoin a foreclosure sale and a declaration that the mortgagee was not entitled to foreclose. The parties filed cross summary judgment motions, and the lower court found in favor of the homeowners. The court declared that the foreclosure sale of the plaintiff’s residence was void because the defendant failed to show that it was acting as the authorized agent of the note holder (Freddie Mac). The defendant appealed that decision.

In Khalsa, the homeowners executed a promissory note to purchase their home in 2008, and they granted the defendant a mortgage on the property to secure the loan. Freddie Mac subsequently purchased the note from the defendant, although the defendant remained the servicer of the note and mortgage. In 2011, the defendant notified the homeowners that they were in default on their loan and held a foreclosure sale. At the time of the sale, Freddie Mac had physical possession of the note. The contested issue between the parties was whether the defendant, which was the holder of the mortgage but not the note, acted with Freddie Mac’s authority to conduct the foreclosure sale.

Massachusetts Land Court Interprets 1927 Deed to Determine Easement Rights

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

In a recent case, the Massachusetts Land Court was called on to decide a property dispute involving the use of a private way to access a parcel of land. In Pearson v. Bayview Associates, Inc. (Mass. Land Ct. Jan. 11, 2016), the plaintiffs sought to use a private way owned by the defendant in order to access the lot they currently owned. The plaintiffs claimed passage rights over the private way pursuant to an easement that the plaintiffs alleged was included in the 1927 deed. In response, the defendant argued that the 1927 easement does not lie along the private way, nor does it touch the land that the plaintiffs presently own.

In 1999, the plaintiffs split their land into two lots, retaining one parcel and selling the other. The plaintiffs, however, did not reserve any record easement to pass across the lot they sold, leaving them landlocked. In Pearson, the plaintiffs sought to establish a right of way not over the lot they sold but instead over the private way, alleging that they have rights to use it pursuant to the 1927 easement. Accordingly, the court was presented with the task of determining the location of the easement created in 1927 in order to decide whether the easement reached the plaintiff’s parcel of land.

Massachusetts Court Rules in Property Dispute Involving Deed Restrictions

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

A Massachusetts Land Court recently decided an easement dispute involving deed restrictions and the overburdening of a right of way in the case of Stepanian v. Saraceno (Mass. Land Ct. Jan. 5, 2016). In 1985, the grantor subdivided his waterfront property and sold the resulting vacant lot (244) next to his existing home, reserving for his remaining land a driveway easement and a right of way over a private way, and restricting the use of a portion of the new vacant lot. Specifically, the vacant lot was subject to a “buffer zone” restriction, which was to remain in effect for a period of 30 years from the date of the deed. The restriction also provided that the buffer zone was to be forever kept substantially in its natural vegetative state.

The defendants purchased the vacant lot at issue in 1985. The defendants constructed a house on the property, as well as a parking lot in the buffer zone, to which the grantor objected but took no further action. The grantor sold his adjacent property to the plaintiffs in 1993. In 1996, the plaintiffs made plans to raze the house on the property, and they approached the defendants to secure their agreement not to object to the construction of a new house. In a 1996 letter, the plaintiffs confirmed that agreement, and they also confirmed that the plaintiffs had no objection to the defendants’ use of the parking spaces within the easement area. Since 1996, the defendants have continued to install plantings in the buffer zone, added a retaining wall, and made improvements to the parking area and other parts of the buffer zone.

Massachusetts Governor Signs Act Clearing Title To Foreclosed Properties

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

Massachusetts Governor Charlie Baker recently signed into law “An Act Clearing Titles to Foreclosed Properties.” The Act, which went into effect on December 31, 2015 and is retroactive, limits the statutory time period that former owners will have to challenge a foreclosure sale of their homes. The purpose of the Act is to clear legal title for those Massachusetts homeowners who purchased their homes through foreclosure sales, many of whose titles became clouded after a 2011 case decided by the Massachusetts Supreme Judicial Court.

In U.S. Bank Nat’l Assoc. v. Ibanez, 458 Mass. 637, 648 (2011), the Supreme Judicial Court held that the entity foreclosing on a property must be the assignee of the mortgage at both the time of the notice of sale as well as the time of the subsequent foreclosure sale. The holding went against industry custom and widespread practice, and it had the effect of potentially invalidating thousands of previous foreclosures. Many of these title-holders were Massachusetts individuals who had purchased properties in foreclosure sales in an effort to fix them up and resell them, live in them, or rent them. However, with a clouded title, many were left with houses that could not be sold.

Massachusetts Court Voids Foreclosure for Failure to Comply with Mortgage Provision

Published on: December 22, 2015 | by Pulgini & Norton, LLP

In a recent decision, the Appeals Court of Massachusetts addressed the issue of whether Pinti v. Emigrant Mort. Co., which held that the failure to comply strictly with mortgage provisions renders a foreclosure sale void, is extended to cases pending on appeal when that claim was raised and preserved. Resolving the question in favor of the homeowner, the court held that since the homeowner in Aurora Loan Services, LLC v. Murphy specifically preserved and raised the issue on appeal, an exception to the prospective-only rule should be made.

In Aurora Loan Services, LLC, the plaintiff provided notice to the homeowner that his loan was in default and that it would accelerate the loan unless he paid the overdue balance and cured the default within 150 days. After the period passed, the lender formally assigned the mortgage to the plaintiff, which commenced foreclosure proceedings against the homeowner. The homeowner argued in the summary process proceeding that the plaintiff failed to prove its right to possession because it did not strictly comply with the terms of the mortgage, it was not the assignee of the mortgage at the time it sent notice to the homeowner of his right to cure, and the notice itself failed to comply with the mortgage or G.L. c. 244 § 35A.

Massachusetts Land Court Rules on Issues of Adverse Possession and Prescriptive Easement

Published on: December 15, 2015 | by Pulgini & Norton, LLP

In Cappelluzzo v. Rinkoo-Tei Realty, LLC, (Mass. Land Ct. Dec. 11, 2015), the Massachusetts Land Court was presented with a property dispute involving a parcel of land between the boundaries of the plaintiff and the defendant. The plaintiff lives next door to the defendant, which operates a restaurant and bar on its property. The plaintiff brought an action against the defendant, seeking to establish his rights to a narrow parcel of land in the record ownership of the defendant. His claim was based on the theories of adverse possession or prescriptive easement. The plaintiff also sought a determination that the defendant was trespassing on his land. The defendant, in turn, filed a counter-claim against the plaintiff for trespass. After a trial, the land court found that the plaintiff failed to establish ownership by adverse possession but that he had established certain rights of easement by prescription.

In Massachusetts, title by adverse possession can be acquired by proof of non-permissive use that is actual, open, notorious, exclusive, and adverse, for a period of 20 years. The determination of whether an activity constitutes adverse possession is inherently fact-specific. The court must look to the nature of the occupancy in relation to the character of the land, the purposes for which it is adapted, and the uses to which it has been put. Acts of possession that are few, intermittent, and unclear do not constitute adverse possession.

Massachusetts Appeals Court Addresses Litigation Privilege in Foreclosure Case

Published on: December 8, 2015 | by Pulgini & Norton, LLP

In a recent opinion, the Appeals Court of Massachusetts considered whether the law firm and auction company of a lender were immune from civil liability in an action brought by the borrower for violations of consumer protection statutes and the Massachusetts Civil Rights Act.

In Mack v. Wells Fargo Bank, N.A. (Mass. App. Ct. Dec. 1, 2015), the plaintiff alleged that the defendants continued to advertise and schedule foreclosure actions of her property in violation of a temporary restraining order and a preliminary injunction prohibiting them from doing so. The plaintiff also alleged that the defendants communicated with her with knowledge that she was represented by an attorney and engaged in conduct intending to harass, oppress, or abuse the plaintiff in association with the collection of a debt.

The defendants filed a motion for summary judgment, contending that the litigation privilege immunizes them from civil liability for their actions. The trial court denied the motion, ruling that the defendants’ alleged actions in violating the preliminary injunction were undertaken solely for the purpose of effecting a non-judicial foreclosure and therefore did not fall within the scope of the litigation privilege. The defendants then sought interlocutory review from the appeals court.

Court Discusses Law of Merger in Massachusetts Real Estate Dispute

Published on: December 1, 2015 | by Pulgini & Norton, LLP

The Massachusetts Land Court decided a real estate dispute regarding the property merger of lots for building purposes in Kneer v. Luciano (Mass. Land Ct. Aug. 21, 2015). In Kneer, the plaintiff owned two lots of vacant land, which together failed to satisfy the current zoning requirement for the minimum lot size on which to build. Contending that the lots were grandfathered and thus exempt from the zoning law, the plaintiff applied for a building permit to construct a single family house on the lots. The Building Inspector rejected the application, finding that for purposes of zoning, the lots lost any grandfather protection that they may have held. The plaintiff appealed that decision, and the parties filed cross-motions for summary judgment with the Land Court.

In Massachusetts, adjacent lots will generally be treated as one single lot, or “merged,” for zoning purposes as soon as they come into common ownership in order to minimize nonconformities. Common ownership occurs when the lots are titled in the same name, as well as when they are within the common control of a landowner. Once merged, the land cannot be un-merged or artificially divided in order to restore older boundaries of record and obtain a grandfather nonconforming exemption. Instead, to preserve such an exemption, the lots must retain a separate identity. There is an exception to this rule in that a municipality may adopt a more liberal grandfather provision in its zoning ordinance or bylaw. However, it must do so with clear language.

Massachusetts Land Owners Establish Prescriptive Easement to Use Driveway on Neighbors’ Land

Published on: November 24, 2015 | by Pulgini & Norton, LLP

The Massachusetts Land Court decided an easement dispute between two neighbors regarding a dirt driveway in Dunning v. Larsen (Mass. Land Ct. Oct. 8, 2015). The plaintiffs brought suit against their neighbors, seeking to establish rights in a path that leads from a private way to their property. The dirt path at issue is entirely within the bounds of the defendants’ property and is not itself a private way.

The court first examined whether the plaintiffs had a record easement over the dirt path by looking to the history of the property and the deed description. The grantor of the plaintiffs’ property had no ownership in the defendants’ property at the time he conveyed the right of way for the benefit of the plaintiffs’ property. Therefore, he could not grant an easement over the dirt drive contained within the defendants’ property. The court thus found that the plaintiffs had no record easement to use the dirt drive and no right to maintain utilities under the drive pursuant to G.L. c. 187, § 5. As a result, only the defendants have the right to use the dirt drive, unless the plaintiffs have a prescriptive easement.

To establish a prescriptive easement, a party must prove open, notorious, adverse, and continuous or uninterrupted use of the servient estate for a period of not less than 20 years. In Dunning, the court held that the plaintiffs did hold a prescriptive easement in the dirt drive. The court noted that the drive has existed since 1950 and has been used by the plaintiffs openly, notoriously, adversely, and continuously to travel to and from their property by vehicle, by bicycle, and on foot. The court found that the plaintiffs’ use of the drive has been visible to the public as well as the defendants since 1977. In addition, the plaintiffs believed that they had a record easement to use the drive, and they did not ask for permission from the defendants to use it, indicating that their possession was adverse.