Massachusetts Real Estate Lawyer Blog

Massachusetts Appeals Court Reverses Summary Judgment, Allows Homeowner to Continue Suit Against Mortgage Company

Published on: November 17, 2015 | by Pulgini & Norton, LLP

The Massachusetts Court of Appeals recently reviewed an action brought by a home mortgage borrower against the lender and its assignee, alleging that they violated the consumer protection statute by modifying his mortgage, among other claims, and that they should be enjoined from evicting the borrower from his home. In Moronta v. Nationstar Mortgage, LLC, the borrower’s primary argument was that the defendants violated G.L. c. 93A by structuring a mortgage consisting of high-cost loans, which the lender had no reasonable expectation that the homeowner could pay, and therefore misleading the borrower as to the viability of the transaction. The lower court granted summary judgment in favor of the defendants, and the decision was appealed by the borrower to the Massachusetts Court of Appeals.

In Moronta, the borrower refinanced his original mortgage of $330,600 to consolidate his debt and lower his monthly payments. At the time he refinanced in 2007, the borrower’s monthly income was $6,000, although the loan application amount stated that it was $8,500. The lender granted two loans, one in the amount of $296,000 with an adjustable interest rate and large balloon payment of $264,963 at the end of 30 years, and a second in the amount of $74,000 at a fixed interest rate of 10.5%. In November 2009, the lender foreclosed on the property.

Massachusetts Court of Appeal Rules on Ownership and Easement Issue

Published on: November 10, 2015 | by Pulgini & Norton, LLP

The Appeals Court of Massachusetts reviewed a decision by the Land Court in a case involving the ownership and use of a private street. In Anarpet Realty Corp. v. Stutz Motor Car Co., 39 N.E.3d 472 (Mass. App. Ct. 2015), the property owner filed a complaint against several defendants, seeking a declaration of the rights of the parties and injunctive relief regarding the ownership and use of a private way. The Land Court found in favor of the defendants, ruling that the defendants’ lots included a fee interest to the private way as well as easement rights, and the easement wasn’t overburdened by the defendants. The plaintiff appealed, and the appeals court affirmed the lower court’s judgment regarding the issues pertaining to the private way.

In Massachusetts, when a grantor of land that borders a street conveys that land by a deed that describes the land as bordering the street, it is presumed that the grantor has conveyed the fee to the middle of the street. When lots are conveyed by a deed making reference to a plan, and the plan referred to in the deed shows the land as bounded on a street, this is equivalent to such a description in the deed, and the presumption becomes operative. However, this presumption is not an absolute rule of law, but merely a principle of interpretation adopted for the purpose of finding out the true meaning of the words used.

Massachusetts Land Court Analyzes Covenant Access Rights, Denies Summary Judgment in Property Dispute

Published on: November 3, 2015 | by Pulgini & Norton, LLP

The Massachusetts land court recently considered a motion for summary judgment in a real estate dispute between two neighbors regarding access to a neighboring lot. In the case of McAdams v. FitzMaurice (Oct. 6, 2015), the primary issue was whether the defendants have a right appurtenant to the title to their property to pass over a neighboring, undeveloped seaside lot in order to access the beach on the other side. The record owners of the lot, who live across from it, brought an action seeking a declaration as to the parties’ rights to pass over the lot, injunctive relief prohibiting the defendants from crossing the lot, and money damages. The defendants responded with an assertion of their own right of passage to the lot.

The previous owners of the seaside lot, as well as the parties’ property, divided the land pursuant to a set of restrictive covenants. These covenants created conservation restrictions over the seaside lot for the purpose of preserving the premises as near to their natural state as possible. In addition, they expressly reserved a right for the grantors and successors in title “to pass and repass” over the seaside lot for the benefit of their property. The grantors’ property was eventually subdivided to become the current, respective properties of the plaintiffs and defendants. In their suit, the plaintiffs claim that this passage right is appurtenant only to their property, while the defendants contend that both owners have the same right to pass over the lot and benefit from it.

Massachusetts Appeals Court Allows Homeowners to Operate Commercial Horse Farm on Property

Published on: October 26, 2015 | by Pulgini & Norton, LLP

The Massachusetts Court of Appeals recently decided a zoning issue involving the development of a commercial horse farm on property previously designated as single-family use. In Lingerman v. 6 Mill Road, LLC (Ct. App. Mass 2015), the plaintiffs appealed a judgment from the Massachusetts Land Court upholding the decision of a local zoning board permitting the reconfiguration of the abutting property of the defendants.

In 2009, the defendants had purchased a 12-acre property, which included a single-family home, barn, and indoor riding facility. The zoning board granted the defendants approval to operate a commercial horse farm on the property, construct a 10-stall addition to the bar, and enlarge and relocate the existing indoor riding area. The plaintiffs appealed the issue, and the decision to issue the permit to the defendants was overturned on the grounds that the property lacked frontage and was in violation of a 1973 variance limiting the property to single-family use.

In 2011, the defendants’ neighbor split his two acres of property into two lots of one acre each. The defendants purchased one of the neighboring one-acre lots with the intent to cure the frontage problem. The plaintiffs requested an enforcement action from the building inspector to prohibit the combination of the purchased lot with the defendants’ existing property, which was denied. The plaintiffs appealed that decision to the zoning board. The zoning board affirmed the decision, finding that the purchased lot was exempt from the inclusionary housing requirements in the zoning by-law and that there was no prohibition against combining the properties. The plaintiffs then appealed to the Land Court, which affirmed the judgment of the zoning board, and the case reached the appeals court.

Massachusetts Appeals Court Finds Zoning Board’s Waiver of Waste Disposal Limitations for Housing Project Unreasonable

Published on: October 19, 2015 | by Pulgini & Norton, LLP

In a recently published opinion, the Massachusetts Court of Appeals reversed a decision by a local zoning board that waived the requirements of a zoning bylaw regarding sewage limitations for a proposed housing project in Stow. In Reynolds v. Zoning Board of Appeals of Stow, a neighboring property owner of the housing project filed a complaint against the board after it granted a comprehensive permit to the Stow Elderly Housing Corporation for the construction of a low and moderate income elderly housing project. The proposed housing project and its sewage disposal system is situated in the town’s water resource protection district (WRPD). Despite findings that the proposed project would generate approximately six times the amount of sewage and waste water permitted by the WRPD regulations, the board granted waivers from the WRPD regulations. That decision was then appealed.

The Comprehensive Permit Act, sometimes referred to as “the anti-snob zoning act,” was enacted to provide relief from exclusionary zoning practices that prevented the construction of badly needed low and moderate income housing in Massachusetts. The Act provides a streamlined application process to a local board that is authorized to waive local regulations, including zoning ordinances and bylaws, if they are not “consistent with local needs.” Under the Act, regulations that are “consistent with local needs” are those that are reasonable in view of the regional need for low and moderate income housing, the protection of the health or safety of the occupants of the proposed housing and residents of the town, and promoting better site and building design in relation to the surroundings or to preserve open spaces. These requirements must be applied as equally as possible to subsidized and unsubsidized housing. A board can justify denying an application for a comprehensive permit by identifying a health or other local concern that supports the denial, is not adequately addressed by compliance with Massachusetts standards, and outweighs the regional housing need.

Massachusetts Land Court Rules in Favor of Record Owner in Adverse Possession Case

Published on: October 12, 2015 | by Pulgini & Norton, LLP

The Massachusetts Land Court recently issued an opinion concerning a real estate dispute between neighboring parties. In Doucette v. Nix, the plaintiff filed a claim for title based on adverse possession of a parcel of land located between his property and the property of the defendant, who is the record owner of the parcel. The court ultimately decided the matter in favor of the defendant, finding that the plaintiff did not meet his high burden of proof in order to establish that his possession of the parcel was continuous, hostile, open, actual, and exclusive.

In Massachusetts, claims of adverse possession are generally disfavored. The true owner of land may be deprived of her rights only upon a clear showing that adverse possession has been established. A claimant may only establish title to land owned by another through adverse possession if he can prove his non-permissive use of the land, which is actual, open, notorious, exclusive, and adverse for 20 years. The burden of proof for each element of adverse possession rests entirely on the person claiming title to the land.

Massachusetts Court of Appeals Finds in Favor of Taxpayer in Tax Abatement Case

Published on: October 5, 2015 | by Pulgini & Norton, LLP

The Massachusetts Court of Appeals reviewed a decision by the Appellate Tax Board in Russell Block Associates v. Board of Assessors of Worcester, ultimately affirming its determination granting the taxpayer a tax abatement on a parking garage. The primary issue in the case was whether the garage was a multiple-use property appropriately classified as part residential and part commercial.

In 1992, the taxpayer constructed a residential building and the five-story, 300-parking space garage at issue in the case, which is located across a side street from the residential building. Between 100 and 250 parking spaces in the garage are reserved for exclusive use by tenants of the residential building. The Worcester board of assessors had classified the garage as a mixed-use property, taxing 85 percent of its value at the lower residential rate since it was built. In 2012, however, the assessors changed its classification to be entirely commercial. The taxpayer appealed, and the Appellate Tax Board granted an abatement.

Classification for purposes of determining tax rates depends on the use of the real property as residential, open space, commercial, or industrial. The law also defines a mixed-use category of real property, which allocates the percentage of valuation on each portion of the property devoted to that particular use. The assessors argued that the parking garage at issue is not used for habitation and does not satisfy the requirements of the statute. However, the Court of Appeals disagreed, recognizing that the statute’s definition of residential includes accessory land, buildings, or improvements incidental to such habitation. The court went on to explain that the parking garage was part of the development plan of the residential building, and the residents of the building needed parking just as any other resident would. The garage was built to serve these needs, meeting the zoning and lending requirements for the development of the residential building. Therefore, the parking garage was incidental to habitation within the meaning of the law.

Massachusetts Court of Appeals Rules for Plaintiffs in Adverse Possession of Woodlands

Published on: September 25, 2015 | by Pulgini & Norton, LLP

In a recently published opinion, the Massachusetts Court of Appeals examined the law of adverse possession and color of title claims in a property dispute surrounding natural, wild lands. In Paine v. Sexton, the plaintiffs sought to register nearly 36 acres of woodlands, based on adverse possession. The defendants argued that the plaintiffs could not establish adverse possession when they had not enclosed or cultivated the natural areas, and they also contended that the deed under which they claimed color of title did not have an adequate description to support their claim. The appeals court affirmed the decision of the trial court finding in favor of the plaintiffs.

Adverse Possession

In Paine v. Sexton, the plaintiffs had operated a commercial campground on the land since 1958. Although they had cleared campsites and added picnic tables, built an office building and bathroom facilities, erected some fencing, and made other improvements to the area, they did not enclose or cultivate the entire 36 acres in order to maintain privacy between campsites, as well as to preserve the naturally wooded condition of the grounds.

Massachusetts Land Court Upholds Validity of Home Foreclosure

Published on: September 18, 2015 | by Pulgini & Norton, LLP

In a newly issued opinion from the Massachusetts Land Court, Nutting v. Nationstar Mortgage, LLC (August 24, 2015), the homeowner-plaintiffs attempted to challenge the validity of a foreclosure sale of their home in their petition to try title pursuant to G.L. c. 240 §§ 1-5. They also argued that the subsequent foreclosure deed of the property was void based on errors in the chain of title, and that the defendants did not have lawful title to the property.

Under the Massachusetts try title statute, the court has subject matter jurisdiction only if the plaintiffs establish the following elements: (1) they hold record title to the property; (2) they are in possession of the property; and (3) there is an actual or possible adverse claim clouding the plaintiffs’ record title. The plaintiffs are entitled to a presumption of truth with regard to the third element, and they are in possession of the property by currently residing in the house, satisfying the second element. The only issue in dispute in Nutting was the first element, whether the plaintiffs held record title to the property.

If the plaintiffs could prove that at the time of the foreclosure, the foreclosing entity did not hold title to the property, they could satisfy the first element. Thus, to establish that they still held record title, the plaintiffs claimed that the foreclosure sale was void, arguing that the defendant did not hold both the promissory note and a valid assignment of mortgage at the time of the foreclosure sale. The court disagreed, however, stating that the underlying note and mortgage need not be conveyed together under Massachusetts law. As a result, a foreclosing mortgagee is not required to demonstrate that the previous holders of the recorded interest in the mortgage also held the note each time that the interest was assigned to the next holder.

Massachusetts Land Court Defines “Public Way” in Property Division Dispute

Published on: September 11, 2015 | by Pulgini & Norton, LLP

In a recently issued opinion, the Massachusetts Land Court examined the meaning of “public way” as used in a provision of the Town of Tisbury’s Zoning By-laws. The court’s use of the definition stated in Fenn v. Town of Middleborough (7 Mass. App. Ct. 80 (1979)) may provide context for other zoning laws in the future.

In Askew v. Seidman (Mass. Land Ct. (Sept. 4, 2015)), the landowner appealed a decision of the Planning Board of the Town of Tisbury denying approval of a plan to divide her property into two buildable lots. Pursuant to the relevant By-Laws, when a lot fronting on a public way has sufficient additional frontage to provide for an access way to the rear for an additional lot, the Planning Board may approve a plan dividing the property into front and rear lots, subject to specific restrictions.

At issue in the case was whether a road shown on a subdivision plan (Roger’s Farm Road) constituted a “public way,” such that the plaintiff is entitled to an endorsement of her plan to divide the property fronting Roger’s Farm Road into two lots under the Deep Lot Provisions of the town’s By-Laws.