Massachusetts Real Estate Lawyer Blog

Massachusetts Court Dismisses Lawsuit Seeking Tear Down of House in Violation of Zoning Bylaw

Published on: June 5, 2019 | by Pulgini & Norton, LLP

Making a significant change to residential property in Massachusetts typically requires approval from the local zoning authority. That decision may be subject to several levels of appeals by the homeowners and other parties aggrieved by the outcome. Proceeding with the changes, despite a pending appeal, may cause complications further down the road, as illustrated in a May 30, 2019 Massachusetts real estate case before the Court of Appeal.

In 2008, the owner sought a building permit to construct a 6,800-square-foot residence on his property overlooking Cape Cod Bay, and to convert the existing cottage into a studio. The proposal was put forth as an alteration of the existing cottage, which was a pre-existing non-conforming structure. The permit was approved, but a group of individuals filed multiple appeals. Nevertheless, the owner began construction of the residence immediately, despite the Land Court’s warning that he was proceeding at his own risk.

In 2011, the Court of Appeals revoked the building permit, holding that as a matter of law, the house could not be considered an alteration of the existing cottage. After that decision, the local building commissioner issued an order requiring that the house be torn down, which the owner appealed. Ultimately, the owner and the town settled the matter, and the house was allowed to stand in exchange for a significant cash payment to the town and a multi-million dollar payment characterized as a charitable gift.

Massachusetts Property Owners Seek Injunctions Over Their Activities and Use of a Common Beach

Published on: May 30, 2019 | by Pulgini & Norton, LLP

If another person interferes with your easement rights or over-burdens it with an impermissible use, you may have legal recourse to protect your property interests. In some situations, the court may issue a preliminary injunction to keep the status quo or restrain certain conduct before a final decision has been reached, as in a May 24, 2019 Massachusetts real estate case. The plaintiffs in the case filed a lawsuit claiming an easement to use a beach area. The plaintiffs then requested a preliminary injunction from the court to enforce those rights. In turn, the defendants sought a preliminary injunction against the plaintiffs to cease many of their activities the beach, alleging that such uses were destructive.

The plaintiffs claimed that they had the right to deploy and maintain a dock, use a boat ramp, and park vehicles and trailers on the beach. In their motion for a preliminary injunction, they claimed that the defendants had interfered with those rights. The defendants argued that any easements rights of the plaintiff were based on the permissive use allowed by the previous owner of the property, and such use had been revoked after his death. The defendants further alleged that the plaintiffs had overburdened the easement and that their activities constituted a nuisance and trespass on the beach. They sought to prevent the plaintiffs from installing a dock, launching boats, parking and storing trailers, boats, and vehicles, planting invasive species, leaving trash, having large parties and drinking alcohol on the beach, and lighting fireworks.

In Massachusetts, the court may issue a preliminary injunction only if the moving party demonstrates the following: (1) a likelihood of success on the merits, (2) that he or she faces a substantial risk of irreparable harm if the injunction is not issued, and (3) that this risk of irreparable harm outweighs any risk of irreparable harm which granting the injunction would create for the non-moving party.

Property Owner’s Easement Rights Extinguished in Massachusetts Real Estate Case

Published on: May 22, 2019 | by Pulgini & Norton, LLP

An easement is a property right that may, in some situations, be abandoned or extinguished by law. In a May 2, 2019 Massachusetts real estate case, the Land Court considered whether the defendant held an easement over an area abutting its property. The area in dispute was a “paper way”, as it was conveyed and described in the deed as a right of way but had never been constructed.

The defendant in the case owned a large apartment complex. The paper street was located between the plaintiff’s properties and, in the deed, continued through to the defendant’s property. In 1993, the prior owner of the apartment complex installed a six-foot fence, cutting off its own access to the paper street. Since then, the plaintiffs claimed to have used the paved portion of the paper street as a driveway and parking area, and the unpaved portion as a lawn, grilling area, and wooded area.

The plaintiffs filed an action against the defendant in Land Court, seeking a declaratory judgment that it owned the paper street in fee and that the defendant had no property rights over it. The Land Court addressed the issue of the defendant’s easement rights when the parties moved for summary judgment. The plaintiffs argued that any rights the defendant had in the paper street were extinguished by prescription or abandoned.

Massachusetts Court Finds Plaintiff Has No Right to Sale Proceeds from Foreclosed Property

Published on: May 16, 2019 | by Pulgini & Norton, LLP

Massachusetts foreclosure proceedings may involve multiple legal challenges from different parties and extend over many years. In a May 13, 2019 case, the Appeals Court of Massachusetts reviewed a dispute over the surplus sale proceeds following a real estate tax taking. The action was brought by an individual plaintiff against the defendant, who was the owner of a foreclosed property.

In 2010, the town executed a tax taking on property owned by the defendant. The town subsequently filed a petition in Land Court to foreclose all rights of redemption on the property, and in 2014, obtained a foreclosure judgment in its favor. The town sold the property at auction for approximately $815,000 in 2016.

The plaintiff in the case had brought a Massachusetts Wage Act claim against the defendant in 2012. She was awarded a judgment in the amount of $250,000, to be secured by a mortgage on the defendant’s property, which the plaintiff recorded in August of 2014. After learning that the town planned to sell the property at auction, the plaintiff filed an action against the defendant and the town seeking a declaratory judgment that she was entitled to the surplus of the tax debt from the sale. After the judge entered summary judgment in favor of the town, the plaintiff filed the instant appeal.

Court of Appeals Upholds Building Permit to Construct Two-Family Dwelling in Massachusetts Zoning Case

Published on: May 8, 2019 | by Pulgini & Norton, LLP

Some homeowners impacted by a proposed change to a nearby property may have a way to legally oppose approval of the plan. In a May 3, 2019 Massachusetts real estate case, the Appeals Court of Massachusetts reviewed the issuance of a building permit to the defendant, a real estate developer. The plaintiffs filed the appeal after the local zoning board allowed the permit, and the Land Court subsequently upheld that decision.

The defendant in the case owned one lot in a small subdivision that consisted of four other lots with homes. The plaintiffs resided on the lot abutting the defendant’s property. After the defendant was issued a building permit to construct a home on the lot, the plaintiffs filed an action in Land Court to challenge the validity of the permit. The plaintiffs argued that the defendant’s lot did not comply with the rear lot dimensional requirements of the local zoning bylaws.

Under the local bylaws, a rear lot is defined as a parcel of land not fronting or abutting a street, and which has limited access to a street due to the shape of the lot, an easement, or a private right-of-way as shown on the recorded deed or subdivision plan. For a two-family rear lot in a multi-residence zone created after December of 1953, the bylaws require a minimum lot size of 12,000 square feet, which is subject to a maximum floor area ratio.

Massachusetts Homeowners Attempt to Reclaim Property After Title Taken for Unpaid Tax

Published on: April 30, 2019 | by Pulgini & Norton, LLP

Failing to pay Massachusetts property taxes may lead to significant consequences for property owners, including the taking of a tax title to their home. In many cases, however, the law provides a way for individuals to reclaim ownership. In an April 17, 2019 case before the Massachusetts Land Court, the homeowners sought to determine the amount needed to redeem property that had been taken for nonpayment of taxes. The plaintiff in the case was a private company that held the tax title from their house. The plaintiff argued that the redemption amount must include the sum of tax payments that it had made since acquiring title, as well as 16% interest on that amount.

The problem arose in 2011, when the City took title to the defendants’ house pursuant to Massachusetts law, as the defendants had not paid their real estate taxes on the property that year. The law allows the City to hold title until the defendants exercise their right of redemption, or until they no longer possess the right of redemption. During that time, the accrued interest rate on the defendants’ redemption amount (i.e., unpaid taxes, fees, costs, etc.) is 16%.

In 2016, the plaintiff purchased the tax title from the City at auction. The plaintiff paid the City the outstanding taxes on the defendants’ property and continued to pay the taxes on the property for the next three years. The plaintiff subsequently initiated foreclosure proceedings against the defendants, who answered the complaint by claiming the right to redeem title to the property. The plaintiff argued that the redemption amount should include the following: unpaid taxes for 2011 through 2015 plus interest and fees, the subsequent taxes paid by the plaintiff from 2016 to 2018, and interest at 16% on that amount. The defendants agreed to the unpaid taxes for 2011-2015, but argued that the plaintiff had no authority to claim the other amounts under the statute.

Massachusetts Plaintiff Obtains Injunction Against Neighbors for Fencing Off Easement

Published on: April 22, 2019 | by Pulgini & Norton, LLP

An easement allows a person the legal right to use another person’s land for a specific and limited purpose. If someone interferes with that right, the easement holder may request that the court to issue an injunction prohibiting such interference. In an April 5, 2019 Massachusetts real estate case, the plaintiff filed an action against her neighbors after they fenced in a private way, thus preventing her from using it.

The private way at issue was located on the borders of the plaintiff’s land and the defendants’ land. The first deed to the plaintiff’s property, recorded in 1901, granted the right to the owners to pass over the private way, located on the defendants’ property. After purchasing their property in 2017, the defendants informed the plaintiff that they intended to put up a fence to obstruct the plaintiff’s use of the way. Over the plaintiff’s objection they installed the fence.

The plaintiff filed a Complaint in the Massachusetts Land Court, asserting claims of ownership by adverse possession and interference with easement rights. The plaintiff then moved the court for a preliminary injunction requiring the defendants to remove the fence and stop interfering with her use of the way.

Massachusetts Landowner Defeats Prescriptive Easement Claim by Demonstrating Permissive Use of Driveway

Published on: April 17, 2019 | by Pulgini & Norton, LLP

One of the most important factors in a Massachusetts prescriptive easement claim is whether the claimant’s use of the property was permissive or adverse. The Land Court recently addressed this issue when deciding an April 5, 2019 case. The plaintiff in the case sought to improve a section of a path located on the defendants’ property, claiming that he had the right to make improvements because he held a prescriptive easement over the path.

The defendants’ property and most of the surrounding land had traditionally been used for cranberry farming. The path in dispute was part of a long-existing system of cart paths that wound through the fields to various ponds. At present, part of the path was used as the defendants’ driveway and connected to the main road.

The plaintiff had a direct route to the main road as well, which was located entirely on his property. However, rather than using that route, the plaintiff sought to improve and use the section of the path located on the defendants’ property and used as their driveway to access the main road. The plaintiff asserted his rights to improve the path through a prescriptive easement claim.

Massachusetts Homeowner Files Action to Clear Title After Failed Transfer to Family Trust

Published on: April 11, 2019 | by Pulgini & Norton, LLP

In a Massachusetts real estate action to clear title, a person seeks a court order that they are the owner of the property and that there are no other valid legal claims that may be made against the property. An April 1, 2019 title action decided by the Land Court illustrates how these cases may arise. The plaintiff in the case filed an action to clear title after ownership of property became an issue during the probate of his wife’s estate.

The property had been conveyed to the plaintiff by his parents and was his primary residence. In 1996, the plaintiff and his late wife had executed multiple legal documents purporting to create a family trust and named themselves as trustees. Neither the trust declaration nor the certification of trust was ever recorded. Nevertheless, the plaintiff conveyed the property to the family trust and his late wife, as trustee of the trust, and recorded the deed.

In June of 2013, the plaintiff attempted to refinance the property, but was informed by the lender that the 1996 transfer of the property to the trust had failed, because no trust certificate was ever recorded. The lender asserted that the 1996 deed had instead served to convey title to the plaintiff’s wife, individually. The plaintiff subsequently filed an action against the beneficiaries of his late wife’s estate, seeking to establish his ownership of the property.

Massachusetts Court Allows Landowners’ Soil Importation Operations as Incidental Use of Agricultural Property

Published on: March 26, 2019 | by Pulgini & Norton, LLP

In Massachusetts, certain uses and activities must be permitted under local zoning laws or approved by the proper authority before they are allowed to take place on a specific parcel of property. In a March 21, 2019 Massachusetts zoning case, the plaintiffs sought to reverse a local decision that prevented them from transporting dirt and fill onto their property.

The plaintiffs in the case operated a farm on several parcels of property that they owned. From 1990 through 2016, the plaintiffs had gravel removed from one of the parcels, which eventually created a 45-acre, 40-foot deep pit on the property. The plaintiffs intended to fill the pit with dirt and restore the area in order to grow crops. They contracted with a hauling company to accept fill from construction projects in and around Boston. The hauling company was paid by construction sites to take away dirt fill, and the plaintiffs were paid to accept the fill while also having their pit filled in and restored to farming use.

The local building commissioner objected to the arrangement and ordered the plaintiffs to cease and desist all soil importation operations immediately. The zoning board upheld the commissioner’s order, finding that soil importation was not a permitted use under the local bylaws. The plaintiffs appealed the decision, and the matter was presented in the Massachusetts Land Court.