Massachusetts Real Estate Lawyer Blog

Local Regulation of Cannabis Challenged by Residents and Property Owners in Massachusetts Zoning Case

Published on: March 19, 2019 | by Pulgini & Norton, LLP

November 4, 2016, Massachusetts voters passed legislation authorizing the legalization, regulation, and taxation of recreational cannabis in Massachusetts. The Massachusetts statute allows cities and towns to adopt their own ordinances and zoning bylaws imposing reasonable safeguards on the operation of marijuana establishments. The plaintiffs in a March 7, 2019 case sought a declaration that a general bylaw enacted by their Town, banning all non-medical cannabis uses, was invalid.

The plaintiffs in the case had purchased land in the Town to build an indoor marijuana growing and processing facility shortly after the Massachusetts statute was enacted. In May of 2018, the Town adopted an amendment to its zoning, bylaw by two-thirds vote, allowing certain recreational marijuana uses in agricultural, industrial, and business districts by special permit.

A group of citizens and neighboring property owners, unhappy with the amendment, sought to rescind it through two articles. The first article was another amendment to reverse the bylaw, which failed to obtain the required two-thirds majority vote. The second was a general bylaw to ban all non-medical cannabis uses within the Town, which passed by a majority vote. The plaintiffs filed an action in Land Court, arguing that the second general bylaw was an improper attempt to amend a use that was already regulated in its zoning bylaw.

Neighbors Litigate Ownership of Boundary Line Areas in Massachusetts Adverse Possession Case

Published on: March 12, 2019 | by Pulgini & Norton, LLP

In some situations, a person may establish title by adverse possession in a legal action filed with the Massachusetts Land Court. The plaintiffs in a March 4, 2019 Massachusetts adverse possession case claimed title to an additional eight foot wide strip of land along the eastern boundary of their property. They brought the claim against their neighbors, who were the record owners of the area in dispute.

The portion of land claimed by the plaintiffs was not a unified area. Essentially, it could be divided into three parts. One section had been enclosed by the plaintiffs’ back yard fence until 2012 and encroached approximately 5 feet over the record boundary line. The second section was not fenced or enclosed. The plaintiffs claimed possession of this section because they regularly raked and mowed the area and the defendants had no physical presence in the area. The third part consisted of 3 feet beyond the fence that had been erected and removed by the plaintiffs.

To acquire title by adverse possession in Massachusetts, the plaintiffs must show nonpermissive use of the property which is actual, open, notorious, exclusive and adverse for a continuous period of twenty years. The acts that establish adverse possession must be changes to the land that demonstrate the control and dominion ordinarily associated with ownership, and so open and notorious that they may be presumed to have been known by the record owner.

Non-Conforming House Loses Grandfather Status Due to Abandonment Under Local Massachusetts Bylaw

Published on: March 6, 2019 | by Pulgini & Norton, LLP

Many of the old homes in Massachusetts were built before the current local zoning bylaws were enacted. In many situations, the bylaws exempt these homes from a particular regulation by grandfathering them. In a February 21, 2019 case, the Massachusetts Land Court considered whether a town’s zoning bylaws permanently grandfathered certain uses of a property that existed before the original bylaws were adopted. The issue would determine whether or not the plaintiffs could build a new two-family dwelling on their lot.

The lot contained an existing two-family house, which had been built in the 1880s. For many years, and at least since 1950, it had been used as a two-family residence. In 2010, a fire swept through the house, leaving the building standing but ruining the interior. Due to the damage, no one had resided in the house for years after the fire, although renovations had sporadically taken place.

The plaintiffs sought to raze the structure and construct a new two-family house. The property, however, was located in a district zoned for single-family homes only. While the local zoning bylaw had grandfathered the existing, nonconforming two-family house, in order to build a new non-conforming two-family structure on the property, the plaintiffs needed special approval.

Court Rules Landowner Does Not Have Right to Jury Trial in Massachusetts Regulatory Taking Claim

Published on: February 27, 2019 | by Pulgini & Norton, LLP

Whether a plaintiff is entitled to have a Massachusetts real estate claim decided by a jury generally depends on the type of action and the circumstances of the case. In a February 20, 2019 opinion, the Appeals Court of Massachusetts addressed an issue that had not been definitively settled in Massachusetts: whether a land owner is entitled to have a regulatory taking claim decided by a jury.

The plaintiff in the case owned an unimproved lot in a residential subdivision, which she had inherited from her parents, who purchased it in 1975. In 2012, the plaintiff prepared plans to construct a home on her lot. She filed a notice of intent with the town conservation commission, seeking approval under the Massachusetts Wetlands Protection Act and the town’s bylaws concerning wetlands protection.

The commission denied the plaintiff’s variance requests, concluding that her plans did not comply with the requirements of the laws. The plaintiff then filed an action in the Superior Court, asserting that the town’s application of its wetlands protection bylaw was essentially a taking of her property, and as such, required compensation under the U.S. and Massachusetts constitutions.

Massachusetts Homeowners Obtain Approval to Increase Living Space Despite Preexisting Nonconformity

Published on: February 20, 2019 | by Pulgini & Norton, LLP

Many homeowners do not realize that making structural changes to a nonconforming house usually involves a legal process for approval. In a February 8, 2019 Massachusetts zoning case, the Supreme Judicial Court examined a law that exempts preexisting nonconforming structures from local zoning ordinances and bylaws in some situations when they are extended or altered.

The defendants in the case owned the second floor condominium unit in a two-unit house. They sought to modify the roof of the house and add a dormer, thereby providing an additional by 677 square feet of living space. It would also increase the preexisting nonconforming floor ratio area of the house, which presently exceeded the maximum allowed under the local bylaw. As such, the defendants were required to apply for a special permit from the zoning board.

Many of the defendants’ neighbors, including the plaintiffs, appeared at the public hearing to oppose the permit. The defendants presented evidence that the majority of the houses on their street already had partial or full third stories and were taller than the defendants’ existing building. Town officials also noted that the proposed project would make the house appear more consistent, both in height and in design, with the others on the street.

Massachusetts Zoning Laws Hold Up New Home Build on Land within Flood Plain

Published on: February 14, 2019 | by Pulgini & Norton, LLP

If you are seeking to build your new home on property located on a flood plain or watershed, local Massachusetts zoning laws may significantly affect your plans. In a February 5, 2019 real estate case, the property owners had difficulty obtaining approval to construct a single-family home on their lot. Although a local zoning board had granted them a special permit, the owners of the adjacent property had appealed that decision, and it was reversed by the Superior Court. The property owners subsequently sought review of the matter from the Appeals Court of Massachusetts.

The lot at issue in the case was located in the town’s flood plain and watershed district. Under the local by-law, a special permit may be granted for land within a flood plain and watershed district if the applicant proves that the land is not, in fact, subject to flooding, and has suitable drainage conditions for the proposed use. Flooding as used in the by-law means in the sense that water rises and overflows over normally dry land.

The local zoning board found that the lot was subject to flooding. The board also considered whether development of the proposed dwelling would be inconsistent with the purposes of the by-law, and whether the dwelling would violate public policy concerns. Determining that it did not violate public policy concerns, the board allowed the special permit. The Superior Court reversed, concluding that under the by-law, the board could not grant a special permit for a lot subject to flooding in fact, notwithstanding any policy considerations.

Massachusetts Lot Owners Face Legal Obstacles to Home Construction in Wetlands Area

Published on: February 7, 2019 | by Pulgini & Norton, LLP

Constructing or modifying a home often involves land use regulations, which may be navigated with the assistance of a Massachusetts real estate attorney. In a January 31, 2019 case, the Appeals Court of Massachusetts reviewed a decision from a local conservation commission denying the plaintiffs’ request to build a single-family home on a lot. The decision was affirmed by the Superior Court before the plaintiffs sought additional review from the Appeals Court.

In 2007, the plaintiffs in the case had filed a notice of intent with the commission, requesting an order of conditions to build their house. After a public hearing in 2009, the commission denied the plaintiffs’ request, concluding that it did not meet the requirements of the Massachusetts Wetlands Protect Act, nor the town’s wetlands protection bylaw and regulations. Over the next several years, the issue was appealed and remanded back to the commission for reconsideration. Ultimately, the commission denied the plaintiffs’ request for a second time for failing to meet the standards required under land use laws.

On appeal, the plaintiffs argued that there was substantial evidence to grant the notice of intent, and that the commission was required to allow a waiver under the wetlands bylaw and the regulations.

Lake Lot Owners File Massachusetts Land Court Action to Determine Their Rights in Private Road Access to the Water

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

Sharing an access road or right of way with other property owners occasionally causes conflict, as in a recent Massachusetts real estate action. The parties in the case owned adjacent lots in a residential subdivision that bordered a lake. In a January 17, 2019 decision, the Land Court was presented with the question of whether and to what extent the parties had property rights in, or ownership of, a right of way easement leading to the lake.

The defendant in the case owned a lot in the same subdivision as the plaintiffs. He used the right of way regularly to access the lake, and had made improvements to it, such as re-grading a sloped section and installing a portable, metal dock. The co-plaintiffs filed the action seeking to clear title and for a declaratory judgment with respect to their ownership rights in the way. They presented multiple, alternative theories to the court to establish their claims.

Ultimately, the plaintiffs prevailed on their claim that they owned the right of way up to the centerline, by operation of the Derelict Fee Statute. Pursuant to the Massachusetts Derelict Fee Statute, a deed that conveys a piece of land abutting a way includes ownership of the way up to the centerline, unless otherwise expressed in the deed. If the property on the other side of the way is conveyed as well, the full width of the way is conveyed.

Massachusetts Property Owner Files Action in Land Court Seeking Designation of Private Way

Published on: January 23, 2019 | by Pulgini & Norton, LLP

The classification of a road as a public or private way can be significant. The decision may impact the level of control that adjacent property owners have over it, as well as the public services that are available to repair and maintain the way. In a December 19, 2018 Massachusetts real estate case, the plaintiff filed an action against the city, seeking a determination from the Land Court that the way allowing access to her home was private. The distinction as a private way would exempt it from the requirements of a local zoning ordinance.

The primary question for the court was whether the way was an easement or a private way that could be considered frontage under the local zoning law. As a preliminary matter, the Land Court held that the plaintiff had the burden of proof to show that the municipal ordinance did not apply to the way at issue. The Land Court first looked to the original 1891 deed to determine the intent of the grantors.

The City argued that because the initial conveyance in 1891 included the area as a right of way, the intent of the grantor was to create an easement. The plaintiff contended that the language granting the right of way in the deed was not a conventional easement, as there was no dominant or servant estate tied to the grant. Further, the deed had granted a right of way over an area that currently served as the main road, which later became partially a private way and partially a public way open for use by the general public.

Failure to Strictly Comply with Mortgage Terms May Be An Affirmative Defense for Massachusetts Homeowners Against Foreclosure

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

In Massachusetts, a homeowner may have valid legal defenses against the lender in mortgage foreclosure proceedings. In a December 27, 2018 Massachusetts foreclosure case, the issue was whether the foreclosure on the defendants’ home mortgage was void due to the bank’s failure to strictly comply with the provisions in the mortgage. The bank appealed the matter after the trial court ruled that the foreclosure was void.

In Massachusetts, the statutory power of sale requires that, upon default, the lender comply with the terms of the mortgage and all foreclosure laws. In 2015, the Massachusetts Supreme Judicial Court held in Pinti that, to effect a valid foreclosure sale, the lender must strictly comply not only with the terms of the actual power of sale in the mortgage, but also with any pre-foreclosure conditions that are required before exercising the power of sale. Thus, a lender’s failure to strictly comply with the notice of default provided in the mortgage renders the foreclosure sale void.

The strict compliance requirements of Pinti apply to any foreclosure case in which an issue with the failure to adhere to the mortgage terms was timely and fairly asserted in the trial court, or for any appeal before July 17, 2017.