Massachusetts Real Estate Lawyer Blog

Driveway Boundary Dispute Between Neighbors Leads to Massachusetts Real Estate Action

Published on: August 8, 2018 | by Pulgini & Norton, LLP

A disagreement between property owners regarding their respective boundary lines may lead to legal action. In a July 30, 2018 opinion, the Massachusetts Land Court decided a case concerning the ownership of a disputed area along the boundary line between the parties’ properties. The area at issue was the driveway separating the two properties. The plaintiffs in the case brought an action against the defendant to quiet title, claiming ownership over the entire portion of the disputed area pursuant to their deed.The driveway at issue was used by both parties to enter and exit their respective properties. When the defendant purchased her property in 1998, there was a wood board affixed to the driveway that ran the length of the two houses, indicating a boundary line. When the plaintiffs purchased their house in 2002, they understood that they were entitled to use the entire driveway between the properties, and they did so. At some point, however, the defendant told the plaintiffs that the boundary line was down the middle of the driveway and that the plaintiffs could not use or drive on her side of it.

In 2013, the defendant had a survey done of her property to determine the location of the boundary line on the driveway. The plaintiffs, in turn, obtained a survey in 2015 and sought a second survey thereafter. The defendant sought a permit and constructed a four-foot fence on the driveway. The plaintiffs obtained a third survey in 2016, which showed that a portion of the driveway and the defendant’s fence were located on the plaintiffs’ property.

Landowners File Cross-Claims for Adverse Possession and Quiet Title in Massachusetts Real Estate Case

Published on: July 25, 2018 | by Pulgini & Norton, LLP

A dispute between the title owner of a piece of land and an adverse possessor of land may be settled by the court in an action before the Massachusetts Land Court. In a July 18, 2018 Massachusetts real estate case, the plaintiff sought to quiet title in the face of adverse possession assertions made by the defendants. The defendants then counter-claimed with a suit for adverse possession of the parcel. The matter went to trial and was decided by the land court.

The parcel at issue in the case was a vacant, one acre piece of land in Massachusetts. The parties did not dispute that the plaintiff was the record owner of the parcel. The central question in the case was whether the defendants had adversely possessed all or a portion of the one acre parcel. In Massachusetts, title by adverse possession can be acquired only by proof of non-permissive use, which is actual, open, notorious, exclusive and adverse for twenty years. The person claiming adverse possession, i.e., the defendants in the case, had the burden to prove that each of these elements continued uninterrupted for a period of at least twenty years.

The defendants had openly cultivated and farmed a significant portion of the parcel from 1992 to 2007. The land court found, however, there was no evidence or testimony that the farming activity had continued past that. Accordingly, the court held that the defendants’ farming activities, which continued uninterrupted for at most 16 yeas, was not sufficient to prove the twenty years required to establish title by adverse possession.

Massachusetts Landowner Files Action Alleging Neighbor Has Overburdened Easement

Published on: July 17, 2018 | by Pulgini & Norton, LLP

The right to cross another person’s land via an easement may be subject to limitations. In a July 6, 2018 Massachusetts real estate case, one of the issues for the Land Court was whether an easement located on the plaintiffs’ land had been overburdened by the defendants’ use over time. The easement at issue allowed the defendants to access a public road from their property through a roadway on the plaintiffs’ property. The plaintiffs claimed that the defendants had overloaded the easement because they used it to access property other than the parcel expressly identified. The plaintiffs also sought damages for flooding, which they alleged was caused by the defendants having raised and widened the easement roadway.

An affirmative easement creates a nonpossessory right to enter and use land in the possession of another and obligates the possessor not to interfere with the uses authorized by the easement. Accordingly, the party holding rights to use of the easement, i.e., the defendants, are entitled to make only the uses reasonably necessary for the specified purpose, while the plaintiffs may use their land in any way that does not unreasonably interfere with the easement.

The defendants argued that they had established a prescriptive right to use the easement to access other parcels of land in addition to the parcel expressly identified in the easement. In order to establish their claim to a prescriptive easement, the defendants must show that their use of the easement was (a) open, (b) notorious, (c) adverse to the owner, and (d) continuous or uninterrupted over a period of no less than twenty years.

Pet Sale Business in a Massachusetts Residence Subject to Zoning Regulations

Published on: July 12, 2018 | by Pulgini & Norton, LLP

Before conducting business out of a residential home, it may be wise to consult with a Massachusetts real estate attorney familiar with the local zoning laws. The property owners involved in a July 6, 2018 case operated a commercial kennel and pet store out of their residentially-zoned property. After the neighbors complained to the local authorities about their activities, the zoning enforcement officer investigated the matter and directed the plaintiffs to cease and desist with their kennel and pet sale operations. When the local zoning board upheld the decision, the plaintiffs filed their appeal with the Land Court.

The plaintiffs in the case owned an eight-acre parcel of land located within a residential zoning district. The property contained a ranch-style house with an attached garage and outbuilding. No one lived at the property. Instead, the plaintiffs kept over 150 puppies and dogs on the premises, using the house as an office and pet store open to the public for the sale of puppies. Almost all of the puppies were purchased from out-of-state breeders, but a few were bred by dogs permanently owned by the plaintiffs. On average, between 1,000 to 1,600 puppies a year could be sold from the plaintiffs’ property.

Under the local zoning by-law, commercial kennels and pet stores were prohibited uses in suburban district zones, which was where the plaintiffs’ property was located. The Land Court held that the plaintiffs’ business, which involved buying hundreds of puppies, food, and pet supplies that were delivered by large trucks in multiple weekly shipments, in addition to accommodating customers on the property to see and purchase the puppies, operated as a commercial kennel and pet store. The plaintiffs’ commercial business was, therefore, in violation of the zoning by-law, unless otherwise protected. One exception from the zoning regulation is for the breeding, raising, and training of dogs as an agricultural pursuit.

Massachusetts Homeowners Granted Easement Over Neighbors’ Private Way to Access Highway

Published on: July 3, 2018 | by Pulgini & Norton, LLP

In certain instances, using a private road on another person’s property over many years may give rise to a property interest. In a June 26, 2018 Massachusetts real estate case, the plaintiffs had been using the defendants’ private road to access a main throughway from their property. They filed an action in land court arguing that they had acquired an easement over the road.

In the case, the plaintiffs’ house could be reached by taking one of two different routes from the main road. Using the road in dispute, which was located on the defendants’ property, was the easiest and quickest route. When the plaintiffs purchased their home in 1993, they had assumed that use of the disputed way was conveyed by the deed to the house, which provided “a right of way to the Public Highway.” Accordingly, the plaintiffs had used the disputed way from the time they moved in, believing they had a right to do so. In the midst of the instant disagreement with the defendants, the plaintiffs learned from their attorney that they had misinterpreted their deed, and that the right of way merely referred to the street on which their house was located. Nevertheless, the plaintiffs filed an action against the defendants, claiming that they had acquired a private easement by prescription over the disputed way.

In Massachusetts, a claimant may be entitled to a prescriptive easement over the land of another if it is shown by clear proof that the use of the land has been (a) open, (b) notorious, (c) adverse to the owner, and (d) continuous or uninterrupted over a period of at least twenty years.

Massachusetts Town Claims Title to Water Rights in Lake Located on Defendant’s Property

Published on: June 25, 2018 | by Pulgini & Norton, LLP

Some restrictions on property are limited in their duration, often either through the express terms of the instrument or by statute. In a May 18, 2018 Massachusetts real estate case, the issue concerned the water usage rights of a local town in a lake located on the defendant’s property. The parties disputed whether the town still had the rights, or whether the rights had since reverted back to the owner of the lake.

In 1958, the prior owner of the defendant’s land had conveyed flowage and usage rights of the lake to a business entity. The entity, in turn, conveyed the rights to the town in 1972. These rights were subject to a reversionary interest in favor of the grantor and his successors. This meant that, if certain conditions were not met, the town would lose its rights in the lake, and they would return to the current owner of the property. Specifically, if the town failed to maintain the dams or impound the waters of the lake as agreed in the 1958 conveyance, the grantor or their successors could, at their option, record a written declaration that would effectuate their reversionary interest.

In 2016, the defendant recorded an instrument that purported to effectuate its reversionary interest in the rights that were conveyed in 1958. The town, in turn, filed an action seeking to quiet its title to the flowage and usage rights it obtained in 1972. Although the town conceded that it had not maintained the dams and impounded the waters of the lake, as required by the conveyance, it argued that under Massachusetts law, the original grantor or successors had only 30 years to make the necessary record to effectuate their reversionary interest. The town asserted that since they failed to record a declaration within the 30-year period, the town acquired absolute ownership of the flowage and usage rights.

Massachusetts Landowners Seek Access Over Neighboring Property Through Discontinued Public Easement

Published on: June 18, 2018 | by Pulgini & Norton, LLP

People who claim the right to an easement on another person’s property may need to take legal action if the existence of the easement is disputed. At issue in a June 7, 2018 Massachusetts real estate case were the plaintiffs’ rights, if any, to access their woodlands by going through the defendants’ privately owned lands.

The plaintiffs in the case sought to use a route on the present-day remains of two former dirt roadways. The dirt roadways were once public roads taken in easement by town meeting votes in 1780 and 1805. These roads fell into disuse by the mid-1800s and were eventually discontinued by a town meeting vote in 1886. Thereafter, the sections at issue in the case were gated off, and the underlying land was re-integrated into the properties currently owned by the defendants. The plaintiffs did not need the easement access, since they could access all areas of their properties from public roads and internal roads on their properties. However, the plaintiffs wanted to use the easement at issue because the route would provide more direct and easier access for them to conduct logging operations on their property.

In support of their action, the plaintiffs argued that the town votes did not discontinue the roadways’ public status, only the public obligation to maintain them, or in the alternative, that the public subsequently acquired access rights by prescription. The plaintiffs also claimed an easement over the former roadways by necessity, prescription, or express or implied in their deeds.

Massachusetts Homeowner Successfully Reverses Foreclosure Judgment on Appeal

Published on: June 11, 2018 | by Pulgini & Norton, LLP

The foreclosure process for a residential mortgage loan can seem daunting, but the borrower may have defenses against foreclosure. In a May 11, 2018 Massachusetts foreclosure action, the Appeals Court of Massachusetts found in favor of a homeowner fighting against foreclosure. Ultimately, the court reversed the judgment of the lower court and allowed the plaintiff to continue her defense in the proceedings.

The facts of the case are not unusual in foreclosure actions. The plaintiff signed the original note payable to the bank in 2007. A few months later, Fannie Mae purchased a pool of loans from the bank, including the plaintiff’s loan. After the plaintiff defaulted, the bank sent her a right to cure notice. In 2009, a mortgage loan servicer for Fannie Mae foreclosed on the plaintiff’s home, exercising the power of sale contained in her mortgage. The servicer, acting for Fannie Mae, offered the highest bid at the auction. Fannie Mae purchased the property and then brought an eviction action against the plaintiff in Housing Court. The plaintiff brought her own action and obtained a preliminary injunction against the eviction, on the basis that the servicer did not hold the mortgage note at the time of the foreclosure sale. On remand, however, the court entered judgment in favor of Fannie Mae and the loan servicer. The plaintiff appealed the judgment in the case.

On appeal, the plaintiff presented three arguments for reversal, two of which pertained to the requirements of the right to cure notice. The provision at issue required the notice to specify the default, the action required to cure the default, a date no earlier than 30 days of the notice by which the default must be cured, and a statement that a failure to cure the default on or before that date may result in acceleration. The provision also required that the notice must inform the borrower of her right to reinstate after acceleration, and her right to bring a court action to assert any defenses to acceleration and sale.

Massachusetts Beachfront Property Owners Take Legal Action to Determine Location of Right of Way Easement

Published on: June 6, 2018 | by Pulgini & Norton, LLP

An easement is the legal right to a particular, limited use of property by someone other than the owner of the property. In some cases, the existence of an easement may become unclear after the property has passed down through different owners over many years. In a February 23, 2018 opinion, the appeals court considered a Massachusetts real estate action involving the plaintiffs’ claim to a right of way easement over the defendants’ land to access a main road.

The plaintiffs in the case owned a four-acre oceanfront parcel of land. The first mention of the easement at issue was in a 1927 deed, through which the original grantor conveyed a portion of his land. That portion was eventually owned by the plaintiffs. The 1927 deed included an easement consisting of a right of way from the north side of the parcel to “Beach Road.” The easement appeared with the same language in each subsequent deed conveying the parcel of land, but it was not precisely identified. Through other deeds in 1927, the original grantor also conveyed the property currently owned by the defendants, which contained a way to access Beach Road.

In 1999, the plaintiffs divided their parcel into two lots and sold one of them to a third party. However, the plaintiffs did not expressly reserve a right of way over the lot they sold. Subsequently, a dispute arose over the location of the 1927 easement. The plaintiffs alleged that the easement began at a point on the road that adjoins their property and crosses over the defendant’s land to meet Beach Road. The defendants argued that the right of way began from the lot no longer owned by the plaintiffs.

Condo Unit Owners Spar Over Parking Rights in Massachusetts Land Court Case

Published on: May 29, 2018 | by Pulgini & Norton, LLP

The property interests of condo unit owners are typically defined in the Master Deed. If legal disputes arise regarding the residents’ usage of the common areas, facilities, or parking garages of their building, the Master Deed may determine the rights of the respective parties, as in a May 14, 2018 Massachusetts real estate case. The case involved a dispute among condominium owners over parking rights.

The plaintiffs in the case owned Unit One in a residential condominium containing three units. The plaintiffs filed a complaint in the Massachusetts Land Court, seeking a declaration that they have rights to the exclusive use of two and one-half parking spaces within the condominium’s common area. The defendants owned Unit Two in the condominium. The defendants argued that, in accordance with the original Master Deed and Unit deeds, each unit has the right to the exclusive use of only one parking space.

In determining the rights of the parties, the land court reviewed real estate documents, including the Master Deed. The Master Deed provided that each unit in the condominium shall have an appurtenant right to the exclusive use of one parking space to be either assigned to each unit by written designation in the initial Unit Deed for each unit, or if not assigned in the initial Unit Deed, to be assigned by the Condominium Trust. However, none of the initial deeds in the condominium actually included an assignment of a parking space.